Shri
L. Chandrakishore Singh Vs. State of Manipur & Ors [1999] INSC 353 (18
September 1999)
R.P.Sethi,
S. Saghir Ahmed SETHI,J.
Leave
granted. In all these appeals the point of law sought to be determined is
regarding the principle governing the determination of seniority of the persons
belonging to Manipur Police Service governed by Manipur Police Service Rules
(hereinafter referred to as "MPS Rules"). It has to be determined as
to whether or not the police officers belonging to the service who had continuous,
uninterrupted, meritorious officiating service are entitled to the benefit to
be counted the same towards their seniority. The ambit and scope of the
judgment of this Court in Union of India & Anr. vs. Harish Chander Bhatia
& Ors. [(1995)2 SCC 48 needs also to be ascertained. The rival contentions
are required to be adjudicated on comparative study of the Delhi & Andaman
& Nicobar Island Police Service Rules, 1971 (hereinafter referred to as
"DANI Rules") and the MPS Rules.
Brief
facts of the case, as extracted from SLP (C) No.18221/98 filed by Shri L.Chandrakishore
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 Rs.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 Rs.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
Manipur Police Department with effect from 14.1.1985 i.e., the date on which
the DPC recommended for confirmation, until further orders.
However,
vide order No.3/12/83-MPS/DP (PT-I) dated 16.8.1989 the respondent-Government
issued an order, purported to be under Rule 5(1)(b) read with Rule 16 of the
Manipur Police Service Rules, 1965, appointing on promotion the officers
mentioned therein including the appellant, in order of their seniority to
Manipur Police (Junior Grade) in the pay-scale of Rs.2000-60-2300-EB-75-3200
with immediate effect. The tentative seniority list of the MPS officers as on 22nd September, 1998 showed the appellant' s name at
Sr.No.72 allegedly even below the direct recruits (MPS Grade-II) of the year
1988. He submitted his objections to the tentative seniority list on 26th December, 1989. However, the seniority list issued
on 30th March, 1990 showed his name at Sl.No.71, still
below the direct recuits (MPS Grade-II) of 1988 batch. Feeling aggrieved of his
placement in the seniority, the appellant filed writ petition being Civil Rule
No.166 of 1990 before the Gauhati High Court for a direction to regularise his
officiating appointment to MPS Grade-II with effect from 12.10.1983 by
revising/quashing/modifying the aforesaid appointment order dated 16.8.1989
insofar as it related to him. He reserved his right to challenge the seniority
list of the MPS. The writ petition is stated to have been disposed of by the
Division Bench of Gauhati High Court, Imphal Bench giving directions that the
appellant shall be given the benefit of regularisation from the date of his
officiating appointment provided the same was continuous. The appellant again
filed a civil writ bearing No.60/91 seeking inter alia a direction to consider
him for promotion to the next higher post of Additional Superintendent of
Police/Deputy Commandants of Manipur Rifles. During the pendency of the
aforesaid writ petition, the respondent-Government filed an application for
modification of its order dated 20th August, 1980 passed in C.R. No.166/90 which was subsequently registered
as Civil Review No.13/96. The appellant filed another writ petition bearing
Civil Rule No.307/92 for quashing the order of the Manipur Government dated
16.9.1985 and seeking a direction for his confirmation as Inspector of Police.
While disposing of the aforesaid writ petition on 11.12.1992 the Gauhati 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 to a larger Bench by formulating
three points for decision vide order dated 13.5.1998. The Full Bench vide the
impugned order in these appeals set aside the order of the learned Single Judge
and dismissed the writ petition being Civil Rule No.166/90. The appellant N. Bijoy
Singh in SLP (C) No.17310/98 was appointed as an Inspector along with others
including the appellant L. Chandrakishore Singh vide order dated 3rd June, 1980 (Annexure P-1). Under the MPS
Rules, the meeting of the Selection Committee for relevant posts was held on 24th March, 1987. The Committee recommended the
aforesaid appellant as an officiating appointee solely on the ground of
shortage of substantive vacant posts at the relevant time but in anticipation
of the future substantive vacancies which were likely to arise within the
stipulated period as conceived under Rule 14 of the Rules. Vide order dated 16th July, 1987, issued under Rule 24 of the Rules,
the said appellant along with others was appointed on officiating basis to the
Manipur Police Service (Junior Grade) in the pay-scale of
RS.900-40-1220-EB-50-1720 with effect from the date on which they took over the
charge of the post (Annexure P-3).
However,
vide order dated 16th
August, 1989 purported
to have been issued under Rule 5(1)(b) read with Rule 16 of the Rules, the
appellant along with others was appointed, on promotion, in order of merit to
the Manipur Police Service (Junior Grade) in the pay-scale of
Rs.2000-60-2300-EB-75-3200 with immediate effect. Vide order dated 28th October, 1991 issued in exercise of powers vested
in the Government under Rule 23, the appellant along with others was confirmed
to Manipur Police Service Grade-II with effect from 16.8.1991. Feeling
aggrieved Shri N. Bijoy Singh filed writ petition bearing CR No.415/94 in the Gauhati
High Court praying for seniority from the date of his officiating appointment
along with consequential benefits. His petition was dismissed on 5.7.1995 on
the ground that he was not entitled to the seniority from the date of his
officiating appointment. He filed a review petition seeking clarification which
was also dismissed on 18.6.1997. Writ Appeal No.101/97 preferred by him before
the Division Bench of the High Court was referred to a larger Bench along with
writ appeal filed against the judgment of the learned Single Judge in L.Chandrakishore
Singh's case. The 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 of
service, the Government of Manipur had all along been interpreting the words
"substantively borne on the cadre of Inspector of Police" appearing
under Rule 5(1)(b) of the Rules as the Inspector of Police confirmed to the
post and as such confirmed inspectors alone were considered to be eligible for
promotion to MPS Grade-II.
There
was no justification to disturb the consistent practice of 30 years and to
unsettle many settled matters in the service. The respondent No.1, namely, Shri
L.Chandrakishore Singh is contended to be not eligible for promotion to MPS
Grade-II on regular basis till 14.1.1985, i.e., the date of his confirmation to
the post of Inspector of Police and thus could not be promoted to MPS Grade-II
when he was allowed to officiate as MPS Grade-II officer vide orders dated
12.10.1983 from the list prepared under Rule 24 of the Rules. The High Court is
further stated to have erred in overruling the decision of a Division Bench
dated 11.4.1997 passed in Writ Appeal No.35/94 and 55/94 as the aforesaid
judgments are stated to have been approved and confirmed by this Court by
dismissing the SLP (C) Nos.12904-12905 of 1997. Leave is prayed to appeal from
the final judgment of the Full Bench and prayer is made for passing such other
and further orders as are deemed proper.
Shri H.Nabh
Kumar Singh, Senior Advocate, appearing for the appellant has vehemently argued
that after holding the MPS Rules as synonymous to the DANI Rules, the Full
Bench of the High Court was not justified in not applying the law laid Chander
Bhatia & Ors. [(1995) 2 SCC 48]. It is contended that after the judgment
dated 11.12.1992 of the High Court in Civil Rule No.307/92, the
respondent-State was estopped from arguing that the appointment of the
appellant was temporary which disentitled him from getting the benefit of
length of service on the basis of the aforesaid order. He has submitted that
the learned Single Judge who decided the Civil Rule 166 of 1990 on 18.9.1997
had rightly held that since the DANI Rules were in pari materia of MPS Rules,
the judgment of the Apex Court in Bhatia's case (supra) was squarely applicable
in the facts and circumstances of the case. He has referred to various
observations made in favour of the appellant and assailed the conclusions
arrived at by the Full Bench on the ground of not applying 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, subject to such
conditions and limitations, as may be prescribed by the Central Government in
this behalf, may, by order, create duty for such period as may be specified
therein. Rule 5 which deals with method of recruitment provides: "Method
of Recruitment: (1) Save as provided in rule 17, appointment to the service shall
be made by the following method namely:- (a) 50 per cent of the substantive
vacancies which occur from time to time in the authorised permanent strength of
M.P.S. (Junior Grade) shall be filled in by direct recruitment in the manner
specified in Part IV of these rules; and (b) the remaining 50 percent of such
substantive vacancies shall be filled up by selection in the manner specified
in part V of these rules from amongst officers who are substantively borne on
the cadre of Inspector of Police, Inspector of Police (Legal) and Subedar/Sub-Major
of Manipur Rifles employed under the State of Manipur;
Provided
that nothing in the case of a person who had been appointed to a post, which
post is subsequently declared as duty post, he shall be deemed to have always
been appointed to a duty post from the date on which he was so appointed.
Provided
further that Nothing in this rule shall preclude the Governor from holding a
vacancy in abeyance, or filling it on an officiating basis in accordance with
the provisions of Part VIII of these rules." (2) If the exigencies of
service so requires, the administrator may, in consultation with the
commission, vary the percentage of vacancies to be filled by each method
specified in sub-rules (1).
Part V
provides for recruitment by selection. Rule 13 mandates that: "Recruitment
under clause (b) of sub-rule (1) of Rule 5 shall be made on the recommendation
of the Selection Committee (hereinafter referred to as the Committee)
consisting of - Chairman i) the Chairman or a Member of the Commission;
Members
ii) a nominee of the Ministry of Home Affairs not below the rank of Deputy
Secretary;
iii)
the Chief Secretary to the Government of Manipur and iv) an officer of the rank
of Inspector General of Police to be nominated by the Ministry of Home
Affairs." The Committee is required to consider, from time to time, the
cases of officers eligible under clause (b) of sub-rule (1) of Rule 5 who have
served in their respective cadres for not less than two years and prepare a
list of officers 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 to duty posts
is not adequate having regard to the vacancies in such posts, he may direct the
Committee to consider the cases of officers who had officiated for a period of
not less than three years in any of the cadres mentioned in clause (b) of
sub-rule (1) of rule 5 and prepare a separate list of officers selected.
The
selection for inclusion in the list shall be based on merit and suitability in
all respects for officiating appointments to duty posts with due regard to
seniority.
The
provisions of sub-rule (2) and (3) of Rules 14 and 15 shall apply mutatis
mutandis in the preparation of the list under this rule." Rule 25
provides: "Officiating appointment to specified post + any temporary post
carrying the same designation as that post + any other post declared as duty
post: (1) If a member of the service is not available for holding a duty post,
the posts may be filled on an officiating basis:
(a) By
the appointment of an officer included in the list referred to in sub-rule (4)
of Rule 15 or (b) If no such officer is available by the appointment of an
officer included in the list prepared under Rule 24.
(2)
Notwithstanding anything contained in these Rules, if the exigencies of service
so require, a duty post for which a member of the service is not available,
may, after consultation with the commission, be filled on an officiating basis
by the appointment of an officer belonging to any State Police Service on
deputation for such periods ordinarily not exceeding three years as the
Administrator may consider necessary.
(3)
Notwithstanding anything contained in these rules, where appointment to a duty
post is to be made purely as a local arrangement for a period of not exceeding
six months, such appointment may be made by the Administrator from persons who
are included in the list prepared under sub-rule (2) of rule 15 or rule 24 or
who are eligible for inclusion in such a list. (Emphasis supplied) The Full
Bench after extensively dealing with the DANI Rules in paras 10 to 13 of its
judgment rightly concluded:
"Judicial
decision given to the areas advanced in one statute does not afford a guide,
but construction of the same areas in another statute unless statutes are pari-
materia legislation. In the instant case, it is an admitted fact that both the
Rules were framed by the Central Government and even after adoption of the MPS
Rules by the 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 said to be a regular appointment.
Consequently,
we are of the opinion that the petitioner's appointment in the post of
Inspector of Police cannot be termed as a regular appointment." It appears
that before arriving at such a conclusion the Bench did not notice the earlier
decision of the High Court in Civil Rule No.307 of 1992 wherein it was
specifically held: "As the petitioner was appointed on officiating basis,
it therefore follows that the appointment was against a permanent post and he
cannot be kept on officiating basis for such a long period without
confirmation. That apart, as the petitioner was appointed according to rules on
officiating basis, the word "until further orders" is absolutely
superfluous and, therefore, this words are set aside.
In the
result, it is directed that the petitioner shall be confirmed in the post of
Inspector of Police either from the date of initial appointment or from the
date when officers junior to him were confirmed. I may refer to the decision of
the Division Bench of this Court in Durgadas Purkayastha V. Gauhati High Court,
1988 GLR 6. Relying on the decision of the Apex Court in S.B. Patwardhan v.
State of Maharashtra, AIR 1977 SC 2051, it held that confirmation is one of
inglorious and uncertaintly of the Government service depending neither on the
efficiency of the incumbent nor availability of substantive vacancies." It
is conceded before us that the said judgment was not appealed against and was
allowed to become final. It is, however, contended that as the respondents were
not made party in the said writ petition, the verdict did not bind them. The
argument has to be noticed for only being rejected inasmuch as the petitioner
therein was aggrieved by the order which affected him alone and he had impleaded
the State of Manipur as party respondents who, according to him, had added
superfluous words "until further orders" in his order of promotion.
The record of proceedings of the DPC held on 9.9.1983 for consideration of
promotion to the MPS Grade-II in the Police Department, Manipur shows that
there existed 29 substantive/ regular vacancies in the MPS Grade-II out of
which 14 belonging to direct recruits and 15 to the promotees. Out of 15 posts
of promotion 5 posts were reserved for ST only and no reservation for SC. It
was further reported by the Government that there were another 28 short term
vacancies (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 arrangement as contemplated by sub-rule (3) or
Rule 25 of the Rules. We find that the learned Single Judge while disposing of
Civil Rule 166/90 had rightly held: "Since the DANI rules are in pari materia
of Manipur Service Rules, the judgment and order of the Apex Court in Union of
India and Another, appellants vs. Harish Chander Bhatia and others (supra)
shall be squarely applicable in the facts of the case at hand. On this score
alone, this petition has succeeded. In my view, therefore, it may not be
necessary to advert to the other points urged by the parties.
This
apart, in Direct Recruit Class-II Engineering Officer's Association, Appellants
vs. State of Maharashtra and others, respondents (1990) 2 SCC 715, the
Constitution Bench of the Apex Court held in paragraph 47 'A' as under:
"(A)
Once an incumbent is appointed to a post according to rule, his seniority has
to be counted from the date of his appointment and not according to the date of
his confirmation." As already said, petitioner was appointed to the
Manipur Police Service (Junior) with effect from 12.10.1983 in accordance with Rules.
For
the reasons aforestated, this writ petition is allowed with a direction to the
respondents to treat the date of officiating appointment of the petitioner as
the date of his regular appointment and refix his seniority in terms of the
direction, consequently, the seniority list published under Rule 28 of the
rules by Notification date 30.3.1990 (Annexure 7) and the impugned order dated
16.8.1989 (Annexure 3) are hereby set aside in so far petitioner is
concerned." This Court in Bhatia's case (supra) considered the scope of
DANI Rules which we have found are pari materia the MPS Rules and held:
"4. From the above, it is clear that for a person to be appointed under
sub-rule (1) of Rule 25, he has to be an officer whose name is included in the
list referred to in sub-rule (4) of Rule 15 or one prepared under Rule 24.
Insofar as sub-rule (3) is concerned, this requirement is not to be satisfied,
and further, appointment under that sub-rule cannot exceed six months and is
made as a local arrangement. The respondents are those whose names found place
in the list prepared under Rule 24 and their appointments not having been made
purely as a local arrangement for a period not exceeding six months, we have no
difficulty in upholding the view of the 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 that rule, has also to satisfy the
requirements of provisions of sub-rules (3) and (4) of Rules 14 and 15. This
shows that the incumbents whose names find place in the list prepared as
contemplated by Rule 24 are also those who have been duly selected and
consultation with the Commission has also been made and the list prepared has
been forwarded to the Central Government as well for its doing the needful.
There is thus no difference in substance between the list prepared, as
contemplated by Rule 14 read with Rule 15, and the one visualised by Rule 24.
So, there appears to be no justifiable reason to regard Rule 24 selectees as in
any way inferior to Rule 14 selectees. According to us, they stand almost at
par. It is because of this that clauses (a) and (b) of sub-rule (1) of Rule 25
have virtually made no distinction between these two categories of incumbents.
7. Shri
Tulsi, however, contends that Rule 25 visualises officiating appointment and
not permanent; and that appointment is required to be made when a member of the
Service is not available. Though this is so, but the facts of the present case
would show that though the appointments were stated to be officiating these
continued for a very long period, which in the case of Respondent 1 was of
about 12 years as he came to be appointed under Rule 25 on 6.11.1972 and was
fixed permanently in the slot meant for promottes on 28.7.1984. An officiating
appointing for over a decade cannot be treated as fleeting appointment with no
service benefits to be given. Any other view would very seriously prejudice
such a service-holder who, even after having rendered service equal to those of
permanent appointees for a long period, and that too for proper functioning of
the Service, would be denied the benefit of the same for no cogent reasons. Any
other view is bound to have a demoralising effect in the Service as a whole. As
the appointments under Rule 25 are also to duty posts, which may form part of
the strength of Service because what has been stated in Rule 4(3), we are of
the view that justice of the case and the need to preserve the efficient
functioning of the Service would require to treat the appointments of the
respondents as permanent, despite their having been first appointment on
officiating basis." We are of the firm opinion that the Full Bench was not
correct in holding that the judgment in Bhatia'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 service of the respondent therein was in
the context to emphasize that the appointment was not under Rule 25 being local
arrangement for specified period vide sub-rule (3) of Rule 25. As the
appointment of the appellant could not be held to be under Rule 25, the verdict
in Bhatia's case had to be accepted by treating the appointment of a person to
the service under Rule 24 of the Rules. The reliance of the learned counsel for
the State of U.P. & Ors. [(1980) 4 SCC 226 does not in any way advance the
case of his clients inasmuch as in that case the Court considered the scope of
United Provinces Service of Engineers Class II, Irrigation Branch Rules, 1936
and by specific reference to Rules 3(b) and 4 held that a cadre post can be
permanent or temporary and if an Engineer is appointed substantively to a
temporary or permanent post he becomes a member of the service. The touchstone
then, is the substantive capacity of the appointment. The Court further held
that the substantive capacity refers to the capacity in which a person holds
the post and not necessarily to the nature or character of the post. Even
appointment to a temporary post for long duration would be sufficient to hold
that such person was holding the post in substantive capacity. A person shall
be held to be holding a post in a substantive capacity when he is found to be
not holding the post for a definite period. The Court observed:
"To
approximate to the official diction used in this connection, we may well say
that a person is said to hold a post in a substantive capacity when he holds it
for an indefinite period especially of long duration in contradistinction to a
person who holds it for a definite or temporary period or holds it on probation
subject to confirmation." The Respondent-State has submitted that since
the enforcement of the MPS Rules in 1965, the State Government has been
construing the words "substantively borne on the cadre of the inspector of
police" appearing in Rule 5(1)(b) as confirmed Inspector of Police and
till an Inspector of Police of probationary period is not confirmed to the post
he has not been considered for promotion to the MPS Grade-II on regular basis.
It is contended that under this consistent practice for about 34 years, the
State Government has been considering only the cases of the confirmed
Inspectors 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 the contrary. According to the degree-holders these were to
distinct categories, the first being of degree-holders with three years service
in the grade as degree holders, the period of three years being susequent to
the date of obtaining the degree as in the case of Junior Engineers who joined
the service with a degree;
and
the other category was of diploma holders with six years experience. The
diploma-holders went to the Central Administrative Tribunal and their
contention was accepted.
In
appeal the order of the Tribunal was set side mainly on the ground that there
existed sufficient material including the admission of the diploma-holders that
the practice followed in the Department for long time was that in case of
diploma-holder Junior Engineers who had obtained the degree during service, the
period of three years service in the grade for eligibility for promotion as
degree- holders commenced from the date of obtaining the degree and the earlier
period of service as diploma-holders was not counted for that purpose. The
Union Public Service Commission was found to be having similar view. The Court
held that if the past practice was based on one of the possible constructions
which could be made under the rules, then upsetting the same at a later stage
was not appropriate. After referring to Rules 7 and 11 of the Recruitment
Rules, the Court found:
"The
entire scheme, therefore, does indicate that the period of three years' service
in the grade required for degree-holders according to Rule 11 as the
qualification for promotion in that category must mean three years' service in
the grade as a degree-holder and, therefore, that period of three years can
commence only from the date of obtaining the degree and not earlier. The
service in the grade as a diploma-holder prior to obtaining the degree cannot
be counted as service in the grade with a degree for the purpose of three
years' service as a degree-holder. The only question before us is of the
construction of the provision and not of the validity thereof and, therefore,
we are only required to construe the meaning of the provision.
In our
opinion, the contention of the appellants degree-holders that the rules must be
construed to mean that the three years' service in the grade of a degree-holder
for the purpose of Rule 11 is three years from the date of obtaining the degree
is quite tenable 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 or of a State. The President
and the Governor of a State have been authorised to make or provide for making
of rules regulating the recruitment and the condition of service of persons
appointed to such services and posts and until provision in that behalf is made
by or under an Act of the appropriate legislature under the Article and any
rule so made shall have effect subject to the provisions of the said Act. The
proviso to Article 309 is a transitional provision empowering the Executive to
make rules relating to the matters specified therein until the appropriate
Legislatures legislate on the subject. Any rule made under this Article has to
remain in force for the purposes specified therein.
No
rule in terms of Article 309 is shown to have been made by the respondent
Government to provide regarding the appointment to a post to be necessarily on
probation for a period of two years. It is true that Government by Executive
orders made under constitutional provisions has the power to regulate the
recruitment and the condition of service but no such Government Order can alter
or amend the existing rules on the subject. It is conceded before us that in
the 1965 Rules no period of probation was prescribed for the post of Inspectors
of Police. The High Court was, therefore, not justified in relying upon the
earlier office order to hold that the appointment of the appellant as Inspector
of Police was deemed to be on probation for a period of two years as the
appellant had admittedly been appointed after following of the procedure
prescribed in the Recruitment Rules. His appointment was to be treated as
substantive appointment in the absence of a rule to the contrary. The order
dated 3rd June, 1980 when read in the light of the judgment of the High Court
dated 11.12.1992 in C.R. No.307 of 1992 cannot be construed to mean that the
appellant was not substantively promoted as Inspector of Police with effect
from 30th June, 1980. Seniority itself based upon length of service is an
acquired right of an employee which entitles him to be considered for further
promotion. It is generally regulated by Service Rules.
Such
rules normally provide for determined seniority with reference to the date of
appointment to the class, category and grade to which the appointment is made.
It is determined only on the basis of the length of service. Such length of
service may be on the basis 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
16th August, 1989 (Annexure P-5) was issued by the Government under a mistaken
believe by completely ignoring the mandate of Rule 24 and the verdict of this
Court in Bhatia's case. Once the appellant had been appointed to the service in
terms of Rule 24 of the Rules, it was presumed that his name had been included
in the list after compliance of the provisions of sub-rules (3) & (4) of
Rules 14 and 15 of the MPS Rules, there being no difference in substance
between the list prepared as contemplated under Rules 14 and 16 on the one hand
and as visualised under Rule 24 on the other. Promotion made after compliance
of Rules 14 and 15 is contemplated to be a selection in terms of Rule 5(1)(b)
of the Rules. The Respondent-State, therefore, was not justified in
re-appointing, on promotion, the officers mentioned in the Government Order
dated 16th August, 1989 to the Manipur Police Service (Junior Grade) with
effect from that date. Seen from any angle, we are of the opinion that the
learned Single Judge of the High Court had rightly allowed the writ petition
filed by the appellant vide Annexure P-10 dated 18.9.1997 and issued
appropriate directions. The Full Bench of the High Court wrongly set aside the
judgment of the learned Single Judge by wrongly interpreting the provisions of
the law applicable in the case and ignoring the judgment in Bhatia's case which
squarely covers the matters so far as the interpretation of the MPS Rules were
concerned. The judgment impugned in these appeals is based upon conflicting and
contradictory conclusions arrived at by the Full Bench. The assumptions and
presumptions drawn are neither based upon the relevant rules or supported by
any judicial verdict of this Court.
Under
the circumstances, the appeals arising out of SLP (C) Nos.18221/98 and 17310/98
filed by L.Chandrakishore Singh and N.Bijoy Singh are allowed by setting aside
the judgment of the Full Bench. The writ petitions filed by the appellants are
allowed. The respondents are directed to treat the officiating appointments of
the appellants as the date of their regular appointment and re-fix their
seniority in terms of the observations made in this judgment. Fresh seniority
list shall be prepared in the light of our directions alongwith the
consequential benefits under the law to the persons who are found to be senior.
The appeal arising out of SLP (C) 4870/99 filed by Smt.Vandana Karki & Ors.
shall stand dismissed. The appellants L.Chandrakishore Singh and N.Bijoy Singh
are held entitled to costs of Rs.10,000/- each to be paid by the
Respondent-State.
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