Full Judgment Text
REPORTABLE
2024 INSC 641
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 9927 OF 2024
(Arising out of S.L.P.(C) No.17102 of 2021)
MHABEMO OVUNG & ORS. … Appellant (s)
VERSUS
M. MOANUNGBA & ORS. … Respondent(s)
WITH
CIVIL APPEAL NOS. 9928 OF 2024
(Arising out of S.L.P.(C) No.1136 OF 2022)
THE STATE OF NAGALAND & ORS. … Appellant (s)
VERSUS
M. MOANUNGBA & ORS. … Respondent(s)
J U D G M E N T
Rajesh Bindal, J.
Signature Not Verified
Digitally signed by
Nidhi Ahuja
Date: 2024.08.29
18:02:20 IST
Reason:
1. Leave granted.
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2. The issue under consideration in the present appeals is
regarding inter se seniority of the incumbents appointed to the post of
Junior Engineer on direct recruitment basis and those whose posts of
Sectional Officer, Grade-I, were upgraded to Junior Engineer.
3. Final seniority list of Junior Engineers was circulated on
26.03.2018 showing the seniority position of the incumbents manning
the posts from two different sources. Aggrieved against the seniority
list, Sectional Officers, Grade-I, who were redesignated/upgraded as
Junior Engineers challenged the same by filing W.P.(C)No.264(K) of
2018 and W.P.(C) No.74(K) of 2019 filed by the respondent Nos.1 to 16
herein. The Learned Single Judge vide order dated 07.02.2020
dismissed both the writ petitions. Aggrieved against the judgment of
the learned Single Judge in W.P.(C)No.74(K) of 2019, an intra-court
appeal, W.A. No.4 of 2020 was filed. The Division Bench of the High
Court set aside the judgment of the learned Single Judge. As a
consequence, the impugned seniority list circulated on 26.03.2018 was
set aside and the department concerned was directed to refix the
seniority of the Junior Engineers in terms of the directions given in the
judgment.
3.1 Aggrieved against the aforesaid judgment, the directly
recruited Junior Engineers in Civil Appeal arising out of
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S.L.P.(C)No.17102 of 2021 and the State in Civil Appeal arising out of
S.L.P.(C)No.1136 of 2022 are before this Court.
4. Mr. P.S. Patwalia, learned senior counsel appearing for the
directly recruited Junior Engineers/appellants in C.A. @ S.L.P.(C)
No.17102 of 2021 submitted that they were selected as such after
qualifying the exam conducted by the Nagaland Public Service
Commission and appointed in the pay-scale of ₹ 6000-9750, vide
Notification dated 01.05.2003. Their selection and appointment were
1
strictly in terms of the Nagaland Engineering Service Rules, 1997 .
Ever since their appointment they have been performing their duty
diligently.
4.1 The contesting private respondents are incumbents who
were earlier working in the cadre of Sectional Officers, Grade-I in the
pay-scale of ₹ 4500-7000. Their posts were upgraded to that of Junior
Engineers by the Government of Nagaland vide Communication dated
11.10.2007. It was only thereafter that they entered in the cadre of
Junior Engineer. Prior to that they were working in a lower grade as
compared to the direct recruits/Junior Engineers.
1
The 1997 Rules
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4.2 After the selection of the direct recruits, a number of
tentative seniority lists were circulated starting from 31.05.2004.
However, none of them were finalized. It was only on 26.03.2018 that
the seniority list was finalized. The appellants herein were shown
above the incumbents/respondents who entered in the grade of Junior
Engineers after their post of Sectional Officer, Grade-I, was upgraded
to Junior Engineer. It was for the reason that the appellants have been
working as Junior Engineer ever since their appointment vide
Notification dated 01.05.2003 whereas the post of the Sectional Officer,
Grade-I, was upgraded to that of Junior Engineers only vide
Communication dated 11.10.2007. Prior to that they were working on
non-gazetted lower post of Sectional Officer, Grade-I.
4.3 Even otherwise if considered in terms of the 1997 Rules, the
manner in which post of Sectional Officer, Grade-I, has been upgraded
to Junior Engineer, is not the manner provided in which the post of
Junior Engineer can be filled up. Be that as it may, the appellants are
not aggrieved with that action of the State, in case they are granted
proper position in the seniority list. The result of the judgment of the
Division Bench of the High Court is that the private respondents have
been assigned seniority in the cadre of Junior Engineers from the date
on which they were not even born in the cadre, which is legally
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impermissible. In support of the arguments reliance was placed upon
the judgments of this Court in State of Uttaranchal and Another v.
2
Dinesh Kumar Sharma , P. Sudhakar Rao and Others v. U. Govinda
3
Rao and Others and Ganga Vishan Gujrati and Others v. State of
4
Rajasthan and Others .
5. As the State is also aggrieved by the Judgment of the
Division Bench of the High Court, in furtherance to the arguments
raised on behalf of the directly recruited Junior Engineers, Mr. K.N.
Balgopal, learned senior counsel appearing for the State in C.A. @
S.L.P.(C)No.1136 of 2022, submitted that the judgment of the Division
Bench is based on certain wrong facts/premise. The Learned Judge
had tried to trace out the history from 1997 onwards, which was not
relevant for the lis to be examined. It is a case in which inter-se
seniority was to be determined after the first ever direct recruitment to
the post of Junior Engineer was made on 01.05.2003. Prior to that Junior
Engineers were being appointed by upgrading different posts.
5.1 There is no dispute that the private contesting respondents
herein were not Junior Engineers as on the date when the direct
recruitments were made. The private contesting respondents were
2
(2007) 1 SCC 683, [2006] Supp. 10 SCR 1, 2006 INSC 944
3
(2013) 8 SCC 693, [2013] 13 SCR 540, 2013 INSC 420
4
(2019) 16 SCC 28, [2019] 11 SCR 444, 2019 INSC 938
Page 5 of 11
promoted on an officiating basis as Sectional Officers, Grade-I, on
different dates. The Departmental Promotion Committee (DPC) was
held on 16.03.2007 to consider regularization of their officiating
promotion. Officiating promotion of Sectional Officers, Grade-I, in the
pay-scale of ₹ 4500-7000 was regularized vide Office Order dated
31.03.2007. Even if they had been working as Sectional Officer, Grade-
I, from any date prior to 16.03.2007, the same does not come to their
rescue for the reason that they were working on a lower post. Sectional
Officer, Grade-I, is a promotional post from Sectional Officer, Grade-II.
6. In response, Mr. Rana Mukherjee, learned senior counsel
appearing for the contesting private respondents, who were the writ
petitioners before the High Court in W.A. No.4 of 2020 submitted that
Office Order dated 31.03.2007 clearly shows that the private contesting
respondents were deemed to be promoted from various dates as
Sectional Officers, Grade-I, as their officiating promotion was
regularized. The dates as are available in the aforesaid Office Order
in most of the cases was prior to the date of appointment of the
appellants in C.A. @ S.L.P.(C)No.17102 of 2021. Hence, they were
rightly granted seniority from that date as it was that post which was
subsequently upgraded to Junior Engineer. There is no error in the
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order passed by the Division Bench of the High Court and both the
appeals deserve to be dismissed.
7. Heard learned counsel for the parties and perused the
relevant referred record.
8. The undisputed facts in the case fall in a very narrow
compass. There are two sets of employees working as Junior
Engineers. The appellants in C.A.@S.L.P.(C)No.17102 of 2021 are the
incumbents who were selected by the Nagaland Public Service
Commission and were appointed as Junior Engineers vide Notification
01.05.2003. The private contesting respondents who were the writ
petitioners and appellants before the Division Bench of the High Court
in W.A.No.4 of 2020 were working as Sectional Officer, Grade-I and the
post on which they were working was upgraded to that of Junior
Engineer (Class-II Gazetted), vide letter dated 11.10.2007. The pay-
scales on which the Sectional Officer, Grade-I, were working was
₹ 4500-7000 whereas the pay-scales on which Junior Engineer (Class-II
Gazetted), were working was ₹ 6000-9750.
9. As stated before us, the post of Junior Engineer was
governed by the 1997 Rules in terms of which 90% recruitment is to be
done by direct recruitment and 10% by way of promotion. As stated
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before us, prior to 2003 selection by the Nagaland Public Service
Commission no direct recruitment was made. Any seniority list of
Junior Engineer which may have been circulated earlier will not have
any bearing in the case in hand. After the direct recruitment of the
Junior Engineers a tentative seniority list was circulated on 31.05.2004.
Its finalization remained pending for years. During the interregnum 47
posts of Sectional Officer, Grade-I, working in the Nagaland Public
Works Department were upgraded to Junior Engineer (Class-II
Gazetted) vide Letter dated 11.10.2007. After considering claims and
objections of all the incumbents working in the cadre of Junior
Engineers, the seniority list was finalized on 26.03.2018.
10. The appellants in C.A.@S.L.P.(C)No.17102 of 2021 were
shown at Serial Nos.71, 72, 74, 75, 76, 77, 78 & 80 in the aforesaid
seniority list; they being the direct recruits. Respondent Nos.1 to 16
who were earlier working as Sectional Officer, Grade-I, the post which
was subsequently upgraded as Junior Engineer vide letter dated
11.10.2007 were shown at Serial Nos.156, 135, 136, 137, 138, 139, 140,
141, 142, 143, 144, 157, 158, 159, 174 & 179.
11. Aggrieved against the aforesaid seniority list, two writ
petitions were filed before the High Court. W.P.(C) No.74(K) of 2019
was filed by the respondent Nos.1 to 16 herein whereas
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W.P.(C)No.264(K) of 2018 was filed by 29 other incumbents who were
earlier working as Sectional Officer, Grade-I, the post which was
upgraded to Junior Engineer vide order dated 11.10.2007.
12. Learned Single Judge rightly dismissed both the writ
petitions as the Sectional Officer, Grade-I, whose post was upgraded
only on 11.10.2007 as Junior Engineers could not be treated to be
senior to the Junior Engineers who were directly recruited on
01.05.2003. The impugned seniority list as circulated on 26.03.2018
was upheld.
13. A perusal of the impugned order of the Division Bench of
the High Court shows that it had totally misdirected itself while
examining the 1997 Rules; the date of appointment of the private
contesting respondents as Sectional Officer, Grade-I and the date of
their regularization as such. The aforesaid facts were not of any
relevance for the decision of the question of seniority amongst the
members of the cadre of Junior Engineers. All what was required to be
considered was the date on which they became members of the cadre
of Junior Engineers coming from two different sources. As to whether
the upgradation of the post was right or wrong is not an issue canvassed
before this Court. The Division Bench of the High Court has further
gone wrong in considering the upgradation of post of Sectional Officer
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and certain other posts to that Junior Engineers prior to 01.05.2003
when direct recruitment to the post of Junior Engineers was made for
the first time. That historical background did not have any relevance
for the reason that prior to 2003 never before in the cadre of Junior
Engineers there was recruitment from two different sources. The
dispute arose only thereafter.
14. The dates on which the Sectional Officer, Grade-I, were
promoted as such either on officiating basis or their promotions were
regularlised though as per the Order dated 31.03.2007 effective from
the date when the DPC was held i.e. 16.03.2007 will not have any
bearing on the case in hand. Even if the Sectional Officer, Grade-I, are
treated to be working from the date they were officiating as such,
nothing hinges on that as far as the seniority in the cadre of Junior
Engineers is concerned. It is for the reason that the post of Sectional
Officer, Grade-I, on which they were working was upgraded to that of
Junior Engineer (Class-II Gazetted) vide letter dated 11.10.2007.
15. The pay-scales of Sectional Officer, Grade-I, was ₹ 4500-
7000 and the Junior Engineer was having pay-scales of ₹ 6000-9750.
Meaning thereby that they were working on a lower non-gazetted post.
The dispute in the present appeals is only pertaining to the Sectional
Officer, Grade-I, whose posts were upgraded on 11.10.2007 and not
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those whose posts were upgraded prior to the direct recruitment vide
Notification dated 01.05.2003. The blatant error committed by the
Division Bench of the High Court is that upgraded Sectional Officer,
Grade-I, are directed to be given seniority in the cadre of Junior
Engineers from a date on which they were not even born in the cadre
as it was only after 11.10.2007 upgradation order that they became
Junior Engineers, which was much after the direct recruitment made on
01.05.2003.
16. For the reasons mentioned above, appeals are allowed.
The impugned order passed by the Division Bench of the High Court is
set aside. The seniority list of the Junior Engineers as circulated on
26.03.2018 is upheld. There shall be no order as to costs.
……………….……………..J.
(J.K. MAHESHWARI)
……………….……………..J.
(RAJESH BINDAL)
New Delhi
August 28, 2024.
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