TaxTMI 
TaxTMI 
2019 (11) TMI 1733
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....3. They are to be described hereinafter as "direct recruits". The Respondents in this SLP were the Writ Petitioners in the High Court who were appointed on promotion to the MPS Grade 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 Private 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 fi....
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....s 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 Services (for Schedule Castes and Schedule Tribes) Act of 1976 which was enacted on 24th February, 1977, for short "the Manipur (SC & ST) Act, 1976", provided that the term meant financial year. It was also 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 publication in the official gazette of Manipur thereby making it plain that the same was not intended to have any retrospective effect. The learned 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 the financial year. 9. In consequence, the learned Single Judge held that 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. ....
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.... not however feel it necessary to go into the question as to whether "year" means "calendar 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 "year" 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 cadre of MPS Grade II, before the Writ Appellants were borne in the cadre. 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. But 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 Review Petition was dismissed for non-prosecution, through the order dated 10.04.2019. The I.A.(C) No. 1741 of 2019 was then filed by K. Meghachandra Singh for restoration of the Review Petition; but the restoration was held to be unmerited and accordingly the I.A. filed by the direct recruits was dismissed on 24.05.2019. 15. Aggrieved by rejection of their Wri....
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....965 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 order 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 does 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 earlier point of time. The applicability of the ratio in N.R. Par....
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....challenge the Division Bench Judgment in the Writ Appeal No. 66 of 2018. 26. Mr. Giri refers to the MPS Rules, 1965 (2nd 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 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 (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 revised 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 t....
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....ld that retrospective seniority should not be granted from a day when an employee is not even borne in the cadre so as to adversely impact those who were validly appointed in the meantime. 31. We may also benefit by referring to the Judgment in State of Uttar Pradesh and Ors. v. Ashok Kumar Srivastava and Anr. (2014) 14 SCC 720. 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. v. Reevan Singh and Ors. (2011) 3 SCC 267, and concurred with the view that seniority should not be reckoned retrospectively unless 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 affect 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 ....
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....ted 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 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. 34. In the above context, it is also necessary to refer to the relevant advertisement issued in 2005 for direct recruitment which 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, we can easily visualize a situation 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. 35. The judgment in N.R. Parmar ....
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....tiation 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 appointment 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. According to us, the illustration extracted in the N.R. Parmar (Supra) itself, makes it clear that the vacancies which were intended for direct recruitment 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 indicated 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 emphasiz....
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....ate of advertisement. 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 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. 42. The Learned Single Judge in his Judgment interpreted the Office Memorandum (07.02.1986), as adopted by the State Government 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 int....
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....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. The contrary declaration in N.R. Parmar 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 judgment of the learned single Judge was affirmed by the Division Bench, ....