Full Judgment Text
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PETITIONER:
SHRI L. CHANDRAKISHORE SINGH
Vs.
RESPONDENT:
STATE OF MANIPUR & ORS.
DATE OF JUDGMENT: 18/09/1999
BENCH:
R.P.Sethi, S. Saghir Ahmed
JUDGMENT:
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
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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
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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
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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
down by this Court in Union of India & Anr. Vs. Harish
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
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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
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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."
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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
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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
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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
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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
respondents upon the judgment in Baleshwar Dass & Ors. Vs.
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
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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
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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
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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
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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.