L. Chandrakishore Singh vs State of Manipur and Ors.

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1997 Supreme(Gau) 205

GAUHATI HIGH COURT
H.K.Sema, J.
L.Chandrakishore Singh -Appellant
Versus
State of Manipur and Ors. -Respondent
Civil Rule No. 166 of 1990
Decided On : 18-09-1997

Important Points

An officiating appointment for over a decade cannot be treated as a fleeting appointment with no service benefits, and the officiating period should be counted towards the incumbent's seniority.

Subject

Service Law - SENIORITY

Act Referred

MANIPUR POLICE SERVICE RULES : R.5(b)(1)

Headnote

MANIPUR POLICE SERVICE - SENIORITY - REGULARISATION OF OFFICIATING APPOINTMENT - INTERPRETATION OF RULES - EFFECT OF OFFICiATING PERIOD ON SENIORITY - APPLICABILITY OF DANI RULES - FIXING OF SENIORITY BASED ON CONFIRMATION DEPRECATED.

Fact of the Case:

Petitioner, a Manipur Police officer, challenged the non-regularisation of his continued officiating service from 12.10.1983 while regularising his service to the post of Manipur Police Service (MPS) (Junior Grade) by an order dated 16.8.1989. He argued that the officiating appointment was made on the recommendation of a duly constituted Departmental Promotion Committee (DPC) and no second DPC was required for regularising his officiating appointment.

Finding of the Court:

The court held that the officiating appointment of the petitioner was made in accordance with Rule 24 of the Manipur Police Service Rules, 1965 (Rules), which is in pari materia with the Delhi and Andaman and Nicobar Islands Police Service Rules, 1971 (DANI Rules). The court relied on the Supreme Court's decision in Union of India & another vs. Harish Chander Bhatia & others, which held that an officiating appointment for over a decade cannot be treated as a fleeting appointment with no service benefits. The court also held that the fixing of seniority based on confirmation of service is deprecated, as per the Supreme Court's decision in SB Patwardhan & another vs. State of Maharashtra & others.

Issues: 1. Whether the officiating appointment of the petitioner was made in accordance with the Rules? 2. Whether the officiating period should be counted towards the petitioner's seniority? 3. Whether the seniority of the petitioner should be fixed based on the date of his confirmation?

Ratio Decidendi: 1. The court held that the officiating appointment of the petitioner was made in accordance with Rule 24 of the Rules, which is in pari materia with the DANI Rules. The court relied on the Supreme Court's decision in Union of India & another vs. Harish Chander Bhatia & others, which held that an officiating appointment for over a decade cannot be treated as a fleeting appointment with no service benefits. 2. The court held that the officiating period should be counted towards the petitioner's seniority. The court relied on the Supreme Court's decision in Direct Recruit Class II Engineering Officers' Association, vs. State of Maharashtra & others, which held that 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. 3. The court held that the seniority of the petitioner should not be fixed based on the date of his confirmation, as per the Supreme Court's decision in SB Patwardhan & another vs. State of Maharashtra & others.

Final Decision: The court allowed the petition and directed the respondents to treat the date of officiating appointment of the petitioner as the date of his regular appointment and refix his seniority accordingly. The court also set aside the seniority list published under Rule 28 of the Rules and the impugned order dated 16.8.1989.

Advocates Appeared:
T.Nandakumar Singh, N.P.C.Singh, B.P.Sahu, A.Nilamani Singh

Petitioner is stated to be having a distinguish service records in combating the undergrounds/extremists and also has earned many meritorious awards of the Govt. of Manipur as well as the Govt. of India in recognition of his service, because of his honest and courageous service, earned many medals including President's Police Medal. Chief Minister's Police Medals etc. He is also a Science graduate and also completed Diploma course in Ballistics and Orientation course in Forensic Science.

2. Petitioner joined the Manipur Police on 16.8.69 as Sub-Inspector. Thereafter, on the recommendation of Manipur Public Service Commission (MPSC) vide letter dated 3rd June, 1980. he was promoted to the post of Inspector of Police along with others on regular basis wef 3.6.1980. Thereafter, the petitioner along with others were appointed to the Manipur Police Service (MPS) on officiating basis by an order dated 12.10.1983. From the order dated 12.10.1983 (Annexure II), it appear that the power has been exercised under Rule 24 of the Manipur Police Service Rules, 1965 (in short the Rules).

3. In 1987, the case of the petitioner was further considered by DPC in its meeting held on 24.3.87 and recommended the case of the petitioner along with others on short term vacancies. In the DPC held on 26, 27 and 28th April 1989. the petitioner's case was again considered and he was recommended along with others for appointment on promotion to the Manipur Police Service Grade II on regular basis. Pursuant to the recommendation of DPC held in 1989, the petitioner along with others have been promoted to the MPS (Junior Grade) with immediate effect by an order dated 16.8.89. Being aggrieved, the present petition has been filed.

4. I have heard Mr. A. Nilamani Singh and Mr. T. Nandakumar for the petitioner. Mr. NPC Singh for the respondent Nos.l to 4, 6,1, 9, 21, 23, 24 and 25. Mr. BP Sahu for the respondent Nos. 18, 19 and 22. The private respondent Nos.7, 20. 23, 24 and 25 have filed counter. At the time of hearing, the aforesaid respondents have adopted the argument of the learned counsel Mr. NPC Singh for the respondents 1 to 3. Private respondents', 19 and 22 have not filed any counter. However, they have adopted the argument of the respondents 1 to 3.

5. The main contention of the petitioner is that, non regularisation of continued officiation service wef 12.10.83 while regularising the service of the petitioner to the post of MPS (Junior Grade) by an order dated 16.8.89 has caused great injustice to the petitioner.

6. The following contentions have been raised by Mr. A. Nilamani Singh.

(a) That the officiating appointment was made on the recommendation of duly constituted DPC,- and therefore, no second DPC is required for regularising the petitioner's officiating appointment as has been done in the instant case. In this connection, counsel has referred to the decision of the Apex Court in SS Grover & another vs. Union of India, 1987 (2) SLR 423 and Mohenlal & others vs. Union of India, 11 (1987) ATLT 108.

(b) In absence of Rules, the length of service is the basic criteria for fixing seniority of the incumbent, because ordinarily the seniority of the incumbent would depend upon the length of service. In this connection, the counsel has referred to the decision of the Apex Court rendered in : (a) A. Janardhan vs. Union of India, AIR 1983 SC 169; (b) PS Mahal vs. Union of India, AIR 1984 SC 1291; (c) Dr. Amritlal Singh vs. State of Punjab, AIR 1975 SC 984; (d) SB Patwardhan vs. State of Maharashtra, AIR 1977 SC 2051 and (e) GS Ramaswamy vs. Inspector General of Police, AIR 1966 SC 175.

(c) The continuous and uninterrupted officiation confers claim of seniority. Reference was made to; (i) SS Grover & others vs. Union of India, 1987 (2) SLR 423. The respondents had arbitrarily cut-off the petitioner's continuous, uninterrupted a long officiating service as MPS officer of more than 6 years while regularising the petitioner's officiating appointment.

(d) The substant