Gauhati High Court
WA/75/2023 on 9 May, 2023
GAHC010042882023
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT APPEAL NO.75 OF 2023
1. Sri Rubul Sarmah,
Child Development Project Officer, Boko,
Bongaon ICDS Project, PO: Boko,
District: Kamrup (M).
2. Sri Bidyut Hazarika,
Child Development Project Officer,
Laharighat ICDS Project, PO: Laharighat,
District: Morigaon.
3. Jatish Baruah,
Child Development Project Officer,
Baginadi ICDS Project, PO: Baginadi,
District: Lakhimpur.
4. Uttam Adhikari,
Child Development Project Officer,
Kaliabor ICDS Project, PO: Kaliabor,
District: Nagaon.
5. Rubi Kalita,
Child Development Project Officer,
Tezpur Urban ICDS Project, PO: Tezpur,
District: Sonitpur.
6. Bholanath Pegu,
Child Development Project Officer,
Karbi Anglong ICDS Project, PO:
Singimari, District: Nagaon.
7. Dr. Syed Nasiur Rahman,
Child Development Project Officer,
Hajo ICDS Project, PO: Hajo, District:
Kamrup (R).
Writ Appeal No.75/2023 Page 1 of 27
8. Jyoti Bikash Dutta,
Child Development Project Officer,
Kalipani ICDS Project, PO: Tiok,
District: Jorhat.
9. Dudu Dutta,
Child Development Project Officer,
Dimow ICDS Project, PO: Dimow,
District: Sivasagar.
........Appellants
-Versus-
1. Simanta Pradip Choudhury,
Son of Late Amulya Choudhury,
Resident of Milan Nagar, Barpeta Road,
District: Barpeta, Assam, PIN - 781315.
2. Gunindra Talukdar,
Son of Late Radha Kanta Talukdar,
Resident of Gandhi Nagar, Ward No.16,
J.M. Path, Barpeta, PIN - 781301.
3. Anupam Das,
Son of Sri Apurba Kumar Das,
Resident of Village: Chandanpur,
Barpeta, Assam, PIN - 781315.
4. Santosh Kutum,
Son of Late C.R. Kutum,
Resident of Rukminigaon, Sadhani Path,
House No.36, Guwahati, Assam, PIN -
781022.
5. Bhupen Bhattacharjee,
Son of Sri Khanin Kumar Bhattacharjee,
Resident of House No.181, Hengrabari,
Guwahati, Kamrup, PIN - 781036.
6. Irani Thakuria
Son of Late C.K. Thakuria,
Resident of Nagaon, District: Barpeta,
PIN - 781370.
7. Jyoti Kumar Das,
Son of Late Ashwini Kumar Das,
Resident of Village: Brindaban Hati,
Ward No.9, Barpeta, PIN - 781301.
Writ Appeal No.75/2023 Page 2 of 27
8. Brajendra Nath Das,
Son of Late Nareswar Das,
Resident of Village: Madhya Metuakuchi,
Sukhalata Choudhury Path, Ward No.18,
District: Barpeta, Assam, PIN - 781301.
9. Mainul Haque Choudhury,
Son of Late Dagu Miah,
Resident of Village: Palhazi, Barpeta
Assam, PIN - 781309.
10. Monika Barthakur
Daughter of Sri Sarat Chandra Barthakur
Resident of B.G. Road, Amulapatty,
Itachali, PIN - 782003.
11. Sri Jitu Deka,
Son of Sri Girish Deka,
Resident of Hatigarh, Karbi Path,
Geeta Nagar, PIN - 781024.
12. Jayanta Kumar Das,
Son of
Resident of Amolapatty, Barpeta, Ward
No.5, Assam, PIN - 781301.
13. Jintu Moni Phukan,
Son of Sri Bipin Chandra Phukan,
Resident of Sivanagar, Bye Lane No.2,
Nagaon, PIN - 782003.
14. Kukheswar Borah,
Son of Puleswar Borah,
Resident of House No.46, Swadesh
Nagar, Khanapara, Kamrup, Guwahati -
781022.
15. Rudra Prasad Das,
Son of Late Hari Prasad Das,
Resident of Rajgarh Link Road,
Guwahati- 781005.
16. Sri Nileswar Roy,
Son of Late Praneswar Roy,
Resident of Natun Para, New
Bongaigaon, Shanti Nibas, PIN - 783380.
Writ Appeal No.75/2023 Page 3 of 27
17. Brinchi Kumar Borah,
Son of Late Umakanta Borah,
Resident of Village: Nonoi Panigaon,
Nagaon, PIN - 782001.
18. Dhiraj Kumar Talukdar,
Son of Late Narayan Talukdar,
Resident of Village: Chapaguri, Barpeta,
PIN - 781318.
19. Bodiozzaman Ahmed,
Son of Late Abdul Kari,
Resident of Hatigaon, Sijubari,
Guwahati PIN - 781038.
........Private Respondents
20. The State of Assam, repressed by
the Commissioner & Secretary to The
Government of Assam, Social Welfare
Department, Dispur, Guwahati - 781006.
21. The Principal Secretary to the
Government of Assam, Social Welfare
Department, Dispur, Guwahati - 781006.
22. The Additional Chief Secretary to the
Government of Assam, Social Welfare
Department, Dispur, Guwahait - 781006.
23. The Secretary to the Government of
Assam, Social Welfare Department,
Dispur, Guwahati - 781006.
24. The Deputy Secretary to the
Government of Assam, Social Welfare
Department, Dispur, Guwahati - 781006.
25. The Director, Social Welfare
Department, Uzanbazar, Guwahati -
781001.
26. The Assam Public Service
Commission, represented by its
Chairman, Jawaharnagar, Khanapara,
Guwahati - 781022.
........Respondents
-BEFORE-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
For the Appellants : Mr. U.K. Nair, Senior Advocate.
assisted by Mr. S.P. Sharma, Advocate.
Ms. U. Sharma, Advocate.
For the Respondents : Mr. K.N. Choudhury, Senior Advocate,
assisted by Mr. R.M. Deka, Advocate
for respondent Nos.1 to 19.
: Mr. R.K. Borah, Additional Senior
Government Advocate, Assam for
respondent Nos.20 to 25.
: Mr. T.J. Mahanta, Senior Advocate,
assisted by Ms. P. Sarma, Advocate for
respondent No.26.
Date of Hearing : 02.03.2023.
Date of Judgment & Order : 9th May, 2023.
JUDGMENT & ORDER
[Soumitra Saikia, J.]
Heard Mr. U.K. Nair, learned senior counsel,
assisted by Mr. S.P. Sharma, learned counsel for the
appellants. Also heard Mr. K.N. Choudhury, learned senior
counsel, assisted by Mr. R.M. Deka, learned counsel
appearing for the respondents No.1 to 19; Mr. R.K. Borah,
learned Additional Senior Government Advocate, Assam,
appearing for the respondents No.20 to 25 and Mr. T.J.
Mahanta, learned senior counsel, assisted by Ms. P. Sarma,
learned counsel appearing for the respondent No.26.
2. This writ appeal is directed against the judgment
& order dated 10.02.2023 passed by the learned Single
Judge in WP(C) No.8318/2019. The private respondents
No.1 to 19 in the present writ appeal had filed the
aforesaid writ petition praying for setting aside and
quashing of the Provisional Gradation List published on
29.12.2017 as well as the Final Gradation List published on
01.10.2019 insofar as the seniority of the writ petitioners
vis-à-vis the respondents were concerned. The writ
petitioners, who are private respondents No.1 to 19 herein,
also prayed for a direction to publish a fresh Gradation List
by placing them above the respondents No.8 to 24 in the
writ petition, some of whom are appellants before this
Court.
3. The facts essential for the purposes of this appeal
are that pursuant to an advertisement dated 19.08.1997
issued by the Assam Public Service Commission
(hereinafter referred to as "APSC") for filling up of 27
numbers of vacant posts of Child Development Project
Officer (CDPO), the appellants and the private respondents
No.1 to 19 in the present appeal, participated in the said
selection process. The private respondents No.1 to 19 were
selected and their names appeared in the select list
published on 17.07.2000. Pursuant to their selection, they
were appointed as CDPOs in the year 2001 and they
continued to work as CDPOs pursuant to their
appointments. The appellants, who were working on ad-
hoc basis as Regulation 3(f) appointees, however, failed to
clear the selection and their names did not find place in the
Select List published on 17.07.2000. The appellants
continued to work on ad-hoc basis till they were
regularized subsequently by the Department. The dispute
arose when the respondent Department published a
Provisional Gradation List on 29.12.2017 wherein, the
names of the private respondents No.1 to 19 were placed
below that of the appellants in the present appeal.
4. Enquiries made thereafter revealed that the
services of the appellants were regularized pursuant to a
Cabinet decision taken by the Government on a proposal
for relaxation of Clause 5(c) and Clause 11 of the Assam
Social Welfare (Recruitment & Promotion) Service Order,
1994 (hereinafter referred to as "1994 Service Order"). The
Cabinet decision was taken on 13.10.2000 on the proposal
moved through a Cabinet Memorandum and subsequently
a Notification dated 16.11.2000 was issued by the
competent authority of the Government of Assam, Social
Welfare Department, whereby the services of the
appellants were regularized. Although objections were
submitted by some of the private respondents towards the
Provisional Seniority List published, the same were ignored
and a Final Gradation List was published on 01.10.2019 in
respect of Class-II Officers in the Social Welfare
Department wherein, the names of the private respondents
No.1 to 19 were placed below that of the appellants.
5. The learned Single Judge, upon consideration of
the matter, interfered with the Provisional Gradation List as
well as the Final Gradation List and further held that the
writ petitioners (private respondents herein) were to be
treated as incumbents from the batch of APSC select list of
17.07.2000 and the respondents No.8 to 24 (appellants
herein) were to be treated as incumbents whose services
had been regularized with effect from 16.11.2000 by virtue
of the Notification No.SWD.34/99/104 dated 16.11.2000,
which was issued on the strength of the Cabinet decision
dated 13.10.2000. The State respondents were, therefore,
directed to prepare and publish a fresh Final Gradation List
by placing the names of the petitioners No.1 to 19 above
the names of the respondents No.8 to 24 within a period of
1(one) month from the date of service of a certified copy of
the said judgment & order. The directions issued by the
learned Single Judge are extracted herein below:-
"Reliefs to which the petitioners are found
entitled to:
41. The petitioners are found entitled to and are
granted the following reliefs:-
i. The provisional gradation list published vide
notification nos.SWD.544/2017/11 dated
29.12.2017, is set aside in so far as it relates to
the seniority position of the petitioners vis-à-vis
the respondent nos.8 to 24.
ii. The final gradation/seniority list vide
notification no.SWD.544/2017/477 dated
01.10.2019 is set aside, in so far as it relates to
the seniority position of the petitioners vis-à-vis
the respondent nos.8 to 24.
iii. For the purpose of Clause 10 of the Assam
Social Welfare (Recruitment and Promotion)
Service Order, 1994, the petitioners are liable to
be treated as incumbents from the batch of APSC
select list dated 17.07.2020. Similarly, the
respondent nos.8 to 24, are entitled to be treated
as incumbents whose service has been
regularised with effect from 16.11.2000, the date
when notification no.SWD.34/99/104 dated
16.11.2000 was issued on the strength of Cabinet
decision dated 30.10.2000.
iv. The respondent nos.1 to 5 are directed to
prepare and publish a fresh final gradation list by
placing the names of the petitioner nos.1 to 19
above the names of the respondent nos.8 to 24
within a period of 1(one) month from the date of
service of a certified copy of this order on the
Commissioner and Secretary to the Government of
Assam, Social Welfare Department and/or the
Head of the Social Welfare Department, by
whatever nomenclature such post is being held."
6. Being aggrieved, the respondents No.8 to 24 in
the writ petition have preferred this appeal as appellants
on the following grounds:-
"6. GROUNDS ON WHICH THE CONCLUSION AND
DECISION OF HON'BLE SINGLE JUDGE IS
CHALLENGED-
a. For that learned Single failed to consider the matter
in its true perspective in as much as the
regularization of the services of the appellants/
respondents from November 2000 is concerned, the
same has been upheld by the Apex Court in Mukul
Saikia V State of Assam (Supra).
b. For that the learned Single failed to consider the
law that seniority in service is considered from the
date of joining of the service and not from the date a
person is selected. In the instant case the petitioners
/respondents were appointed in service in 2001 and
2002 whereas the appellants/respondents were
appointed and regularised in November 2000.
C. For that the learned Single Judge failed to consider
the fact that the petitioners/respondents were not
even borne in the cadre when the appellants/
respondents were appointed and regularised and
therefore giving seniority to the petitioners/
respondents is untenable in law.
d. For that the learned Single Judge's finding that the
seniority is to be calculated on the basis of Clause 10
of the 1994 Service Order, and any other method of
computation of seniority would frustrate the
provisions of Clause 10 of the 1994 Service Order, is
not legally tenable, as in the instant case by virtue of
clause 11 of the 1994 service order, notification dated
16.11.2000 was issued by the State Government
regularising the services of the appellants/
respondents from their dates of joining. And the said
notification was upheld by the Supreme Court in
Mukul Saikia v. State of Assam (Supra).
e. For that the learned Single Judge failed to interpret
the correct proposition of laid down in Mukul Saikia
v State of Assam (Supra).
f. For that learned Single Judge despite of holding
that the Clause 11 of 1994 Service order was upheld
by the Supreme Court in Mukul Saikia v State of
Assam (supra), failed to apply the same in its
conclusion.
g. For that learned Single has made a manifest error
of law by holding that the seniority of the private
respondent will be above the appellants/respondents
due to Clause 10 of the 1994 Service Order. Whereas
the correct interpretation of Clause 10 is that the
seniority of a person will be accordance with which
one's name appeared in the selection list provided he
joins within 15 days, and thus joining the services is
a sine qua non for claiming seniority. In the instant
case, the appellants/respondents were not part of
the same select list as that of the private respondents
/petitioners. Therefore, combining the two different
batch of employees would frustrate the purpose as
laid down in 1994 Service Order.
h. For that the learned Single Judge ought to have
taken into account all relevant documents exercising
its writ-jurisdiction and, in this regard, relevant
documents could have been called for, if was so
recognized more particularly when the statements
made in the counter affidavit were based on the
relevant records.
i. For that the finding of the learned Single Judge that
the names of the appellants/respondents having not
appeared in APSC list, they cannot claim seniority
over the petitioners/respondents is untenable in law
as the appellants/respondents herein were
regularised by a cabinet memorandum dated
16.02.2001 by invoking Clause 11 of the 1994
Service Order and the same has been upheld by the
Apex Court in Mukul Saikia v State of Assam (supra).
j. For that the learned Single failed to consider the
Apex Court Judgement K. Meghachandra Singh &
Ors. V. Ningam Siro And Ors reported in (2020) 5
SCC 689 wherein it has been categorically held that
the seniority is to be given from date of appointment
and not from the date of initiation of recruitment
process and for that matter when a person is borne
in the cadre only. In the instant case the learned
Single Judge has held that the seniority needs to be
given from the date selection, thus violating the law
laid down in the aforesaid judgement.
k. For that the true state of affairs in the matter
cannot be set at naught ignoring the relevant facts
and law exercising the writ jurisdiction.
l. For that in any view of the matter the impugned
judgment is not sustainable both on facts and law.
m. For that the learned Single Judge failed to take
into consideration the Rule 17 of the Assam Rules of
Executive Business relating to regularization of
appellants/respondents who were initially appointed
under Regulation 3(f) of the APSC Regulation, 1951,
on need basis.
n. For that the learned Single Judge made manifest
error of fact and law by not appreciating that the
appellants/respondents and the private respondent
belong to two different and distinct class and could
not be equated towards denial of established
seniority of the appellants/respondents/respondents.
o. For that the provisions of Clause 10 of the Assam
Social Welfare (Recruitment and Promotion) Service
Order, 1994, relates only to the intra-se seniority of
the persons appointed from the select list dated
17.07.2000 and the learned Single Judge erred in
applying the provisions of the said clause towards
determining the inter-se seniority between the
appellants/respondents and petitioners/respondents
in as much as a concluded appointment existed in
favour of the appellants/respondents w.e.f. 16th
November, 2000, on which date the petitioners/
respondents were not even borne in the cadre. It is
settled law that mere placement in the select list gives
no indefectible right to a person for appointment."
7. Before this Court, the appellants urged that they
were working under Regulation 3(f) of the APSC (Limitation
of Functions) Regulation, 1951 (hereinafter referred to as
the "1951 Regulation") by virtue of the Cabinet decision
dated 13.10.2000 and in pursuance whereof the
Notification dated 16.11.2000 was issued by the competent
authority in the Government of Assam regularizing the
services of the appellants in the posts of CDPO in which
they were already working as Regulation 3(f) appointees. It
is submitted that the appellants were appointed into the
cadre of CDPOs at a much prior date than the private
respondents/writ petitioners. Mr. U.K. Nair, learned senior
counsel for the appellants contended that the appellants
were regularized by relaxation of Clause 5(c) and Clause 11
of the 1994 Service Order by way of the Cabinet
Memorandum. The private respondents/writ petitioners, on
the other hand, were appointed on various dates in the
year 2001. As such, their claim for seniority over the
appellants will amount to giving retrospective effect even
prior to the dates of appointments of the private
respondents/writ petitioners and their entry into the cadre
of CDPO.
8. Mr. Nair, learned senior counsel strenuously urged
that the seniority in the cadre has to be determined after
the person is inducted into the cadre. Such seniority cannot
be determined or claimed prior to the date of appointment
into the cadre. The claims of the private respondents that
their names ought to have appeared above the appellants,
if acceded to, will amount to granting them seniority from a
date prior to their dates of appointment and entry into the
cadre. It is submitted that the direction of the learned
Single Judge that the private respondents were to be
treated as incumbents from the batch of APSC select list of
17.07.2000 and thereby the direction that the private
respondents were to be placed above the appellants, is
contrary to the basic tenets of service jurisprudence
inasmuch as the private respondents were appointed in
service on various dates only in the year 2001 whereas, the
appellants were already in service by virtue of being
appointed under Regulation 3(f) of the 1951 Regulation
and were regularized with effect from 16.11.2000 in their
respective posts. Therefore, admittedly the appellants were
members of the cadre well prior to the dates of
appointments of the private respondents. Therefore, the
direction of the learned Single Judge allowing the writ
petition and directing the respondent Department to place
the private respondents No.1 to 19 above the appellants is
erroneous and the same needs to be suitably interfered
with and set aside.
9. Mr. Nair, learned senior counsel appearing for the
appellants in support of his arguments has referred to the
judgment of the Apex Court rendered in Mukul Saikia &
Ors. -Vs- State of Assam & Ors., reported in (2009) 1
SCC 386. The learned senior counsel submitted that the
regularization of the appellants were put to challenge
before this Court in an earlier round of litigation and the
same had travelled to the Apex Court. The Apex Court vide
judgment & order dated 18.11.2008 in Mukul Saikia
(supra) dismissed the SLP and did not interfere with the
regularization of the appellants. Referring to the judgment
rendered in Mukul Saikia (supra), the learned senior
counsel for the appellants urged that the Apex Court held
that the appellants therein cannot maintain any claim
whatsoever in respect of the 18(eighteen) vacancies of
CDPOs in which the private respondents, namely, the
appellants herein, were regularized by way of the Cabinet
Memorandum. The Apex Court held that the services of
those CDPOs were regularized against the vacancies meant
for promotees and the appellants and the private
respondents therein being from two different and distinct
sources, their relative rights cannot be compared with each
other and, therefore, there cannot be any violation of
fundamental rights under Article 14 of the Constitution of
India as a consequence of the regularization of the services
of the respondents, namely, the appellants herein. The
effect of the judgment of the Apex Court is that the
regularization of the appellants in this respective posts
have not been interfered with and, therefore, their date of
entry into the cadre of CDPOs were well prior to the dates
of appointments of the private respondents No.1 to 19.
10. The learned senior counsel for the appellants
submitted that in view of such specific findings by the Apex
Court rendered in Mukul Saikia (supra), the direction of
the learned Single Judge that the private respondents No.1
to 19 should be placed above the appellants with effect
from the date of their names being published in the select
list is contrary to the said judgment of the Apex Court and
is, therefore, liable to be interfered with and set aside.
11. The learned senior counsel for the appellants also
relied upon the judgment of the Apex Court rendered in K.
Meghachandra Singh & Ors. -Vs- Ningam Siro & Ors. ,
reported in (2020) 5 SCC 689 wherein, the Apex Court
has held that as a general principle of law, a direct recruit
cannot get backdated notional seniority earlier than his
entry into the service. By this decision, the earlier
judgment of the Apex Court rendered in Union of India &
Ors. -Vs- N.R. Parmar & Ors., reported in (2012) 13
SCC 340 was overruled. Relying on this judgment, learned
senior counsel for the appellants contended that it is no
longer res integra that a person cannot claim seniority in
the cadre prior to his date of appointment. On the basis of
the legal principle laid down by the Apex Court in this
judgment, it was submitted that the direction of the
learned Single Judge that the private respondents/writ
petitioners, who had joined in their respective posts in the
cadre of CDPO in the year 2001, were to be placed above
the appellants, who were regularized in their services vide
the order dated 17.07.2000, is contrary to the settled
principles in service jurisprudence as well as to the
judgments of the Apex Court, as referred. It is, therefore,
submitted that the judgment of the learned Single Judge
being contrary to the law laid down by the Apex Court
needs interference and the same should, therefore, be set
aside and the Provisional and Final Gradation List published
by the States respondents should be upheld.
12. Per contra, Mr. K.N. Choudhury, learned senior
counsel appearing for the private respondents No.1 to 19
urged that there is no infirmity in the judgment of the
learned Single Judge inasmuch as it is not in dispute that
the regularization of the appellants does not have the
concurrence of the APSC as is required under the Service
Rules. The learned senior counsel further submitted that
the appellants had also appeared in the selection process
but failed to successfully clear the same and it is in order to
circumvent the failure of the appellants to successfully
clear the APSC selection that the Government at that
relevant point in time brought out the Cabinet
Memorandum dated 16.06.2000 and as a consequence
thereof vide the Notification dated 16.11.2000, the services
of the appellants were regularized. The learned senior
counsel for the private respondents in support of his
contentions relies upon the judgments of the Apex Court in
State of U.P. -Vs- Rafiquddin & Ors., reported in 1987
(Supp) SCC 401 and A.K. Bhatnagar & Ors. -Vs- Union
of India & Ors., reported in (1991) 1 SCC 544.
13. The learned counsels appearing for the parties
have been heard. Pleadings before this Court as well as
the judgment of the learned Single Judge have been
carefully perused. The judgments cited at the Bar have also
been carefully noted.
14. The service conditions of the CDPOs are governed
by the 1994 Service Order. Under Clause 5(c), it is
provided that the cadre of CDPO inter alia shall be filled up
by direct recruitment through the Commission as per
norms fixed jointly with the Ministry of Welfare,
Government of India by the Social Welfare Department.
Clause 10 of the 1994 Service Order which provides for
seniority, stipulates that the seniority of a member of the
service in a cadre shall be according to the order in which
one's name appeared in the selection list. It is not in
dispute that the appellants were regularized in their
services with effect from 16.11.2000 and their
regularization in the post of CDPOs in which they were
appointed earlier under Regulation 3(f) of the 1951
Regulation, have also not been interfered with by the Apex
Court in Mukul Saikia (supra).
15. That being the position, there is no doubt that the
appellants were regularized in the posts in which they were
earlier appointed under Regulation 3(f) of the 1951
Regulation. But it is also not disputed by the appellants
that they too had appeared in the selection process
undertaken by the APSC together with the private
respondents, but they could not successfully clear the said
selection. A perusal of the judgment in Mukul Saikia
(supra) also reveals that the regularization of the services
of the appellants were in respect of vacancies which were
reserved for the promotees and the appellants before the
Apex Court being direct recruits, the Apex Court held that
the appellants did not have any claim over the vacancies
which arose from the quota meant for the promotees.
Under such circumstances, the appointments/regularization
of the present appellants made by virtue of the Notification
dated 16.11.2000 were not interfered with.
16. Having said that, the judgment of the Apex Court
in Mukul Saikia (supra) also did not delve into the
question regarding the validity of the Gradation List in
respect of the inter se seniority of CDPOs in terms of the
1994 Service Order. The issue before the Apex Court in
Mukul Saikia (supra) was the legality of the
regularization of the respondents therein in the advertised
posts of CDPO by way of Notification dated 16.11.2000
issued in pursuance to the Cabinet decision taken on
13.10.2000. Clause 10 of the 1994 Service Order prescribes
that the seniority list shall be on the basis of the names as
they appeared in the selection list. There is no dispute at
the Bar that the private respondents No.1 to 19 as well as
the appellants had appeared for the same selection process
conducted by the APSC. However, it is only the private
respondents No.1 to 19 whose names had appeared in the
select list. The appellants had failed to successfully clear
the same, although they continued to work as Regulation
3(f) appointees.
17. A perusal of the 1994 Service Order reveals that
except Clause 10, there is no other provision which
prescribes as to how the seniority list is to be prepared.
The Apex Court in the judgment of Mukul Saikia (supra)
had also recorded that the Cabinet Memorandum adopted
pursuant to which the appellants were appointed was
taken under peculiar circumstances. It is also not in dispute
that there is no other Office Memorandum or Notification
amending or modifying the relevant Clause which lays
down the criteria for determination of inter se seniority.
The fact remains that the private respondents/writ
petitioners had appeared in the selection process
conducted by the APSC and were duly considered
successful in the same. The said selection process
conducted by the APSC is the mode prescribed under the
1994 Service Order. Such position is not disputed by the
learned counsels appearing for the appellants. On the other
hand, it is also not in dispute that the appointments by way
of regularization of the services of the appellants although
put to challenge before this Court at an earlier
proceedings, which culminated in an appeal before the
Apex Court, i.e. Mukul Saikia (supra), were not
interfered with by the Apex Court.
18. Mr. U.K. Nair, learned senior counsel for the
appellants attempted to persuade this Court that the Apex
Court in Mukul Saikia (supra) had upheld the
regularization and therefore, the appellants having been
regularized in service with effect from 16.11.2000 are
required to be placed above the respondents who were
appointed on various dates only in the year 2001.
19. We are unable to agree with the submissions so
made by Mr. Nair, learned senior counsel for the
appellants. In Mukul Saikia (supra), certain candidates,
who were not appointed in the 27 vacancies although they
had appeared in the selection process, had questioned the
regularization of the services of the present appellants vide
Notification dated 16.11.2000. The Apex Court turned
down the challenge as the posts advertised were 27 in
number and all the 27 vacancies were filled up by duly
selected candidates and, therefore, the Apex Court held
that there cannot be any right of the appellants therein to
claim for appointment over and above the advertised posts.
That apart, their further claim for being appointed in the
vacancies in which the present appellants were regularized,
was also turned down in view of the statements/
submissions made on behalf of the present appellants who
were respondents in Mukul Saikia (supra) that they were
initially appointed under Regulation 3(f) and thereafter
they were regularized in the quota earmarked for the
promotees. The Apex Court held that the appellants in
Mukul Saikia (supra) were the candidates who had
submitted to the selection procedure meant for the direct
recruits and, therefore, cannot have any claim in respect of
the quotas meant for the promotees. It is in that context,
the judgment in Mukul Saikia (supra) was rendered.
20. In the present proceeding, it is not in dispute that
the appellants had appeared in the selection process but
were unsuccessful. The Government at the relevant point
in time, by way of a Cabinet decision resolved to regularize
the services of the appellants and subsequently by a
Notification dated 16.11.2000, the services of the
appellants were regularized. Although the issue regarding
the manner of selection is not before us, but the fact
remains that the process adopted in favour of the
appellants for regularization of their services is not
prescribed under the Service Rules.
21. Clause 10 of the 1994 Service Order prescribes
that the seniority of a member of the service in a cadre
shall be according to the order in which one's name
appeared in the selection list. If one joins the appointment
within 15(fifteen) days from the date of receipt of the order
or within the extended period which shall not in all, exceed
3(three) months. It is not the case of the appellants that
their names had also figured in the select list. No
amendment in respect of Clause 10 of the 1994 Service
Order has been brought to our notice by the appellants in
support of their contention that the seniority shall be
counted from the date a person becomes a member of the
cadre. The Cabinet decision dated 13.10.2000 and the
Notification dated 16.11.2000 by which the services of the
appellants were regularized also is not a part of the
pleadings nor has it been subsequently placed before us. It
is also not the case of the appellants that there was a
specific provision in the Cabinet decision dated 13.10.2000
and/or the Notification dated 16.11.2000 to come to the
aid of the appellants that their seniority will be counted
from the date of their entry into the service on ad-hoc or
from the date of their regularization. No such notification
or Cabinet decision has been placed before us or before
the learned Single Judge.
22. In K. Meghachandra Singh (supra), the Apex
Court overruled the earlier judgment of N.R. Parmar
(supra). The Apex Court held that the earlier judgment of
N.R. Parmar (supra) was rendered in the context of
2(two) Central Government Office Memorandums and,
therefore, the said principle which was subsequently
adopted by the State Government of Manipur,
notwithstanding the prescription of Service Rules was held
to be not applicable by the Apex Court in K.
Meghachandra Singh (supra).
23. A perusal of the said judgment reveals that the
issue therein related to seniority under the Manipur Police
Service Rules, 1965. Rule 28(i) of the said Rules prescribes
that the seniority in the service of persons appointed under
Rule 5(1)(b) should be determined by the order in which
appointments are made to the service. Rule 28(iii) provides
that relative seniority between direct recruits and
promotees should be determined according to rotation of
vacancies between direct recruits and promotees as
determined under Rule 5 for that year and the additional
direct recruits selected against the carried forward
vacancies of the previous year would be placed en bloc
below the last promotees (or direct recruits, as the case
may be). It is further provided under the said Rules that
seniority of persons under Rule 16(iii) should be counted
from the date he/she is appointed to the service.
24. The facts involved in K. Meghachandra Singh
(supra) are completely different from the facts and
circumstances of the present case. Rule 16(iii) provides
that in case a person is appointed to a post, which is
subsequently declared as a duty post, he shall be deemed
to have been appointed to the service from the date of
encadrement of the post in the Manipur Police Service
Scheduled. It was in the context of the peculiar facts of K.
Meghachandra Singh (supra) and the interpretation of
the Service Rules that the Apex Court held that a person
cannot claim seniority prior to their entry into the service.
Even under Rule 28(i) of the Manipur Police Service Rules,
the seniority in service of a person appointed on the result
of competitive examination or by selection under Clause (b)
of Sub-Rule (1) of Rule 5 shall be determined by the order
in which appointments are made in the service. This Rule
had not been declared to be invalid even in the facts of the
case of K. Meghachandra Singh (supra).
25. Having examined the various judgments cited at
the Bar, it is seen that the consistent view of the Apex
Court is that interse seniority of the candidates is to be
decided as per the provisions of the Service Rules.
Ordinarily, it is in the order of merit as declared during the
Selection process adopted. Where Rules prescribe a
particular mode of selection and that the seniority is to be
determined in the order in which the names appeared in
the select list, the seniority will have to be determined in
that manner, unless the Government takes a conscious
decision to depart from the Rules and that too by an
express order. The prescriptions under the Service Rules
are rigorously required to be followed. Any departure from
the prescription of the Rules will have to be on the basis of
specific legislative orders that may have been passed by
the competent authority. Such is not the case in the
present proceedings. In view of the facts of the present
proceedings, the contentions raised by the appellants by
placing reliance on K. Meghachandra Singh (supra) that
seniority cannot be counted from the date prior to entry
into the cadre, has to be read and understood in the facts
and circumstances of the case before the Apex Court in K.
Meghachandra Singh (supra). The principle laid down by
the Apex Court in K. Meghachandra Singh (supra) that
seniority has to be counted from the date of entry into
service is not applicable in the facts and circumstances of
the present proceedings, in view of the prescription under
the 1994 Service Order, more particularly, Clause 10
thereof. The 1994 Service Order and Clause 10 thereof
were not put to challenge before this Court. In view of the
discussions made above, the judgment of the Apex Court
rendered in K. Meghachandra Singh (supra), which has
been pressed into service by the appellants, is not
applicable in the facts and circumstances of the present
case.
26. Having examined the judgments relied upon by
the appellants, it will be apposite now to examine the
judgments relied upon by the learned senior counsel for
the private respondents No.1 to 19.
27. In Rafiquddin (supra), the question before the
Apex Court was the determination of seniority on the basis
of the year of appointment under Section 22 of the U.P.
Civil Service (Judicial Branch) Rules, 1951. The Apex Court
held that only candidates who are approved by the Public
Service Commission on the basis of marks in the written
and viva-voce tests held can make such a claim. Some
unplaced candidates of an earlier competitive examination
cannot claim seniority, even after lowering of the requisite
minimum marks, over the candidates who were regularly
selected in terms of the Service Rules. The Apex Court held
that they belonged to a different stream and cannot claim
seniority over the candidates duly selected through the said
examinations. The Apex Court further held that the
unplaced candidates were appointed to the service in
breach of the Rules and they formed a separate class.
28. In A.K. Bhatnagar (supra), it was held by the
Apex Court that law is clear that seniority is an incidence of
service and where the Service Rules prescribe the method
of its computation, it is to be strictly governed by such
Rules. The issue before the Supreme Court in this matter
was the inter se seniority between the regularly recruited
candidates and the ad-hoc appointees, who were
regularized subsequently. The candidates, who were
initially on ad-hoc service and were regularized
subsequently, were placed below the regularly recruited
candidates, who were recruited through the procedure
prescribed under the Service Rules. The Apex Court upheld
the step taken by the Union Government, whereby
regularized candidates were placed below the regularly
selected candidates/recruits.
29. Considering the entire matter and in view of the
fact that the appointments of the private respondents No.1
to 19 were conducted through the process prescribed
under the 1994 Service Order, it must be held that they
were regularly appointed as per the procedure prescribed
under the 1994 Service Order/Regulations. The appellants,
on the other hand, were regularized in their services as a
special case, which is recorded in the judgment by the
Apex Court in Mukul Saikia (supra). While regularization
of the appellants cannot be questioned in view of the
decision rendered in Mukul Saikia (supra), the fact
remains that the 1994 Service Order was not under
consideration in Mukul Saikia (supra) as it stands today.
Clause 10 of the 1994 Service Order categorically lays
down the procedure that seniority is to be based on the
names as they appeared in the selection list.
30. Taking all circumstances into consideration, we
find that the learned Single Judge has correctly come to
the conclusion that the private respondents/writ petitioners
are to be placed above the appellants and consequently
was justified in having interfered with the Provisional as
well as Final Gradation List. In view of the discussions
made above, we hold that the conclusions and the findings
of the learned Single Judge in the impugned judgment are
just and proper in the facts and circumstances of the case.
We find no reason to take a different view and/or interfere
with the findings so arrived by the learned Single Judge.
We uphold the findings recorded by the learned Single
Judge in the impugned judgment & order dated 10.02.2023
passed in WP(C) No.8318/2019.
31. The writ appeal is devoid of merit and the same is
accordingly dismissed. No order as to costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
