LexMRLGANK JOHRL & ORS. versus UNION OF INDIA & ORS.
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[2017] 7 S.C.R. 349 MRlGANK JOHRl & ORS. v. UNION OF INDIA & ORS. (Civil Appeal Nos. 9316-9320 of 2013) JULYl0,2017 (ABHAY MANOHAR SAPRE AND SANJAY KISHAN KAUL, JJ.) A B Service law - Permanent absorption on deputation - Seniority, claim of - Appellant-junior engineers (Electrical) in All India Radio C went on deputation to the Postal Department - Thereafter, appellant opted for permanent absorption in the Postal Department on the terms and conditions specified by the absorbing department that services would be counted in the earlier cadre for all purposes except his/her seniority in the cadre - Subsequently seniority list published by the Postal Department - Challenge to, by the appellants D - Direction by tribunal to re-draft the seniority list counting the regular service of the appellants - However, said direction set aside by the High Court - On appeal, held: Where absorption is on specified terms and conditions with the benefit of such past service in the previous cadre as well as the period of service rendered on E deputation being denied, the OMs, which provide for the benefit of service rendered in the previous cadre in an equivalent post on being absorbed in another department would not apply - Thus, the order passed by the High Court upheld - Constitution of India - Arts 14 and 16. Dismissing the appeals, the Court HELD: 1.1 The OMs, which generally provide for the benefit of service rendered in the previous cadre in an equivalent post on being absorbed in another department would not apply F to a case where the absorption is on specified terms and conditions with the benefit of such past service in the previous G cadre as well as the period of service rendered on deputation being denied. (Para 29) (366-A-B) 1.2 The OM dated 29.5.1986 as modified by OM dated 27.3.2001 did provide for the benefit of the previous service 349 H 350 SUPREME COURT REPORTS [2017] 7 S.C.R. A rendered in the cadre. This is in effect also the ratio of the judgment in SI Roop/a/ case. This would also be in conformity with the normal service jurisprudential view. However, it would be a different position if the absorbing department clearly stipulates a condition of giving willingness to sacrifice the B seniority while preserving all other benefits for the absorbee (which are accepted) failing which the option was available to the absorbee to get himself repatriated to the parent department. The terms and conditions are categorical in their wording that the absorbees would be "deemed to be new recruits" and the previous service would be counted for all purposes "except his/ C her seniority in·the cadre". The appellant accepted this with open eyes and never even challenged the same. Their representations to give them the benefit of their past seniority was also turned down and thereafter also they did not agitate the matter in any judicial forum. The controversy was thus not alive and it was not D open for them to challenge the same after a long lapse of period of time. In fact on the day of filing of the OM, any prayer to set aside the terms and conditions of absorption would have been clearly barred by time u/s. 21 of the Administrative Tribunals Act, 1985. [Para 3111366-C-F) 1.3 The appellants sought to rake up the issue only when E the seniority list was finalized. This was preceded by the draft seniority list. Whatever may be the dispute of seniority qua other persons, insofar as the appellants were concerned, their seniority was based on the terms and conditions of their absorption. The position of the appellants in the seniority list was thus a sequitur F to the terms and conditions of their absorption. It is precisely for this reason, anticipating that their claim would be time barred, that a challenge was laid only to the seniority list without challenging the terms and conditions of absorption though in the grounds, a plea was raised against the terms and conditions of absorption. Unless the terms and conditions of absorption were G to be set aside, the seniority list prepared was in conformity with the same. Since the appellants accepted the terms and conditions of absorption, they could not plead otherwise. [Paras 32, 33)[366- G-H; 367-A-B) 1.4 The submission of the respondents that this issue has H MRIGANK JOHRI & ORS. v. UNION OF INDIA & ORS. 351 been squarely dealt with in Indu Shekhar Singh 's case where A almost identical issues have
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