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Meghalaya High Court · body

2020 DIGILAW 30 (MEG)

Dokimos D. Marwein v. State of Meghalaya

2020-09-14

WANLURA DIENGDOH

body2020
JUDGMENT : Wanlura Diengdoh, J. 1. In response to an advertisement dated 10.02.2010 issued by the Meghalaya Public Service Commission (MPSC) inviting applications from eligible candidates to fill up 23 (twenty-three) posts of Inspector of Excise under the Commissioner of Excise, the petitioner herein submitted his candidature for the same. 2. The petitioner then appeared for the written test on 07.07.2012 conducted by the MPSC and on declaration of the results vide Notification No. MPSC/Ex-C/20/2011-2012/11, dated 31st July, 2012, the petitioner (Roll No. 498) was declared successful in the written test. 3. Thereafter, the petitioner was called to appear for the personal interview which was held on the 29th and 30th August 2012. Then vide Notification No. MPSC/D-19/1/2009-2010/118 dated 30th August 2012, the MSPC circulated a list of 23 successful candidates in order of merit in which the petitioner figured at number 2(two) of the same. 4. Pursuant to the said result issued by the MPSC, the Government of Meghalaya, Excise, Registration, Taxation & Stamps Department issued Notification No. ERTS (E) 69/2003/195, dated 8th January, 2013 appointing the selected 23 (twenty-three) candidates in the post of Inspector of Excise. 5. According to the petitioner, being a direct recruit Inspector of Excise, a probation period of 2(two) years is required to be undergone and to clear departmental examination conducted by the MPSC and departmental training, after which the Officers are then confirmed to the post of Inspector of Excise. The petitioner has accordingly completed the training and cleared the departmental examination in the year 2013, 2014 and 2016 respectively. 6. Vide Notification No ERTS(E)39/2002/Part/146, dated 22nd Dec, 2012, eight Officers were promoted to the cadre of Inspector of Excise against the post reserved for promotees. Thereafter, another Notification being No. ERTS(E) 1/2009/51, dated 20th December, 2013 was issued by the department, whereby another batch of 7(seven) officers were promoted as Inspector of Excise. 7. The petitioner has further stated that the Commissioner of Excise (Respondent No. 4) vide communication dated 24th October, 2013 circulated the draft gradation list in the cadre of Inspector of Excise wherein, the direct recruits of 2010 batch en-block were placed below the promotee Officers. The said gradation list was finalized vide No ERTS (E) 22/200l/pt/86, dated 07th May, 2014 finalising the same as on 01.01.2014. The said gradation list was finalized vide No ERTS (E) 22/200l/pt/86, dated 07th May, 2014 finalising the same as on 01.01.2014. The direct recruit batch of 2010 was again placed en-block below the promotee Officers, the petitioner figured at serial No. 24 in the list. 8. Again, after clearing the departmental examination, vide No. ERTS (E) 22/2001/pt/l 37 dated 10th July 2015 (Annexure-XI of the writ petition) the gradation list of Inspector of Excise Department as on 01.03.2015 was made final and duly circulated. Here too, the direct recruit batch of 2010 were placed below the promotee Officers. 9. The petitioner along with other direct recruits of 2010 batch submitted representation dated 23rd August, 2016 and again on 15th January, 2017 and another one on 27th March, 2017 raising objection to the fixing of the inter-se seniority of direct recruits of 2010 batch vis-a vis the promotee Inspectors of 2012 and 2013. 10. The respondents ignored the objection of the petitioner and issued the impugned final gradation list vide letter No ERTS(E) 22/200 l/Pt/171, dated 21st April 2017 as on 31.01.2017, where yet again, the direct recruits were placed en-block below the promotees. 11. According to the petitioner, the impugned inter-se seniority list has been prepared in violation of the principles laid down in the Office Memorandum of the Government of India, Department of Personnel & Training dated 07.02.1986 and 03.07.1986 and the Office Memorandum dated 04.03.2014 issued in view of the judgment of the Hon'ble Supreme Court. 12. Mr. U.K. Niar, learned Sr. counsel assisted by Mr. M.P. Sharma, learned counsel for the petitioner in his oral submission and written submission made before this Court has pointed out that the appointment to the post of Inspector of Excise is to be made in terms of Rule 7(1) of the Meghalaya Excise (Subordinate) Service Rules 2010, wherein two modes of recruitment has been prescribed, viz; (i) By promotion from amongst the Assistant Inspectors of Excise, who have rendered 5 years of service in such capacity on 1st day of the year in which selection is made, (ii) By direct recruitment. 13. 13. Rule 10(1) of the said Service Rules provides that, at the beginning of each year, the Appointing Authority shall refer to the Committee, constituted for the purpose, the approximate number of vacancies likely to occur in each grade of the service during the year and Rule 7(1)(c) makes it clear that the vacancies are to be apportioned on the 1st day of every year, but such select list pertaining to the year 01.01.2012, 01.01.2013 and 01.01.2014 have not been produced before this Court asserts the learned Sr. counsel for the petitioner. 14. Referring to the selection process for filling up the 23 post of Inspector of Excise under the referred advertisement issued by the MPSC, the learned Sr. counsel has submitted that the same was done under Rule 7(1) (b) of the said Meghalaya Excise (Subordinate) Service Rules, 2010 which provides for appointment by direct recruitment and the procedure followed was provided for under Rule 12 and Rule 12(4) which provides for preparation of the list according to merit. 15. The learned Sr. counsel has again referred to Rule 12(7) of the said Service Rules of 2010, which provides for right of appointment of the selected candidate only after the due enquiry is made by the Appointing Authority, but in the case of the petitioner, the State respondents on the pretext of enquiry, there was an administrative lapse and the appointment of the petitioner was delayed till 08.01.2013, when he was actually appointed to the post. 16. It was also submitted that Rule 19(1) and Rule 19(2) provides that inter-se seniority is to be in the order in which their names appear in the respective merit lists prepared by the Commission or in the select lists approved by the Commission which is to be understood as the list prepared on the first day of the year. Rule 19(2)(i) and Rule 19(2)(ii) will come only after application of Rule 19(2) and unless the merit list of the direct recruits and the select list of the promotees are of the same year against the vacancies arising thereof, Rule 19(2) (i) and 19(2)(ii) will not be applicable as is the case of select list of the petitioner, the same pertains to the vacancies of the year 2010 while the promotion list of the private respondents were admittedly for vacancies arising only subsequent to the year 2010. 17. 17. In this regard, the learned Sr. counsel has submitted that from the information gathered through RTI dated 18.10.2016, it becomes clear that on 08.01.2013 there is 'NIL' vacancy, which implies that as on 01.01.2013, there is no vacancy for appointment by promotion to the cadre of Inspector of Excise and as such, the appointment of 7(seven) incumbents to the post of Inspector of Excise on 20.12.2013 by promotion cannot by itself confer seniority to them if they were not found in the select list on 01.01.2013 and as such, the petitioner has to be placed above the respondent No. 13, 14, 15, 16, 17 and 18 in Gradation list dated 07.05.2014 and Gradation list dated 07.05.2014 in terms of Rule 7(1)(a) of the said Meghalaya Excise (Subordinate) Service Rules, 2010. 18. The learned Sr. counsel for the petitioner has referred to the case of Union of India & Ors. v. N.R. Parmar & Ors: MANU/SC/1022/2012 : (2012) 13 SCC 340 particularly paragraphs 31.2 and 34.1, but has candidly admitted that the petitioner is not relying on this judgment, but only to illustrate the principles of promotion as can be found in Rule 7 and Rule 19 of the said Service Rules of 2010. 19. Another authority cited by the learned Sr. counsel for the petitioner is the case of Dalilah Sojah v. State of Kerala & Ors: AIR 1999 SC 1529 to submit that the delay by the petitioner in approaching this Court was due to the fact that the confirmation of service of the petitioner was not affected in the year 2013, since he was on probation and as such, in view of the ratio of the case cited, the petitioner ought to be considered for seniority with effect from the year 2010 as compared to the private respondents who were appointed subsequently. 20. Finally, the learned Sr. counsel has submitted that the petitioner is senior to the respondent No. 13, 14, 15, 16, 17 and 18 in terms of the Rules holding the field and the petitioner is required to be assigned seniority over and above the said respondent No. 13-18 with all consequential benefits. 21. Mr. 20. Finally, the learned Sr. counsel has submitted that the petitioner is senior to the respondent No. 13, 14, 15, 16, 17 and 18 in terms of the Rules holding the field and the petitioner is required to be assigned seniority over and above the said respondent No. 13-18 with all consequential benefits. 21. Mr. K.P. Bhattacharjee, learned GA submitting on behalf of the State respondent No. 1-4 have admitted that the petitioner was declared successful for appointment as Inspector of Excise in response to Advertisement dated 10.02.2010 and that he was also appointed to the same vide Notification No ERTS (E)69/2003/195 dated 08.01.2013. 22. The learned GA has submitted that the petitioner has willingly accepted the appointment without any opposition since he has not challenged the Final Gradation List dated 07.05.2014 and suddenly after a period of four years in a pick and choose manner has challenged the Gradation List dated 21.04.2017 by contending that he should be placed above the private respondents herein in terms of seniority, the petitioner is therefore estopped/barred from doing so. 23. Referring to the Meghalaya Excise (Subordinate) Service Rules, 2010, the learned GA has submitted that the petitioner is guided by the said service rules which clearly specify that the inclusion of the name of a candidate in the merit list prepared by the Commission or Committee shall confer no right of appointment, unless the Appointing Authority is satisfied, after such enquiry as may be considered necessary, that the candidate is suitable for appointment to the post. In the case of the petitioner, mere inclusion in the select list published by the MPSC dated 30.08.2012 does not confer any legal or vested right to be considered for appointment and as to the petitioner's claim of seniority from the date of advertisement dated 10.02.2010 or from the date of recommendation dated 30.08.2012, his seniority cannot be considered or counted as his service is yet to be born, hence, his contention that he should be considered senior to the promotees who have been promoted by the Notifications dated 22.12.2012 and 20.12.2013 respectively does not hold water at all. 24. Coming to the issue of seniority, the learned GA has submitted that Rule 19, Sub-Rule (2) reads as follows: "19. 24. Coming to the issue of seniority, the learned GA has submitted that Rule 19, Sub-Rule (2) reads as follows: "19. Seniority-(2) The inter-se seniority of the members of the Service appointed to different posts in the service, after the commencement of these Rules, shall be in the order in which their names appear in the Merit List prepared by the Commission or by the Committee, as the case may be, under sub-rule (4) of Rule 13, or in the Select List approved by the Commission or by the Appointing Authority under sub-rule (7) of Rule 10 or sub-rule (4) of Rule 11. (i) Provided that the members of the service, who are appointed by promotion to any particular cadre in the service, shall be senior to the members appointed by direct recruitment to that particular cadre, where such appointment falls in the same year...." The petitioner having been appointed as direct recruit to the post of Inspector of Excise in the year 2013, that is, 08.01.2013, he is definitely junior to the promotees who were promoted to the post of Inspector of Excise on 22.12.2012 and also junior to those promoted on 20.12.2013, in the same calendar year. 25. It is again submitted that the petitioner not having challenged the vires of Rule 19(2) (i) of the aforementioned service rules, at this juncture, he cannot claimed to be exempted from the same and this has rendered his case as devoid of merit. 26. The learned GA then submitted that the reliance of the petitioner in the case of Union of India v. N.R. Parmar (supra) case cannot be accepted in the light of the findings of the Hon'ble Apex Court in the case of K. Meghachandra Singh v. Ningam Siro & Ors: as well as in the case of Jagdish Ch. Patnaik and others v. State of Orissa: (1998) 4 SCC 456 . 27. The learned Sr. counsel Dr. N. Mozika assisted by Mr. M.L. Nongpiur, learned counsel representing the private respondent No. 5-9, 11, 12, 14-18 has in his argument, submitted that respondent No. 5-12 were promoted to the post of Inspector of Excise on 22.12.2012 and as such, they are senior to the petitioner and not vice-versa. The respondent No. 13-18 were promoted to the post of Inspector of Excise on 20.12.2013. The petitioner was appointed as Inspector of Excise on 08.01.2013. 28. The respondent No. 13-18 were promoted to the post of Inspector of Excise on 20.12.2013. The petitioner was appointed as Inspector of Excise on 08.01.2013. 28. Going by the provision of Rule 19(2) (i) of the Meghalaya Excise (Subordinate) Service Rules, 2010, it is evident that the private respondents herein, as promotees in the year of 2012 and 2013 respectively, are senior to the petitioner who was appointed in the year 2013, submits the learned Sr. counsel for the private respondents. 29. Dr. Mozika has also resounded the submission made by the State respondents by reiterating that it is the prayer of the petitioner that the impugned Gradation List of Inspectors of Excise dated 31.01.2017 be set aside and quashed as the same was prepared in clear violation of the ratio laid down in the case of Union of India v. N.R. Parmar & Ors. (supra) and considering his recruitment year to that of 2010, to direct for preparation of a fresh Gradation List placing the petitioner accordingly, which does not stand the test of judicial and legal scrutiny in the light of the TV. R. Parmar case being overruled by a recent judgment of a larger bench of the Hon'ble Supreme Court in the case of K. Meghachandra (supra). 30. Dr. Mozika has also submitted that the petitioner has not challenged Rule 19(2), however in view of the judgment of the Hon'ble Apex Court in the case of Jagdish Ch. Patnaik v. State of Orissa: (1998) 4 SCC 456 , there is no legal infirmity in Rule 19(2) as the Hon'ble Apex Court dealing with a similar rule, in paragraph 32 referring to rule 26 of the said Rules in the said case has held that "...It merely states that during the calendar year direct recruits to the cadre of Assistant Engineer would be junior to the promotee recruits to the said cadre. It is not possible for the Court to import something which was not there in Rule 26 and thereby legislate a new Rule of Seniority..." and as such, there is no infirmity with the Gradation List dated 31.01.2017 as the same has been done in conformity with Rules laid down in the Meghalaya Excise (Subordinate) Service Rules, 2010. It is therefore submitted that this petition is devoid of merit and the same in liable to be dismissed. 31. It is therefore submitted that this petition is devoid of merit and the same in liable to be dismissed. 31. This Court having duly considered the submission and contentions of the parties, the factual aspect of the matter is not necessary to be repeated as the same was detailed above, what can be seen is that the petitioner has approached this Court being aggrieved by the publication of the Gradation List dated 31.01.2013, wherein he was placed below the private respondents herein, who were promotees of the relevant years, that is, 2012 and 2013. The earlier gradation list published for the cadre with effect from 24.01.2013 was also assailed. The sole contention of the petitioner being that the said gradation lists were prepared in clear violation of the ratio laid down in the N.R. Parmar case (supra). 32. The fact that the learned Sr. counsel for the petitioner has submitted at the bar that the said N.R. Parmer case (supra) does not survive, having duly acknowledged that the same has been overruled by the recent case of K. Meghachandra Singh (supra), has rendered this case infructuous as far as the prayer made in the petition is concerned. 33. Again, in contradiction of his own submission, the learned Sr. counsel for the petitioner has submitted that the principles of the N.R. Parmar case where seniority has been referred may be required to interpret Rule 19(2) (i) in the light of Rule 7 and Rule 12(7) of the said Meghalaya Excise (Subordinate) Service Rules, 2010 has been duly refuted by the learned Sr. counsel for the private respondents when he cited paragraph 32 of Jagdish Ch. Patnaik and others v. State of Orissa case (supra) which reads as follows: "32. The next question for consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited? Mr. Patnaik and others v. State of Orissa case (supra) which reads as follows: "32. The next question for consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited? Mr. Banerjee's contention on this score is that since the appellant was recruited to the cadre of Assistant Engineer in respect of the vacancies that arose in the year 1978 though in fact the letter of appointment was issued only in March 1980, he should be treated to be a recruit of the year 1978 and as such would be senior to the promotees of the years 1979 and 1980 and would be junior to the promotees of the year 1978. According to the learned counsel since the process of recruitment takes a fairly long period as the Public Service Commission invites application, interviews and finally selects them whereupon the Government takes the final decision, it would be illogical to ignore the year in which the vacancy arose and against which the recruitment has been made. There is no dispute that there will be some time lag between the year when the vacancy accrues and the year when the final recruitment is made for complying with the procedure prescribed but that would not give a handle to the Court to include something which is not there in the rules of seniority under Rule 26. Under Rule 26 the year in which vacancy arose and against which vacancy the recruitment has been made is not at all to be looked into for determination of the inter-se seniority between direct recruits and the promotees. It merely states that during the calendar year direct recruits to the cadre of Assistant Engineer would be junior to the promotee recruits to the said cadre. It is not possible for the Court to import something which is not there in Rule 26 and thereby legislate a new rule of seniority. We are, therefore, not in a position to agree with the submission of Mr. Banerjee, the learned Senior Counsel appearing for the appellants, on this score." 34. The above proposition has been reiterated in the K. Meghachandra Singh case (supra) where the Hon'ble Apex Court at paragraph 40 of the same has held as under: "40. We are, therefore, not in a position to agree with the submission of Mr. Banerjee, the learned Senior Counsel appearing for the appellants, on this score." 34. The above proposition has been reiterated in the K. Meghachandra Singh case (supra) where the Hon'ble Apex Court at paragraph 40 of the same has held as under: "40. The Judgment in N.R. Parmar (Supra) relating to the Central Government employees cannot in our opinion, automatically apply to the Manipur State Police Officers, governed by the MPS Rules, 1965. We also feel that N.R. Parmar (Supra) had incorrectly distinguished the longstanding seniority determination principles propounded in, inter-alia, J.C. Patnaik (Supra), Suraj Prakash Gupta & Ors. vs. State of J&K & Ors. and Paw an Pratap Singh & Ors. vs. Reevan Singh & Ors.(Supra). These three Judgments and several others with like enunciation on the law for determination of seniority makes it abundantly clear that under Service Jurisprudence, seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre. In our considered opinion, the law on the issue is correctly declared in J.C. Patnaik (Supra) and consequently we disapprove the norms on assessment of inter-se seniority, suggested in N.R. Parmar (Supra). Accordingly, the decision in N.R. Parmar is overruled.... " 35. In the light of the above, keeping in mind the prayer of the petitioner made in this petition, no more discussion is required and consequently, this Court finds that the petitioner has not been able to make out a case to set aside and quash the impugned Gradation List. 36. This petition is accordingly dismissed as devoid of merits. No cost.