TMI Blog1999 (9) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... ore Singh are that the appellant herein joined the Manipur Police as Sub-inspector on the recommendation of the Manipur Public Service Commission and was confirmed to the post on 16.6.1976. Vide order No.13(1)/9/79- H(PT) dated 3rd June, 1980 (Annexure P-1) the Government of Manipur appointed 31 Sub-inspectors of Police, including the appellants, as Inspectors of Police on promotion in the scale of pay of ₹ 488-28-518-EB-25-749-EB-38-958 plus other allowances as admissible under the Rules with effect from 3rd June, 198o on regular basis, until further orders (emphasis supplied). Vide order No.3/12/83-MPS/DF(i) dated 12th October, 1983 (Annexure P-2) the Government of Manipur in exercise of the powers conferred under Rule 24 of the MPS Rules, 1965 appointed the appellant along with 27 others, in the order of their merit, to the Manipur Police Service in officiating capacity in the pay-scale of ₹ 900-40-1220-EB-50-1720 with immediate effect, until further orders. Order No.13(1)/4/79-H(i) dated 16.9.1989 shows that on the recommendation of the DPC held on 14.1.1985, the Governor of Manipur was pleased to confirm the appellant and others as Inspectors of Police in the Manip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ati High Court directed the Government either to confirm the appellant as Inspector of Police with effect from 3.6.1980 or from the date when his juniors were confirmed. The High Court directed the deletion of the words until further orders mentioned in his regular appointment order dated 3rd June, 1980 (Annexure P-1). It is admitted that the aforesaid judgment was not appealed against. On 21st May, 1996 Civil Review No.13/96 was disposed of by a Division Bench by setting aside the order dated 20th August, 1990 passed in Civil Rule 166 of 1990. The said Civil Rule No.166/90 was restored to the file and the appellant was directed to implead all those officers above him in the seniority list of MPS Grade-II, who were likely to be affected adversely in case if reliefs as prayed for by him were granted. The said writ petition was disposed of by a Single Judge of the High Court on 18.9.1997 allowing the same with directions to the respondent Government to treat the date of officiating appointment of the appellant to the MPS Grade-II as the date of his regular appointment. Not satisfied with the aforesaid judgment the private respondents filed Writ Appeal No.162/97 which was referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e larger Bench dismissed the appeal vide the impugned order holding him not entitled to the benefit of seniority from the date of his officiating appointment or from the availability of first substantive vacant post after the aforesaid selection. Smt.Vandana Karki and others who were respondents in the writ petition filed by Shri L.Chandrakishore Singh have filed SLP (C) No.4870/99 alleging that the High Court was not right in interpreting eligibility criteria laid down under Rule 14(1) read with Rule 5(1)(b) of the Rules and effective dates of confirmation to the post of Inspector of Police. It is contended that the High Court erred in holding that the MPS Service Rules were pari materia with DANI Rules. It is submitted that the High Court was not right in holding that the words substantively borne on the cadre of Inspector of Police appearing in Rule 5(1)(b) of MPS Rules could not mean the inspector of police whose probation to the post had been confirmed. It could not be held that the confirmation to the post of Inspector of Police be taken as eligibility criteria for promotion to MPS Grade-II. It is contended that the High Court failed to appreciate that since the inception o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying the relevant rules and the pronouncements made by this Court. Shri A.S. Nambiar, Senior Advocate for the respondents has submitted that the appointment of the appellant as Inspector of Police initially being on probation for two years, the same could not be treated as substantive appointment for the purposes of determining the seniority. He has tried to distinguish the DANI and MPS Rules to show that the initial appointment of the appellant as Inspector and subsequent confirmation entitled him benefit of seniority only with effect from the 16th August, 1989. According to him the learned Single Judge had committed mistake in allowing the appeal filed by Shri L.Chandrakishore Singh. The Rules were made by the President of India in exercise of powers conferred under Article 309 of the Constitution of India on 29th March, 1965. Rule 3 provides that there shall be constituted a Central Police Service to be known as Manipur Police Service, the posts of which shall be central civil posts Class II gazetted. The authorised permanent strength of the service and the post shall be such as specified in the Schedule attached to the Rules. The Central Government or the Administrator, subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs recommended taking into the account the actual vacancies at the time of selection and those likely to occur during a year. The selection for inclusion in the list has to be based on merit and suitability in all respects for appointment to the service with due regard to seniority. The names of the persons included in the list are required to be appointed in order of merit. The list so prepared is to be forwarded by the Committee to the Governor which shall be approved by him after taking into account the changes, if any, proposed by the Public Service Commission. Such list shall ordinarily be in force until a fresh list is prepared for the purpose in accordance with these rules. According to Rule 16 appointments to the service are to be made in order of merit in the list referred to in Sub-rule (4) of Rule 15 with due regard to the proportion specified in Rule 5 and subject to sub-rule (2) of Rule 16. Selection for officiating appointments have to be made under Rule 24 which provides: Selection for officiating appointments: If at any time the Administrator is of the opinion that the number of officers available in the list referred to in sub-rule (4) of Rule 15 for appointment t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Manipur, no major change has been made in the provisions of Rule 5,14,15,24 and 25 of the MPS Rules. The minor modifications which have been made in the MPS Rules does not materially affect the provisions of the Rules or it does not change the basic structure of the MPS Rules. Since both the rules were framed by the Central Government, there is no difficulty to hold that the intention of Central Government is same in both the Rules. Therefore, we have no hesitation to hold that the DANI Rules is in pari-materia with the MPS Rules. The first part of Question NO.3 is answered accordingly. While dealing with the case of the appellant, the Full Bench found that he had not been substantively promoted to the post of Inspector of Police on 3.6.1980 because of qualified words until further orders appearing in the aforesaid order. It was observed: Appointment with the condition of until further orders is purely on a temporary capacity subject to further order made in this behalf by the competent authority. Regular appointment in a cadre or post should not allow with the qualifying words, until further orders . If the appointment is made until further orders, it cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancies (both direct and promotion quota together) in MPS Grade-II. The DPC considered to fill up those short term vacancies on officiating basis under Rule 24 of the MPS Rules by giving promotion from amongst the eligible officers in the feeder list. For selection of 15 officers for appointment by promotion all eligible officers were consider. On the basis of assessment made and on perusal of their comparative merit and suitability, the Committee recommended officers including Shri L.Chandrakishore Singh in order of merit for appointment on officiating basis to the post of MPS Grade-II. The name of the appellant L.Chandrakishore Singh was at Sl.No.2 in the merit list prepared by the DPC. The proceedings of the DPC clearly and unambiguously indicate that all eligible police officers were considered for officiating appointment in terms of Rule 24 against available short term vacancies. It has further to be noticed that the selection was based upon merit and suitability and the DPC had kept in mind sub-rules (2) and (3) of Rule 14 and 15 of the Rules while preparing the list on merits. It has further to be noticed that the appointment to the duty post was not made as a local arrangeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Administrative Tribunal, Principal Bench whose judgment has been impugned in this appeal, that respondents were appointed under sub-rule (1). 5. There is no serious dispute to this position even by learned Additional Solicitor General, Shri Tulsi, who has appeared for the appellants. His first real contention is that despite the appointments being under sub-rule (1), the respondents cannot be taken to have been appointed to the Service and as such the direction of the Tribunal to treat them as permanent appointees instead of as officiating hands, is not in consonance with what has been provided in the Rules. Shri Tulsi submits that appointment to the Service can be made only as visualised by Rule 16 and this can be of those whose names find place in the list referred in sub-rule (4) of Rule 15. The respondents not being such incumbents, they cannot be treated as permanent appointee to the Service. 6. This submission would not be correct if heart of the matter is looked into. To put it differently, the submission is not correct in substance, but is so only in form. We have taken this view because an examination of Rule 24 shows that the list prepared as required by tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a's case was inapplicable to the facts and circumstances of the matter pending before it. Vide the impugned judgment the High Court tried to make an artificial distinction of the case from the facts of the Bhatia's case with reference to Article 142 of the Constitution with observations: But, inspite of this small difference the Hon'ble Supreme Court has given the relief to the respondents of Harish Chandra Bhatia's case and it appears to us that for making a complete justice to the respondents who have rendered 12 years of officiating service, the Apex Court has passed the order for regularising the officiating service of the respondents by invoking the provisions of Article 142 of the Constitution. A perusal of the judgment in Bhatia's case has not persuaded us to agree with the findings of the High Court. After referring to Sub-rules (3) and (4) of Rules 14, 15 and 24, the Court found that there was no difference in substance between the list prepared as contemplated by Rules 14 and 15 and the one visualised by Rule 24. The selectees under Rule 24 were held to be standing at par with the selectees under Rule 14 of the Rules. The reference to 12 years of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spectors of Police for promotion to MPS Grade-II on regular basis as the policy of the State Government is to promote only the confirmed Inspectors of Police and not promote the probationary Inspectors of Police. It is contended that in the light of the judgment of this Court in N.Suresh Nathan Anr.vs. Union of India Ors. [(1992) Supp. 1 SCC 584, such a practice should be held to be in consonance with the long standing practice in the Department. We feel the reliance on this case is also misplaced. In that case the dispute was whether a diploma holder Junior Engineer who obtained the degree while in service became eligible for appointment as Assistant Engineer by promotion on completion of three years of service including therein the period of service prior to obtaining the degree or the three years service as a degree holder for the purpose to be reckoned from the date of obtaining the degree. The diploma holders contended that they were entitled to include the earlier period and were eligible for promotion in the category on obtaining a degree if the total period of service is three years inclusive of earlier period. The degree-holders contested this position and contended to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le and commends to us being in conformity with the past practice followed consistently. The position in the instant case is totally different. After the judgment in Bhatia's case, we are of the opinion that no other construction of the Rules is possible. When the Rules are clear and do not create any doubt, the adoption of a contrary practice cannot be made a basis for depriving the employees in the service of their entitlement unambiguous. the Rules which are clear, specific and The Full Bench of the High Court referred to Government Order dated 28th July, 1997, claimed to have been issued under Article 309 of the Constitution which was held to prescribe that officers appointed on direct recruitment and also by promotion were to be on probation for a period of two years. The aforesaid Government order has not been shown to us for the purpose of ascertaining its scope and ambit and the authority besides the purpose for which it is claimed to have been issued. Article 309 of the Constitution authorises the appropriate Legislature to regulate the recruitment and condition of service of persons appointed to public service and post in connection with the affairs of the Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of the difference of continuous officiation or on the basis of the difference of substantive appointment in the cadre or grade or service which may be reckoned from the date of confirmation on the basis of regularisation. It is now well settled that even in cases of probation or officiating appointments which are followed by a confirmation unless a contrary rule is shown, the service rendered as officiating appointment or on probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list. Where the first appointment is made by not following the prescribed procedure and such appointee is approved later on, the approval would mean his confirmation by the authority shall relate back to the date on which his appointment was made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation. In this regard we fortify our view by the judgment of this Court in G.P. Doval Anr. vs. Chief Secretary, Government of U.P. Ors. [(1984) 4 SCC 329]. In the light of what we have noted hereinabove, it is apparent that the order impugned in the High Court dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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