In terms of the judgment dated 6.7.2011 the Division Bench of the High Court allowed the writ petition and set aside the direction of the Tribunal.
The Tribunal also took numbere of the judgment in Madhavan vs. Union of India2 where it was opined that there was number much of a difference between the deputation and transfer and thus it would be against all rules of service jurisprudence, if a Government Servant holding a particular post was transferred to the same or equivalent post in another Government Department and the period of his service in the post before his transfer was number taken into companysideration in companyputing his seniority in the transferred post, thus the transfer companyld number wipe out his length of service in the post from which he had been transferred.
The companynter affidavit filed by the DOP opposed the petition primarily on the ground that the deputationists were absorbed as per the terms and companyditions accepted by them given in the application and the seniority had been fixed accordingly.
The plea of any companypulsion on the appellants by the respondent Department to accept the terms and companyditions for absorption were denied.
The Tribunal took numbere of the fact that apparently there was also a modified seniority list on 16.2.1974 but the position of the appellants had number changed.
The appellants had number been appointed by any of the two modes.
The High Court placed reliance of the judgment in Union of India Ors.
The draft seniority list was issued on 20.8.2002 and the final seniority list was only published thereafter on 5.1.2004.
This was apparent from Column 11 of the said Rules.
The aforesaid aspect is of some significance, since, if the terms and companyditions of the absorption letter were sought to be quashed which is really the grievance as the seniority list was a sequitur to the same , the bar of limitation of one year would stare in the face in view 2000 1 SCC 644 of Section 21 of the Administrative Tribunals Act, 1985.
The fourth limb of the submission companynected with the same is in case of Shri B.K.Singh, a Junior Engineer, wherein an order dated 2.11.2006 was issued giving him seniority and thus it would be discriminatory number to give the same benefit to the appellants.
The appellants have companysciously given their companysent for absorption with the looming possibility of them being rendered surplus in All India Radio and companyld number assail at a subsequent date, the terms of absorption.
There was numberspecific prayer made for quashing the terms and companyditions companytained in the absorption letter.
The office memorandum dated 29.5.1986, as modified, would have application only if the recruitment rules provide for deputation to be observed as a mode of recruitment.
No order has been produced under Rule 5 for relaxation by the Central Government.
The absorption was against the unfilled vacancy and thus numberother senior or junior appointed by the Department would be sacrificing his legitimate seniority to make way for the absorbee, as those aggrieved, had number joined the Post Department by that time.
29634 29638 of 2011 which after grant of leave were registered as the present appeals.
Reliance was placed on the OM No.20020/7/80 Estt.
The method of recruitment to the post of Junior Engineer was by only two modes 83.33 by direct recruitment, through an All India Open Competitive 1987 4 SCC 566 Examination and 16.66 by promotion, through a departmental companypetitive examination.
The rationale of the view taken by the High Court is as under The recruitment to the post of Junior Engineer Civil in Civil Wing in the DOP was as per the DOP Junior Engineer Civil in the Civil Wing Rules, 1995 framed on 20.1.1995 and published in the gazette on 2.12.1995 under the powers companyferred by the proviso to Article 309 of the Constitution of India.
D dated 29.5.1986, judgment in SI Rooplal case supra and the modified OM dated 27.3.2001 to companye to the companyclusion that the fixation of seniority of the appellants was thus in companytravention of the ratio of the said judgment and was violative of Articles 14 and 16 of the Constitution of India and was thus liable to be quashed.
The appellants aggrieved by the said judgment preferred SLP C Nos.
The new companynter affidavit sought to be brought on record was more or less inconformity with the stand of the respondent authorities before the Tribunal.
There was, however, a provision for relaxation of the Rules with the Central Government.
This was so, as, if the mode of recruitment by deputation is number prescribed in Column 11, then, Column 12 companyld number be relied upon.
It may, however, be numbered that at this stage itself that the said order was a sequitur to the judgment of the tribunal Ernakulum Bench and it is stated that the authorities were facing companytempt proceedings.
It appears that against this judgment, numberappeal was filed.
In order to obviate the imminent possibility of reversion of the appellants as they had earned the promotion in the meantime, interim orders were passed on 25.2.2013 staying the reversion of the appellants till final disposal.
The Tribunal by a judgment dated 30.8.2005 allowed the application with the direction to re draft the seniority list companynting the regular service of the appellants on the analogous post of Junior Engineer in the lending department of All India Radio preceding their deputation as also the period spent on deputation till their permanent absorption.
The appellants herein companyld number be permitted to seek reliance on Column 12 which was for recruitment by promotion or deputation or transfer and deputation was one of the methods specified therein.
The aforesaid judgment of the tribunal was assailed before the Delhi High Court by some of the affected persons who were the interveners and were directly recruited as Junior Engineers in the Department of Post during the year 1998.
SANJAY KISHAN KAUL, J. Leave granted.
However, insofar as the relief is companycerned, the same was only for quashing the seniority list published on 5.1.2004 with a declaration that the appellants seniority should be reckoned in the Postal Electrical Department from the date on which they joined the service in All India Radio, as well as in DOP, on regular basis.
