K. Meghachandra Singh & Ors. v. Ningam Siro & Ors.
HRISHIKESH ROY, J.
1. Leave Granted.
2. These matters pertain to an inter-se seniority disp ute in the
Manipur Police Service Grade II Officers Cadre, hereinaf ter referred
to as “MPS Grade II Cadre ”. The appellants before us in the SLP
(C) No. 19565-67 of 2019 were few of the respondents in the W.P.(C)
No. 366 of 2013. They are to be described hereinaft er as “direct
recruits” . The respondents in this SLP were the Writ Petitioners i n
the High Court who were appointed on promotion to the MPS Gra de
II Cadre. For clarity and ease of understanding, they are being referred
as “promotees” in this judgment.
3. Prior to their induction (on 01.03.2007) to the MPS Grade II
Cadre, the promotees were serving as Inspector of Police and they
were granted promotion on the basis of a duly constituted Departmental
Promotion Committee (DPC). On the other hand, the P rivate
Respondents 3 to 32 and no. 33 in the Writ Petition (C) No. 366 of
2013 were directly recruited into the MPS Grade II Cadre, vide the
respective orders dated 14.08.2007 and 24.11.2007.
4. Appointment and seniority in the Manipur Police Service is
governed by the Manipur Police Service Rules, 1965 (hereinafter
referred to as “the MPS Rules, 1965” ). After considering the claims
and objections and in compliance with the Court’s direction (18.02.2013)
in W.P(C) No. 235 of 2012, the Govt. of Manipur, applying the principle
of dovetailing between the promotees and the direct recruit officers,
issued the Order on 17.5.2013 publishing the final seniority list (as on
01.04.2013), of the MPS Grade II Officers. The promotees challenged
this through the Writ Petition (C) No. 366 of 2013 in the High Court of
Manipur. By amending their Writ Petition, the promotees also challenged
657
the subsequent Govt. orders dated 20.01.2014 and 19.02.2014 where
the direct recruits were placed above them.
5. Before the Writ Court, the promotees contended that they
entered the MPS Grade II Cadre on 01.03.2007 whereas the pri vate
respondent nos.3 to 33 were appointed subsequently (on 14.08.2007 and
24.11.2007 respectively) and, therefore, they should be regarde d as
senior to the direct recruits.
6. The direct recruits on the other hand claimed seniority over
the promotees by contending that seniority has to be decided in
accordance with the year of the vacancy and not by the fortuitous date
on which, the appointment could be finalized for the direct recruits .
7. In an earlier proceeding i.e., Writ Petition (C) No. 235 of 2012,
in an inter-se seniority dispute amongst the direct recruits and
promotees in the MPS Grade II Cadre, the State in their count er
affidavit took the stand that seniority should be determine d from the
date on which the person was appointed but not from th e date of
vacancy. For the direct recruits appointed on 14.08.2007 against the
vacancy of 2004-2005 it was averred that their seniority sh ould be
counted from the date of appointment.
8. The learned Judge heard the parties, applied his mind to the
Office Memorandums produced before him and by the c ommon
judgment dated 07.07.2017 quashed the impugned orders. It is seen that
single Judge directed that the batch of promotees appointed on 01 st of
March 2007 must be given seniority above the direct recruits appointed
on 14 th August, 2007 and he justified this by stating that a direct recruit
can claim seniority only from the date of his regular appoin tment and
cannot claim seniority from a date when he is not borne in the service.
For this conclusion, the learned Judge had relied upon, inter alia , the
ratio in Jagdish Chandra Patnaik’ vs. State of Orissa 1. The Court
also held that the expression “year” must refer to financial year and
not calendar year . Support for such conclusion is based on the Office
Memorandum dated 29.4.1999 which contains instructi ons to be
followed by DPC in the matter of holding its meetings towards promotion
which is one of the methods of recruitment. This Memo specifies that
the recruitment year would be treated as the financial year . Besides
the Manipur Reservations of Vacancies in Posts and S ervices (for
1 (1998) 4 SCC 456
K. MEGHACHANDRA SINGH v. NINGAM SIRO
[HRISHIKESH ROY, J.]
Schedule Castes and Schedule Tribes) Act of 1976 which was
enacted on 24 th February, 1977, for short “ the Manipur (SC & ST)
Act, 1976” , provided that the term meant financial year. It was als o
seen that on 18.12.2009, the State of Manipur amended the Manipur
Police Service Rules of 1965 by introducing sub-rule 2(g) defining
the word “year” to mean calendar year. This amendment had provided
that it would come into force with effect from the date of p ublication
in the official gazette of Manipur thereby making it plain that the same
was not intended to have any retrospective effect. The learn ed Single
Judge relied on this to hold that prior to the date of this notification, the
word “year” could not be said to be calendar year but would mean th e
financial year.
9. In consequence, the learned Single Judge held th at the
promotees get entry into the cadre in the recruitment year 2006-2007
whereas the direct recruits would stand appointed in the recruitment
year 2007 -2008. There being no overlap between the promotees and
direct recruits as far as the year of recruitment is concerned, applying
Rule 28(iii) to dovetail the two streams using the principle of ro tation
of quota, would not arise. It was accordingly determi ned that the
impugned seniority lists are bad in law and all action taken thereunder
are rendered null and void. The following directions were the n issued
by the learned Judge in his common judgment dated 07.07.2017:-
“.................................................. ..........................................
(14) For the reasons stated herein above, the writ petitions being
WP(C)No.366 of 2013 and WP(C)No.120 of 2014 are allowed
and consequently, the Government orders dated 17-05-2013, 20-
01-2014 and 19-02-2014, impugned herein, in respect of the
petitioners and the private respondents, are quashed and set aside
with the following directions:
(a) The State Government shall prepare a seniority li st
afresh in respect of the MPS Officers, after taking into
account the observations made by this Court
hereinabove, within a period of three months from the
date of receipt of a copy of this judgment and order;
(b) While preparing the seniority list of MPS Officers, the
State Government shall follow the guidelines/instructions
contained in the Office Memorandum dated 07-02-1986
659
which is adopted by the State Government vide its Office
Memorandum dated 13-11-1987 as directed vide order
dated 18-02-2013 passed by the Hon’ble Gauhati High
Court in WP(C)No.235 of 2012. There shall be no order
as to costs.
................................................... ...........................”
10. Aggrieved by the declaration of inter-se seniority favour ing
the promotees, few direct recruits including the respondent no.14 K.
Meghachandra Singh and others filed the Writ Appeal No.49 of
2017.This Appeal in the Manipur High Court was transferred to the
Gauhati High Court and was re-numbered as Writ Appeal No. 66 of
2018. The State Government did not however challenge the analogous
judgment (07.07.2017) rendered in the Writ Petition (Civil) No.366 of
2013.
11. The Division Bench upheld the conclusion of the Single Judge
but confined its justification to the principle that seniori ty for direct
recruits could not be reckoned from a date prior to their appointment.
In doing so, it approved the finding of the Learned Single Judge to the
same effect.
.12. The Division Bench did not however feel it necessary to go
into the question as to whether “year” means “calend ar year” or
“financial year”. They felt that the position being very clear, there was
no reason to embark upon the interpretation of the word/words “ye ar”
or “for that year”, as was done by the Learned Single Judge.
13. It was also made clear that the promotees will naturally have
seniority over the Appellants as they had entered the cadr e of MPS
Grade II, before the Writ Appellants were borne in the cadr e.
14. Following the above judgment (26.09.2018) in the Writ Appeal
No.66 of 2018 against the direct recruits, K. Meghachandra Singh and
others filed the Review Petition No. 10 of 2019. Bu t neither on
04.04.2019 nor on 10.04.2019, the counsel for the direct recruits were
present before the Gauhati High Court and accordingly the Re view
Petition was dismissed for non-prosecution, through the order dat ed
10.04.2019. The I.A.(C)No.1741 of 2019 was then fil ed by K.
Meghachandra Singh for restoration of the Review Petition; but the
restoration was held to be unmerited and accordingly the I.A. fi led by
the direct recruits was dismissed on 24.05.2019.
K. MEGHACHANDRA SINGH v. NINGAM SIRO
[HRISHIKESH ROY, J.]
15. Aggrieved by rejection of their Writ Appeal and the re lated
petitions, the direct recruits have approached this Court with the Special
Leave Petition (C) No.19565-67 of 2019 to challenge the decisions of
the High Court.
16. Assailing the impugned judgment and orders, Mr P .S.
Patwalia, the learned Senior Counsel contends that seniority of the direct
recruits in the MPS Grade-II Cadre must be reckoned from the tim e
when vacancies occurred and should relate to the re quisition
(29.07.2005) made to the Manipur Public Service Commission, to fill
up the vacancies. According to him, the date of actual appoint ment of
the appellants on later dates (14.08.2007 and 24.11.2007), shouldn’t
impact the inter-se seniority of the direct recruits vis-à-vis the
promotees , who were promoted to the cadre on 01.03.2007.
17. The Senior Counsel cites Union of India and others Vs.
N.R. Parmar , (2012)13 SCC 340, to argue that when action was
initiated for filling up the 2005 vacancies, the administra tive delay in
finalization of the recruitment leading to delayed appointment should not
deprive the individual of his due seniority. By referring to the rotation
of quota principle, the counsel argues that initiation of action for
recruitment in the year of the vacancy would be sufficient, to a ssign
seniority from that year.
18. According to Mr. Patwalia, the Learned Single Ju dge
erroneously interpreted “recruitment year” as “financial year” in
order to confer higher seniority position to the promotees vis-à-vis direct
recruits as both groups were appointed in different months of the same
year i.e. 2007. The Counsel refers to the 1989 Amendment (18.12.2009)
of the MPS Rules to point out that recruitment year has been clarified
as “ calendar year” and therefore, there is no necessity to interpret
the expression.
19. The Senior Counsel then refers to Rule 28(iii) of the MPS
Rules to highlight that seniority of the direct recruits and promotees
are to be determined on the principle of rotation of vacancie s under
Rule 5 for that year and therefore, the promotees cannot be placed
en-bloc above the direct recruits merely because, they were promoted
on an earlier date i.e. 01.03.2007, particularly when, the recr uitment
process for the direct recruits commenced in the year 2005 itself.
661
20. Representing the respondents/ promotees , the learned Senior
Counsel, Shri Jaideep Gupta refers to the MPS Rules, 1965 to argue
that the provisions of the Rules make it abundantly clear that inter-se
seniority in the cadre of MPS Grade-III is to be determined by the
order in which appointments are made to the service. The counsel
pointedly refers to Rules 28 (i) where it is specified that the …….
seniority in the service shall be determined by the or der in which
appointments are made to the service……. He also refers to the later
part of Rule 28(iii) , where again it is specified that the “seniority of
the officer…… shall be counted from the date, he/she is appointed
to the service…………. The provisions in Rule 16(iii) are pressed
home by Mr Gupta to argue that only when the person is appointed, he
shall be deemed to have been appointed to the service from the date
of encadrement.
21. The judgment in N.R. Parmar (Supra) is read with equal
emphasis by Mr Gupta to firstly point out that this case d oes not lay
down the correct law in determination of seniority. The counsel highlights
the incongruity in a situation where a person who entered service later
will claim seniority above those who joined service at an e arlier point
of time. The applicability of the ratio in N.R. Parmar (Supra) to the
litigants in the present case is also questioned by Mr Gupta by pointing
out that the provisions of MPS Rules, 1965 applicable for the officers
in the Manipur Police Officers, was not the subject of consideration in
N.R. Parmar (Supra) , and, therefore, the said ratio relatable to Income
Tax Inspectors, with different Service Rules, will not apply to the present
case.
22. The learned Senior Counsel, Mr Gupta, then refers to the
office Memorandum dated 07.02.1986 and the illustration provided in
the same Office Memorandum to explain the carry forward pr inciple
to argue that the judgment in N.R. Parmar (Supra) misconstrued the
legal implication of the OM. According to the counsel, the MPS Rules
1965 did not refer to the financial year as was done by the learned
Single Judge or even the calendar year as was mentioned by the
Division Bench in as much as the Rules make it abundantly clear that
inter-se seniority has to be reckoned from the date of appoin tment. It
is, therefore, argued that the 2005 requisition for the direct recruit
vacancies, can have no bearing on the inter-se seniority of thos e who
were borne in the cadre on an earlier date vis-à-vis those who e ntered
service later, like the direct recruits .
K. MEGHACHANDRA SINGH v. NINGAM SIRO
[HRISHIKESH ROY, J.]
23. The respondent’s counsel would then submit that referenc e
to the Office Memorandum and the other notifications to decide the
inter-se seniority in the MPS Grade-II Cadre would be unn ecessary
inasmuch as the Rules i.e. MPS Rules, 1965 makes it amply clear
that the date of entry in service should be the basis of reck oning the
seniority of an incumbent.
24. The State of Manipur is represented by Mr V. Giri, the learned
Senior Counsel and he refers to the somewhat incons istent views
between the Single Judge and the Division Bench in th e matter of
interpretation of the expression “ recruitment year ”. He submits that
while determining the inter-se seniority of the Manipur Police Service
Officer, the applicable Service Rules should be the basis instead of
resorting to an interpretive exercise particularly when, there is no scope
for ambiguity in the Rules.
25. The learned Senior Counsel for the State then points out that
although the Single Judge interfered with the impugned seniori ty lists
prepared by the Manipur Government, the State did not challenge this
judgment but have filed the SLP(C) No.19568-69 of 2019 to challenge
the Division Bench Judgment in the Writ Appeal No.66 of 2018.
26. Mr Giri refers to the MPS Rules, 1965 (2 nd Amendment),
2009 published vide notification dated 18.10.2009 which defines the
recruitment year as the “ calendar year ” but submits although the Govt.
had issued the revised notification (29.06.2019) following N R Parmar
(Supra), it will again revisit the seniority list as per the Court’s directions.
27. At this stage it needs to be recorded that althou gh the
promotees approached the concerned authority for compliance of the
direction passed in their favour, the Manipur Government did not take
any action. Then the respondents filed the Contempt Case(C ) No.224
of 2018 where the Government Advocate appeared and requested for
time for reporting compliance. The State’s Advocate General thereafter
informed the Court that the seniority list has been revise d and sought
time for submitting compliance report. On the next date, the Advocate
General produced a copy of proceeding No.22/2/1989–MPS/DP(PT-
II), dated 29.06.2019 issued by the Under Secretary (DP), Government
of Manipur and submitted that the order of the High Court has been
complied. Accepting this submission, the closure of t he Contempt
Case(C) No.224 of 2018 was ordered on 02.07.2019. As this case was
filed by one of the promotees i.e., Ningam Siro, the aggrieved party
663
has filed the Special Leave Petition No.17007 of 2019 to challenge the
High Court’s closure Order. Representing him, the le arned Senior
Counsel Mr Jaideep Gupta submits that the High Court should hav e
examined the purport of the proceedings dated 29.06.2019 to satisfy
itself about the actual compliance instead of blindly accepting the
submission of the Advocate General, to order closure of the co ntempt
case.
28. The contention raised by the learned Counsel for the parties
have been considered and the impugned orders and th e relevant
materials on record have been perused.
29. Before proceeding to deal with the contention of the
appellants’ Counsel vis-à-vis the judgment in N.R. Parmar (Supra), it
is necessary to observe that the Law is fairly well settled in a series of
cases, that a person is disentitled to claim seniority from a date he was
not borne in service. For example, in J.C. Patnaik (Supra) the Court
considered the question whether the year in which the vacancy accrues
can have any bearing for the purpose of determining the seniority
irrespective of the fact when the person is actually recruited. The Court
observed that there could be time lag between the yea r when the
vacancy accrues and the year when the final recruitment is made.
Referring to the word “ recruited ” occurring in the Orissa Service of
Engineers Rules, 1941 the Supreme Court held in J.C. Patnaik
(Supra) that person cannot be said to have been recruited to the service
only on the basis of initiation of process of recruitment but he is borne
in the post only when, formal appointment order is issued.
30. The above ratio in J.C. Patnaik (Supra) is followed by this
Court in several subsequent cases. It would however be appro priate
to make specific reference considering the seniority dispute in reference
to the Arunachal Pradesh Rules which are pari materia to the MPS
Rules, 1965, (vide (2007) 15 SCC 406 - Nani Sha & Ors. Vs. Stat e
of Arunachal Pradesh & Ors.). Having regard to the similar
provisions, the Court approved the view that seniority is to be reckoned
not from the date when vacancy arose but from the date on w hich the
appointment is made to the post. The Court particular ly held that
retrospective seniority should not be granted from a da y when an
employee is not even borne in the cadre so as to adversely impact those
who were validly appointed in the meantime.
K. MEGHACHANDRA SINGH v. NINGAM SIRO
[HRISHIKESH ROY, J.]
31. We may also benefit by referring to the Judgment in State
of Uttar Pradesh and others vs. Ashok Kumar Srivastava and Anr 2.
This judgment is significant since this is rendered after the N.R. Parmar
(Supra) decision. Here the Court approved the ratio in Pawan Pratap
Singh and Ors. Vs. Reevan Singh & Ors. 3, and concurred with the
view that seniority should not be reckoned retrospectively unl ess it is
so expressly provided by the relevant service Rules. The Supreme
Court held that seniority cannot be given for an employee who is yet
to be borne in the cadre and by doing so it may adversely af fect the
employees who have been appointed validly in the meantime. The law
so declared in Ashok Kumar Srivastava (supra) being the one
appealing to us, is profitably extracted as follows:
24. The learned Senior Counsel for the appellants has drawn
inspiration from the recent authority in Pawan Pratap Singh v. Reevan
Singh where the Court after referring to earlier authorities in the field
has culled out certain principles out of which the followi ng being the
relevant are produced below:
“45. (ii) Inter se seniority in a particular servic e has to be
determined as per the service rules. The date of entr y in a
particular service or the date of substantive appointment is the
safest criterion for fixing seniority inter se between one officer
or the other or between one group of officers and the other
recruited from different sources. Any departure theref rom in
the statutory rules, executive instructions or otherwise must be
consistent with the requirements of Articles 14 and 16 of the
Constitution.
................................................... ..........................................
45. (iv) The seniority cannot be reckoned from the da te of
occurrence of the vacancy and cannot be given retrospectively
unless it is so expressly provided by the relevant se rvice rules.
It is so because seniority cannot be given on retrospective bas is
when an employee has not even been borne in the cadre and by
doing so it may adversely affect the employees who have b een
appointed validly in the meantime.”
2 (2014) 14 SCC 720
3 (2011) 3 SCC 267
665
32. With the above understanding of the law on seniority, the
provisions of the MPS Rules, 1965 and more specifically Rule 28(i),
Rule 28 (iii) and R ule 16 (iii) will now bear consideration. For ready
reference they are extracted: -
Rule 28(i)
In the case of persons appointed on the result of competitive
examination or by selection under clause (b) of sub-rule (1) of Rule 5,
seniority in the Service shall be determined by the Order i n which
appointments are made to the service.
................................................... ..........................................
Rule 28(iii)
The relative seniority of direct recruits and promotees sh all be
determined according to rotation of vacancies between dire ct recruits
and promotees as determined under Rule 5 for that y ear and the
additional direct recruits selected against the carried forward vacancies
of the previous year would be placed enbloc below the last p romotees
(or direct recruits as the case may be).
The seniority of the officer so appointed under sub-rule (3) of
the Rule 16, shall be counted from the date, he/she is appointed to t he
Service.
................................................... ..........................................
Rule 16(iii)
In the case of a person who had been appointed to a post which
is subsequently declared as duty post he shall be deemed to have been
appointed to the Service from the date of encadrement of the post in
the MPS Schedule .
................................................... ..........................................
33. As can be seen from above, the MPS Rules, 1965 never
provided that seniority should be counted from the date of va cancy.
For those covered by the MPS Rules 1965 the seniority for them will
be reckoned only from the date of appointment and not from the stage
when requisition for appointment was given.
34. In the above context, it is also necessary to refer to the
relevant advertisement issued in 2005 for direct recruitment which
K. MEGHACHANDRA SINGH v. NINGAM SIRO
[HRISHIKESH ROY, J.]
allowed the aspirants to apply even if, their result in the qualification
examination is awaited. Even more intriguing and significa nt is the
relaxation that those proposing to appear in the qualifying examination
are also allowed to respond to the advertisement. If such be the nature
of the process initiated (in the year 2005) for making direct recruitment,
we can easily visualize a situation where, in the eve nt of granting
seniority from the stage of commencing the process, a person when
eventually appointed, would get seniority from a date e ven before
obtaining the qualification, for holding the post.
35. The judgment in N.R. Parmar (Supra) is now to be
considered in some detail as this is heavily relied by the appellants’
counsel. At the outset it must however be cleared that t he cited case
had nothing to do with the MPS Rules, 1965 and that litigation related
to the Income Tax Inspectors who were claiming benefits of various
Central Government OMs (dated 22.12.1959, 07.02.1986, 03.07.1986
and 03.03.2008). The judgment was rendered in respect of Ce ntral
Government employees having their own Service Rules. The applicable
Rules for the litigants in the present case however provi de that the
seniority in the service shall be determined by the order in which
appointments are made to the service. Therefore, t he concerned
Memorandums referred to in N.R. Parmar (Supra) which deal with
general principles for determination of seniority of persons in the Central
Government service, should not according to us, have any over riding
effect for the police officers serving in the State of Ma nipur.
36. After the judgment in N.R. Parmar (Supra) was delivered,
the Union of India issued the Office Memorandum on 04.03.2014
defining the recruitment year to be the year of initiating the recruitment
process against the vacancy year and that the rotation of quota , would
continue to operate for determination of inter-se seniority between direct
recruits and promotees. This Memo was not made applicable to the
State of Manipur till the issuance of the OM dated 21.12.2017, adopting
the OM dated 04.03.2014 prospectively with effect from 01.01.2018.
Significantly, the said OM specifically provided th at
“……………appointments/promotions made before the issue of t his
OM will not be covered by this OM. The seniority already fi xed as
per existing rules followed earlier in the State prior to the issue of
this OM may not be reopened.” It was also specifically stated therein
that “this OM will come into effect from 01.01.2018 wit h the
publication in the Gazette…………”
667
37. From above, it is not only apparent that the above OM was
only to be given prospective effect from 1.1.2018 but it contains an
express acknowledgement that this was not the position prior to the
issuance of the OM and that a different Rule was followe d earlier in
the State. The conclusion is, therefore, inevitable that a t least prior to
1.1.2018, direct recruits cannot claim that their seniority should be
reckoned from the date of initiation of recruitment proceedings and not
from the date of actual appointment.
38. When we carefully read the judgment in N. R. Parmar
(Supra), it appears to us that the referred OMs (dated 07.02 .1986 and
03.07.1986) were not properly construed in the judgment. Contrary to
the eventual finding, the said two OMs had made it clear that seniority
of the direct recruits be declared only from the date of ap pointment
and not from the date of initiation of recruitment process. But
surprisingly, the judgment while referring to the illustration given in the
OM in fact overlooks the effect of the said illustration. A ccording to
us, the illustration extracted in the N.R. Parmar (Supra) itself, makes it
clear that the vacancies which were intended for direct rec ruitment in
a particular year (1986) which were filled in the next year (1987) could
be taken into consideration only in the subsequent year’s seniority list
but not in the seniority list of 1986. In fact, this was indi cated in the
two OMs dated 07.02.1986 and 03.07.1986 and that is why the
Government issued the subsequent OM on 03.03.2008 by way of
clarification of the two earlier OMs.
39. At this stage, we must also emphasize that the Court in N.
R. Parmar (Supra)need not have observed that the selected candidate
cannot be blamed for administrative delay and the gap between initiation
of process and appointment. Such observation is fallacious in as much
as none can be identified as being a selected candidate on the dat e
when the process of recruitment had commenced. On that day, a body
of persons aspiring to be appointed to the vacancy intended f or direct
recruits was not in existence. The persons who might respond to an
advertisement cannot have any service-related rights, not to talk of right
to have their seniority counted from the date of the adverti sement. In
other words, only on completion of the process, the applicant mor phs
into a selected candidate and, therefore, unnecessary observati on was
made in N. R. Parmar (Supra) to the effect that the selected candidate
cannot be blamed for the administrative delay. In the same context, we
K. MEGHACHANDRA SINGH v. NINGAM SIRO
[HRISHIKESH ROY, J.]
may usefully refer to the ratio in vs. Shankarsan Dash Vs. Union of
India 4, where it was held even upon empanelment, an appointee does
not acquire any right.
40. The Judgment in N. R. Parmar (Supra) relating to the Central
Government employees cannot in our opinion, automatically ap ply to
the Manipur State Police Officers, governed by the MPS Rules, 1965 .
We also feel that N.R. Parmar (Supra) had incorrectly distinguished
the long-standing seniority determination principles propounded in, inter-
alia , J.C. Patnaik (Supra), Suraj Prakash Gupta & Ors. vs . State
of J&K & Ors. 5 and Pawan Pratap Singh & Ors. Vs. Reevan Singh
& Ors. (Supra). These three judgments and several others with like
enunciation on the law for determination of seniority makes it abundantly
clear that under Service Jurisprudence, seniority cannot be claimed from
a date when the incumbent is yet to be borne in the cadre. In our
considered opinion, the law on the issue is correctly decl ared in J.C.
Patnaik (Supra) and consequently we disapprove the norms on
assessment of inter-se seniority, suggested in N. R. Parmar (Supra) .
Accordingly, the decision in N.R. Parmar is overruled. However, it is
made clear that this decision will not affect the inter-se seniority already
based on N.R. Parmar and the same is protected. This decisi on will
apply prospectively except where seniority is to be fixed under the
relevant Rules from the date of vacancy/the date of advertise ment.
41. As noted earlier, the Learned Single Judge based his judgment
on two propositions but the Division Bench was of the view that result
would be the same merely on the basis of one of the two propos itions
and, therefore, it was unnecessary to pronounce upo n the other
proposition. Such an approach cannot therefore be desc ribed as a
conflict (as has been suggested), between the two judgme nts. Both
Benches were absolutely consistent in their conclusion that promotees
would have to be given seniority over direct recruits . It cannot
therefore be argued that by some convoluted reasoning, it is possible
to come to the conclusion that the orders passed by the two Cour ts
would result in diametrically opposite situation namely , that direct
recruits would have to be given seniority over promotees.
42. The Learned Single Judge in his Judgment interpreted the
Office Memorandum (07.02.1986), as adopted by the State Government
4 (1991) 3 SCC 47
5 (2000) 7 SCC 561
669
vide its OM dated 13.11.1987 to mean that direct recruits could be
given seniority only from the date of appointment. The Judgment in N.R.
Parmar (Supra) was not cited and the principle contained therein cannot
therefore be said to have been intended to be applied by the Learned
Judge.
43. That apart, the paragraph (14) of the judgment (7.7.2017)
expressly refers to the earlier WP(C) No.235 of 201 2 and the
18.02.2013 order passed therein. In that case, the State of Manipur filed
counter affidavit categorically stating that, seniority of direct recruits
would be counted from their date of appointment and not from the date
of initiation of the recruitment process.
44.The Learned Single Judge in paragraph 14 of the judgment
directed the State Government to prepare the seniority list after taking
into account the observations made by the Court where the Court had
clearly observed that the direct recruits cannot get seniority over and
above the promotees and that the principle of dovetailing cannot be
applied while determining the inter-se seniority between the appellants
and the private respondents. This observation is undoubtedly a part of
the Court’s directions and while implementing this order, the
Government could not have given seniority to the direct recruits over
the promotees. By doing so, they have acted in violation of the Court
Orders and not in conformity therewith.
45. It is now necessary to deal with Mr Patwalia’s final
contentions in reply, placing reliance on All India Judges Association
& Ors. Vs. Union of India and Ors. 6. He emphasizes the following
passage in paragraph 29 of the Judgment:-
“……Hardly if ever there has been a litigation amongst th e
members of the service after their recruitment as per the quotas,
the seniority is fixed by the roster points and irrespective of the
fact as to when a person is recruited……”
46. The above would however refer to an incumbent whos e
roster points have been fixed after their recruitment as per the prescribed
quotas. The cited judgment does not propose to say that senior ity by
roster points be fixed, ignoring the date, when the person is recruited.
The judgment obviously was not considering a situation, where seniority
is being fixed even before the incumbent is borne in service. I n any
6 (2002) 4 SCC 247
K. MEGHACHANDRA SINGH v. NINGAM SIRO
[HRISHIKESH ROY, J.]
case, having regard to the specification made in the MPS Rules, 1965 ,
which squarely governs the litigants here, the ratio in the All India
Judges Association’ (Supra) would be of no assistance, for the
appellants.
47. As earlier discussed, the Rule 28 of the MPS Rules, 1965
shows that seniority in the service shall be determined base d on the
date of appointment to the service. In particular Rule 28(i) of the MPS
Rules, 1965 which is applicable to both promotees and direct recruits ,
provides that seniority shall be determined by the order i n which the
appointments are made to the service. If seniority unde r Rule 28(i) is
to be determined based on the date of appointment, it cannot be said
that for the purpose of Rule 28(iii), the seniority of direct recruits
should be determined on the basis of the date of ini tiation of the
recruitment process. The term “Recruitment Year” does not and cannot
mean the year in which, the recruitment process is initiated or the year
in which vacancy arises. The contrary declaration in N.R. Parmar 2 in
our considered opinion, is not a correct view.
48. In view of the foregoing, let us now consider the Government
order (29.06.2019) produced by the Manipur Advocate General in the
Contempt Case. As it appears the seniority list published on 29.06.2019
could not be an independent exercise but its purpose should be to give
effect to the judgments passed by the High Court. Since the ju dgment
of the learned single Judge was affirmed by the Division Be nch, the
seniority list must be prepared in accordance with the H igh Court’s
direction. It is certainly not permissible to prepare a fresh seniority list
as an independent exercise, without reference to the decisi ons of the
Court. When we test the validity of the list (29.06.2019), there is no
escape from the conclusion that the list ignores the decision of the single
Judge as affirmed by the Division Bench. It is declared so accordingly.
49. In consequence, the appeals arising out of SLP (C)No.19565-
67 of 2019 filed by the direct recruits are dismissed. On the same
reasoning, the appeals arising out of SLP (C)No. 19568-69 of 2019,
filed by the State of Manipur are not entertained and the same shall
stand dismissed. With the above finding on the Contempt Case No.224
of 2018 and quashment of the 29.06.2019 proceeding produced in that
case before the High Court, the appeals arising out of SL P (C)No.
17007 of 2019 filed by Ningam Siro against the High Court’s order in
the Contempt Case No.224/2018 is disposed of.
671
50. In view of the foregoing, the orders of the High Court in the
Writ Petition and the Writ Appeal are upheld. The State of Manipur is
accordingly directed to prepare a revised inter-se seniori ty list in the
MPS Grade-II cadre in light of the above discussion and the High
Court’s Orders. This shall be done within 8 weeks from today. Al l
consequential actions will follow from this judgment. It is ordered
accordingly.
Nidhi Jain Appeals disposed of.
K. MEGHACHANDRA SINGH v. NINGAM SIRO
[HRISHIKESH ROY, J.]