JUDGMENT 1. Petitioner by this D.B. Writ Petition has challenged the order of Central Administrative Tribunal, Jodhpur Bench dated 13.8.1999 passed in Original Application No.495/1995 filed by Rajendra Singh Rathore (Respondent No.4 herein) against Sports Authority of India & Ors., whereby the learned Tribunal while allowing his original application with cost of Rs.2,000/- quashed impugned order therein dated 6.6.1995 (the promotion order of petitioner to the post of Assistant Director w.e.f. 20th Feb. 1992) and directed the respondents to finalise the seniority list of Assistants showing the applicant therein senior to the petitioner and also directed to convene review DPC for the posts of Office Superintendent and Assistant Director and to consider the candidature of the persons named for promotion to these posts as per their seniority fixed in terms of that order. 2. The case of the petitioner, in brief, is that he entered in the Govt. Service as an LDC on 4.6.1971 and thereafter in the year 1981 he was sent on deputation to the Special Organizing Secretary, Asian Games, New Delhi and was promoted as UDC. Thereafter, the Sports Authority of India came into existence and a selection for appointment by way of direct recruitment was conducted in which he after facing selection proceedings was selected for that post and placed at Serial No.1 in the selection list. According to him, the other two persons namely Mr. R.R. Bharti and Mr. S.S. Sahgal were placed at Serial No.2 & 3 respectively. It is also the case of the petitioner that the post of Caretaker was re-designated as Assistant in the year 1985 and in spite of his selection, the Sports Authority of India (SAI) treated him on deputation while treating Mr. R.R. Bharti and Mr. S.C. Sahgal as direct recruits and as such he was not considered for promotion to the post of Assistant Director. The further case of the petitioner is that he filed a writ petition before Hon'ble Delhi High Court and therein an interim order came to be passed on 22.02.1994 directing the respondents to consider the case of the petitioner for promotion to the post of Assistant Director provided he fell within the zone of consideration and was otherwise qualified. The further case of the petitioner is that he filed a writ petition before Hon'ble Delhi High Court and therein an interim order came to be passed on 22.02.1994 directing the respondents to consider the case of the petitioner for promotion to the post of Assistant Director provided he fell within the zone of consideration and was otherwise qualified. According to the petitioner, the Sports authority of India in pursuance of Court's order rectified its error and treated the petitioner as a direct recruit on the post of Caretaker w.e.f 16.10.1984 and placed him above Mr. R.R. Bharti and Mr. S.C. Sahgal and he withdrew the writ petition on 12.9.1995 after his appointment as Assistant Director vide order dated 6.6.1995 w.e.f. 20.2.1992. The said order of promotion of petitioner dated 6.6 1995 was challenged by respondent No.4 Rajendra Singh Rathore claiming himself to be senior to the petitioner stating that he was appointed as an Assistant on 15.04.1987 and was shown senior to the petitioner in the earlier seniority list. 3. As per respondent No.4 Rajendra Singh, who filed the original application before learned Tribunal, he was initially appointed as Assistant on 15.04.1987 and in the seniority list of Assistants as on 01.01.1990, which was published on 13.03.1991, his name appeared at Serial No.4 while that of petitioner Shri S.K. Mehta figured at serial No. 8 and the date of confirmation of the services of petitioner S.K. Mehta was shown as 01.04.1988 while the name of Mr. S.C. Sahgal was not even shown in the seniority list and accordingly he was senior to petitioner S.K. Mehta and Mr. S.C. Sahgal who were promoted as Office Superintendents along with him vide order dated 30.9.1992. According to him, in the seniority list of Office Superintendents as on 1.3.1993 published on 1.9.1993, he was shown junior to petitioner S.K. Mehta and said Shri S.C. Sahgal and therefore he filed his objections to the seniority list and which according to him remained unsettled and no final seniority list of the cadre of Office Superintendent was issued and even without finalising the seniority list, petitioner S.K. Mehta was promoted as Assistant Director vide letter dated 06.06.1995. 4. During proceedings before the Tribunal, notices of the Original Application were issued and the respondents filed their reply contending that Mr. 4. During proceedings before the Tribunal, notices of the Original Application were issued and the respondents filed their reply contending that Mr. S.K. Mehta was serving as UDC in the Ministry of Defence, Govt, of India and had come under the Sports Authority of India on deputation on 01.4.1984 under usual terms of deputation, and in October 1984 when two posts of Caretaker were created and it was proposed to be filled up on the basis of direct recruitment from amongst the persons serving under the Sports Authority of India, the selection committee prepared a panel in order of merit placing Mr. S.K. Mehta at Serial No.1, Mr. R.R. Bhari at No.2 and both were appointed as such. However, Mr. S.K. Mehta was appointed subject to the normal deputation terms after obtaining the concurrence of his parent department w.e.f. 15.11.1985 and was finally absorbed under the Authority with effect from 01.04.1987. He was assigned seniority in the cadre of Assistant w.e.f. 01.04.1987 and Mr. R.R. Bharati was treated as Direct Recruit and was assigned seniority from the date of his appointment i.e. 16.10.1984. In the reply before the Tribunal, the Sports Authority also stated that Shri S.K Mehta represented for placement of his name in the seniority list above Mr. R.R. Bharati, who was placed at Serial No.2 in the merit list stating that as the appointment to the post of Caretaker was in the capacity of direct recruit, he was to be treated as having been appointed directly instead on deputation terms. The Sports Authority also brought to the notice of the Tribunal that petitioner S.K. Mehta had filed a writ petition before Hon'ble Delhi High Court bearing Civil Writ Petition No.3720 of 1992 wherein the Hon'ble Court passed the interim order directing the respondents to consider his case for promotion as Assistant Director if he was within the zone of consideration and was otherwise qualified and thereafter the competent authority viz. the Director General of Sports Authority considered the entire case de-novo and reached to the conclusion that the appointment on the post of Caretaker was through a process of direct recruitment and he ranked senior to Mr. R.R. Bharti and petitioner S.K. Mehta having been appointed as a direct recruit should have been asked to resign from the post he held in his parent department and offered direct recruitment instead of deputation. R.R. Bharti and petitioner S.K. Mehta having been appointed as a direct recruit should have been asked to resign from the post he held in his parent department and offered direct recruitment instead of deputation. The opinion of the Sports Authority was that it was an administrative lapse for which Mr. Mehta could not be penalised and as the lapse seemed to had occurred unintentionally same should be rectified by revising the seniority in the cadre of Assistant giving seniority to the petitioner from 16.10.1984. Accordingly, a DPC was held to consider the case of petitioner for giving him promotion to the next grade i.e. on the post of Office Superintendent w.e.f. 20.02.1992 but as some of his juniors were subsequently promoted to the post of Assistant Director also, a review DPC was held to consider the fitness of the petitioner for the post of Assistant Director also. As the juniors to the petitioner had been promoted by granting relaxation in the qualifying service, the same relaxation was extended to the petitioner and he was promoted as Assistant Director vide letter dated 06.06.1995. 5. The learned Tribunal heard the parties and asked the Sports Authority to produce a copy of the reply filed on behalf of the respondents in Civil Writ Petition No.3720 of 1992 filed by the present petitioner before the High Court of Delhi. The reply stated that the petitioner was on deputation along with respondent No.2 therein till 31.03.1988 and was absorbed on a regular basis w.e.f. 01.04.1988 as Assistant with the seniority assigned to him in the Assistant's Grade from the date of his absorption. It was also stated in the reply that in the month of October 1984 two posts of caretaker were sought to be filled up and a panel of three persons was prepared. In that panel, petitioner Mr. S.K. Mehta appeared at Serial No.1 and Shri R.R. Bharati, who was an outsider, appeared at Serial No.2. Mr. R.R. Bharati was appointed as a direct recruit whereas the petitioner was appointed on the post of Caretaker on deputation. It was also stated in the reply that Mr. R.R. Bharati was a direct recruit and confirmed w.e.f. 16.10.1984 whereas the petitioner Mr. S.K. Mehta was absorbed in the respondent-department w.e.f. 01.04.1988 and acquired seniority in the cadre of Assistant w.e.f. 01.04.1988 only. 6. It was also stated in the reply that Mr. R.R. Bharati was a direct recruit and confirmed w.e.f. 16.10.1984 whereas the petitioner Mr. S.K. Mehta was absorbed in the respondent-department w.e.f. 01.04.1988 and acquired seniority in the cadre of Assistant w.e.f. 01.04.1988 only. 6. While deciding the Original Application by the order impugned, which has been challenged in this petition, the learned Tribunal in addition to the acceptation of the Original Application, as aforesaid, has also passed strictures against the respondent authorities and observed that the respondents took contradictory stand before the Tribunal and the Hon'ble High Court of Delhi and in fact the stand taken by the respondents in the Original Application was far from truth and they tried to make out a case so as to deprive the applicant therein of his rightful dues. It was also observed that it was afterthought of the respondents to contend before the Tribunal that the present petitioner S.K. Mehta was absorbed from 01.04.1987 though the official record proved that he was absorbed w.e.f. 1.04.1988. The learned Tribunal further observed that taking different contradictory stand on the same subject was highly deplorable and the respondents were needed to be reprimanded for the same. 7. The learned Tribunal came to the conclusion that as per official records Mr. Rajendra Singh was appointed on 15.04.87, Mr. R.R. Bharati was appointed as Caretaker on 16.10.1984 whereas the petitioner was absorbed in the respondent authority w.e.f. 01.04.1988 and at the same time opined that it is immaterial that the respondent No.4 (petitioner herein) was selected for the post of Caretaker and was placed above Mr. R.R. Bharati in the panel. According to learned Tribunal, as a matter of fact, the present petitioner was appointed as Caretaker on deputation basis with the concurrence of his parent department and therefore he cannot claim seniority over Mr. R.R. Bharati on the basis of so called select list. It further observed that the respondents took all the action in order to give undue advantage to the present petitioner Mr. S.K. Mehta. In the opinion of learned Tribunal the present petitioner was not deserving promotion and seniority over Mr. R.R. Bharati and therefore giving him promotion on the post of Office Superintendent from a back date at par with mr. R.R. Bharati was against all norms. S.K. Mehta. In the opinion of learned Tribunal the present petitioner was not deserving promotion and seniority over Mr. R.R. Bharati and therefore giving him promotion on the post of Office Superintendent from a back date at par with mr. R.R. Bharati was against all norms. In coming to its conclusion the learned Tribunal was fortified in its view by the judgment of Hon'ble Apex Court in the case reported in 1998 (i) SCC (L&S) 1183, Union of India & Anr. v. Onkar Chand & Ors. 8. Learned counsel for the petitioner submitted that the petitioner is a direct recruit and is having a higher merit position vis a vis Shri R.R. Bharti and had resigned the parent department on the very same day of joining the selected post and as such the provision of deemed absorption w.e.f. 31.03.87 assign the petitioner a position above respondent No.4 and in any case the respondent No.4 had no cause of action. According to him, he was selected against the direct recruitment quota and even tendered his resignation on the very same day of his appointment as Caretaker but the respondent authority kept the same pending without his knowledge and fault. Learned counsel 1 further submitted that the present matter was purely of administrative determination whether to treat the petitioner as a direct recruit or a deputations and the learned Tribunal has grossly erred in taking this administrative decision by overriding the discretion of the administrative authority. 9. In reply, the respondents No.1 to 3 have supported the petitioner and justified their actions. They have stated that the seniority to petitioner was granted from 16th Oct., 1984 treating him as direct recruit like one Shri R.R. Bharti after reviewing his case in pursuance of the interim direction issued by the Delhi High Court in the writ petition preferred by him in the month of Feb. 1994. They have admitted that the petitioner was absorbed in Sports Authority of India on regular basis only w.e.f. 01.04.1988 and assigned seniority with effect from that date however on representation of the petitioner the Competent Authority considered the entire cases de novo and decided to treat the appointment of petitioner on the post of Caretaker on the basis of direct recruitment allowing him seniority w.e.f. 16.10.1984. In order to show favour to the petitioner, they have said that 'the petitioner having been appointed as a direct recruit should have been asked to resign from the post he held in parent department and offered direct recruitment instead of deputation. That was an administrative lapse for which obviously the petitioner could not be penalized. The lapse seems to have occurred perhapses unintentionally and so the same was rectified in accordance with law. They have further stated that 'on account of administrative error the petitioner had not been treated as directly recruited although he was appointed to the post of Caretaker through a process of direct recruitment. This administrative error was rectified and review DPC was after assigning the seniority to the petitioner on the post of 6 Caretaker/Assistant w.e.f. 16th October, 1984. Subsequently, the promotion was also conferred upon the petitioner to the post of Assistant Director which was earlier granted to one Shri R.R. Bharti junior to the petitioner. 10. Respondent No.4 Rajendra Singh Rathore, in his reply, has submitted that the respondents conducted the selection for the post of Caretaker amongst departmental candidates who were already working in Sports Authority of India and Special Organizing Committee and there was no open advertisement nor the list of eligible candidates was called from the Employment Exchange or through UPSC. According to him, petitioner S.K. Mehta was given appointment on the post of Caretaker on foreign service terms and not as a direct recruit. He further submitted that respondents vide their letter 28.10.1988 asked the petitioner to submit his consent within a week of receipt of that letter as to whether he accepted his permanent absorption in their department w.e.f 01.04.1988 on terms and conditions mentioned in the said letter and accordingly petitioner accepted the terms vide his letter 02.11.1988 and thereafter the respondent department informed the parent department of petitioner that they were proposing to absorb the petitioner permanently in their organisation further stating that the petitioner has given his consent for absorption and asked their concurrence and also to issue suitable order allowing him pro-rata pensionary benefits as admissible and thereafter the parent department of the petitioner gave no objection for the permanent absorption of the petitioner provided he tendered his resignation. It is further stated that after completing all the formalities, respondents vide order dated 20.12.1988 permanently absorbed the petitioner w.e.f. 1.4.1988 after the petitioner tendered his resignation in parent department. It is also submitted that the petitioner has taken all benefits from his parent department upto 31.03.1988 so petitioner cannot claim his seniority in the respondent department prior to 01.04.1988 and the respondent No.4 being appointed on 15.04.1987 in the respondent department was senior to him on the post of Assistant. 11. We have heard learned counsel for the parties and have also thoroughly gone through the impugned order of learned Tribunal dated 13.08.1999. We find no reason to interfere with the said order as the findings arrived at by the Tribunal are correct. It appears that what weighed with the Tribunal was that right from the beginning respondent department tried to make out a case so as to deprive the respondent No.4 of his rightful dues and therefore it observed that it was an afterthought of the respondents to contend that the present petitioner S.K. Mehta was absorbed from 01.04.1987 though the official record proved that he was absorbed w.e.f. 1.04.1988. The Tribunal took note of Regulation 18 of the Sports Authority of India (Service) Bye-laws and Conditions of Service Regulations 1992 (Schedule II) (Recruitment Rules), relating to Seniority on absorption of deputationists and reached to the conclusion that the petitioner was absorbed later in time in the department and as such there was no right available to the petitioner to place him above respondent No.4. The Regulation 18 which has been discussed by the learned Tribunal in detail and is being reproduced below clearly suggests the manner in which the seniority matters of the employees taken from different departments on deputation and absorbed, to be dealt with. 18. Seniority on absorption of deputationists - "Notwithstanding anything contained in those rules, where the competent authority relaxes, the recruitment Rules to provide for absorption of a person on deputation with the Sports Authority of India, with the consent of the lending authority, a deputationist shall be absorbed in the grade in which he, on the date of absorption, is working in the Sports Authority of India. His seniority on the date of absorption shall be fixed below all officers regularly appointed upto the date provided if he has been appointed in an identical scale in his parent department on an earlier date the benefit of the service in the scale in his parent department shall be given to him for the purpose of fixing his seniority subject to the condition that no benefit of service prior to the initial joining in Sports Authority of India on deputation is allowed." 12. The fact of absorption of the petitioner w.e.f. 1.4.88 would commensurate with the fact that his resignation letter, which was tendered by him, was accepted w.e.f. 1.4.88. The resignation letter is quoted herein below : "To The Chief Administrative Officer Ministry of Defence DHQ PO New Delhi Sir, Consequent upon my selection for permanent absorption in SAI in public interest, in the post of Asstt., I hereby tender my resignation from the post of U.D.C. held by me in CAO's Office (A-2), Ministry of Defence w.e.f. 31.3.1988 (AN) as required vide Govt, of India Deptt of Personnel and Training OM No. Yours faithfully Sd/ (S.K. Mehta) UDC CAO/A-2 At Present On Deputation" 13. This clearly establishes that the petitioner had continued on the rolls of defence Ministry until 1.4.88. Since he was on the rolls of the Defence Ministry until 1.4.88, his absorption in the Sports Authority of India Office could only happen on or after this date. The order of absorption, as on record, so preceded a request by the Defence Ministry that his absorption can only happen in the Department of the Sports Authority of India if he tenders his resignation from the post of AFHQ, on which post the petitioner was already working. The letter is quoted herein below : "No. A/26643/S AO/P-1 Bharat Sarkar, Raksha Mantralaya, Mukhya Prashasan Adhikari Ka Karyalaya, New Delhi, 3/March, 1989. The Sports Authority of India, Jawaharlal Nehru Stadium, Lodhi Road, New Delhi-110003. Subject : Permanent Absorption in Sports Authority of India - Shri S.K. Mehta, UDC. Sir, In continuation of this office letter No.A/26645/CAO/P-l, dated 1, Feb 89 on the above subject. 2. The Sports Authority of India, Jawaharlal Nehru Stadium, Lodhi Road, New Delhi-110003. Subject : Permanent Absorption in Sports Authority of India - Shri S.K. Mehta, UDC. Sir, In continuation of this office letter No.A/26645/CAO/P-l, dated 1, Feb 89 on the above subject. 2. The competent authority has accorded his approval to the resignation of service from the post of UDC in AFHQ clerical Service in respect of Shri S.K. Mehta with effect from 1 April, 1988 i.e. the date on which he was permanently absorbed in Sports Authority of India, New Delhi. Yours faithfully, (Bishamber Nath) SAO CAO/P-I For Chief Administrative Officer Copy to : CAO/A-2" 14. After the resignation, he was absorbed in Sports Authority of India vide orders of the Sports Authority of India dated 20th December, 1988 and this order shows that he is permanently absorbed in the Sports Authority of India w.e.f. 1.4.88. The order is quoted herein below : "Sports Authority of India Telex No. 31-66513 Telegraphic Address : S.A.I. Delhi Jawaharlal Nehru Stadium New Delhi 110003. No. 4(23)/84-Adm. Date - 20th Dec., 1988. Office Order No.622/88 Under the authority of Ministry of Finance Office Memorandum No.26(18)EV(B)/175 dated April 8, 1976 as amended from time to time, read with Govt, of India, Ministry of Personnel, Public Grievances and Pension, Department of Pension & Pensioner's Welfare Office Memorandum No.4 (12)/85-P&PG dated March 31, 1987 and with the approval of his parent Department viz. (Ministry of Defence) and Secretary, Sports Authority of India, (Shri S.K. Mehta, UDC) of the Office of Chief Administrative Officer, Ministry of Defence, New Delhi) is hereby permanently absorbed in this Authority in public interest with effect from 1.4.1988 (FN) as Assistant in the pay scale of Rs. 1400-2300 plus other usual allowances. 2. Shri S.K. Mehta will continue to draw his pay and allowances as hitherto to his pay is fixed in the post of Assistant in the Sports Authority of India. Sd/- (N.V. Krishnan) Copy to : 1. Chief ADministrative Officer, Ministry of Defence, Sena Bhawan, New Delhi with reference to his No.A/15312/Misc/CAB/P-l dated 1st December, 1988. The resignation letter tendered by Shri S.K. Mehta is enclosed in original. Internal 1. Shri S.K. Mehta, Assistant, SAI. 2. Chief Accounts Officer - SAI - for information and necessary action towards remittance of leave salary and pension contribution of above official upto 31.3.1988 to his parent Deptt. 3. The resignation letter tendered by Shri S.K. Mehta is enclosed in original. Internal 1. Shri S.K. Mehta, Assistant, SAI. 2. Chief Accounts Officer - SAI - for information and necessary action towards remittance of leave salary and pension contribution of above official upto 31.3.1988 to his parent Deptt. 3. Personal file of Shri S.K. Mehta, Assistant." 15. The above referred correspondence clearly establish that the petitioner was only absorbed w.e.f. 1.4.88. 16. The learned Tribunal has also taken into consideration the different contradictory stands of the respondent department and has observed that the same was highly deplorable and the respondents were needed to be reprimanded for the same. The Tribunal has also referred to the provisions contained in the relevant Rules and considering all the aspects, has quashed the order of promotion and directed that respondents should finalise the seniority list of Assistant treating the petitioner having been appointed on 01.04.1988 and thereafter to convene review DPC for other higher posts considering the candidature of present respondent No.4 also for promotion to the post of Office Superintendent and Assistant Director respectively as per seniority fixed in terms of that order. In our opinion, since all the relevant factors have been considered, the order of the Tribunal is liable to be sustained. Hence, the impugned order rightly came to be passed by the Tribunal. 17. Having considered the reasoning's given by the Tribunal and having heard the learned counsel for the parties, in our opinion, there is no merit in this writ petition and the same deserves to be dismissed. 18. In the light of above discussion, we are in perfect agreement with the conclusion arrived at by the Tribunal and there is no valid ground for interference. Accordingly, the writ petition fails and the same is dismissed. No costs.Writ petition dismissed - Order of tribunal sustained. *******