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2012 DIGILAW 503 (GAU)

Rakesh Kumar v. State of Arunachal Pradesh

2012-04-25

A.C.UPADHYAY

body2012
JUDGMENT A.C. Upadhyay, J. 1. How the inter-se-seniority of officers is to be determined, when officers are taken from different departments, on transfer to a new department and a new cadre of officers is created, is the issue involved in the present writ petition. Questions posed for answer is whether determination of seniority in the newly created cadre would be on the basis of total length of service of the officer in the post before his transfer or on the basis of total length of service of the officer in the Government service. To answer the above question, it would apposite to extract herein below, factual matrix leading to the situation. 2. On the recommendation of the Public Service Commission (PSC), the petitioner was initially appointed as Assistant Engineer (Electrical) in Public Works Department (PWD) With effect from 27.07.1989. In August 1991, notification was issued by the Commissioner, Public Works Department (PWD), bifurcating the PWD, into PWD and the Department of Power. Consequently, the petitioner became part of the Department of Power and continued to hold the post of Assistant Engineer (Electrical). In November 2003, the Department of Power was bifurcated into Department of Power (Electrical) and the Department of Power (Civil). The petitioner then was made part of Department of Power (Electrical). In June 2004, the Department of Power (Civil) was reconstituted and was converted into Hydro Power Development Department, with two wings. Electro-mechanical (E & M) and Civil. The Government of Arunachal Pradesh took a decision to strengthen the new Department of Hydro Power Development, by diverting certain units and posts from other departments like the Department of Power (Electrical), Rural Works Department (RWD), and PWD etc. primarily from the cadres of Junior Engineer, Assistant Engineer and Executive Engineer. 3. The service conditions of the petitioner in the Department of Power (Electrical, were governed by Arunachal Pradesh Power Engineering Service Rules, 1993. The petitioner being a degree holder and having completed 8 (eight) years, of regular service, in the grade of Assistant Engineer in July 1997, was eligible for promotion to the post of Executive Engineer, in the Department of Power (Electrical). But due to unavailability of vacancies in the promotional post of Executive Engineer, the petitioner was not considered for promotion to the post of Executive Engineer in July 1997. 4. But due to unavailability of vacancies in the promotional post of Executive Engineer, the petitioner was not considered for promotion to the post of Executive Engineer in July 1997. 4. In April 2005, the petitioner was belatedly promoted to the post of Executive Engineer, in the Department of Power (Electrical), retrospectively w.e.f. 06.05.03 and was posted as Executive Engineer (E & M), in the Department of Hydro Power Development, because Department of Power (Electrical) was practically merged with the Hydro Power Development Department. Hence becoming part of the Hydro Power Development Department, was not a matter of petitioner's choice. The petitioner contended that from the very beginning he was a victim of circumstances, for being in the Department, which in various stages of development evolved as the Hydro Power Development Department. 5. It has been submitted on behalf of the petitioner that unlike the petitioner, engineers from various cadres like Junior Engineers, Assistant Engineers and Executive Engineers etc. were brought from different departments like PWD, Rural Works Department etc. on transfer after obtaining their willingness and on compliance of formality of exercising an option. Some of the engineers, who came on transfer from other departments, in the cadre of Executive Engineer, had the benefit of fast track career progression, due to availability of vacancies in the promotional post in their parent department. As a result many of these engineers, despite entering the service as Assistant Engineer, much after the petitioner, were promoted as Executive Engineer in their parent department before the petitioner could get such promotion in his parent Department of Power (Electrical), which was subsequently merged with the Hydro Power Development Department. 6. It has been pointed out on behalf of the petitioners, for the purpose of the present case, a glaring example of three engineers, who came to the Department of Hydro Power Development, from the Rural Works Department. These three engineers, who were directly recruited as Assistant Engineers (Mechanical), in the Rural Works Department were Shri Along Ketan, his date of joining being 04.04.1991; Shri Tarung Jerrang, his date of joining being 11.04.1991 and Shri Tayum Udik Taba, his date of joining being 11.07.1992. They being posted in the Rural Works Department, had faster promotional opportunities due to which they were promoted as Executive Engineers in RWD during the period 1999-2002, i.e., before the petitioner could get promotion as EE in the Department of Power. They being posted in the Rural Works Department, had faster promotional opportunities due to which they were promoted as Executive Engineers in RWD during the period 1999-2002, i.e., before the petitioner could get promotion as EE in the Department of Power. When the aforementioned three Executive Engineers, were serving in their parent Rural Works Department, they were given an option to move to the Hydro Power Development Department. On their expression of willingness to move, the Rural Works Department passed an order transferring the aforementioned three Executive Engineers along with staff to the E & M Wing of the Hydro Power Development Department. 7. On 27.01.2006, the Hydro Power Development Department passed an order to the effect that all the amalgamated engineers under the Electro-mechanical Wing of the Hydro Power Development Department shall be placed under a common cadre as Electromechanical Engineers, and the inter-se-seniority between the engineers of Electro-mechanical Wing of the Department shall be decided as per rules and the relevant Government orders issued from time to time. 8. When the petitioner came to know that his date of joining as Executive Engineer (Electro-mechanical), in the Department of Hydro Power Development, inadvertently was shown as 06.05.05, instead of 27.04.05, he submitted an application to the Chief Engineer, Department of Hydro Power Development for correction of his date of joining. 9. The post of Superintending Engineer is a selection post. An Executive Engineer, having regular service of five years in the grade is eligible for promotion to the post of Superintending Engineer, under the Superintending Engineer (Civil)(Group A) Recruitment Rules, 1992 of the PWD. The petitioner was eligible under the Rules, for promotion as Superintending Engineer in May, 2008, having completed five years of service in the grade, since his promotion as Executive Engineer was given effect on and from 06.05.03. 10 It has been submitted on behalf of the petitioner that a representation was submitted on 05.11.2008 stating that the post of Superintending Engineer (E & M), which was created recently in the Department of Hydro Power Development, was lying vacant and being the senior most Engineer (in terms of total length of service), in the electro-mechanical wing of the Department of Hydro Power Development, the petitioner had a claim for promotion as Superintending Engineer (E & M). The Chief Engineer, Department of Hydro Power Development recommended the representation of the petitioner to the Secretary (Power), Government of Arunachal Pradesh and stated that the records reveal that the petitioner entered the service as Assistant Engineers in the year 1989, whereas the officers joining from Rural Works Department were appointed as Assistant Engineers during 1991 to 1992. Since the petitioner and the officers of the Rural Works Department, were working under the same Government prior to joining the Department of Hydro Power Development, there is a clear case of service seniority in respect of the petitioner vis-a-vis, those who had joined on transfer from the Rural works Department. 11 Petitioner submitted another representation to the Chief Minister (who is also Minister-in-charge of the Hydro Power development department) seeking redressal of his grievances. Being aggrieved by the promotion of Shri Along Ketan on officiating basis to the post of Superintendent Engineer, the petitioner submitted yet another representation to the Hon'ble Chief Minister, Arunachal Pradesh (who is also the Minister-in-charge of the Hydropower Development Department). 12 Learned counsel for the petitioner pointed out that till date the authorities are grappling with the issue of formulating criteria for determining the inter-se-seniority of Executive Engineers, in the Electro-mechanical and Civil wings of Hydro Power Development Department. After consultation at different levels the overwhelming opinion is in favour of fixation of inter-se-seniority in the cadre of Executive Engineer, exclusively on the basis of length of service in the cadre of Executive Engineer. 13 On the above consideration, the respondent Department started giving promotions to its officers on officiating basis, to the post of Superintending Engineer. It has been pointed out on behalf of the petitioner that the criteria of fixing inter-se-seniority in the cadre of Executive Engineer, on the basis of length of service in the cadre of Executive Engineer exclusively, favors those Executive Engineers, who had come on transfer from other departments after exercising their options. Learned counsel for to petitioner pointed out that these Executive Engineers due to better opportunities of career progression, in their parent department, got promoted as Executive Engineer, earlier than other senior batch mates. However, the petitioner, who despite entering the cadre of Assistant Engineer, at a much earlier date was promoted to Executive Engineer, belatedly in his parent department and became the part of new department due to unification of department. 14. However, the petitioner, who despite entering the cadre of Assistant Engineer, at a much earlier date was promoted to Executive Engineer, belatedly in his parent department and became the part of new department due to unification of department. 14. Learned counsel for the petitioner would submit that despite being the senior most in terms of total length of service, the petitioner is facing an imminent threat of becoming junior in the cadre of Executive Engineer, to those who entered the service much after the petitioner. 15. Petitioner was not offered any option and without asking him, he was transferred on promotion and was posted as Executive Engineer (E & M) in the Hydropower Development Department with effect from the date of joining.. 16. In reply to the above contentions of the petitioner, the State respondents by filing affidavit opposed that the Mechanical Wing of RWD along with one Division and three Sub-Division with man power had also been transferred to the DHPD on "as is where is basis" vide Govt. Order No. OM-53/03 dated 7th January 2003. As per the order, their seniority will not affect, even if they join in the DHPD and retain their seniority position as usual amongst the EEs of the diverted Mechanical Wing of RWD irrespective of their date of joining in the DHPD. 17. The State respondent further clarified that the petitioner along with the others promoted to the post of Executive Engineers (E) in the Department of Power, vide Govt. order No. PWRS/EE 447/98/Pt-III dated 14.04.2005 had also been transferred to the DHPD by specifically indicating therein that inter seniority in the grade of Executive Engineers (E), will be fixed in the feeder grade of AE (E), even in case of those who were promoted earlier vide govt. order dated 06.05.2003. But there was no mention about the retrospective promotion with effect from 06.05.2003 except indicating that "the pay of the above named officer will be fixed notionally from the same date of increment of pay of their immediate juniors in the grade of AE (E)". According to the respondent State the petitioner would have become senior to those Executive Engineers (E), who were promoted earlier vide govt. Order dated 06.05.2003 in the Department of Power had he and his colleagues not been transferred to the DHPD. 18. According to the respondent State the petitioner would have become senior to those Executive Engineers (E), who were promoted earlier vide govt. Order dated 06.05.2003 in the Department of Power had he and his colleagues not been transferred to the DHPD. 18. Respondent State specifically stated in the affidavit that though the petitioner was transferred in the DHPD, yet he has not been absorbed permanently in the DHPD and further the seniority of the Executive Engineers, is maintained in each and every work Department separately and there is no common or consolidated seniority list of all the Work Department. 19. According to the respondent the seniority is governed with reference to the date of promotion of the deputationist/transferee officer who is subsequently absorbed permanently in the department, in accordance with the prevailing CCS Service rules and Govt. orders, issued from time to time. According to the respondent State, in the instant case, the seniority list would be finalized strictly, as per the laid down guided principles of the CCS Service Rules and Govt. orders issued from time to time and each and every officers will be given ample liberty to challenge, object and to place their grievances before finalizing the final seniority list. 20. Learned counsel for the respondent State submits that (1) Shri Along Ketan (2) Shri Tarung Jerang and (3) Shri Tayum Udik Taba, who were initially appointed in the department as AE (Mech), became EEs in the years 1991 and 1992, whereas the petitioner was promoted as EE in year 2005. The seniority in the rank of EE is only counted for promotion to the post of SE. 21. Though, Executive Engineers of RWD were given their options for joining in the DHPD, but they were transferred from the RWD with man power, along with the one Division and three sub-Division on "as is where is basis" vide Govt. order No. OM-53/03 dated 7th January 2003. According to the respondent State the service rendered by the Executive Engineers in the R WD shall not be disturbed and their original seniority as in their parent department of R WD will be retained in the DHPD and the seniority position shall be governed with reference to their transfer and promotion orders as the case may be under CCS Service Rules and Govt. orders, issued from time to time as stated in the preceding paragraphs. 22. orders, issued from time to time as stated in the preceding paragraphs. 22. Learned Counsel for the State submitted that the seniority of the petitioner cannot be reckoned from the date of his first entry in the government service, but only from the date of promotion to the post of EE (E &M) in DHPD. The petitioner would have been senior to those who superseded the petitioner in his parent department of Power had he not been transferred to the DHPD. Inter- se- seniority of the petitioner and the officers, who came from the R WD on "as is where basis is " is to be fixed strictly in accordance with the govt. orders and CCS Service Rules, wherever applicable. The seniority position to be fixed from the date of first entry in govt. service from the year 1989, as claimed by the petitioner in the grade of EE (E & M), can not be entertained in the DHPD. 23. According to the respondents the date of promotion of respondent No. 3 and others as Executive Engineer of RWD are as follow: Name Date of promotion to Executive Engineer (a) Shri Along Ketan 26.04.1999 (b) Shri Tarung Jerang 26.062002 (c) Shri Tayum Udik Taba 26.062002 The date of his joining/promotion etc., of the petitioner is as under: (1) 06.05.2003 date of promotion effected retrospectively as claimed by the petitioner in paragraph No. 8 of the writ petition. (2) 06.05.2005 date of joining in DHPD as per his service book records. 24. According to the respondent State, from the above it may be concluded that inter-se-seniority of above officers of Department of Hydro Power Development and RWD may be worked out in order of seniority as under :- 1. Shri Along Ketan 26.04.1999 2. Shri Tarung Jerang 26.06.2002 3. Shri Tayum Udik Taba 26.06.2002 4. Rakesh Kumar 06.05.2003 06.05.2005 as the case may be. 25. Learned counsel for the respondent clarified that if above seniority is taken into account, Shri Along Ketan qualified for SE in the year 2004, Shri Tarung Jerang and Shri Tayum Udik Taba in the year 2007 respectively. Hence, the claim made by the petitioner has no merit and liable to be dismissed. 26. 25. Learned counsel for the respondent clarified that if above seniority is taken into account, Shri Along Ketan qualified for SE in the year 2004, Shri Tarung Jerang and Shri Tayum Udik Taba in the year 2007 respectively. Hence, the claim made by the petitioner has no merit and liable to be dismissed. 26. According to the respondent State fixation of inter-se-seniority of Executive Engineers (E & M), who were either transferred from Department of Power diverted from the RWD with man power along with one Division and three Sub- Division on "as is where is basis" is yet to be resolved. 27. Learned State respondents counsel submits that promotions up to the level of SE, it is trade specific. At present, there are 6 (six) SE (C), 1 (one) SE (EM cum HQ). Promotions to these specified SE are made from the respective wing of the Civil & E & M from respective feeder grade of EEs, who have qualified for promotion as per the RR. 28. The learned counsel for the State respondent submitted that the DPC for regularization of SE (E & M) shall only be held after finalization of the inter-se-seniority of the Executive Engineers, transferred from the Department of Power as well as diverted with posts of one Division and three Sub-Divisions, along with manpower of Mechanical Wing from RWD, on "as is where is basis". As per the standards prescribed, for one promotional post, five officers fall under the Zone of Consideration. Hence, if the petitioner falls under the Zone of Consideration, his name will naturally be placed before the DPC. 29. It has been stated on behalf of the respondent State that the seniority list of the Civil Wing right from JE onwards up to SE level under DHPD has already been finalized many years back. The seniority list of JEs under Electro-Mechanical Wing under DHPD from AEs onwards will be finalized soon. Formulation of just rational and non-discriminatory criteria for fixation of inter-se-seniority does not arise as because guiding principles in this regards have already been laid down in the CCS Service Rules, in their promotion/transfer order of the petitioner and diversion order of the officers of RWD. Formulation of just rational and non-discriminatory criteria for fixation of inter-se-seniority does not arise as because guiding principles in this regards have already been laid down in the CCS Service Rules, in their promotion/transfer order of the petitioner and diversion order of the officers of RWD. The laid down guided principles will be followed strictly and the seniority list will be fixed in accordance with the guiding principles of the CCS Service Rules and government order issued from time to time. As such practice of discrimination while finalizing the seniority list does not arise. 30. We have heard Mr. P.K. Tiwary, learned counsel for the petitioner and Mr. K. Ete, learned Addl. Advocate General, A.P. and Mr. RB Yadav, learned counsel for respondent No. 3, at length. 31. Mr. Tiwary, learned counsel for the petitioner pointed out that it is incorrect on the part of the Government to say that it was mentioned in the order that the seniority of the persons will not be affected even if they join in the DHPD and that they will retain their seniority position as usual amongst the Executive Engineers of the diverted Mechanical Wing of the RWD irrespective of their dates of joining in the DHPD. Even if this interpretation is accepted (though not mentioned anywhere) the same can hold good only for the officers who have come from RWD. 32. In fact, an order was issued by the Government vide No. PWRS/E-1045/2004/ 96-106, dated 27.01.2006 (Annexure-9 of the writ petition) placing all the Engineers of the Electro-Mechanical Wing of the DHPD (who had come from different Departments) under a common cadre as "Electro-Mechanical Engineers, and their inter-se-seniority was to be decided as per rules and relevant executive instructions issued from time to time. However till date, admittedly, there is no rule, order or executive instruction laying down the principles for fixing inter-se seniority. In order to lay down modalities for fixing inter-se seniority a letter dated 04.03.2005 was written by the Deputy Secretary, Power to the Chief Engineer, Department of Hydro Power Development but nothing concrete was done on the ground. 33. However till date, admittedly, there is no rule, order or executive instruction laying down the principles for fixing inter-se seniority. In order to lay down modalities for fixing inter-se seniority a letter dated 04.03.2005 was written by the Deputy Secretary, Power to the Chief Engineer, Department of Hydro Power Development but nothing concrete was done on the ground. 33. In the promotion order dated 14.04.2005, mention about retrospective promotion of the petitioner has been made indicating herein that the inter-se-seniority in the grade of Executive Engineer (E) promoted vide Government order No. PWRS/E-448/ 98/Pt-II (A)/134-44 dated 06.05.2003 would be governed by respective seniority in the feeder post i.e. in the grade of AE (E) and the pay of the promoted officers will be fixed notionally from the same date of increment of pay of their immediate juniors in the grade of Assistant Engineer (Elect) (Annexure-II of the counter). Which implied that the officers promoted vide Government order dated 14.04.2005 were given promotion with retrospective effect from 06.05.03 and consequently the pay of all the Officers promoted - vide order dated 14.04.2005 were fixed in the grade of Executive Engineer w.e.f. 06.05.2003. Therefore, it necessarily follows that the petitioner along with other officers were given retrospective promotion w.e.f. 06.05.2003, otherwise their salaries would not have been fixed by the Government in the grade of Executive Engineer with effect from 06.05.2003. 34. Though the respondent State claimed that the petitioner was transferred but has not been absorbed permanently in the DHPD. Nowhere in the order dated 14.04.05 vide which the petitioner and three other officers were posted to DHPD, the word "deputation" appears which implies that the petitioner along with 3 (three) other officers were transferred/posted to DHPD on regular/permanent basis and not on "deputation" alike the officers of RWD who were also transferred/posted to DHPD because in their order also nowhere the word "deputation" appears. It is pertinent to mention here that apart from the petitioner and three other officers from Department of Power and the officers from RWD, many other officers from the Department of Power and PWD were also posted to DHPD. However, in case of latter the posting was done on 'deputation basis' (in sharp contrast to the petitioner) and this was clearly mentioned in their transfer/posting orders. However, in case of latter the posting was done on 'deputation basis' (in sharp contrast to the petitioner) and this was clearly mentioned in their transfer/posting orders. It is thus evident that in case of the officers who were transferred on deputation basis, the same was clearly mentioned in their orders. Since in the transfer/posting order of the petitioner nothing of that sort has been mentioned, as in the case of the officers, who were transferred from RWD, he has to be deemed to have been absorbed in DHPD, of course, unless otherwise is ordered by the respondent State. 35. Admittedly, the inter-se-seniority of all such officers who were posted in Electro-Mechanical Engineers Cadre, has not been fixed as yet. Consequently, this petition has been filed before the Hon'ble Court to direct the Government to finalise the inter-se-seniority list in conformity with just, fair and rational principle. 36. The petitioner entered as Assistant Engineer (Electrical) in PWD. On bifurcation of Public Works Department, the Department of power was created and the petitioner found himself in the Department of Power. Subsequently, the Department of Power was bifurcated into Department of Power (Electrical) and Department of Power (Civil) and the petitioner was put into Power (Civil) was converted into Hydro Power Development Department and the Department of Power (Electrical) was merged with the Hydro Power Development Department. It is under these circumstances that without any act of volition on his part that the petitioner became part of the Hydro Power Development Department. Unlike others, petitioner was not brought to the Hydro Power Development Department voluntarily either on transfer basis or on deputation after exercising option. 37. That it is therefore seen that the cadre Executive Engineer in the Hydro Power Development Department was constituted by bringing in Executive Engineers from different Departments, who were integrated into a common cadre of Executive Engineer in Hydro Power Development Department. 38. The issue involved in the present case is that as to what principle should be followed in fixing inter-se-seniority of the employees of an integrated cadre who consequent to their integration are members of the new integrated group. The crux of the problem is as to how much credit is to be given to the period of service rendered by the respective employees in their parent organizations, prior to the date of their integration into a common cadre. The crux of the problem is as to how much credit is to be given to the period of service rendered by the respective employees in their parent organizations, prior to the date of their integration into a common cadre. Whether the period of service rendered as an Executive Engineer alone in the earlier organization (i.e. prior to the integration) should be counted or whether the entire length of service rendered in the earlier organization should be the basis of determination of seniority in the integrated cadre. What will be the just, fair and rational principle for fixation of seniority on integration of cadres of Executive Engineers of different Departments into Hydro Power Development Department? 39. The settled principle of law is that when there is a merger of two or more establishments or integration of two or more cadres, the inter-se-seniority amongst the employees in the merged establishment or the integrated cadre has to be determined on some rational principle. However what would be a fair, just and rational principle will vary according to the facts and circumstances of the case and particularly the historical back ground of the integration. The Judgments of the Courts on these issues reveal a flexible approach in complex situation with ultimate aim of striking a just balance between the rival claimants. 40. In General Manager, South Central Railway vs. A.V.R. Siddhanti, AIR 1974 SC 1755 : (1975) 4 SCC 335 the Apex Court observed an useful illustration as to the nature of problems relating to seniority, which can arise on integration and a just and fair manner of solving them. The problem in A.V.R. Siddhanti arose in the background of the setting up of temporary grain shop complex by the Indian Railways to meet the difficulties created by acute shortage of food grains during the Second World War. The problem in A.V.R. Siddhanti arose in the background of the setting up of temporary grain shop complex by the Indian Railways to meet the difficulties created by acute shortage of food grains during the Second World War. The personnel to man the grain shop complex was drawn from three different sources namely, i) Temporary employees, who on being selected through the Joint Selection Commission or Staff Selection Board were initially appointed in the permanent Departments and were thereafter transferred to the grain shop Department, ii) Temporary employees selected by Selection Board or the Selection Commission for permanent Departments, but posted straightaway in the grain shop Department without being first appointed in the Department to which they were originally selected, and iii) Temporary employees directly recruited by the Deputy General Managers to the grain shop Department from the 'open market'. Later it was decided to wind up the grain shop complex and to absorb its staff and permanent Departments of Railways. In relation to seniority after absorption, the Railways decided that as far as category (i) was concerned, their seniority would be reckoned from the date of the initial permanent appointment in the permanent Departments; as far as category, (ii) was concerned, their seniority was to be fixed with reference to the date of their joining the Grain Shop Department and as far as category, (iii) was concerned, their seniority was to be fixed from the date of their absorption in the permanent Department irrespective of their length of service in the Grain Shop Complex. This difference in treatment was attacked as being violative of Articles 14 and 16 of the Constitution. The Supreme Court held that, having regard to the special feature of personnel in category (i) i.e. that they had been initially appointed against substantive vacancies in permanent Departments of the Railway and did not come to the temporary Grain Shop Department of their own volition, it was fair and reasonable that, on the abolition of Grain Shop Department, they should be sent back to the permanent Departments from, where they came and given credit for their initial service in those Departments for the purpose of seniority. But the court was unable to find any substantial difference between those in category (ii) and category (iii) to justify a differential treatment. 41. But the court was unable to find any substantial difference between those in category (ii) and category (iii) to justify a differential treatment. 41. When an integrated service comes into existence by reason of initial recruitment through a defined process from two or more sources comprising different classes of officers already in service then a rule providing for assigning seniority on the basis of the length of service rendered by them in the cadre to which they belonged at the time of their initial recruitment to the service was held to be valid. 42. In the case of Joginder Nath vs. Union of India, (1975) 3 SCC 459 : AIR 1975 SC 511 (571), the Supreme Court observed as follows. On their initial recruitment to the Delhi Judicial Service they retained their original seniority inter se as was assigned to them in their present cadre. Was it possible to have a different yardstick some other date or shorter period of fixation of the seniority for the law graduates, Judicial Magistrates on their initial recruitment to the service? Was it possible to treat them as the first and the new recruits to the Delhi Judicial Service? Even so what would have been the basis of determining their authority inter se? The questions posed are suggestive of the answers. Taking the length of service rendered by the candidates in their respective cadres for the purpose of fixation of seniority under Rule 11 of the Delhi Judicial Service Rules, was justified, legal and void. Had it been otherwise, it would have been discriminatory. It was not equating unequals with equals. It was merely placing two classes at par for the purpose of seniority when it became a single class m the integrated Judicial Service of Delhi. For the purpose of fixation of seniority, it would have been highly unjust and unreasonable to take the date of their initial recruitment to the service as their first appointment. Nor was it possible to take any other date in between the period of service in their parent cadre. It would have been wholly arbitrary. In our judgment, therefore, there was no escape from the position that the entire length of service of the two classes of officers had got to be counted for the purpose of determination of their seniority on their initial recruitment to the Delhi Judicial Service. It would have been wholly arbitrary. In our judgment, therefore, there was no escape from the position that the entire length of service of the two classes of officers had got to be counted for the purpose of determination of their seniority on their initial recruitment to the Delhi Judicial Service. It was not possible or practical to measure their respective merits fro the purpose of seniority with mathematical precision by a parameter. Some formula doing in largest good to the largest number had to be evolved. The only reasonable and workable formula which could be evolved was the one engrafted in Rule 11 of the Delhi Judicial Service Rules (1957). The object of the Delhi Judicial Service Rules was to create a service by integration of different classes of persons already working as Judicial Officers. The fixation of seniority on the basis of length of service in their respective parent cadres had a rational nexus to the object intended to be achieved. 43. In the case of A.S. Iyer (Col.) vs. V. Balasubramanyam (1980) 1 SCC 634 ; AIR 1980 SC 452 , the Supreme Court had held that having regard to the historical background in which the integration took place, the pragmatic compulsion of the situation and the functional importance of the classes merged, it would not be unfair and unreasonable if a particular class is given credit at the entrance point for the pre-integration service rendered by them. The Court explained: Once it is agreed and found that at the entrance point, the Army Engineers are justly given credit for Commissioned Service which they carry with them, there is no further discrimination while in service on the score that they come from the Corps of Engineer Officers. All that happens thereafter is merely a manifestation of initial advantage of credit from Commissioned Service. (para- 47) 44. In Reserve Bank of India vs. N.C. Paliwal, AIR 1976 SC 2345 (Para-16), it was held that if the service rendered by the employees who are merged in the department is wholly ignored, it would be most unjust. In State of Orissa vs. N.N. Swamy (1977) 2 SCC 508 , the Supreme Court held that ignoring past service altogether may not be fair. 45. In State of Orissa vs. N.N. Swamy (1977) 2 SCC 508 , the Supreme Court held that ignoring past service altogether may not be fair. 45. Learned counsel for the petitioner pointed out that the status of the petitioner is not similar to those Executive Engineers (E & M), who came to the Hydro Power Development Department from PWD, RWD, PHED etc, for the following reasons: (i) The petitioner is senior to these Executive Engineers (E & M) in terms of length of service in as much as he entered the service as Assistant Engineer (E) on a date prior to these engineers. (ii) The petitioner did not have equal opportunity in the matter of promotion to the post of Executive Engineer (E) in the Power Department because of slower pace of promotion on account of lack of adequate vacancies in the cadre of Executive Engineer (E), in the Power Department, whereas in other departments like RWD, PHED etc. the pace of promotion was faster. (iii) The petitioner became the part of Hydro Power Development Department not as an act of volition on his part as no consent or willingness was taken from him. The petitioner was transferred to the Hydro Power Development Department because the department of Power merged with the said department. This was not the case with others, as Engineers like respondent No. 3 became part of the Hydro Power Development Department on exercising option expressing their willingness to do so. (iv) The cases of engineers like respondent NO. 3 were similar to absorption of deputationists, but same was not the case with the petitioner. Hence the petitioner cannot be subjected to the principle governing the fixation of seniority inter se of deputationists absorbed in service. 46. Vide Order dated 14.4.2005, issued by the Secretary, Department of Power while promoting the petitioner as Executive Engineer (EM) in the Department of Power transferred him on such promotion to the Hydro Power Development Department, laid down the principle for determination of his seniority in the cadre of executive engineer i.e. in terms of his seniority in the feeder cadre of Asstt. Engineer. Hence, the petitioner's legal right to determine his inter se seniority in the cadre of Executive Engineers, on the basis of his length of service in the feeder cadre of Asstt. Engineer. Hence, the petitioner's legal right to determine his inter se seniority in the cadre of Executive Engineers, on the basis of his length of service in the feeder cadre of Asstt. Engineer flows from the said order, especially when the said order is not disputed or challenged by the official respondents. 47. Learned counsel for the petitioner pointed out if length of service in the cadre of Executive Engineer alone is made the basis for determination of seniority inter se in the integrated cadre of Executive Engineer (E & M) of Hydro Power Development Department, the same would result in treating unequal as equal thereby violating Article 14 and 16 of the Constitution. 48. The principle for determination of inter se seniority in the integrated cadre of Executive Engineer (E & M) on the basis of total length of service (AE + EE) is the most just, fair and equitable principle in conformity with Article 14 and 16 of the Constitution of India, by following the practice of determining inter se seniority in the integrated cadres on the basis of total length of service i.e. service seniority. 49. It is a settled principle of service jurisprudence that a seniority of Government Servant is always protected when his transfer is under compulsion. In this connection Supreme Court Judgment in the case of Anand Chandra Das vs. State of Orissa (1998) 2 SCC 560 (para 2) may be referred to, which reads as follows: Mr. Das, learned counsel, also further contended that the appellant has all along been requesting that he should be reverted to his parent department, namely, Revenue and Excise Department but even that prayer had not been granted and under these circumstances there is no justification for ignoring his past services as a Senior Auditor in the Revenue Department for the purpose of determining his seniority in the cadre of Senior Auditor in the Labour Department. We find sufficient force in the aforesaid contention of the learned counsel appearing for the appellant. That the appellant was appointed as a Senior Auditor on being duly selected by the Member, Board of Revenue on 28.10.1966 is not disputed. It is also not disputed that his services were brought over to the Labour Department on requisition being made to all the government departments and on his name being sponsored by the Revenue Department. That the appellant was appointed as a Senior Auditor on being duly selected by the Member, Board of Revenue on 28.10.1966 is not disputed. It is also not disputed that his services were brought over to the Labour Department on requisition being made to all the government departments and on his name being sponsored by the Revenue Department. It is no doubt true that the Labour Department had indicated that the seniority will be determined on the basis of the date of joining of the Labour Department itself but the appellant had at no point of time agreed to the said condition, and on the other hand, unequivocally expressed his unwillingness to come over to the Labour Department by letter dated 6.11.1970 and without consideration of the same the Revenue Department relieved him requiring him to join in the Labour Department. In the aforesaid premises we see no justification in ignoring the service rendered by the appellant as a Senior Auditor under the Revenue Department. 50. In the facts and circumstances of the case, the petitioner and the engineers like respondent No. 3 belong to two different classes of Executive Engineers (E). These two classes are distinguishable from each other. Hence, to determine inter se seniority between the Executive Engineers of these two distinguishable classes the only just, fair and equitable principle is to fix the inter se seniority on the basis of total length of service. 51. The petitioner was transferred from his parent department of Power (E) to the newly created Department of Hydro Power Development curved out of the petitioner's parent Department of Power (E). In the case of Engineers like respondent no 3 it was a case of transfer from one Department to another on deputation leading to their absorption. 52. In this connection reliance has been placed on Para 21 of the Supreme Court judgment in the Case of K. Madhavan vs. Union of India AIR 1987 SC 2291 (Para 21), wherein it has been held as follows: 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 may be regarded as a transfer from one government department to another. Indeed when a deputationist is permanently absorbed in the CBI, he is under the rules appointed on transfer. In other words, deputation may be regarded as a transfer from one government department to another. It will be against all rules of service jurisprudence, if a government servant holding a particular post is transferred to the same or an equivalent post in another government department, the period of his service in the post before his transfer is not taken into consideration 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 wholesome principle commonly applied where persons from different source 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 new service cadre. See R.S. Mokashi vs. I.M. Menon (1982) 1 SCC 379 : ( AIR 1982 SC 101 ); Wing Commander J. Kumar vs. Union of India (1982) 3 SCR 453 : AIR 1982 Sup 1064. 53. Service seniority of a regular officer in his grade, in a cadre in Government Department is counted in terms his date of regular promotion in service in the grade and not on the basis of total length of service in the Government. If a government servant holding a particular post is transferred to the same or an equivalent post in another government department, the period of his service in the post before his transfer has to be taken into consideration 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. As a matter of fact, officers having equivalent educational qualifications, appointed in different cadre, in Government service may be promoted to higher posts on different dates depending upon availability of vacancies in promotional post However, if subsequently, such cadres are merged by the Government in exigency of service, unless otherwise intended by the Government, the officer who has been promoted earlier in his cadre will not lose his seniority in his grade due to the merger of the cadre of service. The service rendered by the employees who are merged in the department cannot be wholly ignored. 54. Admittedly, the inter-se-seniority of all such officers who were posted in Electro-Mechanical Engineers Cadre has not been fixed as yet by the respondent state. Consequently, this petition has been filed before this Court seeking to direct the State respondent to finalise the inter-se-seniority list in conformity with just, fair and rational principle. However, the petitioner is banking on the assurance as envisaged in his promotion order dated 14th April, 2005. On the other hand respondent No. 3 is relying on the assurance given by the State respondent to protect his seniority in the new cadre. 55. In view of the above discussion it appears that the respondent state have neither disposed of the representation submitted by the petitioner, nor finalized the inter se seniority among the members of the cadre, in conformity with a just, fair and rational principle, keeping in view the assurances given to the petitioner, as well as to the private respondents. In fact the State respondents have not taken a responsive decision on the issue in question. Therefore, I propose to dispose of this writ petition with a direction to the respondent to finalize the inter se seniority of the officers, so that the regular promotion may be finalized by the State respondent in due course of time. 56. With the above end in view, it is hereby directed that an exercise be undertaken by the State respondents to finalise the inter-se-seniority list in conformity with just, fair and rational principle, keeping in view the above observation. The entire exercise be completed within a period of 3 (three) months from the date of receipt of certified copy of this order. The writ petition is disposed of in terms of the above order. However, I pass no order as to costs.