1999 (12) TMI 868 - SC - Indian Laws

Transferred Sub-Inspectors' Seniority Upheld, Unreasonable Memo Struck Down

The Court held that Sub-Inspectors transferred from the BSF to the Delhi Police could count their substantive service in the BSF for seniority in the ... Counting of prior service for seniority on absorption - equivalence of posts for seniority - deputation treated as transfer for seniority purposes - criteria for equivalence of posts: nature of duties, responsibilities, minimum qualifications, salary - violation of Articles 14 and 16 by executive instruction - judicial precedent and obligation of coordinate Benches to follow or refer to larger Bench - invalidity of office memorandum insofar as it negates vested seniority rightsCounting of prior service for seniority on absorption - deputation treated as transfer for seniority purposes - equivalence of posts for seniority - Whether Sub-Inspectors of the BSF, permanently absorbed as Sub-Inspector (Executive) in Delhi Police after initial deputation, are entitled to count their substantive BSF service for seniority in Delhi Police. - HELD THAT: - The Court held that deputation which culminates in permanent absorption operates like a transfer and the period of substantive service in an equivalent post in the parent organization must be counted for seniority in the transferred post. Applying the principle affirmed in R.S. Mokashi , Wing Commander J. Kumar and Madhavan's case , the Court observed that transfer cannot wipe out length of service in the post from which an employee is transferred. Equivalency of posts is not to be decided solely by parity of pay-scale; the determinative criteria are the nature and duties of the post, responsibilities and powers, minimum qualifications, and, lastly, salary. As there was no dispute that the first three criteria were comparable between Sub-Inspector in BSF and Sub-Inspector (Executive) in Delhi Police, the tribunal's conclusion that the posts were not equivalent merely on account of unequal pay was set aside. Consequentially, the appellants are entitled to have their BSF substantive service counted for seniority in Delhi Police on absorption.Appellants entitled to count their substantive BSF service for seniority in the cadre of Sub-Inspector (Executive) in Delhi Police; tribunal's contrary finding on equivalence (based solely on pay-scale) set aside.Invalidity of office memorandum insofar as it negates vested seniority rights - violation of Articles 14 and 16 by executive instruction - Validity and applicability of the Office Memorandum dated 29.5.1986 insofar as it conditions counting of prior regular service and provides that seniority shall be from 'whichever is later'. - HELD THAT: - The Court found that the respondents failed to show that the Office Memorandum was made known to affected deputationists or that it was adopted and applied by the Delhi Police; hence the respondents ought not to rely upon it in the present disputes. Substantively, the Court analysed clause (iv) of the Memorandum and held that while it purports to allow counting of regular parent-department service where a deputationist held an equivalent grade, the qualification 'subject to the condition... whichever is later' negates that right and is arbitrary and unreasonable. That provision thereby offends Articles 14 and 16 of the Constitution as it effectively takes away a vested right to have prior service counted without authority of law. Relying on the principle in K. Anjaih and analogous precedents, the Court struck down the offending words 'whichever is later' while preserving the remainder of the Memorandum to the extent consistent with constitutional rights. The Court also emphasised the equity principle that a deputationist ought to have been informed of such conditions before opting for permanent absorption.Offending phrase 'whichever is later' in the Office Memorandum of 29.5.1986 quashed as violative of Articles 14 and 16; Memorandum could not be relied upon to deny counting of prior regular service where posts are equivalent and deputationist was absorbed.Judicial precedent and obligation of coordinate Benches to follow or refer to larger Bench - Whether a coordinate Bench of the Central Administrative Tribunal correctly declined to follow an earlier coordinate Bench decision and reached a contrary conclusion. - HELD THAT: - The Court censured the subsequent coordinate Bench for disregarding an earlier Tribunal decision and the subsequent affirmations by this Court, observing that a coordinate Bench cannot pronounce a judgment contrary to the declaration of law made by another Bench of equal authority and, if in disagreement, should refer the matter to a larger Bench. That failure created judicial uncertainty, wasted time and caused prejudice. Taking account of delay and hardship, the Supreme Court resolved the legal controversies itself rather than remanding to the Tribunal for constitution of a larger Bench.The tribunal's departure from precedent was condemned; its contrary order was set aside and the Supreme Court itself decided the controversy to bring finality.Final Conclusion: The Supreme Court allowed the appeals and W.P.(C) No. 191/99 to the extent indicated: it held that Sub-Inspectors of the BSF permanently absorbed in the equivalent cadre in Delhi Police are entitled to count their BSF substantive service for seniority; the tribunal's contrary finding based solely on unequal pay was set aside; the words 'whichever is later' in the Office Memorandum dated 29.5.1986 were quashed as violative of Articles 14 and 16; the Delhi Administration was directed to pay costs. Issues Involved:1. Whether a Sub-Inspector in the BSF, upon being transferred and permanently absorbed in the Delhi Police, is entitled to count his substantive service in the BSF for seniority in the Delhi Police.2. The constitutional validity of Office Memorandum No. 200020/7/80-Estt. (D) dated 29.5.1986.3. Judicial propriety and the rule of precedent in decisions by coordinate benches of the tribunal.Summary:Issue 1: Seniority of Sub-Inspectors Transferred from BSF to Delhi PoliceThe main question was whether a Sub-Inspector in the BSF, when transferred on deputation and permanently absorbed in the Delhi Police, could count his substantive service in the BSF for seniority in the Delhi Police. The Court noted that the Delhi Police urgently needed additional personnel, leading to the deputation and subsequent absorption of BSF Sub-Inspectors. The Delhi Police (Appointment and Recruitment) Rules, 1980, particularly Rule 5(h), facilitated such deputations. The Court held that the appellants were entitled to count their service in the BSF for seniority in the Delhi Police, emphasizing that equivalency of posts should not be judged solely by pay scales but also by duties, responsibilities, and qualifications. The Court cited previous judgments, including Madhavan's case, to support this view.Issue 2: Constitutional Validity of the Office MemorandumThe constitutional validity of Office Memorandum No. 200020/7/80-Estt. (D) dated 29.5.1986 was challenged. The Court found that the Memorandum had not been made public or known to the concerned parties. The Memorandum's clause 'whichever is later' was deemed unreasonable and violative of Articles 14 and 16 of the Constitution. The Court struck down these words, thereby allowing the appellants to count their service from the date of their regular appointment in the BSF for seniority in the Delhi Police.Issue 3: Judicial Propriety and Rule of PrecedentThe Court expressed serious dissatisfaction with the manner in which a coordinate bench of the tribunal overruled an earlier judgment of another coordinate bench, violating principles of judicial discipline. The latter bench should have referred the matter to a larger bench instead of taking a contrary view. The Court emphasized that consistency in the interpretation of law is crucial for public confidence in the judicial system.Conclusion:The civil appeals and W.P. (C) No. 191/99 were allowed, restoring the appellants' right to count their service in the BSF for seniority in the Delhi Police. The Court also dismissed T.C. (C) No. 56/99 and ordered the Delhi Administration to pay costs in all matters. The Court criticized the respondents' excessive involvement in litigation, suggesting that the State should act impartially and not take sides in inter-se disputes among its employees.