High Court of Meghalaya

Shri Amlanstar Sun & Anr. vs . State Of Meghalaya & Ors. on 25 May, 2022

 Serial No. 01
 Supplementary List
                    HIGH COURT OF MEGHALAYA
                          AT SHILLONG

WP(C) No. 145 of 2019
                                          Date of Decision: 25.05.2022

Shri Amlanstar Sun & Anr.         Vs.       State of Meghalaya & Ors.

Coram:
               Hon'ble Mr. Justice H. S. Thangkhiew, Judge


Appearance:
For the Petitioner(s)      :    Dr. N. Mozika, Sr. Adv. with
                                Ms. L. Jana, Adv.

For the Respondent(s)      :    Mr. B. Bhattacharjee, AAG with
                                Ms. R. Colney, GA (For R 1&2)
                                Mr. A.S. Siddiqui, Sr. Adv. with
                                Mr. A.G. Momin, Adv.
                                Ms. M.K. Sah, Adv. (For R 3-5)

i)    Whether approved for reporting in                  Yes/No
      Law journals etc:

ii)   Whether approved for publication                   Yes/No
      in press:



                        JUDGMENT AND ORDER

1.           The petitioners are graduate Electrical Engineers and were

appointed as Assistant Engineers in the PHE Department under



                                                               Page 1 of 22
 Regulation 3 (f) of the MPSC (Limitation of Functions) Regulation,

1972 on 10.01.2003. The grievance of the petitioners in the instant writ

petition, is with the inter se seniority list wherein they have alleged that

after a long period of 14 years the same has been unsettled.

2.              The brief facts are that in 2006, the MPSC conducted a

special interview for recruitment to the post of Assistant Engineer

(Electrical) in the PHE Department and the petitioners were placed in

order of merit at serial number 1 and 2 respectively, in the list of 6

successful candidates. In the years 2009, 2013, 2014 and 2016, the

seniority list of officers serving in the PHE Department in the cadre of

Assistant Engineers (Electrical/ SDO) was published and both the

petitioners at serial number 1 and 2 were all along placed in a higher

seniority position than the Respondents 3, 4 and 5.

3.               In March 2018, a representation was submitted by the

respondent No. 3, objecting to the seniority list dated 27.10.2017 citing

Rule 20(4) of the Meghalaya PHE Service Rules 1996, which provides

amongst others, that any cadre member of the service appointed by

promotion, shall be senior to a member appointed by direct recruitment

where such appointment, falls in the same year. In this case the

petitioners on 08.06.2006, on the recommendation of the MPSC, their




                                                                 Page 2 of 22
 services as Assistant Engineers was regularized, however, the letter was

silent as to from which date their services was formally regularized. The

respondents No. 3, 4 and 5 on the other hand were appointed as Sub-

Engineer Grade-I on 18.11.1991 and vide order dated 13.10.2006 were

granted temporary/adhoc promotion to the post of Assistant Engineer

(PHE) and thereafter, on the recommendation of the MPSC, the

promotion of the respondent No. 3, 4 and 5 was regularized vide letter

dated 29.10.2007. Thereafter, the respondent No. 1 and 2 after many

years by Notification dated 23.05.2018 placed the respondents No. 3, 4

and 5 at a higher seniority position, which the petitioners allege has

unsettled the settled seniority position without appreciating that the

petitioners joined the post of Assistant Engineer (Electrical) initially on

14.01.2003, whereas the private respondents were promoted on

13.10.2006 as Assistant Engineers.

4.         The petitioners' main contention is that as their appointments

under Regulation 3(f) w.e.f. 14.01.2003 was made pursuant to the

recommendation of the MPSC, which was subsequently regularized on

08.06.2006 again on the recommendation of the MPSC the period of

service of the petitioners from 14.01.2003, must be counted for the

purpose of seniority. A further ground taken by the petitioners to claim

their seniority from 2003, is that from the date of entry into the service


                                                                Page 3 of 22
 cadre of Assistant Engineer/SDO, the salary of the petitioners was

disbursed after the pay slips were issued by the office of the Accountant

General and further, they were also granted annual increments,

allowances and other benefits as admissible right from January, 2003.

5.              The State respondents in issuing the impugned gradation

list, have put up a case that the writ petitioners were not initially recruited

on a regular basis against permanent sanctioned posts, but that their

appointments made in 2003, was subject to discharge without notice, as

they were made under Regulation 3(f) of the MPSC Regulation, 1972. It

is contended that only after the writ petitioners underwent the requisite

recruitment process conducted by the MPSC that vide Notification dated

08.06.2006, the petitioners were regularized as Assistant Engineers

(Electrical) by the PHE Department. The correction or rectification it is

contended, was done under Rule 20 (4) of the Meghalaya Public Health

Engineering Service Rules, 1996, wherein it has been provided that in

any cadre, a member of the service appointed by promotion shall be

senior to a member appointed by direct recruitment where such

appointments fall in the same year. It is therefore the stand of the State

respondents that as the writ petitioners were directly recruited and duly

notified as regularized on 08.06.2006, the private respondents who were




                                                                    Page 4 of 22
 promoted in the same year to the same cadre, by operation of Rule 20(4),

were to be counted as senior to the writ petitioners.

6.           Dr. N. Mozika, learned Senior counsel assisted by Ms. L.

Jana, learned counsel for the petitioners submits that the respondents 3,

4 and 5 by their own admission have admitted to the fact that they were

granted temporary/adhoc promotion to the post of Assistant Engineer

(PHE) on 13.10.2006 and thereafter on the recommendation of the

MPSC, their promotion was regularized vide letter dated 29.10.2007, as

such therefore, the claim of the private respondents that they were

regularized with retrospective effect from 13.10.2006 and that their

seniority be counted w.e.f. 13.10.2006 is not tenable. In support of this

contention, the learned Senior counsel has placed reliance in the case of

R.K. Mobisana Singh vs. KH. Temba Singh & Ors. reported in (2008)

1 SCC 747, wherein he submits the period of promotion given in

exigency of service without following the Rules i.e. without the

recommendation of the Public Service Commission cannot be counted

towards seniority. Reliance has also been placed in the case of MD

Israils & Ors. vs. State of W.B. & Ors. reported in (2002) 2 SCC 306,

wherein it has been held that the year of promotion in case of adhoc

promotees whose promotion was later regularized, would be the year in

which the Public Service Commission approved their promotions. In the


                                                               Page 5 of 22
 instant case he submits the private respondents and the petitioners are

not appointees/promotees of the same year, inasmuch as, the date of

temporary appointment of the petitioners is 2003 whereas the private

respondents was in 2006. It is further submitted that even going by the

date of regularization of the petitioners i.e. 08.06.2006 and date of

regularization of the private respondents i.e. 29.10.2007, the petitioners

are senior as they are not appointees/promotees of the same year. As

such, he contends Rule 20(4) of the Service Rules will not be applicable

as it only concerns a situation when promotion of the promotees and

appointment of the direct recruits falls in the same year. Learned Senior

counsel has also placed the following decisions on the above noted

arguments regarding adhoc promotion, unsettling of a settled position

and a post being held in a substantive capacity.

      i) H.S. Vankani & Ors. vs. State of Gujarat & Ors. reported in
      (2010) 4 SCC 301 (Para 38 & 39)

      ii) DR Akshya Bisoi & Anr. vs. All India Institute of Medical
      Sciences & Ors. reported in (2018) 3 SCC 391 (Para 25)

      iii) G.P. Doval & Ors. vs. Chief Secretary, Government of U.P.
      & Ors. reported in (1984) 4 SCC 329 (Para 13)

      iv) Baleshwar Dass & Ors. vs. State of U.P. & Ors. reported in
      (1980) 4 SCC 226 (Paras 31, 32 & 33)




                                                               Page 6 of 22
 7.              It is further contended by the learned Senior counsel that

a settled seniority position cannot be unsettled after a long time. To

illustrate this, the attention of the Court has been drawn to the fact that

the seniority list had been settled since 02.12.2005 and thereafter, several

seniority lists were published between 2006 and 2016, wherein the

petitioners were always placed above the respondents No. 3, 4 and 5 and

that no objection had been ever raised to the said gradation list, when it

had been circulated in a draft format to allow representation, if any

within a period of 30 days from the date of issue of the said draft list. All

in all he submits, in the preceding 6 seniority lists including the last

notified final seniority list dated 27.10.2017, the petitioners were placed

at serial No. 2 and 3, and the said list being final there was no scope for

the respondent No. 1 and 2 to entertain any further objection to the said

list. He submits that the action of the respondent No. 1 and 2 in recasting

the said seniority list is highly illegal and arbitrary as it has resulted

unsettling a settled seniority position. Learned Senior counsel has placed

heavy reliance on the case of Dr Akshya Bisoi & Anr. vs. All India

Institute of Medical Sciences & Ors. (supra), where it was held that the

unsettling of a settled inter se seniority could not be done after 12 years.

8.               Mr. B. Bhattacharjee, learned AAG assisted by Ms. R.

Colney, learned GA for the respondent No. 1 and 2 submits that regular


                                                                  Page 7 of 22
 appointment of the petitioners was w.e.f. 08.06.2006 and it cannot be

construed that they were regularly appointed on any date prior to this

date. He submits that the private respondents were promoted on the

recommendation of a Departmental Promotion Committee dated

13.10.2006 and the same being part and parcel of a regular selection

process, their services therefore, was regularized from the said date.

Learned AAG submits that Rule 7(5) of the Service Rules has provided

that appointment to the post of Assistant Engineer is to be 30% by

promotion from amongst Sub-Engineers/Overseers Grade-I and 70% by

direct recruitment, and the process of promotion is decided by a duly

constituted Departmental Promotion Committee consisting of the

members as provided in Rule 9(1) of the Rules. Thereafter, the learned

AAG has placed Rule 10 which deals with the procedure for preparing

of the select list, Rule 11 which provides for consultation with the Public

Service Commission for the purpose of appointments made under Rule

7 (5)(a), Rule 13 which provides for direct recruitment and Rule 20 (4)

which is relevant for the present case for the determination of seniority.

The attention of this Court has also been drawn to Government

Memorandum dated 30.04.1974 and 05.11.1980 (Annexures-4 and 5 to

the affidavit of the respondent No. 1 and 2) wherein he submits that the

State respondents have categorically laid down that the question of



                                                                Page 8 of 22
 giving regular appointment to appointments made under Regulation 3(f)

will arise only after their names are recommended by the MPSC and that

the period of continuous officiating appointment under Regulation 3(f)

or on adhoc basis will not count towards seniority as their appointments

being subsequently regularized.

9.          It is also argued that the petitioners have not questioned or

challenged the promotion of the respondents w.e.f. 13.10.2006 and as

such cannot impugn the same at this stage. With regard to the judgments

as placed by the counsel for the petitioners, the learned AAG submits

that the same are distinguishable and will not be applicable as in those

cases the conditions of appointment are different, there is an absence of

seniority rules and there were no rules for promotion, whereas in the

instant case seniority and promotion was as per statute. Learned AAG

has relied upon the case of K. Madalaimuthu & Anr. vs. State of T.N.

& Ors reported in (2006) 6 SCC 558 to buttress his contention that

seniority of a person appointed temporarily to a particular post without

recourse to the Recruitment Rules can be counted only from the date on

which his service is regularized. Apart from the above, reliance has also

been placed in the decisions of the Hon'ble Supreme Court in cases of

Z. Ajeesudeen vs. Union of India & Ors. (Civil Appeal No. 1256 of




                                                               Page 9 of 22
 2008) decided on 12.02.2008 and State of Uttar Pradesh & Ors. vs.

Ashok Kumar Srivastava & Anr. reported in (2014) 14 SCC 720

10.           In reply to the submissions made by the learned AAG Dr.

N. Mozika, learned Senior counsel argued that for a promotion under

Rule 11 of the Service Rule, sanction of the MPSC is necessary and no

adhoc promotion can be done dehors the rules and the resort to

Regulation 4(d) of the MPSC is illegal. He concludes his reply by

submitting that the issuance of the impugned Notification dated

23.05.2018, altering the seniority position of the petitioners has been

made in violation of the principles of natural justice, as no notice or any

opportunity of hearing was afforded to the petitioners and further on the

earlier draft seniority list being finalized, the respondents could not have

altered the seniority list and unsettled the settled position.

11.           Before commencing to decide the issues as raised by the

parties, it is to be noted herein that during the pendency of the instant

writ petition the respondent No. 3 had expired on 12.05.2021 and the

respondent No. 4 had retired from service on 30.09.2021, and by order

dated 29.03.2022 passed in MC[(WP(C)] No. 44 of 2022, these two

respondents were deleted from the array of parties, leaving only the

respondent No. 5 as the sole private respondent.




                                                                 Page 10 of 22
 12.          The main prayer of the petitioners in the instant petition is

to direct the State respondents to maintain the inter se seniority position

of the petitioners vis-à-vis the private respondents in terms of the final

seniority lists dated 26.02.2010, 27.02.2013 and 27.10.2017 and for

quashing of the impugned Notification dated 23.05.2018. It is well

settled that inter se seniority is to be determined as per relevant service

rules and the date of substantive appointment in a particular post, is

usually taken to be the date for fixation of inter se seniority between the

recruits appointed in the said cadre. On this premise, this position in law

is to be applied to the facts surrounding this case.

13.            The issues therefore, that are before the Court are :-

      (i) Whether the petitioners are entitled for fixation of seniority

      from the date of appointment under Regulation 3(f) of the MPSC

      (Limitation of Functions) Regulation, 1972

      (ii) Whether the period of temporary promotion of the private

      respondents under Regulation 4(d) can be taken to be as per Rules

      and as such be counted towards their seniority.

      (iii) Whether the private respondents can be said to have been

      appointed in the same year to allow them the benefit of the

      application of Rule 20(4) of the Service Rules.



                                                               Page 11 of 22
       (iv) Whether the gradation lists which have consistently

      maintained the seniority position of the petitioners for the years

      2009 to 2017 in the facts and circumstances of the case be

      unsettled or altered.

      (v) Whether the petitioners were heard before the impugned

      gradation list was issued

14.           On the first issue, it is undisputed that the petitioners were

recruited in the year 2003, but however, the said recruitment cannot be

said to be on regular basis, as the terms of their initial appointment was

subject to discharge without notice which indicates the temporary nature

of the appointment. The said appointment was made as per Regulation

3(f) of the MPSC (Limitation of Functions) Regulation, 1972, which

provides as under:-

             "3. It shall not be necessary for the Commission to be
             consulted in matters relating to methods of recruitment to
             civil services and posts or the suitability of the candidates
             for such appointments, in the following cases, namely:-
             (f) When an appointment is to be made by direct
             recruitment to temporary post created in a service, if it is
             necessary in the public interest that the appointment
             should be made immediately and reference to the
             Commission would cause undue delay; provided that if
             the post has been sanctioned for, or is likely to last for
             more than four months, the Commission shall, as soon as
             possible, be consulted in all matters mentioned in sub-
             clause (3) of Article 320 of the Constitution."



                                                                Page 12 of 22
              The said Regulation quoted above provides for immediate

appointments to be made in public interest in the event reference to the

Public Service Commission would cause undue delay. This connotes

that these type of appointments are resorted to before a duly conducted

recruitment process as per rules are held. It is noted that it was only on

08.06.2006 that the petitioners were recommended and became regular

appointees as Assistant Engineers (Electrical). In this context, reference

may be made to a Memo No. PER.81/74/24, dated 30.04.1974 issued by

the State respondents with regard to such appointments which contains

directions that the period of service under Regulation 3(f) should not be

counted towards the regular appointment but, regular appointment was

to be made effective from the date of the recommendation by the

Meghalaya Public Service Commission. For the sake of convenience the

said Memorandum is reproduced herein below:-

                        "No. PER. 81/74/24
                      Government of Meghalaya
                       Personnel Department.

                 Dated Shillong, the 30th April, 1974.
From :       Shri R. Natarajan, IAS.,
             Secretary to the Govt. of Meghalaya.

To :         All Secretaries of all Departments
             All Heads of Department.

Subject :    Appointment made on the recommendation of
             Meghalaya Public Service Commission.


                                                              Page 13 of 22
 Sir,
      I am directed to say that in many cases temporary appointments
have been made by various appointing authorities under Regulation
3(f) of the Meghalaya Public Service Commission (Limitation of
Functions) Regulation, 1972, as amended, and instances have come to
notice that when the names of those incumbents were subsequently
recommended by the Meghalaya Public Service Commission, their
regular appointments were given effect to from the date of their earlier
temporary appointment under Regulation 3(f). This is irregular, as the
question of giving them regular appointments will arise only after their
names are recommended by the Meghalaya Public Service
Commission.
      I am, therefore, to request you kindly to ensure that when an
incumbent appointed under Regulation 3(f) to a post is subsequently
recommended by the Meghalaya Public Service Commission to that
same post such incumbent, if according to merit eligible to be
appointed, should be given regular appointment only with effect from
the date of such recommendation or from any date subsequent thereto,
preferably the date of issue of orders by the Department.
      Receipt of this communication may please be acknowledged.
                                 Yours faithfully,
                                       Sd/-
                          Secretary to the Govt. of Meghalaya
                                       ...

Memo. No. PER. 81/74/24-A, Dated Shillong, the 30th April, 1974.

Copy to the Secretary, Meghalaya Public Service Commission, Shillong for information.

By Order etc., Sd/-

Secretary to the Govt. of Meghalaya"

15. The Hon'ble Supreme Court in the case of K.

Madalaimuthu & Anr. vs. State of T.N. & Ors (supra) as cited by the

respondents has in para 24 of the judgment held as follows: -

"24. On a consideration on the submissions made on behalf of the respective parties and the decisions cited on their behalf, the consistent view appears to be the one

canvassed on behalf of the appellants. The decisions cited by Mr. Rao have been rendered in the context of Rule 10(a)(i)(1) and the other relevant rules which are also applicable to the facts of the instant case. Apart from the above, the law is well settled that initial appointment to a post without recourse to the rules of recruitment is not an appointment to a service as contemplated under Rule 2 (1) of the General Rules, notwithstanding the fact that such appointee is called upon to perform duties of a post borne on the cadre of such service. In fact, Rule 39 (c) of the General Rules indicate that a person temporarily promoted in terms of Rule 39 (a) is required to be replaced as soon as possible by a member of the service who is entitled to the promotion under the Rules. It stands to reason that a person who is appointed temporarily to discharge the functions in a particular post without recourse to the recruitment rules, cannot be said to be in service till such time as his appointment is regularized. It, therefore, follows that it is only from the date on which his services are regularized that such appointee can count his seniority in the cadre."

As such, the seniority of the petitioners in the face of stated

instructions and prevailing law can only be counted from the date on

which their services are regularized.

16. On the next issue as to whether the private respondents for

that matter can be afforded retrospective regularization in their

promotional posts, though the same has not been put to challenge by the

petitioners, however, having a bearing on this case will be discussed

briefly. The private respondents vide Notification dated 13.10.2006, on

the recommendation of the Departmental Promotion Committee were

promoted temporarily and until further orders under Regulation 4(d) of

the MPSC (Limitation of Functions) Regulation, 1972 as Assistant

Engineers. By Notification dated 29.10.2007, their services on the

recommendation of the Public Service Commission vide letter dated

17.10.2007 was regularized w.e.f. 13.10.2006. It is to be noted therefore

that though the promotion was by way of a Departmental Promotion

Committee exercise as given in Rule 7(5)(a) of the Meghalaya PHE

Service Rules, 1996, the same was not reflected, but temporary

promotion was accorded as per Regulation 4(d) of the MPSC

Regulation, 1972 which speaks of officiating promotion only. Rule

7(5)(a) and Regulation 4(d) are reproduced hereinbelow for easy

reference:-

[7(5)(a) of the Meghalaya PHE Service Rules, 1996,]

"7. Method of Recruitment:-

(5) Appointment to the posts of Assistant Engineer/SDO/SDO(TC) (Civil/Electrical/Mechanical) shall be made in the following manner:-

(a) By promotion from amongst Sub-Engineer/Overseer Grade I belonging to the Meghalaya Public Health Engineering (Subordinate) service possessing the requisite experience and qualification as specified in Schedule II and included in the select list approved under sub-rule (5) of Rule 11."

[4(d) of the MPSC Regulation, 1972] "4. Promotion - It shall not be necessary to consult the Commission on the principles to be followed in making promotions or on the suitability of candidate for promotion in the following cases:-

d. Officiating promotion for a period which is not likely to last for more than one year."

In view of the State respondents resorting to Regulation

4(d), it is clear therefore that the promotion so granted was temporary.

However, as this point has not been put to challenge, this Court will not

dwell on this aspect any further or render any other findings.

17. On the issue as to whether the private respondents can be

considered to have been appointed in the same calendar year as the

petitioners to allow them the benefit of the proviso to Rule 20(4), which

stipulates that the promotees vis-à-vis direct recruits would be

considered senior; in view of the observations in the preceding

paragraph, the fact that the recommendation of the MPSC to the

promotions of the private respondents which had been initially made

under Regulation 4(d) being received only on 17.10.2007 cannot be

overlooked, and though submissions have been advanced by the

petitioners, this aspect will not be gone into as there are no specific

pleadings in this regard.

18. On the issues of unsettling a settled position and the

opportunity of being heard, the petitioners have made a pointed case that

the gradation list, which has cemented the inter se seniority position,

cannot be unsettled in such a manner after so many years and further the

impugned gradation list whereby the petitioners have been superseded,

was issued without hearing the petitioners which has resulted in the

violation of the principles of natural justice. The facts as they play out

from the materials, indicate that a final gradation list which was

consistent with all the earlier gradation lists commencing from

08.04.2009 was published on 27.10.2017, wherein the petitioners were

shown senior to the respondents. However, by the impugned gradation

list dated 23.05.2018, the petitioners were shown to be junior to the

respondents. As per the statement of the State respondents on affidavit,

the seniority list before finalization, is circulated in a draft form to all

concerned officers who are given 30 days to represent, or to file any

objection before publication of the final seniority list. What has been

occasioned in the present case is the final seniority list dated 27.10.2017

for all purposes should have been considered final, but it appears on a

representation made on 27.10.2017, by the private respondents under

Rule 20(4) of the Service Rules, the State respondents without

considering the fact that a representation had been made against the final

gradation list and without affording an opportunity to the petitioners to

be heard, modified the said gradation list by the impugned list dated

23.05.2018. The State respondents it appears apart from unsettling the

settled position did not take into consideration the nature of promotion

granted to the private respondents i.e from which date the same was to

be effective, as the temporary promotions was initially under Regulation

4(d) and not as per Rules 7(5)(a) of the Service Rules. Coupled with this

irregularity, no opportunity was afforded to the petitioners which has

also resulted in the violation of the principles of natural justice. The

Supreme Court in (2010) 4 Supreme Court Cases 301 H.S. Vankani &

Ors. vs. State of Gujarat & Ors. has held that seniority once settled is

decisive in one's upward march and that Courts are repeating the ratio

that seniority once settled shall not be unsettled Paragraphs 38 and 39

which are relevant are quoted hereinbelow:-

"38. Seniority is a civil right which has an important and vital role to play in one's service career. Future promotion of a Government servant depends either on strict seniority or on the basis of seniority-cum-merit or merit-cum- seniority, etc. Seniority once settled is decisive in the upward march in one's chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instills confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority at the instance of one's junior in service is unsettled, it may generate bitterness,

resentment, hostility among the Government servants and the enthusiasm to do quality work might be lost. Such a situation may drive the parties to approach the administration for resolution of that acrimonious and poignant situation, which may consume a lot of time and energy. The decision either way may drive the parties to litigative wilderness to the advantage of legal professionals both private and Government, driving the parties to acute penury. It is well known that salary they earn, may not match the litigation expenses and professional fees and may at times drive the parties to other sources of money-making, including corruption. Public money is also being spent by the Government to defend their otherwise untenable stand. Further, it also consumes lot of judicial time from the lowest court to the highest resulting in constant bitterness among the parties at the cost of sound administration affecting public interest.

39. Courts are repeating the ratio that the seniority once settled, shall not be unsettled but the men in power often violate that ratio for extraneous reasons, which, at times calls for departmental action. Legal principles have been reiterated by this Court in Union of India v. S.K. Goel, T.R. Kapoor v. State of Haryana and Bimlesh Tanwar v. State of Haryana. In view of the settled law the decisions cited by the appellants in G.P. Doval's case, Prabhakar, G. Deendayalan and R.S. Ajara are not applicable to the facts of the case."

Similarly the case of Dr Akshya Bisoi & Anr. vs All India

Institute of Medical Sciences & Ors. reported in (2018) 3 Supreme

Court Cases 391, this position is maintained. Para 25 of the judgment is

quoted hereinbelow:-

"25. For the above reasons, we have come to the conclusion that the grant of relief would unsettle the inter se seniority between the petitioners and the fourth

respondent well over twelve years since the recommendation of the Selection Committee for appointment as Additional Professors. This cannot be done. Some expressions of opinion in favour of the first petitioner in the departmental processes may have engendered a sense of hope. But that cannot furnish a legal ground to unsettle something that has held the field for long years. We close the proceedings with the expectation that these distinguished doctors will pursue their avocations at AIIMS without rancour. Our decision on seniority is no reflection upon their distinguished service to a premier national institution."

19. In the totality of the circumstances therefore, apart from the

exercise in the re-fixation and alteration of the seniority list by the State

respondents not being clear, the very fact that the re-fixation has resulted

in unsettling a settled position without affording an opportunity of

hearing to the petitioners who have been adversely affected will surely

call for interference by this Court. Though, the claim for retrospective

seniority of the petitioners from the date of first appointment w.e.f.

14.01.2003 cannot be acceded to and is rejected, the re-fixation and

alteration of the seniority position after such a length of time and the

manner in which the same was done is found and held to be highly

irregular.

20. As such, it is directed that the inter se seniority of the