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2018 DIGILAW 331 (GAU)

K. Hmingthanzauvi v. State of Mizoram

2018-02-21

NELSON SAILO

body2018
JUDGMENT : N. Sailo, J. Heard Mr. A.R. Malhotra, the learned counsel for the writ petitioners. Also heard Mrs. Linda L. Fambawl, the learned Govt. Advocate appearing for the respondent Nos. 1 to 4. Mr. C. Lalfakzuala, the learned counsel appears for the respondent Nos. 5, 7, 8, 10, 12 to 81. 2. None appears for the respondent Nos. 6, 9 & 11 despite notice. 3. The case was heard at length on 19.02.2018 on which date the respondent Nos. 6, 9 & 11 failed to appear. Therefore, notice was deemed served upon the said respondents. 4. The case has been fixed for delivery of order today and therefore, the same is being disposed of in the following manner. 5. Basic facts for disposal of the instant writ petition may be noticed at the outset. The respondent authorities initially constituted the Teachers Training Institute at Aizawl and Lunglei. The two Teachers Training Institute were upgraded to District Institute of Education & Training (DIET) vide Notifications dated 30.12.1988 and 04.02.1993 respectively. The State respondents in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India framed the Mizoram Education & Human Resources Development Department (Group 'A' post) Recruitment Rules, 1999 (hereinafter referred to as 'Rules of 1999'). The Rules of 1999 provide for recruitment to the post of Principal, Vice Principal/Senior Lecturer and Lecturer under DIET. Recruitment to the post of Lecturer, DIET is 100% by promotion, failing which by direct recruitment and failing both the method, recruitment by transfer on deputation. 50% of the post is to be filled up by promotion from Headmaster, Government Middle Schools and Teachers of Government Schools having the requisite qualification prescribed for direct recruits i.e. at least second class Master Degree with B.Ed/B.T having the working knowledge of Mizo Language up to Middle School standard with less than 5 years of service in the grade. The remaining 50% promotion to the post is to be made from Officers of State Council for Education Research & Training (SCERT) and DIET having the pay scale of Rs. 2000 - 3500/- per month having the requisite qualification prescribed for direct recruit with 5 years of regular services in the grade. 6. Pursuant to the recommendation of the Mizoram Public Service Commission (MPSC) and in terms of the Rules of 1999, the petitioner Nos. 2000 - 3500/- per month having the requisite qualification prescribed for direct recruit with 5 years of regular services in the grade. 6. Pursuant to the recommendation of the Mizoram Public Service Commission (MPSC) and in terms of the Rules of 1999, the petitioner Nos. 1 to 4 who were serving as Headmasters of the Government Middle School and Teachers of Government Schools were promoted to the post of Lecturer, DIET vide Notification dated 13.07.2007. Likewise, the petitioner Nos. 5 to 10 were recommended for appointment to the post of Lecturer, DIET by the Special Recruitment Board which held the selection process between 29th to 31st March, 2007 in terms of the Rules of 1999. Accordingly, the petitioner Nos. 5 to 9 were appointed vide Notification dated 13.07.2007 while the petitioner No. 10 was appointed vide Notification dated 30.07.2007. In respect of the petitioner Nos. 11 to 15, pursuant to the recommendation of the MPSC which held its meeting on 04.09.2008, they were promoted to the post of Lecturer, DIET vide Notification dated 08.10.2008. 7. It may by noted at this stage that the State respondents created 150 posts of various categories for setting up of 6 new Telescopic DIETs/District Resource Centers (DRCs) in the Districts of Champhai, Lawngtlai, Kolasib, Serchhip, Saiha and Mamit under the Centrally Sponsored Scheme of Restructuring and Re-organisation of Teacher Education vide communication made to the respondent No. 4 by the respondent No. 2 dated 20.05.2004. It was also indicated in the communication that the incumbents recruited against each post will be on temporary basis for a period of 3 years or till the validity of the project. The 150 temporary posts created included 66 posts of Lecturer in Teacher Education, 6 posts of Lecturer in Education Technology and 6 posts of Lecturer in Planning & Management amongst others. Consequently, an advertisement for filling up the posts of Lecturer was floated on 13.01.2005 for the 6 new Telescopic DIETs/DRCs. The private respondents responded to the advertisement and consequently, selection was conducted by a Special Recruitment Board which held its meeting between 20.06.2005 to 22.06.2005. The Special Recruitment Board recommended the private respondent Nos. 5 to 64 for appointment to the post of Lecturer under the newly establishment Telescopic DIETs/DRCs under the Centrally Sponsored Scheme vide Notification dated 02.09.2005. The private respondents responded to the advertisement and consequently, selection was conducted by a Special Recruitment Board which held its meeting between 20.06.2005 to 22.06.2005. The Special Recruitment Board recommended the private respondent Nos. 5 to 64 for appointment to the post of Lecturer under the newly establishment Telescopic DIETs/DRCs under the Centrally Sponsored Scheme vide Notification dated 02.09.2005. The appointment notification also indicated that the appointment was made strictly on Coterminus basis by the Centrally Sponsored Scheme. The private respondent Nos. 65 to 70 were appointed in a similar manner vide Notification dated 23.09.2005 while the private respondent Nos. 71 and 72 were appointed vide Notification dated 29.09.2005. The private respondent Nos. 73 and 74 were also appointed vide Notification dated 07.06.2006 and 29.03.2007 respectively. Likewise, the private respondent Nos. 75 to 80 & 81 were appointed as Lecturer in the DRCs pursuant to the recommendation of the Special Recruitment Board which held its meeting on 9th and 11th June, 2008. Pursuant to the recommendation of the Special Recruitment Board which held its meeting on July, 2008 and the appointment orders were issued vide Notifications dated 17.07.2008 and 21.08.2008. 8. The State respondents vide Notification dated 09.11.2010 published the inter se seniority list of Lecturers of DIET of Aizawl and Lunglei in a combined manner, wherein as many as 29 incumbents serving as Lecturer in both the DIETs have been included. The State respondents thereafter, consequence upon the recommendation of the Teacher Education Approval Board which held its 5th meeting on 29.12.2012 at New Delhi, upgraded the existing 6 Telescopic DIETs/DRCs in the 6 Districts to a full fledged DIET with immediate effect vide Notification dated 15.04.2013. Consequent upon the upgradation of the 6 Telescopic DIETs/DRCs, the State respondents published a common inter se seniority of Lecturer of DIET of Aizawl and Lunglei as well as the 6 other DIET’s vide Notification dated 08.06.2015. The private respondents having been engaged earlier to the writ petitioners, they were placed senior to the petitioners in the provisional common inter se seniority list. Being aggrieved with the provisional common inter se seniority list, the petitioners submitted their representations against the common inter se seniority list of Lecturers of DIET, which was provisionally fixed vide Notification dated 08.06.2015. The petitioners have annexed one such representation of the petitioner No. 10 in the writ petitions as Annexure-30. Being aggrieved with the provisional common inter se seniority list, the petitioners submitted their representations against the common inter se seniority list of Lecturers of DIET, which was provisionally fixed vide Notification dated 08.06.2015. The petitioners have annexed one such representation of the petitioner No. 10 in the writ petitions as Annexure-30. In the said representation, the petitioner No. 10 contended that the Telescopic DIETs/DRCs were upgraded to a full fledged DIET only in the year 2013 and against the post of Senior Lecturers of DIET, the Lecturers of Telescopic DIETs/DRCs were never in the feeder post and furthermore, the Telescopic DIETs/DRCs did have the post of Senior Lecturer and therefore, the private respondents could have been placed above the petitioners in the common inter se seniority list which was fixed provisionally. The State respondents thereafter finalized the common inter se seniority list of Lecturers of DIET vide Notification dated 10.06.2016 but placing the private respondents above the petitioners in the inter se seniority list in terms of the provisional inter se seniority list that was drawn earlier on 08.06.2015. As a result, the petitioners being aggrieved have approached this Court by way of the instant writ petition. 9. Appearing for the petitioners, Mr. A.R. Malhotra, the learned counsel submits that there was only two Teachers Training Institute initially, one in Aizawl and the other in Lunglei. The Teachers Training Institute at Aizawl was upgraded to DIET on 30.12.1988 while the Teachers Training Institute at Lunglei was upgraded to DIET on 04.02.1993. He submits that all the petitioners were either promoted or appointed to the DIET at Aizawl and Lunglei in terms of the Rules of 1999 after being screened by the duly constituted Selection Committee. In case of the private respondents, they were engaged temporary under the post created for the new Telescopic DIETs/DRCs in the Districts of Champhai, Lawngtlai, Kolasib, Serchhip, Saiha and Mamit. The private respondents were selected and appointed through the Special Recruitment Board constituted by the State Government for the purpose and dehors the Rules of 1999. Although they were engaged for a period of 3 years initially and co-terminus with the Centrally Sponsored Scheme, the private respondents have continued in their respective posts since their initial engagement. The private respondents were selected and appointed through the Special Recruitment Board constituted by the State Government for the purpose and dehors the Rules of 1999. Although they were engaged for a period of 3 years initially and co-terminus with the Centrally Sponsored Scheme, the private respondents have continued in their respective posts since their initial engagement. He submits that the Rules of 1999 was partially amended by the Mizoram Education & Human Resources Development Department (Group 'A' post) Recruitment (First Amendment) Rules, 2006 (Amended Rules of 2006) whereby an amendment was effected by inclusion of Telescopic DIETs/DRCs by including the post of Lecturer Telescopic DIET against Column-1 of Annexure-1 of the Rules of 1999. The amended Rules of 2006 also added 108 posts of Lecturer, DIETs/DRCs compared to the earlier 30 sanctioned posts provided by the Rules of 1999. 10. Mr. A.R. Malhotra submits that the private respondent Nos. 5 to 74 were in fact appointed prior to the framing of the amended Rules of 2006, while the private respondent Nos. 75 to 81 were engaged after the amended Rules of 2006 came into force. By referring to the Minutes of the Special Recruitment Board constituted which considered the case of the private respondent Nos. 75 to 80 & 81 vide Meeting Minutes dated 9th and 11th June 2008, he submits that the Special Recruitment Board clearly did take into consideration either the Rules of 1999 or the amended Rules of 2006, while considering their appointments as Lecturer of DIET. He also submits that appointment to the post of Lecturer, DIET is to be made by promotion and in absence of eligible candidate, direct recruitment can be resorted to after relaxation of the Rules. But however, a perusal of the Minutes of the Special Recruitment Board does indicate anywhere that the Rules had been relaxed for resorting to direct recruitment by which the private respondents came to be engaged. 11. Mr. A.R. Malhotra further submits that pursuant to the framing of the amended Rules of 2006, the engagement of the private respondents have been regularized as per the Recruitment Rules and further, the Telescopic DIETs/DRCs have only been upgraded to a full fledged DIET vide Notification dated 15.04.2013 and therefore, the petitioners appointed against the DIET of the Aizawl and Lunglei cannot have a common inter se seniority list with the upgraded Telescopic DIETs/DRCs. Even if a common inter se seniority list is to be drawn between the Lecturers of DIET of Aizawl and Lunglei and DIETs of 6 Telescopic/DRCs, the private respondents cannot be placed above the petitioners as has been done in the provisional as well as the common inter se seniority list of Lecturers of DIET. He submits that the engagement of the private respondents are dehors the Rules of 1999 as well as the amended Rules of 2006. He submits that the private respondents can only be considered as Lecturers of DIET if their appointments are either regularized in terms of the amended Rules of 2006 or upon the upgradation of the 6 Telescopic DIETs/DRCs in the year 2013. The provisional seniority list as well as the final inter se seniority list drawn commonly between the Lecturers of DIET of Aizawl and Lunglei and 6 Telescopic DIETs/DRCs cannot therefore be sustained, inasmuch as, the private respondents cannot have their seniority even before they were born in the cadre of Lecturers of DIET. In this connection, he relies upon the decision of the Apex Court rendered in the case of Keshav Chandra Joshi & Ors v. Union of India & Ors, 1992 Supp (1) SCC 272 and in the case of Amarjeet Singh & Ors v. Devi Ratan & Ors, (2010) 1 SCC 417 . 12. By referring to the case of Keshav Chandra Joshi & Ors (Supra), Mr. A.R. Malhotra submits that the pre-requisite of the right to inclusion in a common list of seniority is that all those who claim that right must broadly bear the same characteristics. Fortuitous circumstances of their holding the created post carrying the same distinction of scale of pay or discharging the same duty would justify the conclusion that they belonged to the same cadre. By applying the said ratio, he submits that the private respondents have never been regularized in terms of the Rules of 1999 as well as the amended Rules of 2006 and moreover, the Telescopic DIETs/DRCs were only upgraded to a full fledged DIET in the year 2013 and therefore, the services of the petitioners and the private respondents do bear the same characteristics. Although, the private respondents may have been engaged prior to the petitioners but their services in the post of Lecturer, DIET will have to be counted only after their regularization as per the Rules of 2006 or the upgradation of the Telescopic DIETs/DRCs to DIET. Again by referring to the case of the Amarjeet Singh & Others (Supra), Mr. A.R. Malhotra submits that the Apex Court has clearly held that an Officer cannot be granted seniority prior to his birth in the cadre. He submits that the private respondents similarly were only born in the cadre of Lecturer of DIET after the Telescopic DIETs/DRCs were upgraded to a full fledged DIET in the year 2013. He therefore submits that the impugned final inter se seniority list is therefore, wholly unsustainable calling for the interference of this Court by directing the respondent authorities to place the petitioners above the private respondents. 13. Mrs. Linda L. Fambawl, the learned Govt. Advocate appearing for the respondent Nos. 1 to 4 by referring to the affidavit-in-opposition filed on 28.11.2016 submits that pursuant to Paragraph 2.6.3 (ii) of the Teachers Education Guidelines, 1999 and under the revised Teachers Education Scheme during the 10th Plan period 2002-2007, the State respondents set up the Telescopic structure of DIET in the Districts of Champhai, Lawngtlai, Kolasib, Serchhip, Saiha and Mamit vide Notification dated 20.05.2003 where the Elementary Teacher Population of a district was less than 2,500. She submits that nevertheless, the newly established 6 Telescopic DIET were so designed and expected to function in all academic branches as a normal DIET but only with the reduced number of Lecturers and Staff corresponding to teachers population in the District. The Telescopic DIETs were created with only three years remaining within the 10th Five Year Plan 2002-2007 and in a temporary manner initially, similar to Aizawl and Lunglei DIET under the Centrally Sponsored Scheme. She submits that in order to fill up the post of Lecturers and under the newly established 6 Telescopic DIETs, the State Government instead of resorting to filling up such post by way of promotion decided to relax the existing Rules of 1999 and decided to fill up the post of Lecturers by way of direct recruitment. She submits that in order to fill up the post of Lecturers and under the newly established 6 Telescopic DIETs, the State Government instead of resorting to filling up such post by way of promotion decided to relax the existing Rules of 1999 and decided to fill up the post of Lecturers by way of direct recruitment. By referring to the Memorandum of Understanding reached between the Central and the State Government, more particularly at Paragraph 2.2.3 of the said Memorandum, she submits that there is a provision for creation of a separate cadre for DIET and SCERT as one cadre and College of Teachers Education (CTE) and Institutes of Advanced Study in Education (IASE) as the other. Accordingly, to the State respondents created a common cadre of Teachers Educator comprising of Lecturers in DIETs and Telescopic DIETs which was notified vide Notification dated 29.03.2006 in the form of the Rules of 2006. Therefore, Lecturers of DIETs and Telescopic DIETs form a common cadre w.e.f. the Rules of 2006 coming into force. She thus submits that there is nothing wrong with the fixation of common inter se seniority between the Lecturers of DIET at Aizawl and Lunglei and the newly 6 Telescopic DIETs/DRCs which was ultimately made a full fledged DIET from the year 2013. 14. Mr. C. Lalfakzuala, the learned counsel appearing for the private respondents besides the respondent Nos. 6, 9 and 11, adopts the submission made by the learned Government Advocate. He submits that the private respondents concerned have filed their affidavit-in-opposition on 03.11.2016 which may be referred to apart from the affidavit-in-opposition filed by the State respondents. He submits that the Government of India in the Ministry of Human Resources Development (Department of Elementary Education and Literacy) has formulated the guidelines in January, 2004, wherein the role and function of DIET have been provided at paragraph 3.1 of the said guidelines. He submits that DIET are meant to be nodal institution for improving quality of elementary education in the Districts although the teacher education scheme and research establishment of one DIET for every District, there are however certain small Districts in the country which do require a full fledged DIET but at the same time cannot be served effectively by DIET of a neighbouring District. Therefore, Telescopic DIETs also called as DRCs has been set up to strengthen the causes for elementary teacher and to adequately equipped them to teach the upper primary level. He submits that there is no distinction between the DIET and DRCs except that the DRCs do undertake pre-service education courses. 15. By referring to paragraph 3.2 of the guidelines, he submits that the structure of DIET and DRCs are left to the State. In line with the said guidelines, a Memorandum of Understanding between the Centre and the State was reached wherein the vacancies to the post of DIET was to be filled up through a Special Recruitment Board constituted by the State Government. He therefore submits that upon the creation of the 150 posts of various categories for the newly created 6 Telescopic DIETs/DRCs, the State Government issued an advertisement on 13.01.2005, which was responded to by the respondent Nos. 5 to 74 and consequently they were engaged as Lecturer in the newly established Telescopic DIETs/DRCs vide notification dated 02.09.2005. Similarly, the respondent Nos. 65 to 70 were engaged vide notification dated 23.09.2005 and the respondent Nos. 71 to 72 on 29.09.2005, the respondent No. 73 vide notification dated 07.06.2006, the respondent No. 74 vide notification dated 29.03.2007, the respondent Nos. 75 to 80 vide notification dated 17.07.2008 and the respondent No. 81 vide notification dated 21.08.2008. 16. Mr. C. Lalfakzuala, the learned counsel submits that the private respondents concerned have every right to be given their seniority from their initial appointment to the post of Lecturer under the Telescopic DIETs/DRCs inasmuch as they have been selected as such pursuant to an advertisement and recruitment process undertaken by the Special Recruitment Board. He also submits that the Amended Rules of 2006 clearly includes Telescopic DIET Lecturers apart from Lecturer, DIET which clearly goes to show that they both are in the same cadre. He further submits that there is no provision with regard to drawing of inter se seniority in the Rules of 1999 as well as in the Amended Rules of 2006 and therefore, in the absence of any such expressed provisions for drawing seniority, the general criteria for fixation of seniority have to be followed i.e. length of service in the post concerned. He submits admittedly a majority of the private respondents have been appointed to the post of Lecturers under the Telescopic DIETs/DRCs and therefore, with the framing of the Rules of 2006 and the upgradation of the Telescopic DIETs/DRCs into a full fledged DIET in the year 2013, seniority of the private respondents have been rightly reckoned from the date of their initial appointments in both the provisional common inter se seniority list as well as the final inter se seniority list of Lecturers of DIET. 17. Mr. C. Lalfakzuala in support of his submission with regard to fixation of seniority has relied upon the decision of the Apex Court rendered in the case of Vasant Kumar Jaiswal v. State of Madhya Pradesh, (1987) 4 SCC 450 as well as in the case of Desoola Rama Rao and Another v. State of Andhra Pradesh and Others, 1988 (Supp) SCC 221. By referring to the said two decisions of the Apex Court, Mr. C. Lalfakzuala submits that the Apex Court has clearly laid down the law with regard to fixation of determination of seniority in a grade by holding that in the absence of any statutory rule or executive memorandum or order laying down the rules of determination of seniority in a grade, the normal rule applicable would be to determine the seniority on the basis of length of service. He, therefore, submits that even in the instant case since the Rules of 1999 and the Amended Rules of 2006 do provide any criteria for fixation of seniority of Lecturer of DIET, the normal rules of seniority as held by the Apex Court has to be applied. 18. The State respondents, therefore, have rightly determined that the common inter se seniority list by adopting the said method. In that view of the matter, he submits that the writ petition should be dismissed. 19. I have considered the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record. 20. What emerges from the pleaded case of the rival parties is with regard to fixation of seniority. The point for consideration is whether the private respondents can count their seniority in the post of Lecturers of DIET w.e.f. their initial date of engagement to their respective posts and whether such appointments made can be considered as appointments made in the cadre of Lecturer, DIET. 21. The point for consideration is whether the private respondents can count their seniority in the post of Lecturers of DIET w.e.f. their initial date of engagement to their respective posts and whether such appointments made can be considered as appointments made in the cadre of Lecturer, DIET. 21. For the purpose of convenience, the second issue may be taken up first. As may be noticed, the State Government in the Education and Human Resources Development Department (School Education) created 150 posts of various categories for the newly established 6 new Telescopic DIETs/DRCs. Amongst the new created posts, the post of Lecturers were also created. In terms of the Memorandum of Understanding reached by the Centre and the State Government, the post of Lecturers in the Telescopic DIETs/DRCs was decided to be filled up through a selection process to be conducted by the Special Recruitment Board. 22. A perusal of the selection process vide its Meeting Minutes held by the Special Recruitment Board nowhere indicates the criteria laid down for such recruitment. It may also be noticed that Special Recruitment Board also did make any mention about the Rules of 1999 as well as the Amended Rules of 2006. It may also further be noticed that the advertisement for recruitment to the post of Lecturer for the Telescopic DIETs/DRCs also do make any mention about the criteria to be adopted except the mention that the applicants should submit alongwith their applications attested copy of certificates and mark sheets of their educational qualification from HSLC onwards. The Rules of 1999 amongst others provided for the post of Lecturer, DIET which is to be filled up 100% by promotion and failing which by direct recruitment and failing both, by transfer on deputation. A perusal of the Minutes of the Special Recruitment Board which held its Meetings on 20.06.2005 and 22.06.2005 would indicate that the recruitment was being made against the posts which were created by the State Government vide notification dated 20.05.2005 with the concurrence of the Finance Department and also in terms of the Memorandum of Understanding executed between the State and the Central Government. The said recruitment appears to be a special recruitment drive through the Special Recruitment Board. However, apart from the concurrence given by the Department concerned, it may be noticed that resorting to the Rules of 1999 is to be seen. The said recruitment appears to be a special recruitment drive through the Special Recruitment Board. However, apart from the concurrence given by the Department concerned, it may be noticed that resorting to the Rules of 1999 is to be seen. It may further be noticed that the Rules of 2006 came to be notified in the Mizoram Gazette dated 05.04.2006 and on which date the said Rules came to be in force. The Amended Rules of 2006 has included the post of Telescopic DIET Lecturers alongwith the Lecturers of DIET in the Schedule appended to Rules of 1999 as annexure-1. It may also be noticed that the sanctioned strength of Lecturers have also been increased. However, besides the inclusion of the Lecturers of Telescopic DIETs/DRCs by the Rules of 2006, the subsequent selection made after the framing of the Rules of 2006 also do find any mention about the application of the Rules of 1999 or the Amended Rules of 2006 in the process for appointing the private respondents as Lecturers. Therefore, although the private respondents may have been selected by the Special Selection Board constituted by the Government but nevertheless, what can be noticed is that their selection and appointments are only dehors the Rules of 1999 as well as the Amended Rules of 2006. Although their appointments have been made co-terminus with the Centrally Sponsored Scheme for initially 3 years, the private respondents have continued as such till date since the Scheme has continued. 23. Now coming to the first issue, what is now to be considered is as to whether the private respondents can count their seniority from the respective dates of their initial engagement to the post of Lecturers. As can be seen, the Amended Rules of 2006 for the first time included the post of Lecturers of the Telescopic DIETs/DRCs. Furthermore, as vide notification dated 15.04.2013, the 6 Telescopic DIETs/DRCs were upgraded to full fledged DIET with immediate effect and following which a common inter se seniority list was published by the State respondents. From a perusal of the appointment of the petitioners as Lecturer of DIET on one side and the engagement of the private respondents as Lecturer of DRCs, it can be noticed that there are clear distinction. From a perusal of the appointment of the petitioners as Lecturer of DIET on one side and the engagement of the private respondents as Lecturer of DRCs, it can be noticed that there are clear distinction. While the petitioners have been considered for their appointment by resorting to the Rules of 1999 or the Amended Rules of 2006, the private respondents on the other hand have been selected and appointed or engaged to be Lecturers of DRCs through the Special Recruitment Board without resorting to any particular recruitment rules. Furthermore, the 6 DRCs have only been upgraded w.e.f. 15.04.2013 to a full fledged DIET and therefore upon such up-gradation, the basic requirement before drawing up a common inter se seniority list would be encadrement of the Lecturer of DRCs to Lecturer of DIET. However, without resorting to any such procedures, the respondent authorities have drawn up the provisional inter se seniority list between the Lecturers of the two groups in a common fashion. No doubt, there is no argument with regard to the law laid down by the Apex Court in Vasant Kumar Jaiswal (Supra) and Desoola Rama Rao and Another (Supra) referred to by the learned counsel for the private respondents, but the fact remains that the said criteria for drawing up seniority can only be applied when there are no disputes with regard to the nature of appointment and the status of the employee concerned in the cadre. 24. In the present case as may be noticed, most of the private respondents although appointed at earlier point of time, their appointments have been routed through the Rules of 1999 and the subsequent Amended Rules of 2006 and therefore, the criteria of drawing seniority on the basis of length of service cannot be applied. 25. The Apex Court in the case of Keshab Chandra Joshi and others (Supra) has clearly observed that the prerequisite for inclusion in the common inter se seniority list is that those who claim to be a part of such common inter se list should bear the same characteristics. As already noticed, the appointment of the petitioners on one side and appointment of the private respondents on the other hand do appear to have similar characteristic so as to gave the private respondents the benefit of counting their seniority in the post of Lecturer, DIET from their initial engagement. As already noticed, the appointment of the petitioners on one side and appointment of the private respondents on the other hand do appear to have similar characteristic so as to gave the private respondents the benefit of counting their seniority in the post of Lecturer, DIET from their initial engagement. As observed by the Apex Court in the Amarjeet Singh and Others (Supra), one cannot have the claim for seniority prior to being born in the cadre. The private respondents in the instant case have found themselves to be treated as Lecturers of DIET only with the framing of the Amended Rules of 2006 and thereafter, with the up-gradation of the DRCs to a full fledged DIET in the year 2013. Therefore, the criteria being adopted in drawing the final inter se seniority list dated 10.06.2016 by giving the private respondents the benefit of counting their services right from the date of their initial engagements cannot be sustained. 26. In that view of the matter, the impugned seniority list dated 10.06.2016 is hereby set aside. 27. The State respondents shall now redraw the seniority list of Lecturers DIET in terms of the observations made above within a period of 3 (three) months from the date of receipt of a certified copy of this order. 28. With the above observations and directions, the writ petition stands allowed. No cost.