K. MEGHACHANDRA SINGH & ORS. versus NINGAM SIRO & ORS.

K. MEGHACHANDRA SINGH & ORS.

NINGAM SIRO & ORS.

(Civil Appeal Nos. 8833–8835 of 2019)

NOVEMBER 19, 2019

[R. BANUMATHI, A. S. BOPANNA ANDHRISHIKESH ROY, JJ.]

Service Law : Seniority – Manipur Police Service Grade–IIOfficers Cadre – Inter- se seniority amongst direct recruits andpromotees – Final Seniority list of MPS Grade II Officers whereinpromotees-respondents who entered the cadre on 01.03.2007,placed below the direct recruits-appellants, who joined the cadreon 14.08.2007 and 24.11.2007 respectively – Challenge to, by thepromotees that they should be regarded senior to direct recruits –Single Judge of the High Court held that promotees must be givenseniority above the direct recruits – Division Bench upheld theorder – On appeal, held: Seniority cannot be claimed from datewhen the incumbent is yet to be borne in the cadre – Rule 28(i)applicable to both promotees and direct recruits, provides thatseniority shall be determined by the order in which theappointments are made to the service – If seniority under Rule 28(i)is to be determined based on the date of appointment, it cannotbe said that for the purpose of Rule 28(iii), the seniority of directrecruits should be determined on the basis of the date of initiationof the recruitment process – Term “Recruitment Year” does not andcannot mean the year in which, the recruitment process is initiatedor the year in which vacancy arises – On facts, it was notpermissible to prepare fresh seniority list as an independentexercise, ignoring the decision of the Single Judge as affirmed bythe Division Bench – Thus, the orders of the High Court are upheldand in view thereof, the State is directed to prepare revised inter–se seniority list in the MPS Grade–II cadre – Manipur Civil ServiceRules, 1965 – r. 28(iii), 28(i), 16(iii).

Disposing of Civil Appeal No. 8838 of 2019 and dismissingCivil Appeal No. 8833–35 of 2019 and Civil Appeal No. 8836–37 of 2019, the Court

HELD: 1.1 The Manipur Civil Service Rules, 1965 neverprovided that seniority should be counted from the date of

Avacancy. For those covered by the MPS Rules, 1965 the seniorityfor them will be reckoned only from the date of appointment andnot from the stage when requisition for appointment was given.[Para 33] [665-F-H]

1.2 The relevant advertisement issued in 2005 for directBrecruitment allowed the aspirants to apply even if, their resultin the qualification examination is awaited. Even more intriguingand significant is the relaxation that those proposing to appearin the qualifying examination are also allowed to respond to theadvertisement. If such be the nature of the process initiated (inthe year 2005) for making direct recruitment, situation canCeasily be visualised where, in the event of granting seniorityfrom the stage of commencing the process, person wheneventually appointed, would get seniority from date even beforeobtaining the qualification, for holding the post. The applicableRules in the instant case however provide that the seniority inthe service shall be determined by the order in whichDappointments are made to the service. Therefore, the concernedMemorandums referred to in N.R. Parmar’s case which deal withgeneral principles for determination of seniority of persons inthe Central Government service, should not have any overridingeffect for the police officers serving in the State of Manipur. [ParaE34, 35] [665-H; 666-A-B-D-E]1.3 After the judgment in N.R. Parmar’s case wasdelivered, the Union of India issued the Office Memorandumon 04.03.2014 defining the recruitment year to be the year ofinitiating the recruitment process against the vacancy year andthat the rotation of quota, would continue to operate forFdetermination of inter–se seniority between direct recruits andpromotees. This Memo was not made applicable to the State ofManipur till the issuance of the OM dated 21.12.2017, adoptingthe OM dated 04.03.2014 prospectively with effect from01.01.2018. Significantly, the said OM specifically provided thatG“appointments/promotions made before the issue of this OM willnot be covered by this OM. The seniority already fixed as perexisting rules followed earlier in the State prior to the issue ofthis OM may not be reopened.” It was also specifically statedtherein that “this OM will come into effect from 01.01.2018 withthe publication in the Gazette”. Thus, it is not only apparent thatHthe above OM was only to be given prospective effect from

1.1.2018 but it contains an express acknowledgement that thiswas not the position prior to the issuance of the OM and that adifferent Rule was followed earlier in the State. The conclusionis, therefore, inevitable that at least prior to 1.1.2018, directrecruits cannot claim that their seniority should be reckonedfrom the date of initiation of recruitment proceedings and notfrom the date of actual appointment. [Para 36, 37] [666-E-H; 667-A-B]

1.4 The law for determination of seniority makes itabundantly clear that under Service Jurisprudence, senioritycannot be claimed from date when the incumbent is yet to beborne in the cadre. The law on the issue is correctly declaredin J.C. Patnaik’s case and consequently the norms on assessmentof inter–se seniority, suggested in N. R. Parmar’s case aredisapproved. Thus, the decision in N.R. Parmar is overruled.However, it is made clear that this decision will not affect theinter–se seniority already based on N.R. Parmar and the sameis protected. This decision will apply prospectively except whereseniority is to be fixed under the relevant Rules from the dateof vacancy/the date of advertisement. [Para 40] [668-C-E]

Union of India and others v. N.R. Parmar, (2012) 13SCC 340 – Overruled.

Jagdish Chandra Patnaik v. State of Orissa, (1998) 4SCC 456 : [1997] 4 Suppl. SCR 470; Suraj PrakashGupta & Ors. v. State of J&K & Ors. (2000) 7 SCC561; Pratap Singh and Ors. v. Reevan Singh & Ors.,(2011) 3 SCC 267 – relied on.

1.5 The Single Judge based his judgment on twopropositions but the Division Bench was of the view that resultwould be the same merely on the basis of one of the twopropositions and, therefore, it was unnecessary to pronounceupon the other proposition. Such an approach cannot thereforebe described as conflict (as has been suggested), between thetwo judgments. Both Benches were absolutely consistent in theirconclusion that promotees would have to be given seniority overdirect recruits. It cannot therefore be argued that by someconvoluted reasoning, it is possible to come to the conclusionthat the orders passed by the two Courts would result indiametrically opposite situation namely, that direct recruits wouldhave to be given seniority over promotees. [Para 41] [668-E-H]

A1.6 The Single Judge had directed the State Governmentto prepare the seniority list after taking into account theobservations made by the Court where the Court had clearlyobserved that the direct recruits cannot get seniority over andabove the promotees and that the principle of dovetailing cannotbe applied while determining the inter–se seniority between theBappellants and the private respondents. This observation isundoubtedly part of the Court’s directions and whileimplementing this order, the Government could not have givenseniority to the direct recruits over the promotees. By doingso, they have acted in violation of the Court Orders and not inCconformity therewith. [Para 44] [669-C-E]1.7 The Rule 28 of the MPS Rules, 1965 shows thatseniority in the service shall be determined based on the dateof appointment to the service. In particular Rule 28(i) of the MPSRules, 1965 which is applicable to both promotees and directDrecruits, provides that seniority shall be determined by the orderin which the appointments are made to the service. If seniorityunder Rule 28(i) is to be determined based on the date ofappointment, it cannot be said that for the purpose of Rule 28(iii),the seniority of direct recruits should be determined on the basisof the date of initiation of the recruitment process. The termE“Recruitment Year” does not and cannot mean the year in which,the recruitment process is initiated or the year in which vacancyarises. [Para 47] [670-A-D]

1.8 Although the promotees approached the concernedauthority for compliance of the direction passed in their favour,Fthe Manipur Government did not take any action. Then therespondents filed the Contempt Case where the GovernmentAdvocate appeared and requested for time for reportingcompliance. The State’s Advocate General thereafter informedthe Court that the seniority list has been revised and sought timeGfor submitting compliance report. On the next date, the AdvocateGeneral produced copy of proceeding, dated 29.06.2019 issuedby the Under Secretary (DP), Government of Manipur andsubmitted that the order of the High Court has been complied.Accepting this submission, the closure of the Contempt Casewas ordered on 02.07.2019. As it appears the seniority listHpublished on 29.06.2019 could not be an independent exercise

but its purpose should be to give effect to the judgments passedby the High Court. Since the judgment of the Single Judge wasaffirmed by the Division Bench, the seniority list must beprepared in accordance with the High Court’s direction. It iscertainly not permissible to prepare fresh seniority list as anindependent exercise, without reference to the decisions of theCourt. When the validity of the list (29.06.2019) is tested, thereis no escape from the conclusion that the list ignores thedecision of the Single Judge as affirmed by the Division Bench.[Para 27, 48] [662-E-H; 670-D-F]

1.9 The orders of the High Court in the Writ Petition andthe Writ Appeal are upheld. The State is directed to prepare arevised inter–se seniority list in the MPS Grade–II cadre in lightof the said discussion and the High Court’s Orders. [Para 50][671-A-B]

Nani Sha & Ors. v. State of Arunachal Pradesh & Ors.,[2013] 11 SCR 846 ; State of Uttar Pradesh and othersv. Ashok Kumar Srivastava and Anr. (2014) 14 SCC720 ; All India Judges Association & Ors. v. Union ofIndia and Ors., (2002) 4 SCC 247 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8833-8835 of 2019.

From the Judgment and Order dated 24.05.2019 in I.A. (Civil)No. 1741 of 2019 in Review Petition No. 10 of 2019, order dated10.04.2019 in Review Petition No. 10 of 2019 and order dated26.09.2018 in Writ Appeal No. 66 of 2018.

AWith

Civil Appeal Nos. 8838, 8836-8837 of 2019.

Jaideep Gupta, P.S. Patwalia, Ahanthem Bimol Singh, V. Giri,Sr. Advs., Ms. Punam Kumari, Sapan Biswajit Meitei, Saurav Gupta,Anindita Mitra, Ahanthem Henry, Vivek Kumar, Kumar Mihir,BLeishangthem Roshmani Kh, Aribam Jankinath Sharma, AnandoMukherjee, Advs. for the appearing parties.

The Judgment of the Court was delivered by

HRISHIKESH ROY, J.C1. Leave Granted.

2. These matters pertain to an inter-se seniority dispute in theManipur Police Service Grade II Officers Cadre, hereinafter referredto 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)DNo. 366 of 2013. They are to be described hereinafter as “directrecruits”. The respondents in this SLP were the Writ Petitioners inthe High Court who were appointed on promotion to the MPS GradeII Cadre. For clarity and ease of understanding, they are being referredas “promotees” in this judgment.E3. Prior to their induction (on 01.03.2007) to the MPS Grade IICadre, the promotees were serving as Inspector of Police and theywere granted promotion on the basis of duly constituted DepartmentalPromotion Committee (DPC). On the other hand, the PrivateRespondents 3 to 32 and no. 33 in the Writ Petition (C) No. 366 of2013 were directly recruited into the MPS Grade II Cadre, vide theFrespective orders dated 14.08.2007 and 24.11.2007.

4. Appointment and seniority in the Manipur Police Service isgoverned by the Manipur Police Service Rules, 1965 (hereinafterreferred to as “the MPS Rules, 1965”). After considering the claimsand objections and in compliance with the Court’s direction (18.02.2013)Gin W.P(C) No. 235 of 2012, the Govt. of Manipur, applying the principleof dovetailing between the promotees and the direct recruit officers,issued the Order on 17.5.2013 publishing the final seniority list (as on01.04.2013), of the MPS Grade II Officers. The promotees challengedthis through the Writ Petition (C) No. 366 of 2013 in the High Court ofHManipur. By amending their Writ Petition, the promotees also challenged

the subsequent Govt. orders dated 20.01.2014 and 19.02.2014 wherethe direct recruits were placed above them.

5. Before the Writ Court, the promotees contended that theyentered the MPS Grade II Cadre on 01.03.2007 whereas the privaterespondent nos.3 to 33 were appointed subsequently (on 14.08.2007 and24.11.2007 respectively) and, therefore, they should be regarded assenior to the direct recruits.

6. The direct recruits on the other hand claimed seniority overthe promotees by contending that seniority has to be decided inaccordance with the year of the vacancy and not by the fortuitous dateon 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 andpromotees in the MPS Grade II Cadre, the State in their counteraffidavit took the stand that seniority should be determined from thedate on which the person was appointed but not from the date ofvacancy. For the direct recruits appointed on 14.08.2007 against thevacancy of 2004-2005 it was averred that their seniority should becounted from the date of appointment.

8. The learned Judge heard the parties, applied his mind to theOffice Memorandums produced before him and by the commonjudgment dated 07.07.2017 quashed the impugned orders. It is seen thatsingle Judge directed that the batch of promotees appointed on 01[st] ofMarch 2007 must be given seniority above the direct recruits appointedon 14[th] August, 2007 and he justified this by stating that direct recruitcan claim seniority only from the date of his regular appointment andcannot claim seniority from date when he is not borne in the service.For this conclusion, the learned Judge had relied upon, inter alia, theratio in Jagdish Chandra Patnaik’ vs. State of Orissa[1]. The Courtalso held that the expression “year” must refer to financial year andnot calendar year. Support for such conclusion is based on the OfficeMemorandum dated 29.4.1999 which contains instructions to befollowed by DPC in the matter of holding its meetings towards promotionwhich is one of the methods of recruitment. This Memo specifies thatthe recruitment year would be treated as the financial year. Besidesthe Manipur Reservations of Vacancies in Posts and Services (for

1 (1998) 4 SCC 456

ASchedule Castes and Schedule Tribes) Act of 1976 which wasenacted on 24[th] February, 1977, for short “the Manipur (SC & ST)Act, 1976”, provided that the term meant financial year. It was alsoseen that on 18.12.2009, the State of Manipur amended the ManipurPolice Service Rules of 1965 by introducing sub-rule 2(g) definingthe word “year” to mean calendar year. This amendment had providedBthat it would come into force with effect from the date of publicationin the official gazette of Manipur thereby making it plain that the samewas not intended to have any retrospective effect. The learned SingleJudge relied on this to hold that prior to the date of this notification, theword “year” could not be said to be calendar year but would mean theCfinancial year.

9. In consequence, the learned Single Judge held that thepromotees get entry into the cadre in the recruitment year 2006-2007whereas the direct recruits would stand appointed in the recruitmentyear 2007 -2008. There being no overlap between the promotees andDdirect recruits as far as the year of recruitment is concerned, applyingRule 28(iii) to dovetail the two streams using the principle of rotationof quota, would not arise. It was accordingly determined that theimpugned seniority lists are bad in law and all action taken thereunderare rendered null and void. The following directions were then issuedby the learned Judge in his common judgment dated 07.07.2017:-

“............................................................................................

(14) For the reasons stated herein above, the writ petitions beingWP(C)No.366 of 2013 and WP(C)No.120 of 2014 are allowedand consequently, the Government orders dated 17-05-2013, 20-F01-2014 and 19-02-2014, impugned herein, in respect of thepetitioners and the private respondents, are quashed and set asidewith the following directions:

(a) The State Government shall prepare seniority listafresh in respect of the MPS Officers, after taking intoaccount the observations made by this Courthereinabove, within period of three months from thedate of receipt of copy of this judgment and order;

(b) While preparing the seniority list of MPS Officers, theState Government shall follow the guidelines/instructionscontained in the Office Memorandum dated 07-02-1986

which is adopted by the State Government vide its OfficeMemorandum dated 13-11-1987 as directed vide orderdated 18-02-2013 passed by the Hon’ble Gauhati HighCourt in WP(C)No.235 of 2012. There shall be no orderas to costs.

..............................................................................”

10. Aggrieved by the declaration of inter-se seniority favouringthe promotees, few direct recruits including the respondent no.14 K.Meghachandra Singh and others filed the Writ Appeal No.49 of2017.This Appeal in the Manipur High Court was transferred to theGauhati High Court and was re-numbered as Writ Appeal No. 66 of2018. The State Government did not however challenge the analogousjudgment (07.07.2017) rendered in the Writ Petition (Civil) No.366 of2013.

11. The Division Bench upheld the conclusion of the Single Judgebut confined its justification to the principle that seniority for directrecruits could not be reckoned from date prior to their appointment.In doing so, it approved the finding of the Learned Single Judge to thesame effect.

.12. The Division Bench did not however feel it necessary to gointo the question as to whether “year” means “calendar year” or“financial year”. They felt that the position being very clear, there wasno reason to embark upon the interpretation of the word/words “year”or “for that year”, as was done by the Learned Single Judge.

13. It was also made clear that the promotees will naturally haveseniority over the Appellants as they had entered the cadre of MPSGrade II, before the Writ Appellants were borne in the cadre.

14. Following the above judgment (26.09.2018) in the Writ AppealNo.66 of 2018 against the direct recruits, K. Meghachandra Singh andothers filed the Review Petition No. 10 of 2019. But neither on04.04.2019 nor on 10.04.2019, the counsel for the direct recruits werepresent before the Gauhati High Court and accordingly the ReviewPetition was dismissed for non-prosecution, through the order dated10.04.2019. The I.A.(C)No.1741 of 2019 was then filed by K.Meghachandra Singh for restoration of the Review Petition; but therestoration was held to be unmerited and accordingly the I.A. filed bythe direct recruits was dismissed on 24.05.2019.

A15. Aggrieved by rejection of their Writ Appeal and the relatedpetitions, the direct recruits have approached this Court with the SpecialLeave Petition (C) No.19565-67 of 2019 to challenge the decisions ofthe High Court.

16. Assailing the impugned judgment and orders, Mr P.S.BPatwalia, the learned Senior Counsel contends that seniority of the directrecruits in the MPS Grade-II Cadre must be reckoned from the timewhen vacancies occurred and should relate to the requisition(29.07.2005) made to the Manipur Public Service Commission, to fillup the vacancies. According to him, the date of actual appointment ofCthe appellants on later dates (14.08.2007 and 24.11.2007), shouldn’timpact the inter-se seniority of the direct recruits vis-à-vis thepromotees, 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 wasDinitiated for filling up the 2005 vacancies, the administrative delay infinalization of the recruitment leading to delayed appointment should notdeprive the individual of his due seniority. By referring to the rotationof quota principle, the counsel argues that initiation of action forrecruitment in the year of the vacancy would be sufficient, to assignEseniority from that year.

18. According to Mr. Patwalia, the Learned Single Judgeerroneously interpreted “recruitment year” as “financial year” inorder to confer higher seniority position to the promotees vis-à-vis directrecruits as both groups were appointed in different months of the sameFyear 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 clarifiedas “calendar year” and therefore, there is no necessity to interpretthe expression.

19. The Senior Counsel then refers to Rule 28(iii) of the MPSGRules to highlight that seniority of the direct recruits and promoteesare to be determined on the principle of rotation of vacancies underRule 5 for that year and therefore, the promotees cannot be placeden-bloc above the direct recruits merely because, they were promotedon an earlier date i.e. 01.03.2007, particularly when, the recruitmentHprocess for the direct recruits commenced in the year 2005 itself.

20. Representing the respondents/promotees, the learned SeniorCounsel, Shri Jaideep Gupta refers to the MPS Rules, 1965 to arguethat the provisions of the Rules make it abundantly clear that inter-seseniority in the cadre of MPS Grade-III is to be determined by theorder in which appointments are made to the service. The counselpointedly refers to Rules 28 (i) where it is specified that the …….seniority in the service shall be determined by the order in whichappointments are made to the service……. He also refers to the laterpart of Rule 28(iii), where again it is specified that the “seniority ofthe officer…… shall be counted from the date, he/she is appointedto the service…………. The provisions in Rule 16(iii) are pressedhome by Mr Gupta to argue that only when the person is appointed, heshall be deemed to have been appointed to the service from the dateof encadrement.21. The judgment in N.R. Parmar (Supra) is read with equalemphasis by Mr Gupta to firstly point out that this case does not laydown the correct law in determination of seniority. The counsel highlightsthe incongruity in situation where person who entered service laterwill claim seniority above those who joined service at an earlier pointof time. The applicability of the ratio in N.R. Parmar (Supra) to thelitigants in the present case is also questioned by Mr Gupta by pointingout that the provisions of MPS Rules, 1965 applicable for the officersin the Manipur Police Officers, was not the subject of consideration inN.R. Parmar (Supra), and, therefore, the said ratio relatable to IncomeTax Inspectors, with different Service Rules, will not apply to the presentcase.

22. The learned Senior Counsel, Mr Gupta, then refers to theoffice Memorandum dated 07.02.1986 and the illustration provided inthe same Office Memorandum to explain the carry forward principleto argue that the judgment in N.R. Parmar (Supra) misconstrued thelegal implication of the OM. According to the counsel, the MPS Rules1965 did not refer to the financial year as was done by the learnedSingle Judge or even the calendar year as was mentioned by theDivision Bench in as much as the Rules make it abundantly clear thatinter-se seniority has to be reckoned from the date of appointment. Itis, therefore, argued that the 2005 requisition for the direct recruitvacancies, can have no bearing on the inter-se seniority of those whowere borne in the cadre on an earlier date vis-à-vis those who enteredservice later, like the direct recruits.

A23. The respondent’s counsel would then submit that referenceto the Office Memorandum and the other notifications to decide theinter-se seniority in the MPS Grade-II Cadre would be unnecessaryinasmuch as the Rules i.e. MPS Rules, 1965 makes it amply clearthat the date of entry in service should be the basis of reckoning theseniority of an incumbent.B

24. The State of Manipur is represented by Mr V. Giri, the learnedSenior Counsel and he refers to the somewhat inconsistent viewsbetween the Single Judge and the Division Bench in the matter ofinterpretation of the expression “recruitment year”. He submits thatwhile determining the inter-se seniority of the Manipur Police ServiceCOfficer, the applicable Service Rules should be the basis instead ofresorting to an interpretive exercise particularly when, there is no scopefor ambiguity in the Rules.

25. The learned Senior Counsel for the State then points out thatalthough the Single Judge interfered with the impugned seniority listsDprepared by the Manipur Government, the State did not challenge thisjudgment but have filed the SLP(C) No.19568-69 of 2019 to challengethe 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 theErecruitment 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 although thepromotees approached the concerned authority for compliance of theFdirection passed in their favour, the Manipur Government did not takeany action. Then the respondents filed the Contempt Case(C) No.224of 2018 where the Government Advocate appeared and requested fortime for reporting compliance. The State’s Advocate General thereafterinformed the Court that the seniority list has been revised and soughtGtime for submitting compliance report. On the next date, the AdvocateGeneral produced copy of proceeding No.22/2/1989–MPS/DP(PT-II), dated 29.06.2019 issued by the Under Secretary (DP), Governmentof Manipur and submitted that the order of the High Court has beencomplied. Accepting this submission, the closure of the ContemptCase(C) No.224 of 2018 was ordered on 02.07.2019. As this case wasHfiled by one of the promotees i.e., Ningam Siro, the aggrieved party

has filed the Special Leave Petition No.17007 of 2019 to challenge theHigh Court’s closure Order. Representing him, the learned SeniorCounsel Mr Jaideep Gupta submits that the High Court should haveexamined the purport of the proceedings dated 29.06.2019 to satisfyitself about the actual compliance instead of blindly accepting thesubmission of the Advocate General, to order closure of the contemptcase.

28. The contention raised by the learned Counsel for the partieshave been considered and the impugned orders and the relevantmaterials on record have been perused.

29. Before proceeding to deal with the contention of theappellants’ Counsel vis-à-vis the judgment in N.R. Parmar (Supra), itis necessary to observe that the Law is fairly well settled in series ofcases, that person is disentitled to claim seniority from date he wasnot borne in service. For example, in J.C. Patnaik (Supra) the Courtconsidered the question whether the year in which the vacancy accruescan have any bearing for the purpose of determining the seniorityirrespective of the fact when the person is actually recruited. The Courtobserved that there could be time lag between the year when thevacancy accrues and the year when the final recruitment is made.Referring to the word “recruited” occurring in the Orissa Service ofEngineers Rules, 1941 the Supreme Court held in J.C. Patnaik(Supra) that person cannot be said to have been recruited to the serviceonly on the basis of initiation of process of recruitment but he is bornein the post only when, formal appointment order is issued.

30. The above ratio in J.C. Patnaik (Supra) is followed by thisCourt in several subsequent cases. It would however be appropriateto make specific reference considering the seniority dispute in referenceto the Arunachal Pradesh Rules which are pari materia to the MPSRules, 1965, (vide (2007) 15 SCC 406 - Nani Sha & Ors. Vs. Stateof Arunachal Pradesh & Ors.). Having regard to the similarprovisions, the Court approved the view that seniority is to be reckonednot from the date when vacancy arose but from the date on which theappointment is made to the post. The Court particularly held thatretrospective seniority should not be granted from day when anemployee is not even borne in the cadre so as to adversely impact thosewho were validly appointed in the meantime.

A31. We may also benefit by referring to the Judgment in Stateof 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 PratapSingh and Ors. Vs. Reevan Singh & Ors.[3], and concurred with theBview that seniority should not be reckoned retrospectively unless it isso expressly provided by the relevant service Rules. The SupremeCourt held that seniority cannot be given for an employee who is yetto be borne in the cadre and by doing so it may adversely affect theemployees who have been appointed validly in the meantime. The lawso declared in Ashok Kumar Srivastava (supra) being the oneCappealing to us, is profitably extracted as follows:

24. The learned Senior Counsel for the appellants has drawninspiration from the recent authority in Pawan Pratap Singh v. ReevanSingh where the Court after referring to earlier authorities in the fieldhas culled out certain principles out of which the following being theDrelevant are produced below:

“45. (ii) Inter se seniority in particular service has to bedetermined as per the service rules. The date of entry in aparticular service or the date of substantive appointment is thesafest criterion for fixing seniority inter se between one officerEor the other or between one group of officers and the otherrecruited from different sources. Any departure therefrom inthe statutory rules, executive instructions or otherwise must beconsistent with the requirements of Articles 14 and 16 of theConstitution.

.............................................................................................

45. (iv) The seniority cannot be reckoned from the date ofoccurrence of the vacancy and cannot be given retrospectivelyunless it is so expressly provided by the relevant service rules.It is so because seniority cannot be given on retrospective basisGwhen an employee has not even been borne in the cadre and bydoing so it may adversely affect the employees who have beenappointed validly in the meantime.”

2 (2014) 14 SCC 720H3 (2011) 3 SCC 267

32. With the above understanding of the law on seniority, theprovisions of the MPS Rules, 1965 and more specifically Rule 28(i),Rule 28 (iii) and Rule 16 (iii) will now bear consideration. For readyreference they are extracted: -

Rule 28(i)

In the case of persons appointed on the result of competitiveexamination or by selection under clause (b) of sub-rule (1) of Rule 5,seniority in the Service shall be determined by the Order in whichappointments are made to the service.

.............................................................................................

Rule 28(iii)

The relative seniority of direct recruits and promotees shall bedetermined according to rotation of vacancies between direct recruitsand promotees as determined under Rule 5 for that year and theadditional direct recruits selected against the carried forward vacanciesof the previous year would be placed enbloc below the last promotees(or direct recruits as the case may be).

The seniority of the officer so appointed under sub-rule (3) ofthe Rule 16, shall be counted from the date, he/she is appointed to theService.

.............................................................................................

Rule 16(iii)

In the case of person who had been appointed to post whichis subsequently declared as duty post he shall be deemed to have beenappointed to the Service from the date of encadrement of the post inthe MPS Schedule.

.............................................................................................

33. As can be seen from above, the MPS Rules, 1965 neverprovided that seniority should be counted from the date of vacancy.For those covered by the MPS Rules 1965 the seniority for them willbe reckoned only from the date of appointment and not from the stagewhen requisition for appointment was given.

34. In the above context, it is also necessary to refer to therelevant advertisement issued in 2005 for direct recruitment which

Aallowed the aspirants to apply even if, their result in the qualificationexamination is awaited. Even more intriguing and significant is therelaxation that those proposing to appear in the qualifying examinationare also allowed to respond to the advertisement. If such be the natureof the process initiated (in the year 2005) for making direct recruitment,we can easily visualize situation where, in the event of grantingBseniority from the stage of commencing the process, person wheneventually appointed, would get seniority from date even beforeobtaining the qualification, for holding the post.

35. The judgment in N.R. Parmar (Supra) is now to beconsidered in some detail as this is heavily relied by the appellants’Ccounsel. At the outset it must however be cleared that the cited casehad nothing to do with the MPS Rules, 1965 and that litigation relatedto the Income Tax Inspectors who were claiming benefits of variousCentral Government OMs (dated 22.12.1959, 07.02.1986, 03.07.1986and 03.03.2008). The judgment was rendered in respect of CentralDGovernment employees having their own Service Rules. The applicableRules for the litigants in the present case however provide that theseniority in the service shall be determined by the order in whichappointments are made to the service. Therefore, the concernedMemorandums referred to in N.R. Parmar (Supra) which deal withgeneral principles for determination of seniority of persons in the CentralEGovernment service, should not according to us, have any overridingeffect for the police officers serving in the State of Manipur.

36. After the judgment in N.R. Parmar (Supra) was delivered,the Union of India issued the Office Memorandum on 04.03.2014defining the recruitment year to be the year of initiating the recruitmentFprocess against the vacancy year and that the rotation of quota, wouldcontinue to operate for determination of inter-se seniority between directrecruits and promotees. This Memo was not made applicable to theState of Manipur till the issuance of the OM dated 21.12.2017, adoptingthe OM dated 04.03.2014 prospectively with effect from 01.01.2018.GSignificantly, the said OM specifically provided that“……………appointments/promotions made before the issue of thisOM will not be covered by this OM. The seniority already fixed asper existing rules followed earlier in the State prior to the issue ofthis OM may not be reopened.” It was also specifically stated thereinthat “this OM will come into effect from 01.01.2018 with theHpublication in the Gazette…………”

37. From above, it is not only apparent that the above OM wasonly to be given prospective effect from 1.1.2018 but it contains anexpress acknowledgement that this was not the position prior to theissuance of the OM and that different Rule was followed earlier inthe State. The conclusion is, therefore, inevitable that at least prior to1.1.2018, direct recruits cannot claim that their seniority should bereckoned from the date of initiation of recruitment proceedings and notfrom 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 and03.07.1986) were not properly construed in the judgment. Contrary tothe eventual finding, the said two OMs had made it clear that seniorityof the direct recruits be declared only from the date of appointmentand not from the date of initiation of recruitment process. Butsurprisingly, the judgment while referring to the illustration given in theOM in fact overlooks the effect of the said illustration. According tous, the illustration extracted in the N.R. Parmar(Supra) itself, makes itclear that the vacancies which were intended for direct recruitment ina particular year (1986) which were filled in the next year (1987) couldbe taken into consideration only in the subsequent year’s seniority listbut not in the seniority list of 1986. In fact, this was indicated in thetwo OMs dated 07.02.1986 and 03.07.1986 and that is why theGovernment issued the subsequent OM on 03.03.2008 by way ofclarification 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 candidatecannot be blamed for administrative delay and the gap between initiationof process and appointment. Such observation is fallacious in as muchas none can be identified as being selected candidate on the datewhen the process of recruitment had commenced. On that day, bodyof persons aspiring to be appointed to the vacancy intended for directrecruits was not in existence. The persons who might respond to anadvertisement cannot have any service-related rights, not to talk of rightto have their seniority counted from the date of the advertisement. Inother words, only on completion of the process, the applicant morphsinto selected candidate and, therefore, unnecessary observation wasmade in N. R. Parmar (Supra) to the effect that the selected candidatecannot be blamed for the administrative delay. In the same context, we

Amay usefully refer to the ratio in vs. Shankarsan Dash Vs. Union ofIndia[4], where it was held even upon empanelment, an appointee doesnot acquire any right.

40. The Judgment in N. R. Parmar (Supra) relating to the CentralGovernment employees cannot in our opinion, automatically apply toBthe Manipur State Police Officers, governed by the MPS Rules, 1965.We also feel that N.R. Parmar (Supra) had incorrectly distinguishedthe long-standing seniority determination principles propounded in, inter-alia, J.C. Patnaik (Supra), Suraj Prakash Gupta & Ors. vs. Stateof J&K & Ors.[5] and Pawan Pratap Singh & Ors. Vs. Reevan Singh& Ors.(Supra). These three judgments and several others with likeCenunciation on the law for determination of seniority makes it abundantlyclear that under Service Jurisprudence, seniority cannot be claimed froma date when the incumbent is yet to be borne in the cadre. In ourconsidered opinion, the law on the issue is correctly declared in J.C.Patnaik (Supra) and consequently we disapprove the norms onDassessment of inter-se seniority, suggested in N. R. Parmar (Supra).Accordingly, the decision in N.R. Parmar is overruled. However, it ismade clear that this decision will not affect the inter-se seniority alreadybased on N.R. Parmar and the same is protected. This decision willapply prospectively except where seniority is to be fixed under therelevant Rules from the date of vacancy/the date of advertisement.E41. As noted earlier, the Learned Single Judge based his judgmenton two propositions but the Division Bench was of the view that resultwould be the same merely on the basis of one of the two propositionsand, therefore, it was unnecessary to pronounce upon the otherproposition. Such an approach cannot therefore be described as aFconflict (as has been suggested), between the two judgments. BothBenches were absolutely consistent in their conclusion that promoteeswould have to be given seniority over direct recruits. It cannottherefore be argued that by some convoluted reasoning, it is possibleto come to the conclusion that the orders passed by the two CourtsGwould result in diametrically opposite situation namely, that directrecruits would have to be given seniority over promotees.

42. The Learned Single Judge in his Judgment interpreted theOffice Memorandum (07.02.1986), as adopted by the State Government

4 (1991) 3 SCC 47

H5 (2000) 7 SCC 561

vide its OM dated 13.11.1987 to mean that direct recruits could begiven seniority only from the date of appointment. The Judgment in N.R.Parmar (Supra) was not cited and the principle contained therein cannottherefore be said to have been intended to be applied by the LearnedJudge.

43. That apart, the paragraph (14) of the judgment (7.7.2017)expressly refers to the earlier WP(C) No.235 of 2012 and the18.02.2013 order passed therein. In that case, the State of Manipur filedcounter affidavit categorically stating that, seniority of direct recruitswould be counted from their date of appointment and not from the dateof initiation of the recruitment process.

44.The Learned Single Judge in paragraph 14 of the judgmentdirected the State Government to prepare the seniority list after takinginto account the observations made by the Court where the Court hadclearly observed that the direct recruits cannot get seniority over andabove the promotees and that the principle of dovetailing cannot beapplied while determining the inter-se seniority between the appellantsand the private respondents. This observation is undoubtedly part ofthe Court’s directions and while implementing this order, theGovernment could not have given seniority to the direct recruits overthe promotees. By doing so, they have acted in violation of the CourtOrders and not in conformity therewith.

45. It is now necessary to deal with Mr Patwalia’s finalcontentions in reply, placing reliance on All India Judges Association& Ors. Vs. Union of India and Ors.[6]. He emphasizes the followingpassage in paragraph 29 of the Judgment:-

“……Hardly if ever there has been litigation amongst themembers of the service after their recruitment as per the quotas,the seniority is fixed by the roster points and irrespective of thefact as to when person is recruited……”

46. The above would however refer to an incumbent whoseroster points have been fixed after their recruitment as per the prescribedquotas. The cited judgment does not propose to say that seniority byroster points be fixed, ignoring the date, when the person is recruited.The judgment obviously was not considering situation, where seniorityis being fixed even before the incumbent is borne in service. In any

6 (2002) 4 SCC 247

Acase, having regard to the specification made in the MPS Rules, 1965,which squarely governs the litigants here, the ratio in the All IndiaJudges Association’ (Supra) would be of no assistance, for theappellants.47. As earlier discussed, the Rule 28 of the MPS Rules, 1965Bshows that seniority in the service shall be determined based on thedate of appointment to the service. In particular Rule 28(i) of the MPSRules, 1965 which is applicable to both promotees and direct recruits,provides that seniority shall be determined by the order in which theappointments are made to the service. If seniority under Rule 28(i) isto be determined based on the date of appointment, it cannot be saidCthat for the purpose of Rule 28(iii), the seniority of direct recruitsshould be determined on the basis of the date of initiation of therecruitment process. The term “Recruitment Year” does not and cannotmean the year in which, the recruitment process is initiated or the yearin which vacancy arises. The contrary declaration in N.R. Parmar[2] inDour considered opinion, is not correct view.

48. In view of the foregoing, let us now consider the Governmentorder (29.06.2019) produced by the Manipur Advocate General in theContempt Case. As it appears the seniority list published on 29.06.2019could not be an independent exercise but its purpose should be to giveEeffect to the judgments passed by the High Court. Since the judgmentof the learned single Judge was affirmed by the Division Bench, theseniority list must be prepared in accordance with the High Court’sdirection. It is certainly not permissible to prepare fresh seniority listas an independent exercise, without reference to the decisions of theCourt. When we test the validity of the list (29.06.2019), there is noFescape from the conclusion that the list ignores the decision of the singleJudge 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 samereasoning, the appeals arising out of SLP (C)No. 19568-69 of 2019,Gfiled by the State of Manipur are not entertained and the same shallstand dismissed. With the above finding on the Contempt Case No.224of 2018 and quashment of the 29.06.2019 proceeding produced in thatcase before the High Court, the appeals arising out of SLP (C)No.17007 of 2019 filed by Ningam Siro against the High Court’s order inHthe Contempt Case No.224/2018 is disposed of.

50. In view of the foregoing, the orders of the High Court in theWrit Petition and the Writ Appeal are upheld. The State of Manipur isaccordingly directed to prepare revised inter-se seniority list in theMPS Grade-II cadre in light of the above discussion and the HighCourt’s Orders. This shall be done within 8 weeks from today. Allconsequential actions will follow from this judgment. It is orderedaccordingly.

Nidhi Jain

Appeals disposed of.