Manipur High Court
Shri Virendra Rajkumar vs The State Of Manipur on 8 December, 2021
KABORAMBAM
SAPANA CHANU
Digitally signed by
KABORAMBAM SAPANA
CHANU
Date: 2021.12.09 08:29:36
+05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
W.A. No. 4 of 2019
Ref: Review Petition No. 8 of 2017,
Review Petition No. 12 of 2017 and
Writ Petition (Civil) No. 555 of 2014
1. Shri Virendra Rajkumar, aged about 56 years, s/o Rajkumar
Karnajit Singh, resident of Khurai Thoidingjam Leikai, P.O.
Lomlong, P.S. Pormpat, Imphal East District, Manipur- 795010
and now serving as Asst. Engineer in the Command Area
Development Authority (CADA), Government of Manipur.
2. Shri A. K. Bowjit Singh, aged about 57 years, s/o Late Ak. Mangi
Singh, resident of Palace compound, Opposite Macha Leima,
P.O. & P.S. Porompat, Imphal East District, Manipur - 795005,
and now serving as Asst. Engineer in the Department of
Agriculture, Government of Manipur.
3. Shri Keisham Ibochou Singh, aged about 58 years, s/o (L) K.
Ibomcha Singh, a resident of Utlou Mayai Leikai, Near SAI (SAG)
Complex, P.O. & P.S. Nambol, Bishnupur District, Manipur -
795134, now serving as Asst. Engineer in the Command Area
Development Authority (CADA).
... Appellants.
-Versus -
1. The State of Manipur, represented through the Commissioner
(CAD), Government of Manipur.
2. The Commissioner (CAD), Government of Manipur.
3. The Addl. Chief Engineer (CADA), Government of Manipur.
4. The Deputy Secretary (CAD), Government of Manipur.
5. Shri Pukhram Ramu Singh, aged about 48 years, s/o Modon
Singh, a resident of Lalambung Khoirom Leikai, P.O. Lamphel,
P.S. Imphal, Imphal West District, Manipur.
6. Shri Nongthombam Munindro Singh, aged about 46 years, s/o N.
Shyamo Singh, a resident of Nongmeibung Purana Rajbari, P.O.
Imphal, P.S. Porompat, Imphal East District, Manipur.
7. Shri M. Jugidro Singh, now serving as Asst. Engineer,
Horticulture and Soil Conservation, Government of Manipur.
8. Shri. Kh. Chaoyaima Singh, now serving as Asst. Engineer,
Horticulture and Soil Conservation, Government of Manipur.
........ Respondents.
9. The Secretary, MPSC , North AOC, Imphal
.......Proforma Respondents.
W.A. No. 4 of 2019 Page 1
B E F O R E
HON'BLE MR. JUSTICE LS JAMIR
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
For the appellants : Dr. R.K. Deepak Singh, Adv.
For the respondents : Mr. Kh. Athouba, GA
Mr. RS Reisang, Sr. Adv.
Mr. I. Denning, Adv
Date of Hearing : 10.12.2020, 18.01.2021 & 22.10.2021
Date of Order : 08.12.2021
JUDGMENT & ORDER
(CAV)
(A. Bimol Singh,J)
The present case is yet another instance of the unending litigations
between direct recruits and promotes in the matter of fixation of their inter-se-
seniority.
[1] Heard Dr. RK Deepak Singh, learned counsel appearing for the
appellants, Mr. Athouba Kh., learned GA appearing for the respondents No.
1-4, Mr. I. Denning, learned counsel for the respondents No. 5 & 6 and Mr.
RS Reisang, learned senior advocate appearing for the respondent No. 9.
None appeared for respondents No. 7 & 8.
The present appeal have been filed assailing the judgment & order
dated 30.03.2017 passed by the learned Single Judge in W.P. (C) No. 555 of
2014, the common order dated 29.12.2018 passed in Review Petition (C) No.
8 of 2017 and Review Petition (C) No. 12 of 2017 as well as the final seniority
list of Assistant Engineers/equivalent in the Joint Engineering Cadre of
Agriculture, Horticulture & Soil Conservation and CADA dated 03.06.2017.
W.A. No. 4 of 2019 Page 2
[2] The relevant facts of the present case in a nutshell is that on the
recommendation of a class-I DPC meeting held on 28.12.1996, the present
appellants, who were holding the post of Section Officers Grade-I in the Joint
Cadre of Agriculture, Horticulture & Soil Conservation and CADA, were
promoted to the higher post of Assistant Engineer/Assistant Surveyor of
works (herein after referred to as AE/equivalent for short) on regular basis
w.e.f. 28.12.1996 by an order dated 14.01.1997 issued by the Government.
[3] As the Manipur Public Service Commission (MPSC) remain
nonfunctional for a number of years, vacancies in the Class-I and Class-II
posts in the direct recruitment quota cannot be filled up on regular basis. In
view of the above, the State Government took a policy decision and issued an
office memorandum dated 08.02.1996 wherein, it is provided for direct
recruitment of Class-I and Class-II employees on adhoc basis after inviting
applications from eligible candidates by issuing necessary public
advertisement and on the basis of the recommendation of the screening
committee constituted under the said office memorandum dated 08.02.1996.
[4] Pursuant to the said OM dated 08.02.1996, the Command Area
Development Department, Government of Manipur, issued notices dated
09.08.1996 and 16.08.1996 inviting applications from interested candidates
for direct recruitment to 2 (two) posts of Assistant Engineer on adhoc basis for
a period of 6 (six) months (extendable if required) in the Command Area
Development Authority, Manipur (CADA).
[5] A large number of candidates including the respondents No. 5 & 6
applied for the said advertised post. The interview for the said advertised post
W.A. No. 4 of 2019 Page 3
was held on 26.11.1996 and the screening committee recommended the case
of the respondents No. 5 & 6 for appointment as AE in CADA on adhoc basis.
On the basis of the said recommendation of the screening committee, the
respondents No. 5 & 6 were appointed as Assistant Engineers in the CADA
on adhoc basis initially for a period of 6 (six) months by an order dated
02.12.1996 and subsequently, the adhoc services of the respondents No. 5 &
6 were extended from time to time by the Government.
[6] While the respondents No. 5 & 6 were serving as AEs on adhoc basis,
the State Government issued an office memorandum dated 19.08.1998
wherein, the State Government framed a policy decision for regularization of
adhoc appointments. In paragraph 1 of the said office memorandum dated
19.08.1998, it is provided as under:-
"1. Class-I and Class-II direct recruit adhoc employees who were
appointed during the period from 8-2-96 to 12-2-97 under DP's O.M.
dated 8-2-96, i.e. after inviting applications from eligible candidates
through local newspapers and radio and on the recommendation of the
Screening Committee constituted under the O.M. dated 8-2-96 and who
continue to hold the posts on adhoc basis till date may be regularized in
the posts held by them with effect from the dates of their initial
adhoc appointment on the recommendation of the Screening
committee/Selection committee if such order of regularization does not
contravene any Court orders/directives. The Screening
committee/Selection Committee for the purpose of the regularization
shall consist of (i) Chief Secretary (ii) Principal
Secretary/Commissioner/Secretary of the Department concerned (iii)
Head of Department concerned and (iv) a subject expert whenever
necessary."
[7] Pursuant to the said policy decision of the Government as contained in
the aforesaid O.M. dated 19.08.1998, the screening committee considered
the cases of the respondents No. 5 & 6 for regularization of their adhoc
appointments as AE/equivalent in its meeting held on 29.12.1998 and the
W.A. No. 4 of 2019 Page 4
screening committee made a recommendation for regularization of the adhoc
appointments of the respondents No. 5 & 6 as AE/equivalent in CADA with
retrospective effect from the date they were appointed on adhoc basis, i.e.,
w.e.f. 02.12.1996. Thereafter, on the basis of the recommendation made by
the said screening committee, the adhoc services of the petitioners as
AE/equivalent in CADA were regularized w.e.f. 02.12.1996 by issuing an
order dated 29.12.1998.
[8] After the regular appointment of the appellants as well as the
respondents No. 5 & 6 as AEs, the State Government issued a tentative inter-
se-seniority list of the Assistant Engineers/equivalent in the Joint Engineering
Cadre of Agriculture, Horticulture & Soil Conservation and CADA dated
29.02.2000 inviting claims and objections to the fixation of the inter-se-
seniority. Subsequently, the State Government again issued a revise tentative
inter-se-seniority list of the AE/equivalent in the Joint Engineering Cadre of
CADA, Agriculture and Horticulture & Soil Conservation dated 03.05.2014
inviting claims and objections to the fixation of the inter-se-seniority list. It is
on record that the appellants as well as the respondents No. 5 & 6 submitted
their respective claims and objections to the aforesaid 2 (two) tentative
seniority list.
[9] After examining the claims and objections submitted by the AEs, the
State Government fixed the final inter-se-seniority of Assistant
Engineers/equivalent in the Joint Engineering Cadre of Agriculture,
Horticulture & Soil Conservation and CADA by an order dated 05.07.2014. In
the said final seniority list the names of the appellants are shown at serial No.
W.A. No. 4 of 2019 Page 5
8, 9 & 10 and the names of the respondents No. 5 & 6 are shown at serial No.
12 & 13.
Feeling aggrieved by the fixation of the inter-se-seniority list, the
respondents No. 5 & 6 assailed the said final seniority list dated 05.07.2014
by filing W.P. (C) No. 555 of 2014 in this Court.
[10] The said writ petition was heard and allowed by the learned Single
Judge by quashing and setting aside the impugned final seniority list dated
05.07.2014 and directing the respondents to refix the final inter-se-seniority
list of the Assistant Engineers/equivalent in the Joint Engineering Cadre of
Agriculture, Horticulture & Soil Conservation and CADA, Manipur in
accordance with the General Principles for determining seniority as contained
in the O.M. dated 07.02.1986, -vide judgment and order dated 30.03.2017
passed in W.P.(C) No. 555 of 2014. The operative portion of the judgment
and order is as under:-
"[6] For the reasons stated herein above, the instant writ petition is
allowed and consequently, the impugned order dated 05.07.2014 issued
by the Deputy Secretary (CAD), Government of Manipur is quashed and
set aside. The State respondents and in particular, the respondent No. 2
are directed to re-fix the final inter-se seniority of the Assistant
Engineers/equivalent in the Joint Engineering Cadre of Agriculture,
Horticulture & Soil Conservation and Command Area Development
Department, Manipur, in accordance with the general principles as
contained in the O.M. dated 07.02.1986 adopted by the State of
Manipur, within a period of one month from the date of receipt of a copy
of this judgment and order. There shall be no order as to costs.
[11] In compliance with the aforesaid directions given by the learned Single
Judge in the impugned judgment and order dated 30.03.2017, the State
Government refixed the final inter-se-seniority of the Assistant
Engineers/equivalent in the Joint Engineering Cadre of Agriculture,
W.A. No. 4 of 2019 Page 6
Horticulture & Soil Conservation and CADA and notified the same under an
order dated 03.06.2017. In the said final inter-se-seniority list, the
respondents No. 5 & 6 are placed above the present appellants. Having been
aggrieved, the appellants have preferred the present appeal assailing the
judgment and order passed by the learned Single Judge as well as the final
seniority list dated 03.06.2017.
[12] Dr. RK Deepak, learned counsel for the appellants submitted that
there are 2 (two) recruitment rules for the post of Assistant
Engineers/equivalent in the Joint Engineering Cadre of Agriculture,
Horticulture & Soil Conservation and CADA, Manipur. One of the said
recruitment rules was notified on 20.08.1987 (hereinafter referred to as RR of
1987 for short) and the other recruitment rules was notified on 16.09.1996
(hereinafter referred to as RR of 1996 for short). It has further been submitted
that except for the method of recruitments, all the other provisions under the
said 2 (two) RRs are same. Under the RR of 1987, the method of recruitment
is 50 % by promotion and 50 % by direct recruitment, whereas under the RR
of 1996, the method of recruitment is 60 % by promotion and 40 % by direct
recruitment.
[13] The learned counsel for the appellants further submitted that the
appellants were given promotion to the post of AE on 14.01.1997 under the
RR of 1987, whereas the respondents No. 5 & 6 were regularized as AE on
29.12.1998 under the RR of 1996 and accordingly, it has been submitted that
the appellants and the respondents No. 5 & 6 belong to 2 (two) separate
classes of their own and cannot be clubbed together for the purpose of
W.A. No. 4 of 2019 Page 7
determining inter-se-seniority, as they were recommended by separate DPCs
based on separate RRs having different sub-quotas.
[14] It has also been submitted that the earlier final inter-se-seniority list
dated 05.07.2014 was notified by the authorities after taking into
consideration the judgment and order dated 26.11.1996 passed by the
Hon'ble Guwahati High Court in CR No. 970 of 1996 and the comments and
justifications of the DP and Law Department, Government of Manipur.
Accordingly, it has been submitted that the scope of judicial review by this
Court under article 226 of the constitution of India is very limited and
Government policy and action should not be interfere without reasonable
justification.
[15] The learned counsel for the appellants strenuously submitted that
even if the retrospective regularization of the respondents No. 5 & 6 is
permissible under the rules, the past adhoc service rendered by them cannot
be counted for the purpose of seniority in view of the office memorandum
dated 15.07.2003 issued by the State Government and also in view of the law
laid down by the Hon'ble Apex Court in a catena of cases.
[16] It has further been submitted by the learned counsel appearing for the
appellants that regularization of the respondents No. 5 & 6 should be w.e.f.
the date of recommendation made by the DPC and that seniority of the
respondents No. 5 & 6 cannot be reckoned retrospectively from 1996 as they
were not borne in the cadre at that time and that giving retrospective seniority
to the respondents No. 5 & 6 adversely affects the appellants who have been
appointed earlier than the respondents No. 5 & 6. The learned counsel also
W.A. No. 4 of 2019 Page 8
submitted that counting seniority of the respondents No. 5 & 6 retrospectively
is against the well settled principle of law laid down by the Hon'ble Apex Court
in a catena of its decisions.
In support of his contentions, the learned counsel relied on the
following judgments of the Hon'ble Apex Court:-
1) (2011) 3 SCC 267 "Pawan Pratap Singh and Others Vs.
Reevan Singh and Others."
"45. From the above, the legal position with regard to
determination of seniority in service can be summarized as
follows:
(i) The effective date of selection has to be understood in
the context of the service rules under which the
appointment is made. It may mean the date on which
the process of selection starts with the issuance of
advertisement or the factum of preparation of the
select list, as the case may be.
(ii) Inter se seniority in a particular service has to be
determined as per the service rules. The date of entry
in a particular service or the date of substantive
appointment is the safest criterion for fixing seniority
inter se between one officer or the other or between
one group of officers and the other recruited from
different sources. Any departure therefrom in the
statutory rules, executive instructions or otherwise
must be consistent with requirements of Articles 14 &
16 of the Constitution.
(iii) Ordinarily, national seniority may not be granted from
the backdate and if it is done, it must be based on
objective considerations and on a valid classification
and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of
occurrence of the vacancy and cannot be given
retrospectively unless it is so expressly provided by
W.A. No. 4 of 2019 Page 9
the relevant service rules. It is so because seniority
cannot be given on retrospective basis when an
employee has not even been borne in the cadre and
by doing so it may adversely affect the employees
who have been appointed validity in the meantime.
"63. To the decisions referred to on this point in the main
judgment I may add just one more in Suraj Parkash Gupta v.
State of J & K. The decision relates to a dispute of seniority
between direct recruits and promotes but in that case the Court
considered the question of antedating the date of recruitment on
the ground that the vacancy against which the appointment was
made had arisen long ago. In SCC para 18 of the decision of the
Court framed one of the points arising for consideration in the
case as follows: (SCC p. 578)
"18.... (4) Whether the direct recruits could claim a
retrospective date of recruitment from the date on which
the post in direct recruitment was available, even though
the direct recruit was not appointed by that date and was
appointed long thereafter?"
This Court answered the question in the following terms: (Suraj
Parkash Gupta case, SCC p. 599, paras 80-81)
"Point 4
Direct recruits cannot claim appointment from the date of
vacancy in quota before their selection
80. We have next to refer to one other contention raised
by the respondent direct recruits. They claimed that the
direct recruitment appointment can be antedated from the
date of occurrence of a vacancy in the direct recruitment
quota, even if on that date the said person was not directly
recruited. It was submitted that if the promotes occupied
the quota belonging to direct recruits they had to be
pushed down, whenever direct recruitment was made.
Once they were so pushed down, even if the direct recruit
came later, he should be put in the direct recruit slot from
W.A. No. 4 of 2019 Page 10
the date on which such a slot was available under the
direct recruitment quota.
81. This contention, in our view, cannot be accepted.
The reason as to why this argument is wrong is that in
service jurisprudence, a direct recruit can claim seniority
only from the date of his regular appointment. He cannot
claim seniority from a date when he was not borne in the
service. This principle is well settled. In N.K. Chauhan v.
State of Gujarat, Krishna Iyer, J. stated: (SCC p. 352, para
32)
Later direct recruit cannot claim deemed dates of
appointment for seniority with effect from the time when
direct recruitment vacancy arose. Seniority will depend
upon length of service.
Again, in A. Janardhana v. Union of India it was held that a
later direct recruit cannot claim seniority from a date
before his birth in the service or when he was in school or
college. Similarly it was pointed out in A.N. Pathak v.
Secy. to the Govt. that slots cannot be kept reserved for
[the] direct recruits for retrospective appointments."
2) Judgment dated 28.07.2021 passed in Civil Appeal No. 10788 of
2016 "Rashi Mani Mishra and Others vs. State of Uttar
Pradesh and Others."
"8. The sum and substance of the above discussion would be
that on a fair reading of the 1979 Rules, extended from time to
time; initial appointment orders in the year 1985 and the
subsequent order of regularization in the year 1989 of the ad hoc
appointees and on a fair reading of the relevant Service Rules,
namely Service Rules, 1993 and the Seniority Rules, 1991, our
conclusion would be that the services rendered by the ad hoc
appointees prior to their regularization as per the 1979 Rules
shall not be counted for the purpose of seniority, vis-a-vis, the
direct recruits who were appointed prior to 1989 and they are not
entitled to seniority from the date of their initial appointment in the
year 1985."
W.A. No. 4 of 2019 Page 11
3) Judgment dated 28.09.2021 passed in Civil Appeal No. 3767 of
2010 "The State of Bihar vs. Arbind Jee."
"10. As earlier noted, the respondent entered service only on
10.02.1996 and yet under the impugned judgment, the High
Court directed counting of his seniority from 20.11.1985 when he
was not borne in service. The jurisprudence in the field of service
law would advise us that retrospective seniority cannot be
claimed from a date when an employee is not even borne in
service. It is also necessary to bear in mind that retrospective
seniority unless directed by court or expressly provided by the
applicable Rules, should not be allowed, as in so doing, others
who had earlier entered service, will be impacted.
"12. The principles enunciated in Shitla Prasad Shukla (supra)
are applicable to the case at hand. The compassionate
appointment of the respondent is not being questioned here but
importantly he is claiming seniority benefit for 10 years without
working for a single day during that period. In other words,
precedence is being claimed over other regular employees who
have entered service between 1985 to 1996. In this situation, the
seniority balance cannot be tilted against those who entered
service much before the respondent. Seniority benefit can accrue
only after a person joins service and to say that benefits can be
earned retrospectively would be erroneous. Such view was
expressed in many cases and most recently in Ganga Vishan
Gujrati and Ors. Vs. State of Rajasthan and Ors..Justice Dr. D. Y.
Chandrachud speaking for the Court opined as under:-
"41. A consistent line of precedent of this Court follows
the principle that retrospective seniority cannot be
granted to an employee from a date when the employee
was not borne on a cadre. Seniority amongst members
of the same grade has to be counted from the date of
initial entry into the grade. This principle emerges from
the decision of the Constitution Bench of this Court in
Direct Recruit Class II Engineering Officers' Association
v State of Maharashtra. The principle was reiterated by
W.A. No. 4 of 2019 Page 12
this Court in State of Bihar v Akhouri Sachindra Nath
and State of Uttaranchal v Dinesh Kumar Sharma."
4) Judgment dated 28.09.2021 passed in Civil Appeal Nos. 6026-
6028 of 2021 "Malook Singh vs. State of Punjab."
"21.....In this backdrop, there is no reason for this Court to take a
different view than that which has weighed with the High Court in
coming to the conclusion that in view of the express terms of the
policy of regularization, seniority would date with effect from the
date of regularization."
[17] Mr. Athouba Kh., the learned GA appearing for the respondents No. 1-
4 submitted that he is reiterating the statements made by the respondents in
their counter affidavit filed in the connected writ petition.
Mr. RS Reisang, learned senior advocate, appearing for the
respondent No. 9 (MPSC) submitted that the Manipur Public Service
Commission (MPSC) has nothing to do with the fixation of inter-se-seniority of
the AEs/equivalent in the Joint Cadre of Agriculture, Horticulture & Soil
Conservation and CADA and that the respondent No. 9 has nothing to submit
in connection with the issues involved in the present writ appeal.
[18] Mr. I. Denning, learned counsel for the respondents No. 5 & 6
submitted that 2 (two) rejoinder affidavits filed by the respondents No. 5 & 6 in
the connected writ petition are not enclosed by the appellants in their writ
appeal and they have concealed material facts and approached this Court
without a clean hand and accordingly, the present appeal deserves to be
dismissed at the threshold. It has also been submitted by the learned counsel
that in the connected writ petition the appellants No. 1 & 2 did not file any
counter affidavit and only the appellant No. 3 filed a counter affidavit,
however, the grounds taken by the appellants in the present writ appeal were
W.A. No. 4 of 2019 Page 13
never raised by the appellants before the learned Single Judge in the
connected writ petition and accordingly, the appellants are barred from raising
such grounds in the present appeal. In support of his contention, the learned
counsel relied on the judgment of the Apex Court reported in (2010) 11 SCC
433 "Avinash Gaikwad vs. State of Maharashtra." (Para 10).
[19] It has also been submitted by the learned counsel appearing for the
respondents No. 5 & 6 that the State Government issued a public notice
dated 09.08.1996 for direct recruitment to 2 (two) posts of Assistant
Engineers (Agri) in CADA and pursuant to the said advertisement the private
respondents No. 5 & 6 have been appointed against the said advertised
posts. At the time of issuing the said notice only the RR of 1987 was in force
as the RR of 1996 was not yet notified. Accordingly, the learned counsel
submitted that the said 2 (two) posts of AEs against which the respondents
No. 5 & 6 have been appointed are governed by the RR of 1987 and not by
the RR of 1996 as wrongly submitted by the counsel for the appellants. In
support of his contention the learned counsel relied on the following
judgments of the Apex Court:-
1) (1990) 3 SCC 157 "N.T Devin Katti and Others vs. Karnataka
Public Service Commission and Another." (Para 11 & 13).
2) (1997) 3 SCC 497 "Dr. P.N. Dubey and Others vs. State of
M.P." (Para 1).
3) (1998) 9 SCC 223 "BL Gupta and Another vs. M.C.D." (Para
9).
[20] The learned counsel lastly submitted that as the appellants did not
challenge the regularization order of the respondents No. 5 & 6, they cannot
W.A. No. 4 of 2019 Page 14
contend that the regularization order of the respondents No. 5 & 6 is
impermissible and that they are not entitled to count their seniority w.e.f. the
date of their regularization.
[21] In the present case, it is an undisputed fact that the appellants were
promoted as AE/equivalent on regular basis w.e.f. 28.12.1996 by an order
dated 14.01.1997 issued by the Government. In the case of the respondents
No. 5 & 6, they were initially appointed as direct recruit AEs on adhoc basis
by an order dated 02.12.1996 after following the due process of public
employment and on the recommendation of a screening committee. While the
respondents No. 5 & 6 were serving as AE on adhoc basis, the State
Government framed a policy for regularization of Class-I and Class-II direct
recruit adhoc employees from the date of their initial adhoc appointment.
Thereafter, in terms of the said policy decision as contain in office
memorandum dated 19.08.1998, the adhoc services of the respondents No. 5
& 6 were regularized retrospectively from the date of their initial adhoc
appointment, i.e., with effect from 02.12.1996 by an order dated 29.12.1998.
The said office memorandum dated 19.08.1998 containing the policy decision
of the Government for regularization of the adhoc services of Class-I and
Class-II adhoc employees as well as the Government order dated 29.12.1998
regularizing the adhoc services of the respondents No. 5 & 6 as
AE/equivalent w.e.f. 02.12.1996 was never questioned or challenged by
anybody including the present appellants. Accordingly, the regularization of
the adhoc services of the respondents No. 5 & 6 as AE/equivalent w.e.f.
02.12.1996 has attained finality and the date of substantive/regular
W.A. No. 4 of 2019 Page 15
appointment of the respondents No. 5 & 6 as AE/equivalent in the Joint
Engineering Cadre of Agriculture, Horticulture & Soil Conservation and CADA
is w.e.f. 02.12.1996 and they are entitled to get all the service benefits
including seniority w.e.f. 02.12.1996, which is the date of their
substantive/regular appointment as AE.
[22] In view of the above undisputed facts, the contentions made by the
counsel for the appellants,
(i) that the adhoc services of the respondents No. 5 & 6 should be
regularized only w.e.f. 1998 on which the selection committee
made the recommendation for regularization of their adhoc
services,
(ii) that the respondents No. 5 & 6 were not borne in the cadre of
AE/equivalent in 1996 and they cannot be given seniority w.e.f.
1996 and that the respondents No. 5 & 6 have been given
retrospective seniority, etc.,
are misconceived and factually incorrect and accordingly, not
sustainable.
[23] It is well settled principle of law that seniority of an incumbent shall be
counted from the date of his regular/substantive appointment in the service
unless otherwise provided under the rules. In the present case, there is no
service rules for determination of inter-se-seniority between the appellants and
respondents No. 5 & 6 and the Government fixed their inter-se-seniority on the
basis of the date of their regular appointment as AE/equivalent in the Joint
Engineering Cadre of Agriculture, Horticulture & Soil Conservation and CADA
W.A. No. 4 of 2019 Page 16
in terms of the General Principles for determination of seniority between direct
recruits and promotees as provided under the Office Memorandum dated
22.12.1959 and 07.02.1986. In view of the above, we are of the considered
view that the judgments of the Apex Court relied on by the counsel for the
appellants in support of his contentions are not applicable at all in the facts
and circumstances of the present case.
[24] It has been contended on behalf of the appellants and State
Government that the earlier final seniority list of AE/equivalent dated
05.07.2014 had been fixed in compliance with the directions contained in the
order dated 26.11.1996 passed by the Hon'ble Gauhati High Court, Imphal
Bench, in CR No. 970 of 1996 and there is nothing wrong and illegal in the
said final seniority list.
So far as this contentions is concerned, we are constrained to hold
that the learned Single Judge has already considered and dealt with it
elaborately in paragraph 5 of his judgment & order, impugned herein, and we
are in complete agreement with the views and findings given by the learned
Single Judge. In view of the above, we do not find any reason or grounds for
interfering with the impugned orders. In the result the present writ appeal fails
and accordingly, the same is dismissed, however, without costs.
JUDGE JUDGE
FR/NRF
Sapana
W.A. No. 4 of 2019 Page 17
