Ningombam Dineshor Singh vs The State Of Manipur
2023 Latest Caselaw 3 Mani

                                                          [1]
SHOUGRA Digitally signed by
         SHOUGRAKPAM
KPAM     DEVANANDA
DEVANAN SINGH
         Date: 2023.01.10          IN THE HIGH COURT OF MANIPUR
DA SINGH 13:57:11 +05'30'
                                                   AT IMPHAL
                                              WP(C) No. 948 of 2021


                    1. Ningombam Dineshor Singh, aged about 44 yeas, S/o (L)
                       Nongthombam Ibobi Singh of Kongba Makha Nandeibam Leikai,
                       Singjamei, Imphal East District, Manipur-795008;
                    2. Kshetrimayum Surjit Singh, aged about 43 years, S/o (l) Ksh.
                       Ibotombi Singh of Uchekon Khunou Keirao Bitra, Imphal East
                       District, Manipur - 795008;
                    3. Ferdinand Gangmei, aged about 37 years, S/o (L) Gailenglung
                       Gangmei of Dimdaijang Thangmeiband, P.O. & P.S. Lamphel,
                       Imphal West District, Manipur - 795004;
                    4. Pathan Surfaraz, aged about 34 years, S/o (L) Md. Belal Shah of
                       Minuthong Golapati, Imphal East District, Manipur - 795005;
                    5. Luwang Pheiroijam Priyobarta, aged about 35 years, S/o (L)
                       Pheiroijam Birendra Singh of Kongpal Khongkham Leikai, Imphal
                       East District, Manipur - 795005;
                    6. Tongbram Priya Devi, aged about 46 years, D/o Tongbram
                       Nutankuma Singh of Sagolband Kongabam Leikai, Imphal West
                       District, Manipur - 795001;
                    7. Thoudam Sophia, aged about 32 years, D/o (L) Th. Rajen Singh
                       of Khurai Thoudam Leikai, Imphal East District, Manipur -
                       795010;
                    8. Dearri Sinruwng, aged about 32 years, D/o (L) Becheng
                       Sinruwng, Tampi Village, Tampi, Chakpikarong, Chandel District,
                       Manipur - 795102;
                    9. L. Lhingboi Haokip, aged about 43 years, D/o Paokhoneh Kuki of
                       Old Lambulane Jail Road, Imphal West District, Manipur -795001;
                  10. Hatneithem Tuboi, aged about 36 years, D/o Paolun Tuboi of New
                      Lambulane, Imphal East District, Manipur - 795005;
                  11. Sorokhaibam Jimeshori Devi, aged about 39 years, W/o
                      Wangkheimayum Bikramjeet Singh of Wangkhei Khunou,
                      Poropat, Imphal East District, Manipur - 795005;
                  12. Khumanllambam Rita Devi, aged about 31 years, D/o Kh.
                      Rajendro Singh of Lal Moriba, Kongba Makha Nandeibam Leikai,
                      Imphal East District, Manipur - 795005
                                                                             ...Petitioners

                      WP(C) No. 948 of 2021                                          Contd.../-
                                    [2]


                                -Versus -

  1. The State of Manipur, represented by its Chief Secretary,
     Government of Manipur, Imphal - 795001;
  2. The Addl. Chief Secretary (GAD), Government of Manipur,
     Imphal - 795001;
  3. The Special Secretary (DP), Government of Manipur, Imphal
     - 795001;
                                                    ... Respondents

4. K. Hemanta Singh;

5. S. Guneshwor Singh;

6. M. Charan Singh;

7. H. Romeo;

8. K. Bisheshwor Singh;

9. Dhaneshwari Devi;

10. Eddy Lianminthang Guite (ST);

11. Suraj Kumar Khuraijam;

12. H. Birjit Singh;

13. Victor Singh Soubam;

14. Ningthoujam Sanjeev Singh;

15. Kennedy Ningombam;

16. L. Jugin Singh;

17. Laishram Thomas Singh;

18. Mayanglambam Bhagat Singh;

19. Khumbongmayum Rakesh;

20. Th. Sureshchandra Singh;

21. Ningombam Anilkumar;

22. Kshetrimayum Jevel Singh;

23. Naresh Ningombam;

24. H. Munal Singh;

25. Thounaojam Arunkumar;

26. Okram Bidyashwor Singh;

27. Saikhom Rakshajit Singh;

28. K. Manglem Singh;

29. Mayengbam Bonny Singh;

30. Daniel Konthoujam;

WP(C) No. 948 of 2021 Contd.../-

[3]

31. Ningombam Bikramjit Singh;

32. Kailaizom Gangte (ST);

33. Elangbam Bidyananda Singh;

34. Sanjenbam Somorjit Singh;

35. Sougaijam Haripriya;

36. L. Seikhojang Milhiem (ST);

37. Konthoujam Chandrasekhar;

38. Sarita Laishram;

39. Laishram Priyadarshani Devi;

40. Laishram Subash;

41. Roger Maibam;

42. Ningthoujam Rustam Singh;

43. Bob Chanambam;

44. Barunkumar Thoudam;

45. Nameirakpam Debendra Singh;

46. Mayanglambam Lucy Devi;

47. L. Pilot Singh;

48. Naorem Naresh Singh;

49. Smritee Thapa;

50. Karam Surdeep Singh;

51. Kangjam Sunil Singh;

52. Sorokhaibam Sonia;

53. Konsam Bikram Singh;

54. Lairenlakpam Binita Devi;

55. Rajkumari Sandhyarani Devi;

56. Sarangthem Herojit Singh;

57. Kanghujam Romita Devi;

58. Lairenlakpam Pakasana;

59. Usharani Nandeibam;

60. Laiphrakpam Prameshwor;

61. Mohd. Mohsin Khan (MP);

62. Khudongbam Gobin;

63. Alice Kimneihoi Dimngel (ST);

64. Ningreingam Ramror (ST);

65. Ramneithang (ST)

WP(C) No. 948 of 2021 Contd.../-

[4]

66. Thanmila Kumrah (ST);

67. Simon Loitongbam;

68. M. Molightson Kanshouwa (ST);

69. Tongsin Konatha Anal (ST);

70. R.K. Binaton Singh;

71. Narhang Koshang (ST);

72. Dangsha Khullakka Peter (ST);

73. D. Shonronton Duidang (ST);

74. Khapaishimrah Peter Kapam (ST);

75. Fondy L. Khartu Monshang (ST);

76. Mohon Dangsawa (ST);

77. Josiah Panmei (ST);

78. Molhouyang Dangsawa (ST);

79. Soraisam Indrajit Singh;

80. Wahengbam Eden Singh;

81. Zingcharla Raman (ST);

82. Kaiminlun Vaiphei (ST);

83. Telvum Letmang Haokip (ST);

84. Thangminlien Hangshing (ST);

85. Md. Abdus Shahid (MP);

86. Mohamad Ezaz Ahamad (MP);

87. Thokchom Nilamani Singh;

88. Yengkokpam Roger Singh;

89. Henry Tinmuanthang (ST);

90. Konsam Bankimchandra;

91. Moyangphun Charanga Maring (ST);

92. Gairillung Thaimei Kabui (ST);

93. Fanai Lalhriatkima (ST);

94. Chongom Rinigkhosan Aimol (ST);

95. Tarachand Singh Oinam;

96. K. Methew Maring (ST);

97. S. Keshorchand Sharma;

98. Kansham Angphun Maring (ST);

99. Mamlienlal Samte (ST)(PWD/Eye);

100. Wairok Pakpi Makunga (ST);

WP(C) No. 948 of 2021 Contd.../-

[5]

101. Dangshawa Korungini Maring (ST);

102. Md. Azharuddin (MP);

103. Shamjetshabam Nandakumar (SC) (PWD)/Hand);

104. Moirangthem Indrakumar (SC)(PWD/Loco).

.... Private Respondents B E F O R E HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH For the Petitioners :: Mr. S. Biswajit, Advocate For the respondents :: Mr. Lenin Hijam, Advocate General asstd. by Ms. Caroline, Advocate; & Mr. A. Mohendro, Advocate Date of Hearing :: 23-11-2022 Date of Judgment & Order :: 10-01-2023

JUDGMENT & ORDER

[1] Heard Mr. S. Biswajit, learned counsel appearing for the

petitioners, Mr. Lenin Hijam, learned Advocate General assisted by Ms.

Caroline, learned counsel appearing for the respondents No. 1, 2 and 3

and Mr. A. Mohendro, learned counsel appearing for some of the private

respondents.

The issue involved in the present writ petition is about fixation

of Inter-se-Seniority between employees appointed under the Die-in-

Harness Scheme and direct recruit/ promotees.

[2] The petitioners, 12 (twelve) in number, were all appointed as

Office Assistants (LDA) in the General Administration Department under

the Die-in-Harness Scheme during the period between 18-02-2016 to

21-11-2016 and they have been serving as regular Government

employees for the last about six years. On the other hand, all the private

respondents were appointed as Office Assistants (LDA) as direct recruit

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[6]

candidates on 01-12-2016. Accordingly, the petitioners were appointed

earlier than the private respondents.

By an order dated 19-09-2019 issued by the Under Secretary

(GAD), Government of Manipur, the posts of Office Assistant and Senior

Office Assistant were re-designated as Secretariat Assistant and Senior

Secretariat Assistant respectively with effect from the date of issue of the

said order.

[3] The next promotional post from the post of Office Assistant (now

Secretariat Assistant) is the post of Senior Office Assistant (now Senior

Secretariat Assistant) and according to the petitioners, they are all eligible

and qualified for promotion to the next higher post in terms of the relevant

rules. It is the case of the petitioners that there is at present more than

100 vacant posts of Senior Secretariat Assistant available in the General

Administration Department and as a measure for filling up the vacant

posts, the authorities issued a Tentative Inter-se-Seniority List of

Secretariat Assistants of Manipur Secretariat by issuing a Notification

dated 05-11-2020 calling for claims and objections to the fixation of the

Inter-se-Seniority. In the said Tentative Inter-se-Seniority List, the names

of the petitioners are placed above the names of the private respondents.

[4] On publication of the said Tentative Seniority List, some of the

private respondents submitted a joint objection to the said Tentative Inter-

se-Seniority List stating, inter alia, that indicating Die-in-Harness

appointees as direct recruit is not appropriate as they were appointed

without undergoing any recruitment process and that placing all the Die-

in-Harness appointees of 2016 above the direct recruit and promotees of

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[7]

2016 batch gave them undue advantage. It has also been stated that

under the Office Memorandum dated 11-11-2010 issued by the

Government of India, it is provided under para 4.8 that persons appointed

on compassionate ground in a particular year may be placed at the bottom

of all the candidates recruited/appointed through direct recruit, promotion,

etc. in that year irrespective of the date of joining of the candidates on

compassionate ground.

[5] Under para 4.8 of the said Office Memorandum dated 11-11-2010

issued by the Ministry of Personnel, Public Grievances and Pension

(DPT), Government of India, certain guidelines had been laid down with

regard to fixation of seniority of persons appointed on compassionate

ground to the extent that persons appointed on compassionate ground in

a particular year may be placed at the bottom of all the candidates

recruited/appointed through direct recruitment/promotion, etc., in that

year, irrespective of the date of joining of the candidate on compassionate

ground. The said guidelines were reiterated under para 16 of the Office

Memorandum dated 16-01-2013 issued by the Ministry of Personnel,

Public Grievances and Pension (DPT), Government of India for

information, guidance and necessary action by all concerned. Para 16 of

the said Office Memorandum are reproduced hereunder for ready

reference:-

"16. Seniority -

A person appointed on compassionate ground in a particular year may be placed at the bottom of all the candidates recruited/ appointed through direct recruitment/ promotion, etc. in that year, irrespective of the date of joining of the candidate on compassionate ground".

 WP(C) No. 948 of 2021                                                 Contd.../-
                                       [8]


[6]     It is the case of the official respondents that under the Manipur

Secretariat Sub-ordinate Services Rules, 1982, there is no provisions for

fixation of seniority of an employee appointed under the Die-in-Harness

Scheme. In order the supplement the lacuna in the relevant service rules,

the State Government issued an Office Memorandum dated 06-03-2021

adopting to follow the guidelines under para 16 of the aforesaid O.M.

dated 16-01-2013 issued by the Government of India with regard to

fixation of seniority of a person appointed on compassionate ground.

However, in para 2 of the said O.M., it is provided that the adoption shall

be with prospective effect for new appointment and no retrospective effect

will be allowed. Subsequently, the State Government issued another

Office Memorandum dated 13-07-2021 amending para 2 of the earlier

O.M. dated 06-03-2021. The amended para 2 reads as under:-

"Para 2. Henceforth, the O.M. shall be applied in fixing Inter- se-Seniority List for group of employees which include Die-in- Harness appointee whose Final Seniority List has not yet been finalized. Seniority List already finalized shall not be reopened".

[7] After notification of the aforesaid Office Memorandums dated

06-03-2021 and 13-07-2021, the Under Secretary (GAD), Government of

Manipur, issued a Notification dated 06-10-2021 publishing a Tentative

Inter-se-Seniority List of Secretariat Assistants of Manipur Secretariat and

inviting objections to the fixation of the inter-se-seniority. In the new

Tentative Inter-se-Seniority List, the names of the private respondents are

placed above the names of the petitioners in terms of the guidelines for

fixing of seniority between persons appointed on compassionate ground

and candidates appointed through direct recruitment/ promotion, etc. as

contained in the aforesaid O.M. dated 06-03-2021 and 13-07-2021.

 WP(C) No. 948 of 2021                                                 Contd.../-
                                     [9]

Despite the written objections submitted by the petitioners to the

Tentative Inter-se-Seniority List, the authorities issued a Notification

dated 16-12-2021 publishing the Final Inter-se-Seniority List of

Secretariat Assistants (formerly Office Assistants) of Manipur

Secretariat. In the said Final Inter-se-Seniority List, the private

respondents are placed above the petitioners. Having been aggrieved,

the petitioners approached this court by filing the present writ

petition with the prayer for quashing and setting aside the Office

Memorandum dated 13-07-2021 issued by the Department of

Personnel and Administrative Reforms as well as the Final Inter se

Seniority List of Secretariat Assistants dated 16-12-2021.

[8] Mr. S. Biswajit, learned counsel appearing for the petitioners

submitted that the O.M. dated 06-03-2021 of the State of Manipur has

already created a lawful legal rights to the petitioners and the said O.M.

cannot be amended behind their back without following the principle of

natural justice and without giving an opportunity of being heard. The

act of the official respondents in amending the earlier O.M. dated

06-03-2021 by issuing the subsequent O.M. dated 13-07-2021

unilaterally and without complying with the principle of natural justice

amounts to bias, arbitrary and mala fide in nature and the same is not

tenable in the eye of law. It has also been submitted that the second

clause of the impugned O.M. itself clearly demonstrated the mala fide

intention of the concerned authority to do away with the seniority of the

Die-in-Harness appointees, whose seniority could have been finalized

long back and the same was delayed intentionally by the concerned

authority waiting for the private respondents to be qualified for

WP(C) No. 948 of 2021 Contd.../-

[10]

promotion to the next higher posts. It has also been submitted that the

amendment of the earlier O.M. dated 06-03-2021 was not necessary

at all as the same had already been finalized, clarified and settled.

The dispute regarding inter-se-seniority between the compassionate

appointees and other appointees and that the conduct of the concerned

authority clearly shows that they have just wanted to favour the normal

direct recruits/ private respondents and promotees by neglecting the

essence of the O.M. of the Government of India as well as the State

Government.

[9] The learned counsel also submitted that once the State

Government accepted the fact that there is no rule for determining

seniority of the employees appointed under Die-in-Harness Scheme,

than the O.M. on which the determination of the Seniority List is based

on cannot be changed / amended arbitrarily and that in the absence of

any statutory rule governing the field in a particular Department,

seniority would be reckoned from the date of appointment and the same

cannot be affected retrospectively by adopting an O.M. It has further

been submitted that an amendment having retrospective operation

which has the effect of taking away a benefit already available/ accrued

to an employee under the existing rules/ O.M./ regulation, etc. is

arbitrary and discriminatory and violates the fundamental rights

guaranteed under Article 14 and 16 of the Constitution of India and that

a administrative/ executive order cannot have retrospective effect so as

to take away the right accrued to an employee as per the earlier

Circular. The learned counsel also submitted that the Tentative

Seniority List dated 05-11-2020, even though a final of the same was

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[11]

not published, can be assumed to be finalized as the first four

incumbents in the said Seniority List have been promoted to the higher

posts on 18-08-2021 in order of merit by acting upon the earlier

Tentative Seniority List and much before the publication of the

impugned Final Seniority List dated 16-12-2021.

In support of his contentions, the learned counsel cited the

following case laws:-

1. "S.K. Ghosh and anr. Vs. Union of India "

(1968 AIR 1385)

Page 8. "..........It is thus, clear that the revision of seniority in the grade of Directors of Postal Services by the order dated 17th January, 1966 was not based on any rule r appropriate principle applicable to determination of seniority in that grade, and must, therefore, be held to be totally arbitrary. Such an arbitrary order, which affects the civil rights of the petitioners in respect of future promotion, must, therefore, be stuck down as violating Art. 16 of the Constitution. Once this order dated 17th January, 1966 is quashed, the petitioners will no longer be affected in future by the revision of their seniority in the time scale of the service by the order dated 5th June, 1965 and, ........

....... We allow this petition and quashed the order dated 17 th January, 1966 revising the seniority of the petitioners and respondents Nos. 3 to 7 in the grade of Directors of Postal Services......"

2. "Ajit Singh and ors. (II) Vs. State of Punjab & ors. " (1977) 7 SCC 209

Para 22. "Article 14 and Article 16(1) are closely connected. They deal with the individual rights of the person Article 14 demands that the "State shall not deny to any person equality before he law and equal protection of the laws". Article 16(1) issues a positive command that

WP(C) No. 948 of 2021 Contd.../-

[12]

"shall be equality of opportunity for all the citizens in matters relating to employment or appointment to any office under the State".

It has been held repeatedly by this court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularizes the generality in Article 14 and identifies, in a constitutional sense "equality of opportunity" in matters of employment and appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee eligible for promotion or who comes within the zone of consideration, a fundamental right to be 'considered' for promotion. Equal opportunity here means the right to be 'considered' for promotion. If a person satisfied the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right.

"Promotion" based on equal opportunity and "seniority" attached to such promotion are facets of fundamental right under Article 16(1)."

3. (2007) 5 SCC 447 "Southern Petrochemical Industries Co. Ltd. Vs. Electricity Inspector & Etio and ors."

Para 118. "It is in the aforementioned context, that the doctrine of promissory estoppel is sought to be invoked. We will notice hereinafter that even a right can be preserved by reason of invocation of doctrine of promissory estoppel."

Para 130. "We therefore, of the opinion that doctrine of promissory estoppel also preserves a right. A right would be preserved when it is not expressly taken a way but in fact has expressly been preserved".

WP(C) No. 948 of 2021                                                  Contd.../-
                                     [13]

  4.   (2006) 13 SCC 542

"Union of India & ors. Vs. Asian Food Industries"

Para 48. "The Delhi High Court, however, in our view correctly opined that the Notification dated 4-7-2006 could not have been taken into consideration on the basis of the purported publicity made in the proposed change in the export policy in electronic or print media. Prohibition promulgated by a statutory order in terms of section 5 read with the relevant provisions of the policy decision in the light of sub-section (2) of section 3 of the 1992 Act can only have a prospective effect. By reasons of a policy, a vested or accrues right cannot be taken away. Such a right, therefore, cannot a fortiori be taken away by an amendment thereof."

5. (1997) 6 SCC 623 "Chairman Railway Board & ors. Vs. C.R. Rangdhamaiah & ors."

Para 24. "In many of these decisions the expressions "vested rights' or "accrues rights" have been used while striking down the impugned provisions which had been retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employees under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Article 14 & 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon, B.S. Yadav and Raman Lal Soni."

6. (2010) 2 SCC 422 "Union of India & anr. Vs. Kartick Chandra Mondal & anr."

Para 12. "It was also submitted that neither CAT nor the High Court has any power to direct absorption of the respondents when

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[14]

they have worked only for two years and on the date when OA No. 285 of 1990 was filed before CAT they were not even working as casual workers. The further submission of the counsel appearing for the appellant was that the office memorandum which was issued in 1985 could not have been relied upon or made the basis for issuing orders in favour of the respondents, particularly, in view of the fact that on the date when the aforesaid office memorandum was issued the respondents had already been disengaged from service and were not working with the appellant 2.

Para 14. "In the light of the aforesaid submission of the counsel appearing for the parties we have considered the entire records. So far as the Office Memorandum dated 7.5.1985 is concerned, the same was issued by way of relaxation of the condition of recruitment of casual workers. But the fact remains that the respondents working with the appellants only for two years i.e., from 1981 to 1983 and admittedly on the date when the aforesaid office memorandum which would indicate that there was an intention to give a retrospective effect to the contents of the said notification. Instead, the language used in the aforesaid notification clearly shows that the same was intended to be prospective in nature and not retrospective.

Para 16. "As has been noted earlier, the said Office Memorandum stated that the same would apply only to those persons who might have been continuing as casual workers for a number of years and who were not eligible for regular appointment and whose services might be terminated at any time. Therefore, it envisaged and could be made applicable to only those persons who were in service on the date when the aforesaid office memorandum was issued. Unless and until there is a clear intention expressed in the notification that it would also apply retrospectively, the same cannot be given a retrospective effect and could always operate prospectively."

WP(C) No. 948 of 2021                                                 Contd.../-
                                     [15]


  7.   (2015) 7 SCC 412
       "Canara Bank Vs. M. Mahesh Kumar"

Para 17. "Applying these principles to the case in hand, as discussed earlier, the respondent's father died on 10-10-1998 while he was serving as a clerk in the appellant Bank and the resident applied timely for compassionate appointment as per the scheme" Dying in Harness Scheme" dated 8.5.1993 claim on 30.6.1999 recording that there are no indigent circumstances for providing employment to the respondent. Again on 7.11.2001, the appellant bank sought for particular in connection with the issue of the respondent's employment. In the light of the principles laid down in the above decisions, the cause of action to be considered for compassionate appointment arose when circular No. 154 of 1993 dated 8.5.1993 was in force. Thus as per the judgment referred in Jaspal Kaur Case, the claim cannot be decided as per 2005 scheme providing for ex-gratia payment. The circular dated 14.2.2005 being an administrative or executive order cannot have retrospective effect so as to take away the right accrued to the respondent as per Circular of 1993."

8. (2004) 3 SCC 723 "Pramod K. Pankaj Vs. State of Bihar & ors."

Para 12. "The policy decision of the State as contained in the resolution of the State Government dated 17.1`.1979 is not in question. It is accepted that the said resolution was adopted in the special situation that 20% quota which was earlier reserve for graduate engineers was abolished, as a result whereof they suffered immense prejudice. Clause (cha) of he said circular stats that the promotion on the vacant posts of Assistant Engineers under the quota, mention in Clause (ka) i.e., 3% would be made on the basis of seniority. In absence of any statutory provision or rules made thereunder or under the proviso appended to Article 309 of the Constitution of India, it is trite that once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment.

WP(C) No. 948 of 2021                                                Contd.../-
                                        [16]

   9.   1994 Suppl. (3) SCC 451

"Uday Pratap Singh & ors. Vs. State of Bihar & ors."

Para 6. "By a catena of decisions of this Court, it is now well- settled that by an executive order the statutory rules cannot be whittled down nor can any retrospective effect be given to such executive order so as to destroy any right which become crystallized. In this connection, it is profitable to refer a decision of this court in T.R. Kapur V. State of Haryana wherein it is held that rules framed under Article 309 of the Constitution cannot affect or impair vested rights, unless it is specifically so provided in the stator rules concerned. It is obvious that an executive direction stands even on a much weaker footing. It is true, as laid down in Bishan Sarup Gupta V. Union of India, that effect of upgradation of a post is to make the incumbent occupy the upgraded post with all logical benefits flowing therefrom and can be treated as promoted to the post still it cannot be gainsaid that no retrospective effect could be given to any merger or erstwhile lower branch into higher branch in the cadre so as to effect the vested rights of incumbents already occupying posts in the erstwhile lower branch into higher branch of the cadre......"

[10] Mr. Lenin Hijam, learned Advocate General submitted that there

is no provision under the Manipur Secretariat Sub-ordinate Services

Rules, 1982 for fixation of Inter-se-Seniority between the employees

appointed under the Die-in-Harness Scheme and employees appointed

by way of direct recruitment/ promotion in the same year and accordingly,

the guidelines/ instructions issued by the Government of India in its

Office Memorandum dated 16-01-2013 with regard to fixation of Seniority

of compassionate appointees were adopted by the State Government by

issuing Office Memorandum dated 06-03-2001 in pursuance of the

Cabinet decision taken on 09-12-2020 and the subsequent amendment

dated 13-07-2021 was issued as per Cabinet decision taken on

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[17]

06-07-2021. It has been submitted that the said Office Memorandum was

adopted to bring clarity in fixing of Inter-se-seniority amongst the direct

recruit, promotees and employees appointed on compassionate ground,

who were appointed in the same year and that the Office Memorandum

is limited to those cases only where seniority has not yet been finalized

as reconsidering seniority list already finalized on the basis of the new

Office Memorandum would be unjustified. It has further been submitted

that the adoption of the aforesaid Office Memorandums was a policy

decision taken by the Government and the Government has the power

and authority to issue such guidelines/ instructions for fixation of the

seniority and the petitioners have failed to point out that the said Office

Memorandums have been issued in violation of any statutory act/rules.

[11] The learned Advocate General strenuously submitted that the

petitioners have neither pleaded in their writ petition that the impugned

Office Memorandum violated any of their Fundamental Right nor have

they denied the stand taken by the respondents in their counter affidavit

and accordingly, the petitioners have failed to make out a case for

interfering with the impugned Office Memorandum and the impugned

seniority list and as such, the present writ petition is liable to be dismissed

as being devoid of merit. In support of his contentions, the learned

Advocate General cited the following case laws:-

1. (2013) 16 SCC 147, "Union of India and anr. Vs. Ashok Kumar Aggarwal"

"58. A Constitution Bench of this Court while dealing with a similar issue in respect of executive instructions in Sant Ram Sharma v.

State of Rajasthan, held: (AIR 1967 SC 1914, Para 7)

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[18]

"7. ....."It is true that the Government cannot amend or supersede statutory rules by administrative instruction, but if the rules are silent on any particular point, the Government can fill- up the gap and supplement the rule and issue instructions not inconsistent with the Rules already framed."

"59. The law laid down above has consistently been followed and it is a settled proposition of law that an authority cannot issue orders/office memorandum/ executive instructions in contravention of the statutory rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide: Union of India v. Majji Jangamayya; P.D. Aggarwal v. State of U.P.; Paluru Ramkrishnaiah v. Union of India; C. Rangaswamaiah v. Karnataka Lokayukta and Joint Action Committee of Air Line Pilots' Assn. of India v. DG of Civil Aviation)."

"60. Similarly, a Constitution Bench of this Court, in Naga People's Movement of Human Rights v. Union of India, held that the executive instructions have binding force provided the same have been issued to fill up the gap between the statutory provisions and are not inconsistent with the said provisions."

"61. In Nagaraj Shivarao Karjagi v. Syndicate Bank, this Court has explained the scope of circulars issued by the Ministry observing that it is binding on the officers of the department particularly the recommendations made by CVC.

"62. In State of U.P. & Ors. v. Maharaja Dharmander Prasad Singh, this Court held that the order must be passed by the authority after due application of mind uninfluenced by and without surrendering to the dictates of an extraneous body or an authority.

WP(C) No. 948 of 2021                                                 Contd.../-
                                       [19]


       2. (1988) 2 SCC 233

"R. Prabha Devi & ors. Vs. Government of India & ors."

"16. It has also been observed:

"In any event, the appropriate rule-making authority is the best judge in this regard. The rule-making authority is certainly competent to amend the Rule and extend the period from six years to eight years so as to make the direct recruits more experienced and suitable for the higher post. That is a matter for the rule- making authority; the Tribunal cannot sit in judgment over the opinion of the rule-making authority. No court or Tribunal can substitute its own view in a matter such as this. Such a rule framed by a competent authority cannot be struck down unless it is shown to be violative of any Fundamental Right guaranteed to a citizen under the Constitution."

[12] I have heard the arguments advanced by the learned counsel

appearing for the parties at length and carefully examined the materials

available on record. The impugned Final Inter-se-Seniority List dated

16-12-2021 was prepared on the basis of the Office Memorandums dated

06-03-2021 and 14-07-2021 issued by the Department of Personnel and

Administrative Reforms (PD), Government of Manipur. The petitioners

only assailed the subsequent Office Memorandum dated 13-07-2021 in

the present writ petition. Under the first Office Memorandum dated

06-03-2021, it is provided that a person appointed on compassionate

ground in a particular year may be placed at the bottom of all the

candidates recruited/appointed through direct recruitment, promotion,

etc., in that year, irrespective of the date of joining of the candidate on

compassionate ground. In para 2 of the said Office Memorandum, it is

provided that the said Office Memorandum shall be with prospective

effect for new appointment and no retrospective effect will be allowed. By

WP(C) No. 948 of 2021 Contd.../-

[20]

the second Office Memorandum dated 13-07-2021, para 2 of the earlier

Office Memorandum dated 06-03-2021 was amended as under:-

"2. Henceforth, the O.M. shall be applied in fixing Inter-se- Seniority List for group of employees which include Die-in- Harness appointee whose Final Seniority List has not yet been finalized. Seniority List already finalized shall not be reopened".

The said amendment was with prospective effect as no

retrospective effect was given.

[13] The petitioners assailed the subsequent Office Memorandum

dated 13-07-2021 basically on the ground that they have accrued a right

under the Office Memorandum dated 06-03-2021 with regard to fixation

of their seniority vis-a-vis direct recruit/ promotees and that such a right

cannot be denied or curtailed by the authorities by making the

amendment under the second Office Memorandum dated 13-07-2021

retrospectively. According to the petitioners, if the authorities published

the Final Seniority List before issuing the second Office Memorandum

dated 13-07-2021, the provisions under the first Office Memorandum

dated 06-03-2021 would not have been applicable in their case in view of

para 2 of the said Office Memorandum and their names would have been

placed above the private respondents in the Final Seniority List.

It is the case of the petitioners that authorities have deliberately

delayed the publication of the Final Seniority List and published the same

only after issuance of the second Office Memorandum dated 13-07-2021

which amended the beneficial provisions under para 2 of the first Office

Memorandum dated 06-03-2021, thereby depriving the valuable right of

the petitioners with regard to fixation of their seniority position. It is also

WP(C) No. 948 of 2021 Contd.../-

[21]

the case of the petitioners that the authorities cannot retrospectively

amend the beneficial provisions under para 2 of the first Office

Memorandum dated 06-03-2021.

[14] As noted herein above, while making the amendment under the

second Office Memorandum dated 13-07-2021, no retrospective effect

was given and accordingly, this court is the considered view that the

amendment brought about under the second Office Memorandum dated

13-07-2021 will have only prospective effect. Accordingly, the arguments

advanced by the learned counsel appearing for the petitioners that the

accrued right of the petitioners had been denied or curtailed

retrospectively by the authorities by bringing in the amendment under the

second Office Memorandum dated 13-07-2021 are misconceive and

baseless.

[15] This court is also of the considered view that no Government

employee, including the present petitioners, can claim to have any

Fundamental Right with regard to fixation of their seniority even though

they might have a legal right. The Inter-se-Seniority between the

petitioners and the private respondents was fixed for the first time by the

Government under the impugned Final Seniority List dated 16-12-2021

and prior to issuance of the said impugned Seniority List, there was no

Inter-se-Seniority between the petitioners and the private respondents. In

view of the above, this court is of the considered view that the Office

Memorandum dated 06-03-2021 read with the subsequent amendment

made under the Second Office Memorandum dated 13-07-2021 are

applicable in the case of the petitioners and the private respondents in

the matter of fixation of their Inter-se-Seniority and this court did not find

WP(C) No. 948 of 2021 Contd.../-

[22]

any irregularity or illegality being committed by the authorities in issuing

the impugned Final Seniority List. The seniority of Government

employees have to be fixed as per the relevant and applicable rules and

in the absence of such rules, their seniority have to be fixed as per

applicable guidelines/ instructions issued in that regard. As the Inter-se-

Seniority of the petitioners and the private respondents have not been

fixed prior to issuance of the second Office Memorandum dated

13-07-2021, this court is of the view that the applicable rules for fixing of

their seniority is the provision under the first Office Memorandum dated

06-03-2021 read with the subsequent amendment bought in the second

Office Memorandum dated 13-07-2021 and that the petitioners cannot

claim that they have a right to have their seniority fixed vis-a-vis the

private respondents solely on the basis of the first Office Memorandum

dated 06-03-2021.

I have also carefully perused all the case laws cited by the learned

counsel for the petitioner and in my considered view, none of the case

laws are applicable in the facts and circumstances of the present case.

[16] In the affidavit-in-opposition filed by the respondent No. 2 and

some of the private respondents, it is clearly stated that the Final Seniority

position of the persons appearing at Sl. Nos. 1 to 4 in the Tentative

Seniority List dated 05-11-2020 have already been fixed by the

Government under the Final Seniority List of Office Assistants (now

Secretariat Assistants) notified on 13-04-2018 and that on the basis of the

said Final Seniority List, the said four incumbents were promoted to the

next higher posts. It has also been categorically stated that the

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[23]

Government has never acted on the basis of the said Tentative Seniority

List dated 05-11-2020. The petitioners have not controverted or denied

such categorical statement made by the respondents and accordingly,

this court is not inclined to accept the contentions made on behalf of the

petitioners that the Tentative Seniority List dated 05-11-2020 had already

been acted upon by the Government before publication of the impugned

Final Seniority List and that the said Tentative Seniority List can be

assumed to be finalized.

[17] In the present case, the petitioners have failed to make out a case

that the impugned Office Memorandum dated 13-07-2021 had been

issued in violation of any statutory provisions or that by issuance of the

said Office Memorandum, any of their Fundamental Rights have been

violated. In such view of the matter, this court did not find any ground for

interfering with the impugned Office Memorandum dated 13-07-2021 and

accordingly, the present writ petition fails and the same is hereby

dismissed as being devoid of merit. The parties are to bear their own

costs.

                                                       JUDGE

FR / NFR



Devananda




 WP(C) No. 948 of 2021                                             Contd.../-