1999 Supreme(SC) 1509

1999(10) Supreme 300
SUPREME COURT OF INDIA
(From Central Administrative Tribunal, Delhi)
S.P. Bharucha, R.C. Lahoti & N. Santosh Hegde, JJ.
S.I. Rooplal & Anr. -Appellants
versus
Lt., Governor through Chief Secretary, Delhi & Ors. -Respondents
Civil Appeal Nos. 5363-64 of 1997
With
CA Nos. 5643-44/97, WP (C) No. 191/99 & TC (C) No. 56/99)
Decided on 14-12-1999
Counsel for the Parties :
For the Appearing Parties : Mukul Rohtagi, Additional Solicitor General, P.P. Rao, S.K. Dholakia, Sr. Advocates, Mahabir Singh, Uma Datta, Tarun Sharma, Ms. Binu Tamta, S.W.A. Qadri, Ms. Sushma Suri, S.N. Terdol, Y.P. Mahajan, B.K. Prasad, D.S. Mehra, Ms. Varuna Bhandari Gugnani, Naresh Kaushik, Ms. Lalita Kaushik, Lalit Kumar Khanna, Ms. Gargi, P.N. Puri, Ranbir Yadav, Atul Kumar, Bimal Roy Jad, Mukul Gupta, T.N. Singh, Debasis Misra, Advocates.

Headnote:(i) Precedent-Judgment of a Bench of Court-Binding nature on coordinate Bench-Delhi Bench of CAT declaring that a deputationist was entitled to count his service in parent department in determining seniority of deputed post-Subsequent by another Bench of CAT at Delhi, in case of similarly situated deputationist from same department, holding to the contrary-Second bench committed a judicial impropriety-A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench-It can only refer it to a larger Bench if it disagreed with earlier pronouncement.

       Held : At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the tribunal has overruled, in effect, an earlier judgment of another Coordinate Bench of the same tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedent. Precedents which enunciate rules of law form the foundation of administration of justice under one system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate Court is bound by the enunciation of law made by the superior courts. A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer to it a larger Bench if it disagrees with the earlier pronouncement. (Para 12)

       (ii) Service Law-Seniority-Inter se seniority among deputationists and direct recruits-Sub-Inspector in BSF deputed to Delhi Police Service as Sub-Inspector (Executive)-Subsequent absorption-Claim for counting service in parent department in determining seniority-Denial-Not justified-Post held in BSF equivalent post in deputationist absorbed-Difference in pay scale not ground to hold twoposts not equivalent-Deputationist entitled to count substantive service rendered as Sub-Inspector in BSF.

       Held : In law, it is necessary that if the previous service of a transferred official is to be counted for seniority in the transferred post then the two posts should be equivalent. Equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of twoposts many factors other than Pay will have to be taken into consideration, like the nature of duties, responsibilities, minimum qualification etc. It is so held by this Court as far back as in the year 1968 in the case of Union of India & Anr. v. P.K. Roy & Ors. (1968 (2) SCR 186). In the said judgment, this Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Reorganisation Act, 1956. These four factors are: (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post; the extent of territorial or other charge held as responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criterion. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different, would not in any way make the post not equivalent . (Para 17)

       In the instant case, it is pursuant to the needs of Delhi Police that these officials were deputed to Delhi Police from the BSF following the procedure laid down in Rule 5(h) of the Rules and subsequently absorbed as contemplated under the said Rules. It is also not in dispute that at some point of time in the BSF, the appellants services were regularised in the post of Sub-Inspector and they were transferred as regularly appointed Sub-Inspectors to Delhi Police Force. Therefore, on being absorbed in an equivalent cadre in the transferred post, we find no reason why these transferred officials should not be permitted to count their service in the parent department. At any rate, this question is not res integra and is squarely covered by the ratio of judgments of this Court is more than one case. In the instant case, it is not the case of the respondents that the first three criteria mentioned hereinabove are in any manner different between the two posts concerned. Therefore, it should be held that the view taken by the tribunal is the impugned order that the two posts of Sub-Inspector in the BSF and the Sub-Inspector (Executive) in Delhi Police are not equivalent merely on the ground that the two posts did not carry the same pay-scale, is necessarily to be rejected. The appellants are entitled to count the substantive service rendered by them in the post of Sub-Inspector in the BSF while counting their service in the post of Sub-Inspector (Executive) in Delhi Police force. (Paras 15, 16 & 17)

       (iii) Delhi Police (Appointment and Recruitment) Rules, 1980-Rules 5(h) and 17-Office memorandum No. 20020/7/80-E & H (D) dated 29.5.1986 issued by the Government of India-Constitutional validity of-Clause (iv) of Office memorandum prescribing that while determining seniority of a deputationist whocomes to be absorbed, regular servicein equivalent cadre in parent department can be taken into account but subject to condition that he will be given seniority from the date he has been holding the post on deputation or the date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department whichever is later-Use of words "whichever is later" unreasonable and offends Articles 14 and 16-Those words are quashed from text of memorandum.

       Held : A perusal of clause (iv) of the Memorandum shows that the author of this Memorandum has taken inconsistent views in regard to the right of a deputationist to count his seniority in the parent department. While in the beginning part of Clause (iv) in clear terms he says that if a deputationist holds an equivalent grade on regular basis in the parent department, such regular service in the grade shall also be taken into account in fixing the seniority. In the latter part the author proceed to say- "subject to the condition that he will be given seniority from the date he has been holding the post or the date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department whichever is later." The use of the words "whichever is later" negatives the right which was otherwise sought to be conferred under the previous paragraph of Clause (iv) of the Memorandum. We are unable to see the logic behind this. The use of the words "whichever is later" being unreasonable, it offends Article 14 of the Constitution. It is also argued on behalf of the appellants that this Memorandum is further violative of Articles 14 and 16 of the Constitution inasmuch as it arbitrarily takes away the service rendered by the deputationist when he is absorbed in Delhi Police which right of a civil servant cannot be taken away without authority of law. We have noticed earlier that the petitioners who are the appellants in the civil appeals, were regularly appointed as Sub-Inspectors in the BSF on the date of their deputation. We have also accepted the factthat the post of Sub-Inspector held by them in the BSF is equivalent to the post of Sub-Inspector (Executive) in the Delhi Police to which they stood deputed. That being the case, in view of the judgment in the cases of R.S. Mokashi, Wing Commander J. Kumar and Madhavan (supra), it is clear that they are entitled to count theservice rendered by them in the post of Sub-Inspector in the BSF for the purpose of seniority in the cadre of Sub-Inspector (Executive) in Delhi Police. Therefore, such a right of the petitioners/appellants could not have been taken away in the garb of an Office Memorandum which is impugned in the above writ petition. (Para 21))

       Any Rule, Regulation or Executive Instruction which has the effect of taking away the service rendered by a deputationist in an equivalent cadre in the parent department while counting his seniority in the deputed post would be violative of Articles 14 and 16 of the Constitution. Hence, liable to be struck down. Since the impugned Memorandum in its entirety does not take away the above right of the deputationists and by striking down the offending part of the Memorandum, as has been prayed in the writ petition, the rights of the appellants could be preserved, we agree with the prayer of the petitioners/appellants and the offending words in the Memorandum "whichever is later" are held to be violative of Articles 14 and 16 of the Constitution, hence, those words are quashed from the text of the impugned Memorandum. Consequently, the right of the petitioners/appellants to count their service from the date of their regular appointment in the post of Sub-Inspector in BSF, while computing their seniority in the cadre of Sub-Inspector (Executive) in the Delhi Police, is restored. (Para 24)

       (iv) Service Law-Dispute inter se employees-Governments role in litigation-State should confine its role to that of an amicus curiae.

       Held : after laying down appropriate rules governing the service conditions of its employees, a State should only play the role of an impartial employer in the interse dispute between its employees. If any such dispute arises, the State should apply the rules laid down by it fairly. Still if the matter is dragged to a judicial forum, the State should confine its role to that of an amicus curiae by assisting the judicial forum to arrive at a correct decision. Once a decision is rendered by a judicial forum, thereafter the State should not further involve itself in litigation. The matter thereafter should be left to the parties concerned to agitate further, if they so desire. When a State, after the judicial forum delivers a judgment, files review petition, appeal etc. it gives an impression that it is espousing the cause of a particular group of employees against another group of its own employees, unless of course there are compelling reasons to resort to such further proceedings. (Para 25)

       (v) Service Law-Seniority-Deputationist s right to count service in parent department-Rule, Regulation or executive instruction which has the effect of taking away service rendered in equivalent cadre in parent department while counting seniority in deputed post would be violative of Articles 14 and 16 of the Constitution. (Para 24)