Holding

The Court held that the retrospective appointment of O.P. Sharma as SP with a notional date was illegal, and that prior service in the same grade must be counted for seniority, making Dwarka Nath senior to the respondents.

Summary

The Supreme Court examined two sets of writ petitions concerning seniority disputes in the Central Bureau of Investigation (CBI). In the first, petitioners K. Madhavan and Santunu Sen challenged a seniority list that placed O.P. Sharma senior to them by assigning him a notional appointment date of 21‑10‑1971, retroactively. The Court held that the postponement of the departmental promotion committee (DPC) meeting was justified, that Sharma was not entitled to a retrospective appointment, and that the seniority list was illegal, ordering a fresh list showing the petitioners senior. In the second petition, Dwarka Nath sought seniority over three CBI officers, arguing that his service as Deputy Commandant in the Border Security Force (BSF) from 14‑6‑1976 should count. The Court ruled that service in an equivalent grade prior to deputation must be counted for seniority, quashing the seniority list that placed him junior. The Court also clarified that quota rules were not violated and that the phrase “on a regular basis” in the 1975 recruitment rules does not preclude eligibility for promotion. Both petitions were allowed.

Issues considered

The legality of assigning a notional/retrospective appointment date to O.P. Sharma as SP in the CBI.
Whether the postponement of the DPC meeting was arbitrary.
Whether the quota for direct recruitment versus deputation was violated in Sharma's appointment.
The interpretation of "on a regular basis" in the 1975 CBI recruitment rules for DIG eligibility.
Whether prior service in the same grade (DSP in State Police or Deputy Commandant in BSF) should be counted for seniority after deputation to the CBI.
The legality of appointing a BSF officer to the CBI on deputation and the equivalence of posts.

Subjects

seniorityretrospective appointmentdeemed datedeputationCBI recruitment rulesquota ruleDIG eligibilityservice jurisprudence

Judgment

K. MADHAVAN AND ANR. ETC.
A
v.
UNION OF INDIA AND ORS. ETC.

OCTOBER 9, 1987

[RANGANATH MISRA AND MURARJ,MOHON DUTT, JJ.] B

Service matter-Dispute about seniority-Notional/deemed date
of appointment-Effect of-Length of service prior to transfer-Whether
to be considered after transfer for purposes of seniority.

(1) Writ Petitions Nos. 9847 and 9848 of 1983 involved a dispute C
\ as to seniority between the petitioners K. Madhavan and Santunu Sen on
( the one hand and respondent No. 5, O.P. Sharma, on the other .

. The two petitioners were directly recruited as Deputy Superinten·
dents of Police (DSP) in the Delhi Special Police Establishment (S.P.E.)
in the Central Bureau of Investigation (C.B.I.) on 6.7.1963 and D
10.8.1963, respectively. The respondent No. 5, appointed to the post of
D.S.P. on 13.7.1962 in the Rajasthan State Police, came on deputation
to the C.B.I. as D.S.P. on 1.7.1967, where majority of the Officers are
deputationists. The two petitioners were confirmed in the post of D.S.P.
in the C.B.I. on 30.3.1967. The respondent No. 5 was confirmed as
D.S.P. in the Rajasthan State Police on 1.12.1964. The two petitioners E
were promoted to the rank of Superintendent of Police (S.P.) in the
C.B.I. on 21.10.1971 and 25.1.1972. The respondent No. 5 was
appointed to the post of S.P. on 28.10.1972.

The Inspector General of Police, Delhi Special Police Establish·
ment, and Director of C.B.I.-Respondent No. 2--published a senio· F
, J rity list of departmental S.Ps. on 1.10.1978, in which the respondent
- \ No. 5 was shown below both the petitioners. The respondent No. 2 also
published another seniority list on 17.10.1981, in which the date of
appointment of the respondent No. 5 was mentioned as 21.10.1971
(notional) instead of 28.10.1972, and on the basis of such notional date
of appointment to the post of S.P. in the C.B.I1, the name of the respon· G
dent No. 5 was placed above the names of the petitioners in that senio·
. rity list. The two petitioners felt aggrieved by the latter seniority list,
i- showing them as junior to the respondent No. 5 on lhe basis of a
notional date of appointment with retrospective effect from 21.10.1971.
The two petitioners moved this Court by Writ Petitions, challenging the
said seniority list. H

421
422 SUPREME COURT REPORTS [ 1988] I S.C. R.

2. In the Writ Petition No. 1021 of 1986, filed by the petitioner
A Dwarka Nath, the petitioner was regularly promoted on 14.6.1976 to ~
the post of the Deputy Commandant in the BSF, which, according to
him, was equivalent to the grade of S.P. in the CBI. The respondent No.
5 in the Writ Petition was promoted on 4.8.1978 and the respondents
Nos. 6 and 7 in the petition were promoted on 28. 7.1978 to the posts of
B S.P. in the CBI. The petitioner joined the CBI on deputation as S.P. on
29.9. 79 and was permanently absorbed in the CBI in the rank of SP on
28.10.1983. The respondents 5 to 7 were confirmed in the post of SP with Y
effect from 4.8.1980. The principal question involved was whether in
computing the seniority of the petitioner in the CBI in the rank of SP,
his length of service from 14.6.1976, when he was the Deputy Com-
mandant in the BSF, should be taken into account or not, as if his
C service from 14.6.1976 is taken into consideration, he would be senior
to the respondents Nos. 5 to 7, who were appointed in 1978. -~

Allowing all the Writ Petitions, the Court,

D HELD: (1) In the Writ Petitions Nos. 9847 and 9848 of 1987, the
two petitioners, Madhavan and Sen, and the respondent No. S, O.P.
Sharma, are all now holding the posts of D.I.G. The real question,
therefore, boils down to the seniority of the petitioner vis-a-vis the
respondent No S in the post of DIG, and that will depend upon the
decision of the question of the seniority of the petitioners and respon-
B dent No. 5 in the post of SP in the CBI. l431D-E] J---
The most significant and crucial fact is the appointment of the
respondent No. 5 to the post of SP with retrospective effect from a
deemed date of appointment, that is, 21.10.1971. The petitioners
strongly urged that such a deemed appointment with retrospective
F effect from 21.10.1971 was wholly illegal and should be struck down.
The plea of the respondent Nos. 1, 2 and 5 was that the respondent \ .._
No. 5 became eligible for appointment to the post of SP in the CBI in /- -
July 1970, and, indeed, the meeting of the DPC was scheduled to be
held in October, 1970, but was arbitrarily postponed. l432E-G I

d There can be no doubt that if the meeting of the DPC is scheduled
to be held but is arbitrarily or ma/a fide cancelled without any reason-
able justification, to the prejudice of an employee, the Government can .
in a suitable case do justice to such an employee by granting him promo- -t
tion or appointing him to the higher post for which the DPC was to be
held with retrospective effect so that he is not subjected to a lower
H position in the seniority list. But if the postponement or cancellation of
K. MADHAVAN v. U.O.I. 423

'f the meeting of the DPC is not arbitrary and is supported by good A
reasons, the employee concerned can have no grievance and the Gov·
ernment will not be justified in appointing him to the higher post with
retrospective effect; an employee may become eligible for a certain post,
but surely he cannot claim appointment to such a post as a matter of
right.1433B·Dl
B
y It is true that the meeting of the DPC was to be held on 13.10.1970
but the Director of the CBI appears to have considered that as the
c vacancies that existed were meant for non-deputatiouist DSPs and as
two of such DSPs would become eligible for promotion in January and
March, 1971, he postponed the meeting of the DPC to be held on
13.10.1970. The Court does not find any arbitrariness in the decision of c
).- the Director of the CBI to postpone the meeting of the DPC till after
March, 1971. There was ample justification for the postponement or
cancellation of the meeting of the DPC. The respondent No. 5 might
have been eligible for being considered for appointment to the post of
SP in July, 1970, but he had no right to claim such consideration when
the vacancies were meant for non-deputationist DSPs. Therefore, the D
Government had no reasonable justification to contend that the post-
ponement of the DPC meeting was arbitrary and high-handed. As the
fonndation of the appointment of the respondent No. 5 to the post of SP
with retrospective effect from 21.10.1971, namely, postponement of the
~~ meeting of the DPC in October, 1970 arbitrarily, is shaken to a great

extent, there was no question of any injustice done to the respondent £
No. 5. The retrospective promotion or appointment to a post should be
. given most sparingly and on sound reasoning and foundation. In this
case, there was no justification for the appointment of the respondent
No. 5 to the post of SP in the CBI with retrospective effect from
21.10.1971, so as to make him senior to the petitioner. The impugned
order dated September 25, 1981, appointing the respondent No. 5, O.P . F
., ··~
Sharma, with retrospective effect from a notional date, viz. 21.10.1971,
and the seniority list dated 17.10.1981; showing the respondent No. 5 as
senior to the petitioners, quashed. Writs in the nature of Certiorari, and
mandamus, directing the respondents Nos. 1 and 2 to publish a fresh
seniority list showing the petitioners as senior to the respondent No. 5,
issued. l434E-H; 435A-B; 440B] G

i . (2) .In the Writ Petition No. 1021 of 1986, the principal question
mvolved IS whether the length of service of the petitioner Dwarka Nath
in the Border Security Force (BSF) should be taken into account for the
purpose of deciding his seniority in the CBI in the rank of SP. l435C] H
424 SUPREME COURT REPORTS [1988) 1 S.C.R.

The period from 14.6.1976 when the petitioner was promoted to .)f
A the post of Depnty Commandant in the BSF npto his joining the CBI on
depntation on 29. 7.1979 shonld be taken into consideration for the
purpose of deciding his seniority in the CBI in the rank of SP. Para-
graph 3 of the office memorandum dated 22.12.1959 relied upon by the
respondents 3 to 5, which provides inter alia that permanent officers of
B each grade shall be ranked senior to persons who were officiating in
that grade does not militate against the view taken by the. Court as y·
expressed above 'Grade' in paragraph 3 undoubtedly refers to the
grade in respect of which the seniority is to be decided. The petitioner
was a permanent officer on 14.6.1976 in the grade of Deputy
Commandant which is equivalent to the grade of SP in the CBI. The
petitioner was not in the CBI on that date, but that will not make
C any difference. The office memorandum above-mentioned does not-!.
stand in the way of counting the seniority of the petitioner from i
14.6.1976. [43SG-H; 436A-C) '

When a deputationist is permanently absorbed in the CBI, he is
D appointed on transfer under the rules. Deputation may be regarded as a
transfer from one Government department to another. It will be against
all rules of service jurisprudence if, when a Government servant hold-
ing a post is transferred to the same or an equivalent post in another
Government Department, the period of his service in the post before
transfer is not taken into consideration in compnting his seniority in the )--
E post to which, he is transferred. The transfer cannot wipe ont his length
of service in the post from which he has been transferred. l436C-EJ

The seniority of the petitioner should be connted from 14.6.1976
..
on which date he was regularly promoted to the post of Depnty Com-
F mandant in the BSF, and he should be held senior to the respondents 5 to ~
7. Writ in the nature of certiorari issued, qnashing the seniority list )-_ "
(Annexure P/l to the Writ Petition) and all subsequent seniority lists of
SPs in the CBI in which the petitioner was shown junior to the respon-
dents S to 7. Further, writ in the nature of mandamus issued, com-
manding the respondents 1 and 2 to allot to the petitioner his proper
G seniority in the post of SP, CBI, by counting his service with effect from
14.6.1971, and to issue a fresh seniority list, showing the petitioner
seniortotherespondentsNos. 5to7. [440D, Bl -f
R.S. Mokashi and Ors. v. I.M Menon and others, (198811SCC379,
Wing Commander J. Kumar v. Union of India and Others, (1982] 3
H SCR 453, referred to.
K. MADHAVAN v. U.0.1. [DUTI, J.] 425

ORIGINAL JURISDICTION: Writ Petitions Nos. 9847-48 of
~- A

(Under Article 32 of the Constitution of India).

M.K. Ramamurthy, P.P. Rao, C.S. Vaidianathan, S.R. Bhatt,
S.R. Setia, K.V. Mohan, R. Venkataramani, R. Ayyam Perumal and B
S.M. Garg for the Petitioners.

Kuldeep Singh, Additional Solicitor General, B. Dutta Addi-
tional Solicitor General, T.S. Krishnamoorthy Iyer, A.K. Sen, Kapil
Sibal, O.P. Sharma, C. V. Subba Rao, R.P. Srivastava, P. Parmesawa-
ran, R.C. Gubrele, K.R. Gupta, R.K. Sharma, Sanjay Sareen, S.K. C
Gambhir, M.S. Ganesh and T.C. Sharma for the Respondents.

Girish Chandra and Ashok K. Srivastava for the Interveners.

The Judgment ofthe Court was delivered by
D
DUTf, J. These two writ petitions, being Writ Petitions Nos.
9847-48 of 1983, involve a dispute as to seniority between the two
petitioners, K. Madhavan and Santunu Sen, on the one hand and the
respondent No. 5, O.P. Sharma on the other. It may be recorded at the
outset that although the petitioners have also challenged in the writ E
petitions the seniority of the respondent No. 4, P.C. Srivastava, over
the petitioners, at the hearing of the writ petitions the challenge to the

- seniority of the respondent No. 4 has not been pressed on behalf of the
petitioners inasmuch as the respondent No. 4 is to retire from service
within about two years from now. We would, accordingly, exclude
from our consideration the seniority of the respondent No. 4 which F
stands confirmed.

The two petitioners, Madhavan and Sen, were directly recruited
as Deputy Superintendent of Police (DSP) in the Delhi Special Police
Establishment (SPE) in the Central Bureau of Investigation (CBI) on
6-7-1963 and 10-8-1%3 respectively. The respondent No. 5, who was G
appointed to the post of DSP on 13-7-1962 in the Rajasthan State
Police, was sent on deputation to CBI as DSP on 1-7-1967. It may be
stated at this stage that majority of the officers in the CBI are de-
putationists. The case of the respondent is that the CBI Organisation
requires very capable and experienced police officers and, accor-
dingly, such police officers are brought to CBI on deputation from H
426 SUPREME COU!lT REPORTS [1988] 1 S.C.R.

different states and, thereafter, they are generally absorbed in the
A CBI. We shall presently refer to the recruitment rules of police person-
nel in the CBI, but before that, w~ may indicate how the dispute
between. the parties arose with rega"rd to their respective seniority.
While Madhavan and Sen were both confirmed in the post of DSP in
the CBI on 30-3-1967, the respondent No. 5 was confirmed as DSP in
B the Rajasthan State Police on 1-12-1964. The petitioners, Madhavan
and Sen, were promoted to the rank of Superintendent of Police (SP)
in the CBI with effect from 21-10-1971 (AN) and 25-1-1972 (AN)
respectively. The respondent No. 5 was appointed to the post of SP on
28-10-1972. The respondent No. 2, the Inspector General of Police,
Delhi Special Police Establishment, and Director of CBI published a
seniority list of departmental SPs on 1-10-1978. In that seniority list,
c the respondent No. 5 O.P. Sharma was shown below both the petition- --~
I
ers. The respondent No. 2 also published another seniority list on
17-10-1981. In that seniority list, the date of appointment of the
respondent No. 5 was mentioned as 21-10-1971 (FN) (Notional) instead
of 28-10-1972 and on the basis of such notional date of appointment to
O the post of SP in CBI, the name of the respondent No. 5 was placed
above the petitioners' names in that seniority list. The petitioners felt
highly aggrieved by the said seniority list showing them as juniors to
the respondent No. 5 O.P. Sharma, on the basis ofa notional date of
appointment with retrospective effect from 21-10-1971 (FN), that is,
just before the appointment of Madhavan on 21-10-1971 (AN). The
E petitioners have challenged the said seniority list.
The case of the petitioners is that the deemed or notional date of
appointment of the respondent No. 5 with retrospective effect from
21-10-1971 (FN) has been done mala fide with a view to making the
petitioners juniors to the respondent No. 5 without any reasonable
F justification therefor. It is complained that before that deemed or
notional date of appointment was made with retrospective effect, the
petitioners were not given any opportunity of being heard to their
great prejudice and detriment. The seniority of the respondent No. 5
has been challenged by the petitioners on more than one ground in-
cluding the ground that the respondent No. 5 was not even eligible for
G appointment as SP in the CBI. The grounds of challenge will be con-
sidered by us presently. But, before that we may indicate the stand
taken by the respondents Nos. 1 and 2, the Union of India and the
CBI, and the respondent No. 5 in regard to his appointment to the post
of SP, CBI, with retrospective effect from 21-10-1971 (FN).

H It is not disputed that under the Special Police Establishment
K. MADHAVAN v. U.O.l. [DUTT, J.) 427

~ (Executive Staff) Recruitment Rules, 1963, hereinafter referred to as
A
'1963 Rules', for the appointment of a deputationist to the post of SP,
the minimum qualification required was DSP in the Special Police
Establishment with at least eight years' service in the grade, out of
which two years should be probationary period in the CBI. It has been
stated already that the respondent No. 5 O.P. Sharma became DSP in
the Rajasthan State Police on 13-7-1962 and he joined the CBI as DSP B
on 10-7-1967. According to him, therefore, he was eligible for appoint-
~ ment to the post of SP after eight years of his service as DSP on July

.. 13, 1970. It is also not disputed that under the 1963 Rules, the mode of
recruitment was that not exceeding 15% of the sanctioned strength
would be filled by promotion and the remaining by transfer on deputa-
tion. It is the case of the respondents Nos. 1, 2 and 5 that the proposal
for convening the meeting of the DPC was approved on October 13,
c
t- 1970, but as two departmental officers were to complete eight years of
service and become eligible for being considered for the post of SP in
January and March 1971, the meeting of the DPC was postponed on
that ground. It is the contention of the respondents Nos. 1, 2 and 5 that
the meeting of the DPC was to be held in October, 1970, but was D
arbitrarily postponed without any justification therefor and, accord-
ingly, the case of the respondent No. 5 for appointment to the post of
the SP, CBI, could not be considered, although he was fully eligible
for the same. The DPC finally met in July, 1971. But the respondent
___. No. 5 was graded only 'good', which grading debarred him from get-
ting the appointment. It is the case of the respondents Nos. 1, 2 and 5 E
that when the minutes of the DPC went to the Department of Person-
nel for Presidential approval, the Department of Personnel examined
the matter in depth and found that DPC had erroneously graded the
respondent No. 5 as 'good'. Consequently, the matter was referred by
the Department of Personnel to the Senior Board which met in July,
1972 and graded the respondent No. 5 as 'very good' and recom- F
}
-\ mended him for appointment to the post of SP. As noticed already, the
respondent No. 5 was appointed to the post of SP in CBI on 28-10-
1972.

The further case of the respondents Nos. 1, 2 and 5 is that for no
fault of the respondent No. 5, the DPC was unjustly postponed and as G
the Senior Board had subsequently selected and recommended the
respondent No. 5 for the post of SP in CBI, the respondents Nos. 1 and
"1 2 appointed the respondent No. 5 as SP with retrospective effect from
a deemed date of appointment, that is, from 21-10-1971 (FN) so as to
mitigate his hardship and to do justice to him. An explanation has also
been given in the affidavit of the respondents Nos. 1 and 2 as to why H
428 SUPREME COURT REPORTS 11988] l S.C.R.

A the said date being 21-10-1971 (FN) was selected for the deemed ap-
pointment of the respondent No. 5. The explanation is that although
his appointment as SP should have been from October, 1970 when the
meeting of the DPC was originally scheduled to be held but post-
poned, and in that event, he would have been approved earlier than
the two petitioners, yet basically the question for consideration before
B the Government being only inter se seniority of the respondent No. 5
vis-a-vis the petitioners, it was thought proper that ends of justice
would be met if the respondent No. 5 was given a limited retrospective
date of appointment as SP. The Government took note that the
delayed appointment of the respondent No. 5 was on account of un-
justifiable reasons, and assigned him the seniority over the two
petitioners with a deemed date of appointment as 21-10-1971 (FN).
c That is how the dispute bas arisen between the petitioners and the
respondent No. 5 over the question of their respective seniority in the
rank of SP in the CBI.

The petitioners have, in the first instance, challenged that the
D respondent No. 5 was not even eligible for appointment to the post of
SP, CBI. The respondent No. 5 was a deputationist and under the 1963
Rules that were prevailing at the material time, he was to complete
eight years' service in the grade. There has been much controversy
over the expression "in the grade". According to the petitioners, the
expression should be understood as meaning in the grade of SP in the
CBI. In other words, the contention of the petitioners is that the
respondent No. 5 should have been for eight years in the CBI as DSP
before he would be eligible for appointment to the post of SP in the
CBI. As the respondent No. 5 joined the post of DSP in the CBI on
deputation on 1-7-1967, he could not be appointed to the post of SP
even on 28-10-1972, far Jess on 21-7-1971 (FN), for on either date, he
F did not complete eight years of service in the CBI. We are, however,
unable to accept the contention. "Eight years' service in the grade"
would mean "eight years' service in the grade of DSP". The 1963
Rules do not provide that the period of eight years should be com-
puted from the date of deputation to the CBI as DSP. In the absence
of any such express provision, it must be held that the period during
G which one held the post of DSP in the State Police Service should also
be taken into account for computing the period of eight years. The
1963 Rules provide that two years must be spent on probation as DSP ¥c
in the CBI. The position, therefore, comes to this that of the total · ,
period of eight years, two years must be on probation basis in the CBI.
An officer may have been in the State Police as DSP for a period of six
H years and, thereafter, if he joins the CBI on deputation and spends
K. MADHAVAN v. U.0.1. [DUTT, J.] 429

two years on probation, he would be eligible for consideration for A
appointment to the post of SP. If this view is not taken, no officer
would be available to join the CBI on deputation. It has already been
noticed that the CBI requires efficient and experienced police officers
and if the period spent by police officers in the State Police Service is
not taken into account for the purpose of computing the period of
eigbt years, it would be doing injustice to such police officers who join B
the CBI on deputation. In our view, therefore, there is no substance in
the centention of the petitioners that in order to be eligible for ap-
pointment to the post of SP in the CBI, one should be in the rank of
DSP in the CBI for a period of eigbt years including a period of iwo
years on probation. The respondent No. 5 having held the post of DSP
for five years in the Rajasthan State Police and more than three years
in the CBI, that is to say, over eight years, he was quite eligible for C
appointment to the post of SP. The two petitioners, Madhavan and
Sen, and the respondent No. 5 O.P. Sharma are all now holding the
post of DIG. By an order dated October 6, 1983, this Court directed
that no selection list would be prepared for the post of DIG in the
CBI/SPE, but it would be open to the respondents to make ad hoc D
appointments which would be subject to the result of the writ petition.
As a result of that order, the respondent No. 5 was promoted to the
post of DIG on October 13, 1983 on an ad hoc basis subject to the
result of the writ petitions. The petitioners were also appointed DIGs
on ad hoc basis by virtue of an interim order of this Court on April 24,
1985. Thus the petitioners and the respondent No. 5 have been in the E
post of DIG on ad hoc basis. After the lapse of time and after the

- appointment of the petitioners and the respondent No. 5 to the post of
DIG, though on ad hoc basis, the real question is the question of their
inter se seniority in the post of DIG in the CBI.
It has been strenuously urged on behalf of the petitioners at the
very outset that the respondent No. 5 was not eligible for being F
appointed to the post of DIG, CBI. In support of this contention our
attention has been drawn to the Central Bureau of Investigation
(Deputy Inspector General of Police/Deputy Director) Recruitment
Rules, 1975, hereinafter referred to as 'the 1975 Rules', which
prescribe the following eligibility requirement for being considered for
the appointment to the post of DIG in the CBI:- G
"Superintendent of Police (including Assistant Inspector
General of Police/Assistant Director) in the Central
Bureau of Investigation with eight years' service in .the
grade rendered after appointment thereto on a regular
basis." H
430 SUPREME COURT REPORTS [1988] 1 S.C.R.

A It is the contention of the petitioners that as the respondent
No. 5 had not rendered eight years of regular service as SP in the CBI,
he was not eligible for appointment to the post of DIG. It is submitted
that eligibility requirement in the 1975 Rules is very specific inasmuch
as it provides eight years of service in the grade after appointment
thereto on a regular basis. The expression 'on a regular basis', accord-
B ing to the petitioners, means after absorption of the de.putationist in
the CBI as SP and, as the respondent No. 5 was absorbed in the rank ~-·
of SP in the CBI on 1-7-1978, he was not eligible for appointment to
the post of DIG on 13-10-1983, that is to say, within less than eight
years of his service from the date of absorption. In support of that
contention our attention has been dq1wn on behalf of the petitioners to
the Central Bureau of Investigation (Deputy Inspector General of
C Police/Deputy Director) Recruitment Rules, 1966, hereinafter refer-
red to as 'the 1966 Rules'. Under the 1966 Rules, the eligibility re-
quirement for being considered for appointment to the post of DIG is
as follows:-

D "Superintendent of Police (including Assistant Inspector
General of Police/Assistant Director) in the Central
Bureau of Investigation with not less than eight years'
service in the grade."

It is submitted that on a comparison of the eligibility clauses in
E the 1966 and the 1975 Rules, it will be apparent that while under the
1966 Rules it was only eight years' service in the grade which might
mean eight years' service in the rank of SP in the CBI whether the
deputationist was permanently absorbed or not, under the 1975 Rules
it is "eight years' service in the grade rendered after appointment
thereto on a regular basis". Accordingly, it is urged that the expression
-
F 'on a regular basis' can have only one meaning, that is to say, after
permanent absorption of the deputationist in the CBI. Otherwise,
there was no necessity for insertion of the words 'on a regular basis' in
the eligibility clause of the 1975 Rules for the post of DIG in CBI.
Under the 1984 Rules, it is only "eight years' regular service in the
grade". So the entire contention of the petitioners centres round the
G expression 'on a regular basis.'

The 1975 Rules which are relevant for the purpose do not explain
what is meant by the expression 'on a regular basis'. The expression
has created some ambiguity in the eligibility clause giving rise to this
controversy. There can be no doubt that when a person is appointed to
H a post against a permanent vacancy on probation, his appointment is
K. MADHAVAN v. U.0.1. [DUTT, J.] 431

on a regular basis, but when a person is appointed to a post on a purely A
temporary or on an ad hoc basis, the appointment is not on a regular
basis. The expression 'on a regular basis' in the 1975 Rules cannot, in
our opinion, be interpreted to mean as on absorption in the CBI as SP.
The general principle is that in the absence of any specific provision to
the contrary, the length of service from the date of appointment to a
post should be taken into consideration for the purpose of either B
seniority in that post or eligibility for the higher post. As no explana-
tion has been given in the 1975 Rules of the said expression, we do not
think it desirable to deviate from the established principle of comput-
:
ing the length of service for the purpose of seniority or eligibility for
the higher post from the date of appointment. In our view, therefore,
the expression 'on a rtgular basis' would mean the appointment to the C
post on a regular basis in contradiction to appointment on ad hoc or
stop-gap or purely temporary basis. The respondent No. 5, in our
opinion, satisfied the eligibility test of the 1975 Rules for consideration
for the post of DIG. But, it is not disputed by the parties that the
petitioners and the respondent No. 5 have, by the lapse of time during
the pendency of this litigation, become eligible for appointment to the D
posts of DIG. Indeed, they are holding the posts of DIG, may be on ad
hoc basis, under the interim orders of this Court and there is no chance
of their being reverted to the next lower post of SP. The question,
therefore, boils down to the seniority of the petitioners vis-a-vis the
respondent No. 5 in the post of DIG. That again will depend upon the
decision on the question as to the seniority of the petitioners and the E
respondent No. 5 in the post of SP.

- We, therefore, focus our attention to the question of the senio-
rity of the petitioners and the respondent No. 5 in the post of SP in the
CBI. It is urged on behalf of the petitioners that the appointment of
the respondent No. 5 to the post of SP was in violation of the quota F
rule. We have already noticed that under the 1963 Rules, the method
.f of recruitment was provided as follows:-
( a) Not exceeding 15% of the sanctioned strength by promotion.

(b) The remaining by transfer on deputation.
G
There was an amendment with effect from 15-1-1971 and the
method of recruitment was prescribed as follows:-

1. 25%-by promotion failing which by transfer on deputation.

2. 75%-by transfer/deputation. H
432 SUPREME COURT REPORTS [1988] 1 S.C.R.

A The eligibility requirement was DSP in SPE/CBI with at least
eight years' service in the grade. A chart has been prepared and filed
by the petitioners and annexed to the writ petitions as Annexure-XVI.
It appears from the chart that on 28-10-1972 on which date the respon-
dent No. 5 was actually appointed on deputation to the post of SP/AD,
the total sanctioned posts of SP/AD/AIG were 47. 25% of the sanc-
B tioned posts was twelve, out of which only seven were filled by direct
recruitment and five remained outstanding. 75% of the sanctioned
strength was thirtyfive, to be filled by the appointment of deputa- y
tionists, but forty deputationists were appointed to the posts of SPs,
including the five posts out of the quota for direct recruitment. It is
alleged by the petitioners that the respondent No. 5 was appointed to
the post of SP in the CBI in one of the said five posts meant to be filled
C by direct recruits in violation of the quota rule. The chart also contains
a submission that the appointment of five deputationists/transferees,
including the appointment of respondent No. 5, as SP on 28· 10-1972
was illegal. In other words, it is alleged that the respondent No. 5 was
appointed in one of the said five posts meant for direct recruits. There
O is no material whatsoever to suggest that the respondent No. 5 was
appointed in one of the 5 posts in excess of the quota for the
deputationists. In the circumstances, we are not inclined to accept such
contention without any foundation therefor.

The most significant and crucial fact is the appointment of the
E respondent No. 5 to the post of SP with retrospective effect from a
deemed date of appointment, that is, 21-10-1971 (FN). It is strenu·
ously urged on behalf of the petitioners that such deemed appointment
with retrospective effect from 21-10-1971 (FN) was wholly illegal and
mala fide and should be struck down. The plea of the respondents
Nos. I, 2 and 5 is that the respondent No. 5 became eligible for
-
F appointment to the post of SP in the CBI in July, 1970 after he had
completed eight years of service in the grade of DSP with two years
probation in the CBI. He was, accordingly, eligible for appointment to
the post of SP and, indeed, the meeting of the DPC was scheduled to
be held in October, 1970, but that was arbitrarily postponed. The DPC
again met in July, 1971, but they had erroneously graded the respon-
0 dent No. 5 as 'good' and not 'very good', as a result of which he could
not be appointed in 1971. He was, however, found to be 'very good' on
a review by the Senior Board which recommended the appointment of
the respondent No. 5 to the post of SP and he was appointed to the
post on 28-10-1972. The complaint of the respondents Nos. 1, 2 and 5
is that if the DPC had not been arbitrarily and without any reason
H whatsoever postponed and held its meeting in October, 1970, the
K. MADHAVAN v. U.O.l. [DUTI, J.] 433

respondent No. 5 would have got the appointment to the post of SP in
y A
1970 and would in normal course be senior to the petitioners. Thus,
the sum and substance of the contention of the respondents Nos. 1, 2
lind 5 is the arbitrary cancellation of the meeting of the DPC in
October, 1970.

There can be no doubt that if the meeting of the DPC scheduled B
to be held is arbitrarily or mala fide cancelled without any reasonable
T justification therefor to the prejudice of an employee and he is not

- considered for promotion to a higher post, the Government in a suit-
able case can do justice to such an employee by granting him promo-
tion or appointing him to the higher post for which the DPC was to be
held, with retrospective effect so that he is not subjected to a lower
position in the seniority list. But, if the cancellation or postponement of c
f- the meeting of the DPC is not arbitrary and is supported by good
reasons, the employee concerned can have no grievance and the
Government will not be justified in appointing the employee to the
higher post with retrospective effect. An employee may become eligi-
ble for a certain post, but surely he cannot claim appointment to such D
post as a matter of right.

Let us now consider whether the DPC, scheduled to be held in
October, 1970 was arbitrarily cancelled or not. The learned Additional
Solicitor General has handed over to us the photocopy of the notings
, ..., from the departmental file relating to the postponement of DPC. E
Paragraph 9 of the note of one 0 .P. Bansal is as follows:-

- "In so far as the representation of Shri O.P. Sharma is
concerned, it has been found from the records that in
October, 1970 a proposal was made by the Administrative
Officer, CBl, for convening a meeting of the Selection F
Board for the consideration of suitability or otherwise of 6
non-JPS deputationist Dy. SPs who had completed 8 years'
service in the grade of Dy. SP and Shri O.P. Sharma was
No. 3 among them. It was stated in that note that there
were 42 posts of SP and equivalent rank in CBI and that
there were 3 vacancies in the grade. It was further stated G
that none of the non-deputationist Dy. SPs. had put in 8
years' service at that time and, as such, they were not eligi-
ble for consideration for promotion. As a result of this, all
the 3 posts were to be filled by deputationists. It was not
stated in that note whether any of the 3 posts fell in the
' promotion quota, which at that time comprised not exceed- H
434 SUPREME COURT REPORTS [1988] 1 S.C.R.

ing 15% of the strength, i.e. 6 posts. The proposal for
A
convening a meeting of the Selection Board was approved
on 13- 10-1970, but on 15- 10-1970 the Director, CBI,
ordered that the meeting might be held after S/Shri Ramen-
der Singh and Jot Ram, Dy. SPs became eligible for pro-
motion. These two officers were to complete 8 years'
B service as Dy. SP in January and March, 1971 respectively.
It is, thus, correct that the meeting of the DPC was post-
poned to allow some non-deputationist Dy. SPs to become 'i'/
ripe for promotion to the grade of SP."

Thus, it appears from paragraph 9 of the note extracted above
that three vacancies were to be filled by non-deputationist DSPs,
c otherwise the question of non-availability of non-deputationist DSPs
with the requisite period of service would not have been mentioned. In
the counter-affidavit of the respondents Nos. 1 and 2, it is also stated
that at the relevant time no departmental DSP had eight years' service
in that grade and, therefore, all the three vacancies then available
D were required to be filled by deputation of suitable State Police Offi-
cers. It is, therefore, apparent that the three vacancies were meant to
be filled by non-deputationists DSPs and not by deputationists, but as
non-deputationist DSPs with the requisite period of service were not
available, the vacancies were proposed to be filled by the deputationist
DSPs. It is true that the meeting of the DPC was to be held on 13-10-
E 1970 but the Director of CBI appears to have considered that as the ~, .
vacancies were meant for the non-deputationist DSPs and as two of
such DSPs would become eligible for promotion in January and
March, 1971, he postponed the meeting of the DPC scheduled to be
held on 13-10-1970. We do not find any arbitrariness in the decision of
the Director of CBI postponing the meeting of the DPC till after
F March, 1971 when two non-deputationist DSPs would become eligible
for promotion. There was, therefore, ample justification for the post-
ponement or cancellation of the meeting of the DPC. The respondent
No. 5 might have been eligible for being considered for appointment to
the post of SP in July, 1970, but he had no right to claim such consi-
deration when the vacancies were meant for non-deputationist DSPs.
G In our opinion, therefore, the Government had no reasonable justifi-
cation to contend that the postponement of the DPC was arbitrary and
high-handed. In July, 1971 also the respondent No. 5 was not found
suitable by the DPC. It was only when the Senior Board found him ·f-
suitable in July, 1972 and recommended him for appointment to the
post of SP that the respondent No. 5 was appointed on October 28,
H 1972 to the post of SP, CBI. As the foundation of the appointment of
K. MADHAVAN v. U.0.1. [DUTI, J.) 435

the respondent No. 5 to the post of SP with retrospective effect from A
21-10-197 l(FN), namely, the postponement of th~ meeting of the DPC
in October, 1970 arbitrarily, is shaken to a great extent, there was no
question of any injustice done to the respondent No. 5. The retrospec-
tive appointment or promotion to a post should be given most spar-
ingly and on sound reasoning and foundation. In the instant case, we
do ·not find that there was any justification for the appointment of the B
respondent No. 5 to the post of SP in the CBI with retrospective effect
from 21-10-1971 (FN) so as to make him senior to the petitioners.
We may now deal with the Writ Petition No. 1021 of 1986. The
principal question that is involved in this writ petition is whether ihe
length of service of the petitioner Dwarka Nath in the Border Security
Force (BSF) should be taken into account for the purpose of deciding C
f- his seniority in the CBI in the rank of SP. On 14-6-1976 the petitioner
was regularly promoted to the post of Deputy Commandant in the BSF
which, according to him, was equivalent to the grade of SP in the CBI.
The respondent No. 5 was promoted on 4-8-1978 and the respondents
Nos. 6 and 7 were promoted on the same date, that is, on 28-7-1978 to
the post of SP in the CBI. The petitioner came to join the CBI on D
deputation as SP on 29-9-1979 and was permanently absorbed in the
CBI in the rank of SP on 28-10-1983. The respondents Nos. 5 to 7 were
confirmed in the post of SP with effect from 4-8-1980. The question
that arises is whether in computing the seniority of the petitioner his
length of service from 14-6-1976, when he was the Deputy Comman-
dant in the BSF, should be taken into consideration or not. If his E
service from 14-6-1976 is taken into consideration, he would undoub-
tedly be senior to the respondents Nos. 5 to 7, who were appointed in
• 1978.
We have already considered the question in the Writ Petitions
Nos.9847-48 of 1983 in respect of the appointment of respondent No. 5 F
.~ O.P. Sharma to the post of SP in the CBI. In that connection, it has
been decided by us that in computing the requisite period of eight
years, the period during which the respondent No. 5 held the post of
DSP in the Ra jasthan State Police Service should be taken into consi-
deration. In our opinion, the period from 14-6-1976 when the peti-
tioner was promoted to the post of Deputy Commandant in the BSF up G
to his joining the CBI on deputation on 29-7-1979, should be taken
, into consideration for the purpose of deciding his seniority in the CBI
I in the rank of SP.

Paragraph 3 of the Office Memorandum dated 22- U-1959 relied
upon by the learned Counsel for the respondents Nos. 3 to 5 does not, Ii
436 SUPREME COURT REPORTS [1988) 1 S.C.R.

A in our opinion, at all militate against the view which we have taken.
Paragraph 3 provides, inter a/ia, that permanent officers of each grade
shall be ranked senior to persons who are officiating in that grade.
'Grade' in paragraph 3 undoubtedly refers to the grade in respect of
which the seniority is to be decided. The petitioner was a permanent
officer on 14-6-1976 in the grade of Deputy Commandant which is
B equivalent to the grade of SP in the CBI. It may be: that he was not in
the CBI on that date. But, in our view, that will not make any diffe-
rence. We do not think that the Office Memorandum dated 22-12-1959
stands in the way of counting the seniority of the petitioner with effect
from 14-6-1976.

C We may examine the question from a different point of view.
There is not much difference between deputation and transfer. '
Indeed, when a deputationist is permanently absorbed in the CBI, he
is under the rules appointed on transfer. In other words, deputation
1
may be regarded as a transfer from one government department to
another. It will be against all rules of service jurisprudence, if a
D government servant holding a particular post is transferred to the same
or an equivalent r'>st in another government department, the period of
his service in the post before his transfer is not taken into considera-
tion in computing his seniority in the transferred post. The transfer
cannot wipe out his length of service in the post from which he has
been transferred. It has been observed by this Court that it is a just and
E wholesome principle commonly applied where persons from different >--·
sources are drafted to serve in a new service that their pre-existing
total length of service in the parent department should be respected
and presented by taking the same into account in determining their
ranking in the new service cadre. See R.S. Mokashi & Ors. v. l.M.
Menon & Ors., [1982) 1 SCC 379; Wing Commander J. Kumar v.
-
F Union of India & Ors., [1982) 3 SCR 453. }

}.
In this connection, we may notice one significant fact that
although in the counter-affidavit the Union of India has opposed the
claim of the petitioner that his seniority should be counted from 14-6-
1976, at the hearing of the writ petition the learned Additional
G Solicitor General concedes that the petitioner's seniority should be
counted from that date and that the said Office Memorandum does not
at all support the contention of the respondents Nos. 3 and 5.

The learned Counsel for the respondent Nos. 3 and 5 has, how-
ever, placed much reliance upon certain facts which will be stated
H presently. After the petitioner went on deputation to the CBI and
K. MADHAVAN v. U.0.1. !DUTT, J.] 437

appointed to the post of SP, on 5-4-1980 the CBI invited options from the
"" non-IPS deputationists for their permanent absorption in the CBI. The A
petitioner had sent a letter expressing his willingness to be absorbed in
the CBI. On April 16, 1980, the Administrative Officer, CBI, sent a
wireless message to all concerned stating that seniority on permanent
absorption in a rank would be counted from the date of permanent
absorption and that those who had opted thinking otherwise, would be B
.
~
at liberty to revise their option by 13-4-1980. Again, on 11-9-1980
( 10-9-1980?) another circular was issued in which it was re-emphasised
that a deputationist who was willing to be absorbed in the CBI, would
first be appointed on a regular basis in the CBI. He would be con-
firmed as and when permanent posts were available. Further, it was
stated in the circular that his seniority in the CBI would begin from the
date of his regular appointment. In uther words, the service rendered c
t- from the date of regular appointment only would count for the purpose
of seniority and promotion in the CBI. In the explanatory note regard-
ing determination of inter se seniority, annexed to the said circular, it
has been stated that a deputationist officer has uo place in the seniority
list as long as he is not absorbed (regularly appointed) iu the CBI. D
Relying upon the said circulars and the petitioner's consent to be
absorbed in the CBI, it is submitted on behalf of the respondents Nos.
3 and 5 that the petitioner's seniority should be counted from the date
he was permanently absorbed or regularly appointed in the CBI, that
is, with effect from 4-10-1983. On the other hand, it is submitted on
~---\ behalf of the petitioner that as the said circulars dated 16-4-1980 and E
10-9-1980 were found to be not workable, the CBI suspended the same
for a further decision by its circular dated 6.10.1981, the relevant
- portion of which is extracted below:-

"In response to this office circular No. A. 31016/14/80-AD.
I (DPC) dated 10-9-80, some of the branches have sent F
options of some of the officers for absorption in the CBI.
·-\ Some options are conditional and some have sought some
clarification with reference to seniority.

2. The matter is under correspondence with the DP & AR.
The branches will be informed as soon as a decision is G
arrived at. Decision on the options received will be taken
after the clarification has been received from the DP &
_., AR."

No decision has yet been taken by the Government. Mr. P.P.
Rao, learned Counsel appearing on behalf of the petitioner, has drawn H
438 SUPREME COURT REPORTS [1988] I S.C.R.

our attention to the counter-affidavit to the rejoinder in CMP Nos.
A 5429 and 5430 of 1984 filed in the above writ petitions Nos. 9847 and
9848 of 1983, wherein it has been categorically admitted by the Union
""'
of India that after the issue of the circular dated 11-9-1980, the matter
was re-examined by the Director of CBI and found to be unworkable.
Thereafter, it was decided to take up the matter with the Government
B and no action was taken to implement the said circular. Further, it has
been reiterated in the said counter"affidavit that the circular did not
lay down the correct interpretation of recruitment rules, found un- "f'
workable and has not been acted upon even in a single case. The
learned Additional Solicitor General has admitted the position that
even now the Government has not come to any decision as to whether
the seniority should be counted from the date of the regular appoint-
c ment of the deputationists in t!ie CBI, as stated in the circular. In the
circumstances, we do not think that there is any merit in the conten-
tion of the respondent Nos. 3 and 5 that in view of the said circular
dated 1'1•9-1980 and also the earlier circular dated 16-4-1980, the
1.
petitioner's seniority cannot be counted from 14-6-1976 when he was
D appointed to the post of Deputy Commandant in the BSF.

It is next contended on behalf of the respondent Nos. 3 and 5 that
the petitioner's appointment from BSF to the rank of SP in the CBI on
deputation was illegal. Reliance has been placed on the relevant provi-
sion in the recruitment rules relating to appointment on deputation
which reads as follows:
).._.
E
"Transfer/ Deputation:

Suitable Officers of the State Police Forces or Officers of
the IPS or Officers of 'the Indian Revenue Service or Offi-
p cers holding analogous post in the Central Government
Department like the Directorate of Enforcement, Depart-
ment of Customs etc." J
~-
It is submitted that the other Central Government Departments,
two of which illustratively mentioned in the provision extracted above,
G are only those Departments in which statutory inquiries and investiga-
tions are conducted by the officers by arrest, search, examination of
witnesses, prosecution of accused, etc. It is contended that the irtten-
tion of the rule is that only officers of such Departments who have such t-
experience would only function in the CBI as Investigation Officers.
As the petitioner had no such experience in the BSF, he was not
H eligible for being appointed to the CBI on deputation.
K. MADHAVAN v. U.0.1. [DUIT, J.] 439

We are unable to accept the contention. It is true that in the rule A
two Government Departments have been mentioned, but that does
not mean that only those Government Departments in which inquiries
and investigations are made are contemplated bf the rule. Nor does
the rule contemplate that only those officers, wh(\ had experience of
investigation would be appointed to the post in the CBI. Under the
rule, such an officer should be a suitable officer and should be holding B
analogous post in the Central Government Department concerned.
The petitioner was found to be a suitable officer and at the time of his
deputation he was holding the post of Qeputy Commandant which,
according to the petitioner, is equivalent to the post of SP in the CBI.
We are unable to accept the contention of the respondents Nos. 3 and
5 that the post of Deputy Commandant in the BSF is not equivalent to C
the post of SP in the CBI. The letter of the Under Secretary to the
Government of India dated November 25, 1983 shows on the face of it
that the post of Deputy Commandant in the BSF is equivalent to that
of SP in the CBI. It has been expressly conceded by the learned Addi-
tional Solicitor General that. the Government accepts the post of the
Deputy Commandant in the llSF as equivalent to the post of SP in the D
CBI. At this stage, we may refer to the letter datedJanuary24, 1984 of
the CBI to the Government of India wherein it has been categorically
stated inter alia that the petitioner was holding an analogous post in
the BSF and was, therefore, eligible to be taken on deputation.
Further, it has been stated that he had considerable experience of
investigation of criminal cases, and that the Government and the E
UPSC had duly approved the substantive absorption of the petitioner

- on merit in accordance with the recruitment rules, as in force, in larger
public interest. The said letter of the CBI resolves all controversy as to
whether the petitioner was holding equivalent post in the CBI or
whether he had experience of investigation or whether he was absor-
bed in the CBI in public interest. There is, therefore, no substance in F
the contention made on behalf of the respondents Nos. 3 and 5 that the
petitioner's appointment in the CBI was illegal. In view of our decision
that the petitioner's seniority should be counted from 14-6-1976 on
which date he was regularly promoted to the post of Deputy Com-
mandant in the BSF, the petitioner should be held to be senior to the
respondents Nos. 5 to 7. G

No other point has been urged on behalf of the parties.

In the result, so far as Writ Petitions Nos. 9847 and 9848 of 1983
are concerned, the impugned order dated September 25, 1981,
appointing the respondent No. 5 0.P. Sharma with retrospective H
440 SUPREME COURT REPORTS 11988] 1 S.C.R.

A effect from a notional date viz., 21-10-1971 (FN), and the seniority list
dated 17-10-1981, showing the respondent No. 5 as senior to the
petitioners, are quashed. Let a writ in the nature of certiorari issue in
that regard. Further let a writ in the nature of mandamus issue direct-
ing the respondents Nos. 1 and 2 to publish a fresh seniority list show-
ing the petitioners as seniors to the respondent No. 5. The writ peti-
B
tions are allowed and the rules are made absolute to the extent indi-
cated above.

With regard to Writ .Petition No. 1021 of 1986, let a writ in the
nature of certiorari issue quashing the seniority list, Annexure-P/l to
the writ petition, and all subsequent seniority lists of SPs in the CBI in
C which the petitioner has been shown junior to the respondents Nos. 5
to 7. Further, let a writ in the nature of mandamus issue commanding ~
the respondents Nos. 1 and 2 to allot to the pe,titioner his proper l
seniority in the post of SP, CBI, by counting his service with effect
from 14-6-1976, that is, the date on which he was regularly promoted
D to the post of Deputy Commandant in the BSF and to issue a fresh
seniority list showing him senior·to the respondents Nos. 5 to 7. The
writ petition is allowed and the rule is made absolute to the extent
indicated above.

We, however, make it clear that in Writ Petition No. 1021 of
E 1986 the issue as to the date of birth of the petitioner is left open and
the petitioner would be at liberty to challenge any order, if adverse to
him, on that issue.

There will, however, be no order as to costs in any of the writ
petitions.
-
F
S.L. Petitions allowed. i
~--