Service Law : Seniority – Manipur Police Service Grade–II Officers Cadre – Inter- se seniority amongst direct recruits and promotees – Final Seniority list of MPS Grade II Officers wherein promotees-respondents who entered the cadre on 01.03.2007, placed below the direct recruits-appellants, who joined the cadre on 14.08.2007 and 24.11.2007 respectively – Challenge to, by the promotees that they should be regarded senior to direct recruits – Single Judge of the High Court held that promotees must be given seniority above the direct recruits – Division Bench upheld the order – On appeal, held: Seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre – Rule 28(i) applicable to both promotees and direct recruits, provides that seniority shall be determined by the order in which the appointments are made to the service – If seniority under 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 initiation of the recruitment process – Term “Recruitment Year” does not and cannot mean the year in which, the recruitment process is initiated or the year in which vacancy arises – On facts, it was not permissible to prepare a fresh seniority list as an independent exercise, ignoring the decision of the Single Judge as affirmed by the Division Bench – Thus, the orders of the High Court are upheld and in view thereof, the State is directed to prepare a revised inter– se seniority list in the MPS Grade–II cadre – Manipur Civil Service Rules, 1965 – r. 28(iii), 28(i), 16(iii).
Disposing of Civil Appeal No. 8838 of 2019 and dismissing Civil 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 never provided that seniority should be counted from the date of vacancy. 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. [Para 33] [665-F-H]
1.2 The relevant advertisement issued in 2005 for direct recruitment allowed the aspirants to apply even if, their result in the qualification examination is awaited. Even more intriguing and significant 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, a situation can easily be visualised where, in the event of granting seniority from the stage of commencing the process, a person when eventually appointed, would get seniority from a date even before obtaining the qualification, for holding the post. The applicable Rules in the instant case however provide that the seniority in the service shall be determined by the order in which appointments are made to the service. Therefore, the concerned Memorandums referred to in N.R. Parmar’s case which deal with general principles for determination of seniority of persons in the Central Government service, should not have any overriding effect for the police officers serving in the State of Manipur. [Para 34, 35] [665-H; 666-A-B-D-E]
1.3 After the judgment in N.R. Parmar’s case 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 that “appointments/promotions made before the issue of this OM will not be covered by this OM. The seniority already fixed 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 with the publication in the Gazette”. Thus, 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 followed earlier in the State. The conclusion is, therefore, inevitable that at 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. [Para 36, 37] [666-E-H; 667A-B]
1.4 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. The law on the issue is correctly declared in J.C. Patnaik’s case and consequently the norms on assessment of inter–se seniority, suggested in N. R. Parmar’s case are disapproved. Thus, 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 decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy/the date of advertisement. [Para 40] [668-C-E]
Union of India and others v. N.R. Parmar, (2012) 13 SCC 340 – Overruled.
Jagdish Chandra Patnaik v. State of Orissa, (1998) 4 SCC 456 : [1997] 4 Suppl. SCR 470; Suraj Prakash Gupta & Ors. v. State of J&K & Ors. (2000) 7 SCC 561; Pratap Singh and Ors. v. Reevan Singh & Ors., (2011) 3 SCC 267 – relied on.
1.5 The 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 propositions and, therefore, it was unnecessary to pronounce upon the other proposition. Such an approach cannot therefore be described as a conflict (as has been suggested), between the two judgments. 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 Courts would result in diametrically opposite situation namely, that direct recruits would have to be given seniority over promotees. [Para 41] [668-E-H]
1.6 The Single Judge had 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. [Para 44] [669-C-E]
1.7 The Rule 28 of the MPS Rules, 1965 shows that seniority in the service shall be determined based 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 in which the appointments are made to the service. If seniority under 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 initiation 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. [Para 47] [670-A-D]
1.8 Although 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 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 revised and sought time for submitting compliance report. On the next date, the Advocate General produced a copy of proceeding, 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 the Contempt Case was ordered on 02.07.2019. 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 judgment of the Single Judge was affirmed by the Division Bench, the seniority list must be prepared in accordance with the High Court’s direction. It is certainly not permissible to prepare a fresh seniority list as an independent exercise, without reference to the decisions of the Court. When the validity of the list (29.06.2019) is tested, there is no escape from the conclusion that the list ignores the decision 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 and the Writ Appeal are upheld. The State is directed to prepare a revised inter–se seniority list in the MPS Grade–II cadre in light of 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 others v. Ashok Kumar Srivastava and Anr. (2014) 14 SCC
720 ; All India Judges Association & Ors. v. Union of India and Ors., (2002) 4 SCC 247 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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