SHRI GOVINDA CHANDRA TIRIA versus SIBAJI CHARAN PANDA & ORS.

Citation: [2020] 1 S.C.R. 709 · Decided: 05-02-2020 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SHRI GOVINDA CHANDRA TIRIA
v.
SIBAJI CHARAN PANDA & ORS.
(Civil Appeal Nos. 3542-3543 of 2010)
FEBRUARY 05, 2020
[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]
Service Law: Absorption – Counting of seniority – On facts,
respondent No 1 who was on deputation, instead of going back to
the parent cadre seeking absorption with the department on the
terms and conditions stated therein that seniority to be counted from
the date of absorption – Respondent No.1 accepted the same and
was treated as a fresh appointee – Thereafter, circulation of seniority
list wherein respondent placed below the appellant – Challenge to
– Held: It was not permissible to challenge the seniority list in an
oblique manner, and assail the terms and conditions of the
absorption – Normally the deputation period would be counted,
but this was subject to the caveat that in case the transfers are not
strictly in public interest, the transferred officers would be placed
below all appointed regularly to the grade on the date of absorption
– The said clause would apply as this was not a case “strictly in
public interest” – Order passed by the High Court directing fresh
gradation list to be drawn set aside – However, since, in the
meanwhile, respondent No.1 has earned promotions, while the
seniority list would be maintained, respondent No.1 may not be
demoted, and an ex-cadre/supernumerary post to be created to keep
him in the same post without affecting the seniority list.
Allowing the appeals, the Court
HELD: 1.1 Despite departmental communications wanting
respondent No.1 to go back to the parent cadre it is respondent
No.1’s insistence and persuasion which prevailed, with the
department absorbing respondent No.1 with the terms and
conditions mentioned that seniority would be counted from the
date of absorption and respondent No.1 accepted the same. That
absorption was never challenged in any proceeding, nor the terms
   [2020] 1 S.C.R. 709
709
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SUPREME COURT REPORTS
[2020] 1 S.C.R.
thereof, when he was treated as a fresh appointee. It is only when
the seniority list was circulated that the challenge was sought to
be made to the seniority list, in an oblique manner, and the terms
and conditions of the absorption were sought to be assailed, which
is not permissible. [Para 14][718-G-H; 719-A-B]
1.2 OM NO. 20020/7/80-ESTT(D), which, in para 2 sets
out that when an officer initially comes on deputation, and is
subsequently absorbed, the normal principle that seniority should
be counted from the date of such absorption, should mainly apply.
This was, however, subject to the caveat of the O.M. dated 22nd
December, 1959, which states that if such a person is absorbed
in an equivalent grade on a regular basis in the parent department,
such regular services in the grade should also be taken into
account in fixing his seniority subject to the condition that it would
be from the date he had been holding the post on deputation or
from the date he had been appointed on regular basis in the same
or equivalent grade in his parent department “whichever is later”,
which was amended to make it “whichever is earlier”. Thus,
normally the deputation would be counted, but this was further
made subject to the caveat that in case the transfers are not strictly
in public interest, the transferred officers will be placed below all
appointed regularly to the grade on the date of absorption. It is
the latter clause which would apply as this was not a case “strictly
in public interest”. Thus, the impugned judgment cannot be
sustained and has to be set aside. [Paras 17-19][719-F-G; 720-
A-B]
1.3 It is noted with some regret that the Union of India,
having taken a categorical stand before the Central
Administrative Tribunal, endeavoured to possibly help respondent
No.1 by filing a counter affidavit before this Court, endeavouring
to take a slightly different position by observing “however, it is
true that the MoEF objected to his continuance in the office of
the Res-3 many times but extension was granted base on the
request from office of the Res-3”. To say the least, the Union of
India should be conscious while preferring affidavits, and if they
want to change the stand, they must give reasons for the same.
The manner of wording the affidavit seems to be an oblique
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attempt and a closer scrutiny is necessary by the Department as
to how such a counter affidavit was placed before this Court.
[Para 20][720-C-D]
1.4 In the meantime, r

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