TMI Blog2019 (11) TMI 1733X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgments passed by the High Court. Since the judgment of the learned 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. Appeal dismissed. - CIVIL APPEAL NOS. 8833-8835 OF 2019 (ARISING OUT OF SLP (C) NOS. 19565-19567 OF 2019), CIVIL APPEAL NO. 8838 OF 2019 (ARISING OUT OF SLP (C) NO. 17007 OF 2019) AND CIVIL APPEAL NOS. 8836-8837 OF 2019 (ARISING OUT OF SLP (C) NOS. 19568-19569 OF 2019) - - - Dated:- 19-11-2019 - R. BANUMATHI, A.S. BOPANNA AND HRISHIKESH ROY, JJ. For the Petitioner : Mr. A. Henry, Adv., Mr. Vivek Kumar, Adv., Mr. Kumar Mihir, AOR, Mr. Leishangthem Roshmani Kh, AOR, Ms. Anupama Ngangom, Adv., Mr. Aribam Jankinath Sharma, Adv., Ms. Punam Kumari, AOR For the Respondent : Ms. Punam Kumari, AOR, Mr. Leishangthem Roshmani Kh, AOR, Mr. Anando Mukherjee, AOR JUDGMENT Hrishikesh Roy, J. 1. Leave Granted. 2. These matters pertain to an inter-se seniority dispute in the Manipur Police Service Grade II Officers Cad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the direct recruits and promotees in the MPS Grade II Cadre, the State in their counter affidavit took the stand that seniority should be determined from the date on which the person was appointed but not from the date of vacancy. For the direct recruits appointed on 14.08.2007 against the vacancy of 2004-2005 it was averred that their seniority should 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 common judgment dated 07.07.2017 quashed the impugned orders. It is seen that single Judge directed that the batch of promotees appointed on 01st of March 2007 must be given seniority above the direct recruits appointed on 14th August, 2007 and he justified this by stating that a direct recruit can claim seniority only from the date of his regular appointment 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' v. State of Orissa (1998) 4 SCC 456. The Court also held that the expression year must refer to financial year and not calendar year. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 favouring 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 seniority for direct recruits could not be reckoned from a date p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 assign seniority from that year. 18. According to Mr. Patwalia, the Learned Single Judge erroneously interpreted recruitment year as financial year in order to confer higher seniority position to the promotees vis- -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 vacancies 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 recruitment process for the direct recruits commenced in the year 2005 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies, can have no bearing on the inter-se seniority of those who were borne in the cadre on an earlier date vis- -vis those who entered service later, like the direct recruits. 23. The Respondent's counsel would then submit that reference to the Office Memorandum and the other notifications to decide the inter-se seniority in the MPS Grade-II Cadre would be unnecessary 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 reckoning 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 inconsistent views between the Single Judge and the Division Bench in the 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 seniority lists prepared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ample, 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 year 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 appropriate 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 and Ors. v. State of Arunachal Pradesh and Ors.). Having regard to the similar provisions, the Court approved the view that seniority is to be reckoned not from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rule 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 in which appointments are made to the service. .................... Rule 28(iii) The relative seniority of direct recruits and promotees shall be determined according to rotation of vacancies between direct recruits and promotees as determined Under Rule 5 for that year and the additional direct recruits selected against the carried forward vacancies of the previous year would be placed en bloc below the last promotees (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 the Service. .................... Rule 16(iii) In the case of a person who had been appointed to a post which is subsequently declared as duty po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uitment 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............ 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 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 shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Government employees cannot in our opinion, automatically apply 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 and Ors. v. State of J K and Ors. (2000) 7 SCC 561 and Pawan Pratap Singh and Ors. v. Reevan Singh and 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 declared 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 decision will apply prospectively except where seniority is to be fixed under the relevant R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45. It is now necessary to deal with Mr. Patwalia's final contentions in reply, placing reliance on All India Judges Association and Ors. v. Union of India and Ors. (2002) 4 SCC 247. He emphasizes the following passage in paragraph 29 of the Judgment: ......Hardly if ever there has been a litigation amongst the 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 whose roster points have been fixed after their recruitment as per the prescribed quotas. The cited judgment does not propose to say that seniority 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. In any 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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