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PETITIONER:

SHRI L. CHANDRAKISHORE SINGH

Vs.

RESPONDENT:

STATE OF MANIPUR & ORS.

DATE OF JUDGMENT: 18/09/1999

BENCH:

R.P.Sethi, S. Saghir Ahmed

JUDGMENT:

SETHI,J.

Leave granted. In all these appeals the point of law

sought to be determined is regarding the principle governing

the determination of seniority of the persons belonging to

Manipur Police Service governed by Manipur Police Service

Rules (hereinafter referred to as "MPS Rules"). It has to

be determined as to whether or not the police officers

belonging to the service who had continuous, uninterrupted,

meritorious officiating service are entitled to the benefit

to be counted the same towards their seniority. The ambit

and scope of the judgment of this Court in Union of India &

Anr. vs. Harish Chander Bhatia & Ors. [(1995)2 SCC 48

needs also to be ascertained. The rival contentions are

required to be adjudicated on comparative study of the Delhi

& Andaman & Nicobar Island Police Service Rules, 1971

(hereinafter referred to as "DANI Rules") and the MPS Rules.

Brief facts of the case, as extracted from SLP (C)

No.18221/98 filed by Shri L.Chandrakishore Singh are that

the appellant herein joined the Manipur Police as

Sub-inspector on the recommendation of the Manipur Public

Service Commission and was confirmed to the post on

16.6.1976. Vide order No.13(1)/9/79- H(PT) dated 3rd June,

1980 (Annexure P-1) the Government of Manipur appointed 31

Sub-inspectors of Police, including the appellants, as

Inspectors of Police on promotion in the scale of pay of

Rs.488-28-518-EB-25-749-EB-38-958 plus other allowances as

admissible under the Rules with effect from 3rd June, 198o

on regular basis, until further orders (emphasis supplied).

Vide order No.3/12/83-MPS/DF(i) dated 12th October, 1983

(Annexure P-2) the Government of Manipur in exercise of the

powers conferred under Rule 24 of the MPS Rules, 1965

appointed the appellant along with 27 others, in the order

of their merit, to the Manipur Police Service in officiating

capacity in the pay-scale of Rs.900-40-1220-EB-50-1720 with

immediate effect, until further orders. Order

No.13(1)/4/79-H(i) dated 16.9.1989 shows that on the

recommendation of the DPC held on 14.1.1985, the Governor of

Manipur was pleased to confirm the appellant and others as

Inspectors of Police in the Manipur Police Department with

effect from 14.1.1985 i.e., the date on which the DPC

recommended for confirmation, until further orders.

However, vide order No.3/12/83-MPS/DP (PT-I) dated 16.8.1989

the respondent-Government issued an order, purported to be

under Rule 5(1)(b) read with Rule 16 of the Manipur Police

Service Rules, 1965, appointing on promotion the officers

mentioned therein including the appellant, in order of their

seniority to Manipur Police (Junior Grade) in the pay-scale

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of Rs.2000-60-2300-EB-75-3200 with immediate effect. The

tentative seniority list of the MPS officers as on 22nd

September, 1998 showed the appellant' s name at Sr.No.72

allegedly even below the direct recruits (MPS Grade-II) of

the year 1988. He submitted his objections to the tentative

seniority list on 26th December, 1989. However, the

seniority list issued on 30th March, 1990 showed his name at

Sl.No.71, still below the direct recuits (MPS Grade-II) of

1988 batch. Feeling aggrieved of his placement in the

seniority, the appellant filed writ petition being Civil

Rule No.166 of 1990 before the Gauhati High Court for a

direction to regularise his officiating appointment to MPS

Grade-II with effect from 12.10.1983 by

revising/quashing/modifying the aforesaid appointment order

dated 16.8.1989 insofar as it related to him. He reserved

his right to challenge the seniority list of the MPS. The

writ petition is stated to have been disposed of by the

Division Bench of Gauhati High Court, Imphal Bench giving

directions that the appellant shall be given the benefit of

regularisation from the date of his officiating appointment

provided the same was continuous. The appellant again filed

a civil writ bearing No.60/91 seeking inter alia a direction

to consider him for promotion to the next higher post of

Additional Superintendent of Police/Deputy Commandants of

Manipur Rifles. During the pendency of the aforesaid writ

petition, the respondent-Government filed an application for

modification of its order dated 20th August, 1980 passed in

C.R. No.166/90 which was subsequently registered as Civil

Review No.13/96. The appellant filed another writ petition

bearing Civil Rule No.307/92 for quashing the order of the

Manipur Government dated 16.9.1985 and seeking a direction

for his confirmation as Inspector of Police. While

disposing of the aforesaid writ petition on 11.12.1992 the

Gauhati High Court directed the Government either to confirm

the appellant as Inspector of Police with effect from

3.6.1980 or from the date when his juniors were confirmed.

The High Court directed the deletion of the words "until

further orders" mentioned in his regular appointment order

dated 3rd June, 1980 (Annexure P-1). It is admitted that

the aforesaid judgment was not appealed against. On 21st

May, 1996 Civil Review No.13/96 was disposed of by a

Division Bench by setting aside the order dated 20th August,

1990 passed in Civil Rule 166 of 1990. The said Civil Rule

No.166/90 was restored to the file and the appellant was

directed to implead all those officers above him in the

seniority list of MPS Grade-II, who were likely to be

affected adversely in case if reliefs as prayed for by him

were granted. The said writ petition was disposed of by a

Single Judge of the High Court on 18.9.1997 allowing the

same with directions to the respondent Government to treat

the date of officiating appointment of the appellant to the

MPS Grade-II as the date of his regular appointment. Not

satisfied with the aforesaid judgment the private

respondents filed Writ Appeal No.162/97 which was referred

to a larger Bench by formulating three points for decision

vide order dated 13.5.1998. The Full Bench vide the

impugned order in these appeals set aside the order of the

learned Single Judge and dismissed the writ petition being

Civil Rule No.166/90. The appellant N. Bijoy Singh in SLP

(C) No.17310/98 was appointed as an Inspector along with

others including the appellant L. Chandrakishore Singh vide

order dated 3rd June, 1980 (Annexure P-1). Under the MPS

Rules, the meeting of the Selection Committee for relevant

posts was held on 24th March, 1987. The Committee

recommended the aforesaid appellant as an officiating

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appointee solely on the ground of shortage of substantive

vacant posts at the relevant time but in anticipation of the

future substantive vacancies which were likely to arise

within the stipulated period as conceived under Rule 14 of

the Rules. Vide order dated 16th July, 1987, issued under

Rule 24 of the Rules, the said appellant along with others

was appointed on officiating basis to the Manipur Police

Service (Junior Grade) in the pay-scale of

RS.900-40-1220-EB-50-1720 with effect from the date on which

they took over the charge of the post (Annexure P-3).

However, vide order dated 16th August, 1989 purported to

have been issued under Rule 5(1)(b) read with Rule 16 of the

Rules, the appellant along with others was appointed, on

promotion, in order of merit to the Manipur Police Service

(Junior Grade) in the pay-scale of

Rs.2000-60-2300-EB-75-3200 with immediate effect. Vide

order dated 28th October, 1991 issued in exercise of powers

vested in the Government under Rule 23, the appellant along

with others was confirmed to Manipur Police Service Grade-II

with effect from 16.8.1991. Feeling aggrieved Shri N.

Bijoy Singh filed writ petition bearing CR No.415/94 in the

Gauhati High Court praying for seniority from the date of

his officiating appointment along with consequential

benefits. His petition was dismissed on 5.7.1995 on the

ground that he was not entitled to the seniority from the

date of his officiating appointment. He filed a review

petition seeking clarification which was also dismissed on

18.6.1997. Writ Appeal No.101/97 preferred by him before

the Division Bench of the High Court was referred to a

larger Bench along with writ appeal filed against the

judgment of the learned Single Judge in L.Chandrakishore

Singh's case. The larger Bench dismissed the appeal vide

the impugned order holding him not entitled to the benefit

of seniority from the date of his officiating appointment or

from the availability of first substantive vacant post after

the aforesaid selection. Smt.Vandana Karki and others who

were respondents in the writ petition filed by Shri

L.Chandrakishore Singh have filed SLP (C) No.4870/99

alleging that the High Court was not right in interpreting

eligibility criteria laid down under Rule 14(1) read with

Rule 5(1)(b) of the Rules and effective dates of

confirmation to the post of Inspector of Police. It is

contended that the High Court erred in holding that the MPS

Service Rules were pari materia with DANI Rules. It is

submitted that the High Court was not right in holding that

the words "substantively borne on the cadre of Inspector of

Police" appearing in Rule 5(1)(b) of MPS Rules could not

mean the inspector of police whose probation to the post had

been confirmed. It could not be held that the confirmation

to the post of Inspector of Police be taken as eligibility

criteria for promotion to MPS Grade-II. It is contended

that the High Court failed to appreciate that since the

inception of service, the Government of Manipur had all

along been interpreting the words "substantively borne on

the cadre of Inspector of Police" appearing under Rule

5(1)(b) of the Rules as the Inspector of Police confirmed to

the post and as such confirmed inspectors alone were

considered to be eligible for promotion to MPS Grade-II.

There was no justification to disturb the consistent

practice of 30 years and to unsettle many settled matters in

the service. The respondent No.1, namely, Shri

L.Chandrakishore Singh is contended to be not eligible for

promotion to MPS Grade-II on regular basis till 14.1.1985,

i.e., the date of his confirmation to the post of Inspector

of Police and thus could not be promoted to MPS Grade-II

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when he was allowed to officiate as MPS Grade-II officer

vide orders dated 12.10.1983 from the list prepared under

Rule 24 of the Rules. The High Court is further stated to

have erred in overruling the decision of a Division Bench

dated 11.4.1997 passed in Writ Appeal No.35/94 and 55/94 as

the aforesaid judgments are stated to have been approved and

confirmed by this Court by dismissing the SLP (C)

Nos.12904-12905 of 1997. Leave is prayed to appeal from the

final judgment of the Full Bench and prayer is made for

passing such other and further orders as are deemed proper.

Shri H.Nabh Kumar Singh, Senior Advocate, appearing for the

appellant has vehemently argued that after holding the MPS

Rules as synonymous to the DANI Rules, the Full Bench of the

High Court was not justified in not applying the law laid

down by this Court in Union of India & Anr. Vs. Harish

Chander Bhatia & Ors. [(1995) 2 SCC 48]. It is contended

that after the judgment dated 11.12.1992 of the High Court

in Civil Rule No.307/92, the respondent-State was estopped

from arguing that the appointment of the appellant was

temporary which disentitled him from getting the benefit of

length of service on the basis of the aforesaid order. He

has submitted that the learned Single Judge who decided the

Civil Rule 166 of 1990 on 18.9.1997 had rightly held that

since the DANI Rules were in pari materia of MPS Rules, the

judgment of the Apex Court in Bhatia's case (supra) was

squarely applicable in the facts and circumstances of the

case. He has referred to various observations made in

favour of the appellant and assailed the conclusions arrived

at by the Full Bench on the ground of not applying the

relevant rules and the pronouncements made by this Court.

Shri A.S. Nambiar, Senior Advocate for the respondents has

submitted that the appointment of the appellant as Inspector

of Police initially being on probation for two years, the

same could not be treated as substantive appointment for the

purposes of determining the seniority. He has tried to

distinguish the DANI and MPS Rules to show that the initial

appointment of the appellant as Inspector and subsequent

confirmation entitled him benefit of seniority only with

effect from the 16th August, 1989. According to him the

learned Single Judge had committed mistake in allowing the

appeal filed by Shri L.Chandrakishore Singh. The Rules were

made by the President of India in exercise of powers

conferred under Article 309 of the Constitution of India on

29th March, 1965. Rule 3 provides that there shall be

constituted a Central Police Service to be known as Manipur

Police Service, the posts of which shall be central civil

posts Class II gazetted. The authorised permanent strength

of the service and the post shall be such as specified in

the Schedule attached to the Rules. The Central Government

or the Administrator, subject to such conditions and

limitations, as may be prescribed by the Central Government

in this behalf, may, by order, create duty for such period

as may be specified therein. Rule 5 which deals with method

of recruitment provides: "Method of Recruitment: (1) Save

as provided in rule 17, appointment to the service shall be

made by the following method namely:-

(a) 50 per cent of the substantive vacancies which

occur from time to time in the authorised permanent strength

of M.P.S. (Junior Grade) shall be filled in by direct

recruitment in the manner specified in Part IV of these

rules; and

(b) the remaining 50 percent of such substantive

vacancies shall be filled up by selection in the manner

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specified in part V of these rules from amongst officers who

are substantively borne on the cadre of Inspector of Police,

Inspector of Police (Legal) and Subedar/Sub-Major of Manipur

Rifles employed under the State of Manipur;

Provided that nothing in the case of a person who had

been appointed to a post, which post is subsequently

declared as duty post, he shall be deemed to have always

been appointed to a duty post from the date on which he was

so appointed.

Provided further that Nothing in this rule shall

preclude the Governor from holding a vacancy in abeyance, or

filling it on an officiating basis in accordance with the

provisions of Part VIII of these rules."

(2) If the exigencies of service so requires, the

administrator may, in consultation with the commission, vary

the percentage of vacancies to be filled by each method

specified in sub-rules (1).

Part V provides for recruitment by selection. Rule 13

mandates that: "Recruitment under clause (b) of sub-rule

(1) of Rule 5 shall be made on the recommendation of the

Selection Committee (hereinafter referred to as the

Committee) consisting of -

Chairman

i) the Chairman or a Member of the Commission;

Members

ii) a nominee of the Ministry of Home Affairs not

below the rank of Deputy Secretary;

iii) the Chief Secretary to the Government of Manipur

and

iv) an officer of the rank of Inspector General of

Police to be nominated by the Ministry of Home Affairs."

The Committee is required to consider, from time to

time, the cases of officers eligible under clause (b) of

sub-rule (1) of Rule 5 who have served in their respective

cadres for not less than two years and prepare a list of

officers recommended taking into the account the actual

vacancies at the time of selection and those likely to occur

during a year. The selection for inclusion in the list has

to be based on merit and suitability in all respects for

appointment to the service with due regard to seniority.

The names of the persons included in the list are required

to be appointed in order of merit. The list so prepared is

to be forwarded by the Committee to the Governor which shall

be approved by him after taking into account the changes, if

any, proposed by the Public Service Commission. Such list

shall ordinarily be in force until a fresh list is prepared

for the purpose in accordance with these rules. According

to Rule 16 appointments to the service are to be made in

order of merit in the list referred to in Sub-rule (4) of

Rule 15 with due regard to the proportion specified in Rule

5 and subject to sub-rule (2) of Rule 16. Selection for

officiating appointments have to be made under Rule 24 which

provides: "Selection for officiating appointments: If at

any time the Administrator is of the opinion that the number

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of officers available in the list referred to in sub-rule

(4) of Rule 15 for appointment to duty posts is not adequate

having regard to the vacancies in such posts, he may direct

the Committee to consider the cases of officers who had

officiated for a period of not less than three years in any

of the cadres mentioned in clause (b) of sub-rule (1) of

rule 5 and prepare a separate list of officers selected.

The selection for inclusion in the list shall be based on

merit and suitability in all respects for officiating

appointments to duty posts with due regard to seniority.

The provisions of sub-rule (2) and (3) of Rules 14 and 15

shall apply mutatis mutandis in the preparation of the list

under this rule."

Rule 25 provides: "Officiating appointment to

specified post + any temporary post carrying the same

designation as that post + any other post declared as duty

post: (1) If a member of the service is not available for

holding a duty post, the posts may be filled on an

officiating basis:

(a) By the appointment of an officer included in the

list referred to in sub-rule (4) of Rule 15 or

(b) If no such officer is available by the appointment

of an officer included in the list prepared under Rule 24.

(2) Notwithstanding anything contained in these Rules,

if the exigencies of service so require, a duty post for

which a member of the service is not available, may, after

consultation with the commission, be filled on an

officiating basis by the appointment of an officer belonging

to any State Police Service on deputation for such periods

ordinarily not exceeding three years as the Administrator

may consider necessary.

(3) Notwithstanding anything contained in these rules,

where appointment to a duty post is to be made purely as a

local arrangement for a period of not exceeding six months,

such appointment may be made by the Administrator from

persons who are included in the list prepared under sub-rule

(2) of rule 15 or rule 24 or who are eligible for inclusion

in such a list. (Emphasis supplied)

The Full Bench after extensively dealing with the DANI

Rules in paras 10 to 13 of its judgment rightly concluded:

"Judicial decision given to the areas advanced in one

statute does not afford a guide, but construction of the

same areas in another statute unless statutes are pari-

materia legislation. In the instant case, it is an admitted

fact that both the Rules were framed by the Central

Government and even after adoption of the MPS Rules by the

State of Manipur, no major change has been made in the

provisions of Rule 5,14,15,24 and 25 of the MPS Rules. The

minor modifications which have been made in the MPS Rules

does not materially affect the provisions of the Rules or it

does not change the basic structure of the MPS Rules. Since

both the rules were framed by the Central Government, there

is no difficulty to hold that the intention of Central

Government is same in both the Rules. Therefore, we have no

hesitation to hold that the DANI Rules is in pari-materia

with the MPS Rules. The first part of Question NO.3 is

answered accordingly."

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While dealing with the case of the appellant, the Full

Bench found that he had not been substantively promoted to

the post of Inspector of Police on 3.6.1980 because of

qualified words "until further orders" appearing in the

aforesaid order. It was observed: "Appointment with the

condition of "until further orders" is purely on a temporary

capacity subject to further order made in this behalf by the

competent authority. Regular appointment in a cadre or post

should not allow with the qualifying words, "until further

orders". If the appointment is made until further orders,

it cannot be said to be a regular appointment.

Consequently, we are of the opinion that the petitioner's

appointment in the post of Inspector of Police cannot be

termed as a regular appointment."

It appears that before arriving at such a conclusion

the Bench did not notice the earlier decision of the High

Court in Civil Rule No.307 of 1992 wherein it was

specifically held: "As the petitioner was appointed on

officiating basis, it therefore follows that the appointment

was against a permanent post and he cannot be kept on

officiating basis for such a long period without

confirmation. That apart, as the petitioner was appointed

according to rules on officiating basis, the word "until

further orders" is absolutely superfluous and, therefore,

this words are set aside.

In the result, it is directed that the petitioner

shall be confirmed in the post of Inspector of Police either

from the date of initial appointment or from the date when

officers junior to him were confirmed. I may refer to the

decision of the Division Bench of this Court in Durgadas

Purkayastha V. Gauhati High Court, 1988 GLR 6. Relying on

the decision of the Apex Court in S.B. Patwardhan v. State

of Maharashtra, AIR 1977 SC 2051, it held that confirmation

is one of inglorious and uncertaintly of the Government

service depending neither on the efficiency of the incumbent

nor availability of substantive vacancies."

It is conceded before us that the said judgment was

not appealed against and was allowed to become final. It

is, however, contended that as the respondents were not made

party in the said writ petition, the verdict did not bind

them. The argument has to be noticed for only being

rejected inasmuch as the petitioner therein was aggrieved by

the order which affected him alone and he had impleaded the

State of Manipur as party respondents who, according to him,

had added superfluous words "until further orders" in his

order of promotion. The record of proceedings of the DPC

held on 9.9.1983 for consideration of promotion to the MPS

Grade-II in the Police Department, Manipur shows that there

existed 29 substantive/ regular vacancies in the MPS

Grade-II out of which 14 belonging to direct recruits and 15

to the promotees. Out of 15 posts of promotion 5 posts were

reserved for ST only and no reservation for SC. It was

further reported by the Government that there were another

28 short term vacancies (both direct and promotion quota

together) in MPS Grade-II. The DPC considered to fill up

those short term vacancies on officiating basis under Rule

24 of the MPS Rules by giving promotion from amongst the

eligible officers in the feeder list. For selection of 15

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officers for appointment by promotion all eligible officers

were consider. On the basis of assessment made and on

perusal of their comparative merit and suitability, the

Committee recommended officers including Shri

L.Chandrakishore Singh in order of merit for appointment on

officiating basis to the post of MPS Grade-II. The name of

the appellant L.Chandrakishore Singh was at Sl.No.2 in the

merit list prepared by the DPC. The proceedings of the DPC

clearly and unambiguously indicate that all eligible police

officers were considered for officiating appointment in

terms of Rule 24 against available short term vacancies. It

has further to be noticed that the selection was based upon

merit and suitability and the DPC had kept in mind sub-rules

(2) and (3) of Rule 14 and 15 of the Rules while preparing

the list on merits. It has further to be noticed that the

appointment to the duty post was not made as a local

arrangement as contemplated by sub-rule (3) or Rule 25 of

the Rules. We find that the learned Single Judge while

disposing of Civil Rule 166/90 had rightly held: "Since the

DANI rules are in pari materia of Manipur Service Rules, the

judgment and order of the Apex Court in Union of India and

Another, appellants vs. Harish Chander Bhatia and others

(supra) shall be squarely applicable in the facts of the

case at hand. On this score alone, this petition has

succeeded. In my view, therefore, it may not be necessary

to advert to the other points urged by the parties.

This apart, in Direct Recruit Class-II Engineering

Officer's Association, Appellants vs. State of Maharashtra

and others, respondents (1990) 2 SCC 715, the Constitution

Bench of the Apex Court held in paragraph 47 'A' as under:

"(A) Once an incumbent is appointed to a post

according to rule, his seniority has to be counted from the

date of his appointment and not according to the date of his

confirmation."

As already said, petitioner was appointed to the

Manipur Police Service (Junior) with effect from 12.10.1983

in accordance with Rules.

For the reasons aforestated, this writ petition is

allowed with a direction to the respondents to treat the

date of officiating appointment of the petitioner as the

date of his regular appointment and refix his seniority in

terms of the direction, consequently, the seniority list

published under Rule 28 of the rules by Notification date

30.3.1990 (Annexure 7) and the impugned order dated

16.8.1989 (Annexure 3) are hereby set aside in so far

petitioner is concerned."

This Court in Bhatia's case (supra) considered the

scope of DANI Rules which we have found are pari materia the

MPS Rules and held: "4. From the above, it is clear that

for a person to be appointed under sub-rule (1) of Rule 25,

he has to be an officer whose name is included in the list

referred to in sub-rule (4) of Rule 15 or one prepared under

Rule 24. Insofar as sub-rule (3) is concerned, this

requirement is not to be satisfied, and further, appointment

under that sub-rule cannot exceed six months and is made as

a local arrangement. The respondents are those whose names

found place in the list prepared under Rule 24 and their

appointments not having been made purely as a local

arrangement for a period not exceeding six months, we have

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no difficulty in upholding the view of the Central

Administrative Tribunal, Principal Bench whose judgment has

been impugned in this appeal, that respondents were

appointed under sub-rule (1).

5. There is no serious dispute to this position even

by learned Additional Solicitor General, Shri Tulsi, who has

appeared for the appellants. His first real contention is

that despite the appointments being under sub-rule (1), the

respondents cannot be taken to have been appointed to the

Service and as such the direction of the Tribunal to treat

them as permanent appointees instead of as officiating

hands, is not in consonance with what has been provided in

the Rules. Shri Tulsi submits that appointment to the

Service can be made only as visualised by Rule 16 and this

can be of those whose names find place in the list referred

in sub-rule (4) of Rule 15. The respondents not being such

incumbents, they cannot be treated as permanent appointee to

the Service.

6. This submission would not be correct if heart of

the matter is looked into. To put it differently, the

submission is not correct in substance, but is so only in

form. We have taken this view because an examination of

Rule 24 shows that the list prepared as required by that

rule, has also to satisfy the requirements of provisions of

sub-rules (3) and (4) of Rules 14 and 15. This shows that

the incumbents whose names find place in the list prepared

as contemplated by Rule 24 are also those who have been duly

selected and consultation with the Commission has also been

made and the list prepared has been forwarded to the Central

Government as well for its doing the needful. There is thus

no difference in substance between the list prepared, as

contemplated by Rule 14 read with Rule 15, and the one

visualised by Rule 24. So, there appears to be no

justifiable reason to regard Rule 24 selectees as in any way

inferior to Rule 14 selectees. According to us, they stand

almost at par. It is because of this that clauses (a) and

(b) of sub-rule (1) of Rule 25 have virtually made no

distinction between these two categories of incumbents.

7. Shri Tulsi, however, contends that Rule 25

visualises officiating appointment and not permanent; and

that appointment is required to be made when a member of the

Service is not available. Though this is so, but the facts

of the present case would show that though the appointments

were stated to be officiating these continued for a very

long period, which in the case of Respondent 1 was of about

12 years as he came to be appointed under Rule 25 on

6.11.1972 and was fixed permanently in the slot meant for

promottes on 28.7.1984. An officiating appointing for over

a decade cannot be treated as fleeting appointment with no

service benefits to be given. Any other view would very

seriously prejudice such a service-holder who, even after

having rendered service equal to those of permanent

appointees for a long period, and that too for proper

functioning of the Service, would be denied the benefit of

the same for no cogent reasons. Any other view is bound to

have a demoralising effect in the Service as a whole. As

the appointments under Rule 25 are also to duty posts, which

may form part of the strength of Service because what has

been stated in Rule 4(3), we are of the view that justice of

the case and the need to preserve the efficient functioning

of the Service would require to treat the appointments of

the respondents as permanent, despite their having been

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first appointment on officiating basis."

We are of the firm opinion that the Full Bench was not

correct in holding that the judgment in Bhatia's case was

inapplicable to the facts and circumstances of the matter

pending before it. Vide the impugned judgment the High

Court tried to make an artificial distinction of the case

from the facts of the Bhatia's case with reference to

Article 142 of the Constitution with observations: "But,

inspite of this small difference the Hon'ble Supreme Court

has given the relief to the respondents of Harish Chandra

Bhatia's case and it appears to us that for making a

complete justice to the respondents who have rendered 12

years of officiating service, the Apex Court has passed the

order for regularising the officiating service of the

respondents by invoking the provisions of Article 142 of the

Constitution."

A perusal of the judgment in Bhatia's case has not

persuaded us to agree with the findings of the High Court.

After referring to Sub-rules (3) and (4) of Rules 14, 15 and

24, the Court found that there was no difference in

substance between the list prepared as contemplated by Rules

14 and 15 and the one visualised by Rule 24. The selectees

under Rule 24 were held to be standing at par with the

selectees under Rule 14 of the Rules. The reference to 12

years of service of the respondent therein was in the

context to emphasize that the appointment was not under Rule

25 being local arrangement for specified period vide

sub-rule (3) of Rule 25. As the appointment of the

appellant could not be held to be under Rule 25, the verdict

in Bhatia's case had to be accepted by treating the

appointment of a person to the service under Rule 24 of the

Rules. The reliance of the learned counsel for the

respondents upon the judgment in Baleshwar Dass & Ors. Vs.

State of U.P. & Ors. [(1980) 4 SCC 226 does not in any way

advance the case of his clients inasmuch as in that case the

Court considered the scope of United Provinces Service of

Engineers Class II, Irrigation Branch Rules, 1936 and by

specific reference to Rules 3(b) and 4 held that a cadre

post can be permanent or temporary and if an Engineer is

appointed substantively to a temporary or permanent post he

becomes a member of the service. The touchstone then, is

the substantive capacity of the appointment. The Court

further held that the substantive capacity refers to the

capacity in which a person holds the post and not

necessarily to the nature or character of the post. Even

appointment to a temporary post for long duration would be

sufficient to hold that such person was holding the post in

substantive capacity. A person shall be held to be holding

a post in a substantive capacity when he is found to be not

holding the post for a definite period. The Court observed:

"To approximate to the official diction used in this

connection, we may well say that a person is said to hold a

post in a substantive capacity when he holds it for an

indefinite period especially of long duration in

contradistinction to a person who holds it for a definite or

temporary period or holds it on probation subject to

confirmation."

The Respondent-State has submitted that since the

enforcement of the MPS Rules in 1965, the State Government

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has been construing the words "substantively borne on the

cadre of the inspector of police" appearing in Rule 5(1)(b)

as confirmed Inspector of Police and till an Inspector of

Police of probationary period is not confirmed to the post

he has not been considered for promotion to the MPS Grade-II

on regular basis. It is contended that under this

consistent practice for about 34 years, the State Government

has been considering only the cases of the confirmed

Inspectors of Police for promotion to MPS Grade-II on

regular basis as the policy of the State Government is to

promote only the confirmed Inspectors of Police and not

promote the probationary Inspectors of Police. It is

contended that in the light of the judgment of this Court in

N.Suresh Nathan & Anr.vs. Union of India & Ors. [(1992)

Supp. 1 SCC 584, such a practice should be held to be in

consonance with the long standing practice in the

Department. We feel the reliance on this case is also

misplaced. In that case the dispute was whether a diploma

holder Junior Engineer who obtained the degree while in

service became eligible for appointment as Assistant

Engineer by promotion on completion of three years of

service including therein the period of service prior to

obtaining the degree or the three years service as a degree

holder for the purpose to be reckoned from the date of

obtaining the degree. The diploma holders contended that

they were entitled to include the earlier period and were

eligible for promotion in the category on obtaining a degree

if the total period of service is three years inclusive of

earlier period. The degree-holders contested this position

and contended to the contrary. According to the

degree-holders these were to distinct categories, the first

being of degree-holders with three years service in the

grade as degree holders, the period of three years being

susequent to the date of obtaining the degree as in the case

of Junior Engineers who joined the service with a degree;

and the other category was of diploma holders with six years

experience. The diploma-holders went to the Central

Administrative Tribunal and their contention was accepted.

In appeal the order of the Tribunal was set side mainly on

the ground that there existed sufficient material including

the admission of the diploma-holders that the practice

followed in the Department for long time was that in case of

diploma-holder Junior Engineers who had obtained the degree

during service, the period of three years service in the

grade for eligibility for promotion as degree- holders

commenced from the date of obtaining the degree and the

earlier period of service as diploma-holders was not counted

for that purpose. The Union Public Service Commission was

found to be having similar view. The Court held that if the

past practice was based on one of the possible constructions

which could be made under the rules, then upsetting the same

at a later stage was not appropriate. After referring to

Rules 7 and 11 of the Recruitment Rules, the Court found:

"The entire scheme, therefore, does indicate that the period

of three years' service in the grade required for

degree-holders according to Rule 11 as the qualification for

promotion in that category must mean three years' service in

the grade as a degree-holder and, therefore, that period of

three years can commence only from the date of obtaining the

degree and not earlier. The service in the grade as a

diploma-holder prior to obtaining the degree cannot be

counted as service in the grade with a degree for the

purpose of three years' service as a degree-holder. The

only question before us is of the construction of the

provision and not of the validity thereof and, therefore, we

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are only required to construe the meaning of the provision.

In our opinion, the contention of the appellants

degree-holders that the rules must be construed to mean that

the three years' service in the grade of a degree-holder for

the purpose of Rule 11 is three years from the date of

obtaining the degree is quite tenable and commends to us

being in conformity with the past practice followed

consistently."

The position in the instant case is totally different.

After the judgment in Bhatia's case, we are of the opinion

that no other construction of the Rules is possible. When

the Rules are clear and do not create any doubt, the

adoption of a contrary practice cannot be made a basis for

depriving the employees in the service of their entitlement

unambiguous.

the Rules which are clear, specific and The Full Bench of

the High Court referred to Government Order dated 28th July,

1997, claimed to have been issued under Article 309 of the

Constitution which was held to prescribe that officers

appointed on direct recruitment and also by promotion were

to be on probation for a period of two years. The aforesaid

Government order has not been shown to us for the purpose of

ascertaining its scope and ambit and the authority besides

the purpose for which it is claimed to have been issued.

Article 309 of the Constitution authorises the appropriate

Legislature to regulate the recruitment and condition of

service of persons appointed to public service and post in

connection with the affairs of the Union or of a State. The

President and the Governor of a State have been authorised

to make or provide for making of rules regulating the

recruitment and the condition of service of persons

appointed to such services and posts and until provision in

that behalf is made by or under an Act of the appropriate

legislature under the Article and any rule so made shall

have effect subject to the provisions of the said Act. The

proviso to Article 309 is a transitional provision

empowering the Executive to make rules relating to the

matters specified therein until the appropriate Legislatures

legislate on the subject. Any rule made under this Article

has to remain in force for the purposes specified therein.

No rule in terms of Article 309 is shown to have been made

by the respondent Government to provide regarding the

appointment to a post to be necessarily on probation for a

period of two years. It is true that Government by

Executive orders made under constitutional provisions has

the power to regulate the recruitment and the condition of

service but no such Government Order can alter or amend the

existing rules on the subject. It is conceded before us

that in the 1965 Rules no period of probation was prescribed

for the post of Inspectors of Police. The High Court was,

therefore, not justified in relying upon the earlier office

order to hold that the appointment of the appellant as

Inspector of Police was deemed to be on probation for a

period of two years as the appellant had admittedly been

appointed after following of the procedure prescribed in the

Recruitment Rules. His appointment was to be treated as

substantive appointment in the absence of a rule to the

contrary. The order dated 3rd June, 1980 when read in the

light of the judgment of the High Court dated 11.12.1992 in

C.R. No.307 of 1992 cannot be construed to mean that the

appellant was not substantively promoted as Inspector of

Police with effect from 30th June, 1980. Seniority itself

based upon length of service is an acquired right of an

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employee which entitles him to be considered for further

promotion. It is generally regulated by Service Rules.

Such rules normally provide for determined seniority with

reference to the date of appointment to the class, category

and grade to which the appointment is made. It is

determined only on the basis of the length of service. Such

length of service may be on the basis of the difference of

continuous officiation or on the basis of the difference of

substantive appointment in the cadre or grade or service

which may be reckoned from the date of confirmation on the

basis of regularisation. It is now well settled that even

in cases of probation or officiating appointments which are

followed by a confirmation unless a contrary rule is shown,

the service rendered as officiating appointment or on

probation cannot be ignored for reckoning the length of

continuous officiating service for determining the place in

the seniority list. Where the first appointment is made by

not following the prescribed procedure and such appointee is

approved later on, the approval would mean his confirmation

by the authority shall relate back to the date on which his

appointment was made and the entire service will have to be

computed in reckoning the seniority according to the length

of continuous officiation. In this regard we fortify our

view by the judgment of this Court in G.P. Doval & Anr.

vs. Chief Secretary, Government of U.P. & Ors. [(1984) 4

SCC 329]. In the light of what we have noted hereinabove,

it is apparent that the order impugned in the High Court

dated 16th August, 1989 (Annexure P-5) was issued by the

Government under a mistaken believe by completely ignoring

the mandate of Rule 24 and the verdict of this Court in

Bhatia's case. Once the appellant had been appointed to the

service in terms of Rule 24 of the Rules, it was presumed

that his name had been included in the list after compliance

of the provisions of sub-rules (3) & (4) of Rules 14 and 15

of the MPS Rules, there being no difference in substance

between the list prepared as contemplated under Rules 14 and

16 on the one hand and as visualised under Rule 24 on the

other. Promotion made after compliance of Rules 14 and 15

is contemplated to be a selection in terms of Rule 5(1)(b)

of the Rules. The Respondent-State, therefore, was not

justified in re-appointing, on promotion, the officers

mentioned in the Government Order dated 16th August, 1989 to

the Manipur Police Service (Junior Grade) with effect from

that date. Seen from any angle, we are of the opinion that

the learned Single Judge of the High Court had rightly

allowed the writ petition filed by the appellant vide

Annexure P-10 dated 18.9.1997 and issued appropriate

directions. The Full Bench of the High Court wrongly set

aside the judgment of the learned Single Judge by wrongly

interpreting the provisions of the law applicable in the

case and ignoring the judgment in Bhatia's case which

squarely covers the matters so far as the interpretation of

the MPS Rules were concerned. The judgment impugned in

these appeals is based upon conflicting and contradictory

conclusions arrived at by the Full Bench. The assumptions

and presumptions drawn are neither based upon the relevant

rules or supported by any judicial verdict of this Court.

Under the circumstances, the appeals arising out of SLP (C)

Nos.18221/98 and 17310/98 filed by L.Chandrakishore Singh

and N.Bijoy Singh are allowed by setting aside the judgment

of the Full Bench. The writ petitions filed by the

appellants are allowed. The respondents are directed to

treat the officiating appointments of the appellants as the

date of their regular appointment and re-fix their seniority

in terms of the observations made in this judgment. Fresh

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seniority list shall be prepared in the light of our

directions alongwith the consequential benefits under the

law to the persons who are found to be senior. The appeal

arising out of SLP (C) 4870/99 filed by Smt.Vandana Karki &

Ors. shall stand dismissed. The appellants

L.Chandrakishore Singh and N.Bijoy Singh are held entitled

to costs of Rs.10,000/- each to be paid by the

Respondent-State.