1. Absorption of employees into a new department on terms forfeiting seniority — Challenge to seniority list based on previous service and deputation period. (Para 1 , 2 )
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2017 Supreme(SC) 636
SUPREME COURT OF INDIA
Abhay Manohar Sapre, Sanjay Kishan Kaul, JJ.
Mrigank Johri & Ors. – Appellants
Versus
Union of India & Ors. – Respondents
CIVIL APPEAL NOS. 9316-9320 OF 2013 With Contempt Petition (C) Nos. 474-478 of 2014 in Civil Appeal Nos.9316-9320 of 2013 With CIVIL APPEAL NOS. 8802-8806 OF 2017 (Arising out of SLP(C) Nos.35384-35388 of 2014) (With I.A.Nos.15-19/2015 for directions)
Decided On : 10-07-2017
Important Points
IMPORTANT POINT
When deputationists are absorbed on specific terms of deputation agreed by them and seniority list is finalized on that basis, the seniority list cannot be challenged without challenging the terms of deputation.
When deputationists are absorbed on specific terms of deputation agreed by them and seniority list is finalized on that basis, the seniority list cannot be challenged without challenging the terms of deputation.
Subject
Service Law - ABSORPTION
Act Referred
CONSTITUTION OF INDIA: .
SERVICE LAW: .
SERVICE LAW: .
Headnote
Service law – Deputation – Seniority – Deputationists absorbed in new department on specific terms and conditions accepted by them – Appellants agreeing to sacrifice their seniority in parent department while retaining al other benefits – Terms of deputation clearly deeming them as new recruits – Appellants never challenging the terms of deputation – General conditions of deputation entitling the deput ationists to avail benefits of previous service – Cannot be invoked – Not open to appellants to challenge terms of deputation after a long time, at the time of finalization of seniority list – Challenging seniority list – Option of challenging terms of deputation already becoming time barred – However, seniority list could not be challenged without challenging the terms of deputation. (Para 31, 32)
(2006) 8 SCC 129 – Relied upon
(2000) 1 SCC 644; O.A.No.734 of 2002; (2003) 9 SCC 472; (1986) 3 SCC 156 – Referred
Facts of the case:
The appellants were appointed as Junior Engineers (Electrical) in the All India Radio, New Delhi from time to time between 1987-1990.
The appellants opted for deputation to the Electrical Wing of the Postal Department. The initial period of deputation was two years but the appellants were desirous of permanent absorption in the Department of Post.
When ultimately the request for absorption by the DOP was acceded to, it was on terms and conditions, specified and agreed to by the appellants.
The aforesaid terms and conditions, so far as the present controversy is concerned, thus clearly set out that the appellants would be treated as “new recruits” and the service will be counted in the earlier cadre for all purposes “except his/her seniority in the cadre”. There was no protest at the relevant time.
After a couple of years, the appellants made representations seeking to consider their deputation period for fixing the seniority but such a request was not accepted. On the occasion of finalization of the seniority list the appellants approached the Central Administrative Tribunal, Principal Bench, New Delhi seeking to contend that the appellants were compelled to accept the terms and conditions of absorption on a permanent transfer basis while joining the Postal Department and that such terms and conditions were totally arbitrary, illegal and against the provisions of the Constitution of India, being opposed to public policy.
The Tribunal allowed the application.
The Division Bench of the High Court allowed the writ petition and set aside the direction of the Tribunal.
Finding of the Court:
There is no infirmity in the impugned judgment.
Result: The applications for direction and contempt petition accordingly stands closed.
Legal Category Hierarchy
Advocates Appeared:
For Appellant(s) : Mr. K. Radhakrishnan, Mr. K.V. Jagdishvaran, Mrs. G. Indira, Adv.
For Respondent(s): Mr. Gurmeet Singh Makker, Mr. Sudarshan Rajan, Mr. B. Krishna Prasad, Mr. B. Ramana Murthy, Mr. Somesh Chandra Jha, Adv.
For Appellant(s) : Mr. K. Radhakrishnan, Mr. K.V. Jagdishvaran, Mrs. G. Indira, Adv.
For Respondent(s): Mr. Gurmeet Singh Makker, Mr. Sudarshan Rajan, Mr. B. Krishna Prasad, Mr. B. Ramana Murthy, Mr. Somesh Chandra Jha, Adv.
Table of Contents
2. Whether seniority should be reckoned from the date of regular appointment in the parent department despite agreed terms of absorption treating them as new recruits. (Para 3 , 4 , 12 , 13 , 15 , 16 , 17 , 20 , 21 , 22 , 23 , 24 )
3. Appellants voluntarily accepted absorption terms; challenge to seniority list was an attempt to circumvent limitation periods for challenging the original absorption conditions. (Para 5 , 6 , 11 , 26 , 27 , 29 , 31 , 32 , 35 , 36 )
4. Voluntary acceptance of absorption terms forfeiting seniority precludes subsequent claims for seniority based on past service, especially where the option to repatriate existed. (Para 30 , 33 , 34 )
5. Appeals dismissed and the judgment of the High Court upheld. (Para 37 , 38 )
6. Can an employee challenge the terms of absorption after voluntarily accepting them to claim seniority?
No. If an employee accepts absorption terms with open eyes, including being treated as a new recruit and forfeiting seniority, they cannot later challenge those terms, especially after a long lapse of time. (Para 31 , 33 )
7. Does a general Office Memorandum regarding seniority for absorbed deputationists override specific agreed-upon absorption terms?
No. While general OMs may provide for seniority benefits, they do not apply when the absorbing department stipulates specific conditions, such as sacrificing seniority, which the employee accepts in exchange for absorption. (Para 29 , 30 , 31 )
8. How does the mode of recruitment specified in statutory rules affect the application of seniority guidelines for absorbed employees?
If statutory recruitment rules do not provide for deputation as a mode of recruitment for a specific post, general guidelines for deputationists may not apply, and absorption may be treated as an exercise of residuary power. (Para 35 , 36 )
JUDGMENT
SANJAY KISHAN KAUL, J.
Leave granted.
1. The appellants were appointed as Junior Engineers (Electrical) in the All India Radio, New Delhi from time to time between 1987-1990. On an option being invited for deputation as Junior Engineers to the Electrical Wing of the Postal Department, the appellants opted for the same and memorandums were issued for their deputation in 1996. The initial period of deputation was two years but the appellants were desirous of permanent absorption in the Department of Post (hereinafter referred to as the ‘DOP’).
2. The All India Radio had become an autonomous body, namely, “Prasar Bharati” and it appears that some of the appellants thus did not want to continue in the parent cadre. The option was, however, available for the deputation to either go back to their parent cadre or seek absorption, as they did, on terms and conditions to be specified by the absorbing department, the DOP. The request made by the appellant No.4 clearly state that they would abide by the terms and conditions of absorption in the DOP. However, the other appellants in their requests for absorption requested for their previous seniority and service terms in the parent department to be preserved. It also appears that there was possibility of some of the Junior Engineers to be declared surplus in their parent department. The fact, however, remains that when ultimately the request for absorption by the DOP was acceded to, it was on terms and conditions, specified and agreed to by the appellants. The said terms and conditions are as under :-
(i) He/She will sever all connections with his/her parent Ministry/Department.
(ii) He/She will not ask for repatriation to his/her parent Ministry/ Department.
(iii) He/She will be deemed to be new recruits in the unit to which he/she is ordered to be posted.
(iv) He/She will be given pay protection and his/her pay will be regulated in accordance with the provisions in FR/SR, and pay will be drawn as per CCA pay rules applicable to DOP Civil Wing.
(v) His/Her will count for all purposes except his/her seniority in the cadre.
(vi) He/She will move to the place of posting at his/her own cost.
(vii) He/She will stand Junior to all JEs (C )/(E) who have already opted for DOP Civil Wing and those who have joined the Postal Civil Wing before date of issue of letter of his/her absorption in the Civil Wing of Deptt. of Post.
(viii) He/She will count his/her seniority from the date of issue of letter of permanent absorption in the Postal Civil Wing unit to which he/she is ordered to be posted on permanent absorption. However, the inter se seniority of JEs absorbed from CCW, AIR, will be in accordance with their seniority fixed by the AIR (Civil Construction Wing), Ministry of I & B.
(ix) He/She will resign form his/her present post of JE (C)/(E) from his/her parent department.
(x) As a JE(C)(E) his/her transfer liability will be within the jurisdiction of the Postal Civil/Elect. Circle in which he/she is posted.”
(emphasis supplied).
The aforesaid terms and conditions, so far as the present controversy is concerned, thus clearly set out that the appellants would be treated as “new recruits” and the service will be counted in the earlier cadre for all purposes “except his/her seniority in the cadre”. There was no murmur of protest at the relevant time.
3. However, after a couple of years, the appellants made representations seeking to consider their deputation period for fixing the seniority but such a request was not accepted. It is on the occasion of finalization of the seniority list that the appellants approached the Central Administrative Tribunal, Principal Bench, New Delhi by filing OA No.1490 of 2004 under Section 19 of the Administrative Tribunal Act, 1985 seeking to contend that the appellants were compelled to accept the terms and conditions of absorption on a permanent transfer basis while joining the Postal Department and that such terms and conditions were totally arbitrary, illegal
