Important Point
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.

Headnote:Service Law - Seniority-Manipur Police Service Rules, 1965-Rules 5(1)(b) 14, 16 and 24-Appellant was appointed on promotion as Inspector of police in exercise of power under Rule 24 on 12.10.1983 on regular basis until further orders-Subsequent order, in 1989, purported to be under Rule 5(1)(b) r/w Rule 16 appointing him on promotion in order of seniority w.e.f. 1985-Appellant was shown below direct recruits-Claim of respondent for regularisation of officiating appointment and counting of seniority from initial promotion - State Government’s stand that words ‘substantively’ borne on cadre of Inspector of police appearing in Rule 5(1)(b) means person whose promotion to post has been confirmed-Further plea that initial promotion was on two years probation-Pleas untenable - After Harish Chander Bhatia’s case, 1992(2) SCC 48 State estopped from saying that officiating appointment was temporary appointment-Nothing on record to show initial promotion was on probation for two years-Police officers belonging to service who had continuous, uninterrupted meritorious officiating service are entitled to benefit to be counted same towards their seniority.
       Held : Seniority itself based upon length of service is an acquired right of an 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. (Para 12)
       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. (Para 13)
       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 deals with method of recruitment. 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. (Para 8)
       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 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. 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. (Para 9)
       The Respondent-State has submitted that since the enforcement of the MPS Rules in 1965, the State Government 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. 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 under the Rules which are clear, specific and unambiguous. (Para 10)
       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. 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. 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 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. (Paras 11, 14 & 16)

Judgment

Sethi, J.-Leave granted.

2. 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. v. Harish Chander Bhatia & Ors.1 , needs also to be ascertained. The rival contentions are required to be adjudicated on comparative study of the Delhi & Andaman & Nicobar lsland Police Service Rules, 1971 (hereinafter referred to as “DANI Rules”) and the MPS Rules.

3. 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, 1980 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-1) 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 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

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1999 Supreme(SC) 1146

Cases Referred (4)