Aheibam Romel Singh v. State of Manipur through the Principal Secretary/Commissioner (SCERT), Govt. of Manipur
2021-12-15
M.V.MURALIDARAN
body2021
DigiLaw.ai
JUDGMENT : This writ petition has been filed by the petitioner seeking to quash the impugned seniority list dated 18.9.2019 in respect of the petitioner and the third respondent and to direct the respondents 1 and 2 to count the seniority of the petitioner with effect from 18.1.2014 for the post of Principal, DIET, SCERT, Manipur i.e. the day of his promotion to the post of Principal, DIET, SCERT, Manipur. 2. The case of the petitioner is that earlier he was serving as Lecturer, District Institute of Education Training (DIET) and on the recommendation of the Departmental Promotion Committee, he was promoted to the post of Principal, DIET on 18.1.2014, whereas the third respondent was promoted to the post of Joint Director, State Council of Educational Research and Training (SCERT) on 28.3.2014. Further case of the petitioner is that new Recruitment Rules for the post of Director, SCERT was notified in the official Gazette on 9.11.2016, wherein the post of Principal, DIET, Joint Director (NFE), Joint Director (SCERT) with at least 6 years of regular service in the grade with the qualification of second class Master Degree in any subject of any recognized University are eligible for promotion to the said post of Director, SCERT. 3. According to the petitioner, earlier the scale of pay for the post of Principal, DIET was not identical with the scale of pay for the post of Joint Director and the scale of pay for the post of Principal, DIET became identical with the scale of pay for the post of Joint Director with effect from 23.1.2016. After the publication of new Recruitment Rules for the post of Director, SCERT, a tentative seniority list of Principals, DIET, Joint Director (NFE) and Joint Director, (SCERT) was notified on 14.8.2019 and objections were called for from the concerned persons. In the said tentative list, the name of the petitioner appeared at Serial No.2, whereas the name of the third respondent appeared at Serial No.1. The petitioner submitted an objection to the said tentative seniority list with reasons and requested the authority concerned to place his name at Serial No.1 as he was appointed to the post of Principal, DIET on regular basis on 18.1.2014 in comparing the third respondent as he was appointed to the post of Joint Director, SCERT on 28.3.2014.
The petitioner submitted an objection to the said tentative seniority list with reasons and requested the authority concerned to place his name at Serial No.1 as he was appointed to the post of Principal, DIET on regular basis on 18.1.2014 in comparing the third respondent as he was appointed to the post of Joint Director, SCERT on 28.3.2014. However, without properly considering the objection of the petitioner, the impugned final seniority list of the aforesaid three posts was notified on 18.9.2019 without any changes. Challenging the same, the petitioner has filed the present writ petition. 4. The official respondents 1 and 2 filed affidavit-in-opposition stating that the Recruitment Rules for the post of Director (SCERT), Manipur was published on 7.11.2016 and notified in the Gazette on 9.11.2016 making the posts of Principal, DIET/Joint Director (NFE)/Joint Director (SCERT) having at least 6 years regular service in the Grade with 2nd Class Master’s Degree and B.Ed/PG Diploma in Teaching of any recognized University as feeder posts for promotion to the post of Director (SCERT), Manipur. It is stated that pursuant to the order dated 22.1.2019 passed in W.P.(C) No.936 of 2016 which was filed by the third respondent for amendment of the Recruitment Rules for the post of Director (SCERT), the matter was referred to the Department of Personnel for their clarification and concurrence. The Department of Personnel has informed the Administrative Department of SCERT that no clarification is required as there was no flaw in the existing Recruitment Rules. 5. It is stated that on 14.8.2019, a tentative seniority list of posts feeder to the post of Director, SCERT was notified inviting objections, so that any issue relating to inter-se seniority is settled before the post of Director, SCERT falls vacant. In the tentative seniority list, the third respondent was placed above the petitioner based on the condition laid down in the Recruitment Rules notified by the Department of Personnel, that insertion of the post of Principal, DIET in the feeder list shall be effective from the date of prescription of an identical pay scale with Joint Director (NFE) and Joint Director (SCERT).
This implies that officers holding the post of Principal, DIET become feeder post to the post of Director only from the date of their pay scale gets upgraded to equate with the pay scale prescribed for the posts of Joint Directors irrespective of their dates of appointment to the post. 6. According to the respondents 1 and 2, as the pay scale of the post of Principal, DIET was upgraded with effect from 23.1.2016, the effective date of insertion of the post of Principal as feeder to the post of Director was given as 23.1.2016. As such, the eligibility of the petitioner to the post of Director has to be counted from 23.1.2016. The written objection submitted by the petitioner was duly examined and the final seniority list was published on 18.9.2019 and in the final seniority list, the petitioner was placed at Serial No.2, whereas the third respondent was placed at Serial No.1 because of the fact that the post held by the petitioner has become a feeder post to the post of Director with effect from 23.1.2016 i.e. the date on which the pay scale of the Principal, DIET was upgraded at par with that of the Joint Directors. Therefore, there is no necessity to interfere with the impugned seniority list dated 18.9.2019 and the writ petition is liable to be dismissed. 7. The third respondent filed affidavit-in-opposition stating that the third respondent was promoted to the post of Joint Director, SCERT, Manipur in the pay scale of Rs.15,600-39,100+GP Rs.6000 on 28.3.2014 and during the relevant time, the Recruitment Rules, 2010 was in force and the only requirement not fulfilled by the third respondent was 6 years of regular service in the Grade and as such while the Director (SCERT) Recruitment Rules, 2010 was in force, the third respondent has already acquired the feeder to the post of Director, SCERT and the petitioner was not even born in the feeder post of Director. Only after the Recruitment Rules, 2010 was amended vide notification dated 7.11.2016, the post of Principal, DIET was added.
Only after the Recruitment Rules, 2010 was amended vide notification dated 7.11.2016, the post of Principal, DIET was added. As such, the seniority of the petitioner should have been counted when his post appeared as feeder to the post of Director, SCERT i.e. after the publication of the notification on 9.11.2016, but due to a note inserted at Column No.11 of the Recruitment Rules of Director 2016, the proposed insertion of Principal, DIET in the feeder list was given effective from the date of prescription of identical pay scale with Joint Director (NFE)/Joint Director (SCERT). It is stated that the petitioner was given the said identical pay scale only on 3.1.2017 giving effect from 23.1.2016 and as such the petitioner has been given one year advantage in counting the seniority as a feeder to the post of Director. 8. It is stated that the tentative seniority list was published and objections were called and after duly considering the objections and in conformity with the amended Recruitment Rules of Director, 2016, the final seniority list dated 18.9.2019 was published. As the petitioner has been given the identical pay scale with Joint Director (NFE)/Joint Director (SCERT) on 3.1.2017 with effect from 23.1.2016, his seniority has been counted from the said date. 9. According to the third respondent, it is the petitioner who has been favoured as his seniority has been counted from 23.1.2016 which is prior to the inclusion to the post of the petitioner in the amended Recruitment Rules of Director, 2016 which came effective on 9.11.2016. As such, the date of seniority counted by the State Government with retrospective effect from 23.1.2016 is ipso facto wrong and no Recruitment Rules can be enforced retrospectively unless the same is provided in the Recruitment Rules. 10. The petitioner filed reply affidavit stating that in the earlier Recruitment Rules, for the post of Director, SCERT, the post of Principal, DIET was not a feeder post for promotion to the said post and only on 7.11.2016, the post of Principal, DIET was incorporated as one of the feeder post for promotion to the post of Director, SCERT by amending the aforesaid Recruitment Rules for the post of Director, SCERT. 11.
11. The third respondent filed additional affidavit stating that prior to 9.11.2016, there were only two feeder posts for being promoted to Director, SCERT i.e. Joint Director (NFE) and Joint Director (SCERT) and for Joint Director (NFE), the post of Principal, DIET was one of the feeder posts and thus any claim or even affording seniority to Principal, DIET prior to 9.11.2016 will run contrary to the Recruitment Rules of Joint Director (NFE), 2002 and Recruitment Rules of Director, SCERT 2010. It is stated that the petitioner undermining the situation and concealing material facts is claiming counting of his seniority for the feeder post of Director, SCERT from the date when he was still a feeder to the post of Joint Director (NFE). The petitioner filed W.P.(C) No.733 of 2018 for revising the pay scale of the Principal, DIET at the scale of pay Rs.15600-39100+GP 6600 with effect from the publication of the Recruitment Rules for the post of Principal, DIET or from the date of promotion i.e. 18.1.2014 so as to claim higher seniority position in the seniority list for the post of Director, SCERT. 12. Heard Mr. Kh. Tarunkumar, learned counsel for the petitioner, Mr. K. Jagat, learned GA the State respondents No. 1 and 2 and Mr. M. Hemchandra, learned Senior Counsel for the private third respondent. 13. Assailing the impugned seniority list, Mr. Kh. Tarunkumar, learned counsel for the petitioner submitted that on 18.1.2014, the petitioner along with another person were promoted to the post of Principal, DIET on regular basis and the third respondent was promoted to the post of Joint Director, SCERT on 28.3.2014. The earlier Recruitment Rules for the post of Director, SCERT, which was published on 15.1.2008, was amended and the new Recruitment Rules was published on 7.11.2016, whereby the post of Principal, DIET was inserted as one of the feeder posts for promotion to the post of Director, SCERT. The said amendment was not given retrospective effect, instead it was came into force with effect from the date of publication in the Gazette on 9.11.2016 and thereafter, the pay scale for the post of Principal, DIET was revised from Rs. 9300-34800+GP 5400 to Rs.15600-39100+GP 6600 with effect from 23.1.2016 vide order dated 3.1.2017 issued by the Joint Director, SCERT. 14. Mr.
9300-34800+GP 5400 to Rs.15600-39100+GP 6600 with effect from 23.1.2016 vide order dated 3.1.2017 issued by the Joint Director, SCERT. 14. Mr. Tarunkumar, learned counsel for the petitioner further submitted that being aggrieved by the delay in revising the pay scale for the post of Principal, DIET and challenging the legality of the order dated 3.1.2017, the petitioner has filed W.P.(C) No.733 of 2018. By the order dated 13.1.2021, the said writ petition was allowed whereby the order dated 3.1.2017 in respect of the position for revision of the post of Principal, DIET in the scale of pay of Rs.15600-39100+GP 6600 with effect from 23.1.2016 was set aside and the State respondents were directed to revise the pay scale for the post of Principal, DIET and its corresponding pay scale under ROP, 1999 notionally with effect from the publication of the Recruitment Rules with cash payment with effect from 23.1.2016. 15. Mr. Tarunkumar, learned counsel for the petitioner further submitted that on 14.8.2019, a tentative seniority list for the post of Principal, DIET and Joint Director, SCERT was published wherein the name of the third respondent was found at Serial No.1, whereas the petitioner’s name appeared at Serial No.2. He would submit that an objection to the tentative seniority list was submitted by the petitioner on 28.8.2019 wherein he has objected the said tentative seniority list even by referring to the settled law in respect of the counting of seniority of a person who was duly appointed to a post. However, without considering the objection raised by the petitioner, the impugned final seniority list was published on 18.9.2019 without any authority of law. 16. Mr. Tarunkumar, learned counsel for the petitioner next submitted that seniority of a person who is appointed to a post in accordance with Rules enjoying all the benefits of regular service is entitled to seniority from the date of appointment. According to learned counsel, the petitioner was duly appointed to the post of Principal, DIET on the recommendation of a duly constituted DPC in consultation with the Manipur Public Service Commission and enjoying all the benefits of the regular Principal, DIET and therefore, he is entitled to count his seniority from the date of his promotion to the post of Principal, DIET. 17. Mr.
17. Mr. Tarunkumar, learned counsel for the petitioner then submitted that the seniority of the petitioner is to be counted from the date of his promotion to the post of Principal, DIET i.e. 18.1.2014 as he was promoted to the said post long before the amendment of the Recruitment Rules for the post of Director, SCERT, which was amended only on 7.11.2016. 18. Mr. Tarunkumar, learned counsel for the petitioner urged that the functions and responsibilities of the Principal and Joint Director are almost equivalent and the same was reflected in the letter of the Deputy Secretary (DP), Government of Manipur addressed to the Service Commission. Therefore, the plea of the third respondent that the Principal, DIET is not equivalent with the Joint Director, SCERT as the Joint Director, SCERT enjoyed a higher scale of pay prior to 23.1.2016 is not sustainable in the eye of law. Moreover, if the seniority from the date of the petitioner’s appointment is denied and if it is counted from the date of inclusion of his post in the Recruitment Rules will be arbitrary and illegal and also in violation of Article 14 of the Constitution of India. In support of his submissions, learned counsel for the petitioner placed reliance upon the following decisions: (i) D.P.Sharma and others v. Union of India and others, 1989 Supp (1) SCC 244. (ii) P.Mohan Reddy v. E.A.A.Charles and others, (2001) 4 SCC 433 . (iii) State of Haryana and others v. Vijay Singh and others, (2012) 8 SCC 633 . (iv) Sanglakpam Nandababu Sharma and others v.State of Manipur and others, 2016 (5) GLT(MN) 126. (v) Sub-Inspector Rooplal and another v. Lt. Governor and others, (2000) 1 SCC 644 . (vi) Anand Nishikawa Co. Ltd. v. Commissioner of Central Excise, Meerut, (2005) 7 SCC 749 . 19. Per contra, Mr. K. Jagat, learned GA for the respondent State submitted that the Recruitment Rules for the post of Director, SCERT was published on 7.11.2016 making the posts of Principal, DIET/Joint Director (NFE)/Joint Director (SCERT) having at least 6 years regular service in the Grade with 2nd Class Master’s Degree and B.Ed/Post Graduate Diploma in Teaching of any recognized University as feeder posts for promotion to the post of Director, SCERT, Manipur.
He would submit that pursuant to the order made in W.P.(C) No.936 of 2016 dated 22.1.2019, which was instituted by the third respondent, the matter was referred to the Department of Personnel for clarification and concurrence for amendment of the Recruitment Rules and that the Department Personnel informed the Administrative Department of the SCERT that no clarification is required as there is no deficiency in the existing Recruitment Rules. Accordingly, a tentative seniority list of posts feeder to the post of Director, SCERT was notified on 14.8.2019 inviting objections to settle the dispute, if any before the post of Director, SCERT falls vacant. In the tentative seniority list, the third respondent was placed above the petitioner based on the condition laid down in the Recruitment Rules and that insertion of the post of Principal, DIET in the feeder list shall be effective from the date of prescription of identical pay scale with Joint Director (NFE) and Joint Director (SCERT). Thus, the officers holding the post of Principal, DIET become the feeder post to the post of Director, SCERT only from the date of the pay scales get upgraded to equate with pay scales prescribed for the posts of Joint Directors irrespective of their dates of appointment to the post. 20. Mr. Jagat, learned GA for the respondent State further submitted that since the pay scale of the post of Principal, DIET was upgraded with effect from 23.1.2016, the effective date of insertion of the post of Principal as feeder to the post of Director was given as 23.1.2016. As such, the eligibility of the petitioner to the post of Director has to be counted from 23.1.2016 and not from 18.1.2014. Therefore, the claim made by the petitioner is unreasonable and there is no question of favouring the third respondent as the official respondents published the impugned final seniority list of the posts feeder to the post of Director, SCERT by strictly following the provisions of the Recruitment Rules. 21. Mr.
Therefore, the claim made by the petitioner is unreasonable and there is no question of favouring the third respondent as the official respondents published the impugned final seniority list of the posts feeder to the post of Director, SCERT by strictly following the provisions of the Recruitment Rules. 21. Mr. Hemchandra, learned senior counsel for the contesting third respondent submitted that the third respondent was promoted to the post of Joint Director, SCERT in the scale of pay of Rs.15600-39100+GP 6600 on 28.3.2014 and during the relevant time, the Director, SCERT Recruitment Rules, 2010 was in force and the only requirement not fulfilled by the third respondent was 6 years of regular service in the Grade and now eligible for promotion to the post of Director, SCERT and as such while the Director, SCERT Recruitment Rules, 2010 was in force, the third respondent has already acquired the feeder to the post of Director, SCERT and that the petitioner was not even born in the feeder post of Director. 22. Mr. Hemchandra, the learned senior counsel would submit that only after Director, SCERT Recruitment Rules, 2010 was amended vide notification dated 7.11.2016, the post of the petitioner i.e. Principal, DIET was added. As such, the seniority of the petitioner should have been counted when his Principal post appeared as feeder to the post of Director, SCERT i.e. after publication of the notification in the Gazette on 9.11.2016, but due to a Note inserted at Column 11 in the Recruitment Rules of Director, 2016, the proposed insertion of Principal, DIET in the feeder list was given effective from the date of prescription of the identical pay scale with the Joint Director (NFE)/Joint Director (SCERT). He would further submit that the petitioner was given the said identical pay scale only on 3.1.2017 by giving effect from 23.1.2016, as a feeder to the post of Director. 23. Mr. Hemchandra, the learned senior counsel for the third respondent further submitted that the petitioner whose post is Principal, DIET is claiming for his seniority to be counted from his date of promotion i.e. Principal from 18.1.2014 and according to the Recruitment Rules of Joint Director (NFE/SCERT), 2002 which was enforced during 18.1.2014, the post of Principal, DIET was a feeder to the post of Joint Director (NFE/SCERT).
Thus, the petitioner is claiming for a seniority above the third respondent (Joint Director) from the date when he was the feeder for the same Joint Director (NFE/SCERT). 24. Mr. Hemchandra, the learned senior counsel for the third respondent next submitted that the tentative seniority list was published and objections were called and after duly considering the objections and in conformity with the amended Recruitment Rules of Director, 2016, the impugned final seniority list dated 18.9.2019 was published and there is no infirmity in it. 25. According to the learned senior counsel for the third respondent, the post of Principal, DIET was a feeder to the post of Joint Director (NFE) and the Joint Director (NFE) was a feeder to the post of Director, SCERT prior to 9.11.2016 and only after the amendment of Recruitment Rules of Joint Director (NFE), 2002, vide Recruitment Rules of Joint Director (NFE) 2016, the post of Principal, DIET was removed and was included, in the new Recruitment Rules of Director, SCERT 2016. Therefore, even the counting of seniority of the petitioner from 23.1.2016 is ipso facto wrong as on this very day the Recruitment Rules of Joint Director (NFE) 2002 was in force and the post of Principal, DIET was only a feeder to the Joint Director (NFE) and not to the Director, SCERT. 26. It is also the submission of the learned senior counsel for the third respondent that earlier the petitioner filed W.P.(C) No.733 of 2018 for revising the pay scale of Principal, DIET at the scale of pay of Rs.15600-39100+GP 6600 with effect from the publication of the Recruitment Rules for the post of Principal, DIET i.e. from 29.11.2008 or from the date of promotion i.e. from 18.1.2014 so as to claim higher seniority position in the seniority list of the feeder posts of Director, SCERT. If the claim of the petitioner, as per the order in W.P.(C) No.733 of 2018 is granted, it will further strengthen his frivolous claim for seniority even before his post is added as feeder to the post of Director, SCERT. In support, the learned counsel for the third respondent placed reliance upon the following decisions: (i) M.Ramachandran v. Govind Ballabh and others, AIR 1999 SC 3601 . (ii) Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and others, (2003) 2 SCC 111 .
In support, the learned counsel for the third respondent placed reliance upon the following decisions: (i) M.Ramachandran v. Govind Ballabh and others, AIR 1999 SC 3601 . (ii) Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and others, (2003) 2 SCC 111 . (iii) Sunil Poddar and others v. Union Bank of India, (2008) 2 SCC 326 . (iv) Kishore Samrite v. State of Uttar Pradesh and others, (2013) 2 SCC 398 . (v) Arunima Baruah v. Union of India and others, (2007) 6 SCC 120 . (vi) K.D.Sharma v. Steel Authority of India and others, (2008) 12 SCC 481. (vii) Ashok Lanka v. Rishi Dikshit and others, (2006) 9 SCC 90 . (viii) Sushma Mutreja v. Union of India and others, (2001) 6 SCC 428 . (ix) P.Sudhakar Rao and others v. U.Govinda Rao and others, (2013) 8 SCC 693 . (x) P.Mohan Reddy v. E.A.A.Charles and others, (2001) 4 SCC 433 . (xi) R.S.Makashi and others v. I.M. Menon and others, (1982) 1 SCC 379 . (xii) Chittoori Subbanna v. Kudappa Subbanna and others, AIR 1965 SC 1325 . (xiii) State of Uttaranchal and another v. Dinesh Kumar Sharma, (2007) 1 SCC 683 . 27. This Court considered the rival submissions of the parties and also perused the materials available on record. 28. The grievance of the petitioner is that his seniority has to be counted from the date of his promotion to the post of Principal, DIET i.e. 18.1.2014 as he was promoted to the said post long before the amendment of the Recruitment Rules for the post of Director, SCERT and the Recruitment Rules for the post of Director SCERT was amended only on 7.11.2016. 29. On the other hand, the plea of the official respondents is that the petitioner’s seniority is to be counted from that date of his promotion i.e. 18.1.2014 and not from the date of eligibility i.e. 23.1.2016 is totally unreasonable and unacceptable in the eye of law. There is no question of favouring the third respondent as the official respondents have published the impugned final seniority of the posts feeder to the post of Director by strictly following the provisions of the Recruitment Rules.
There is no question of favouring the third respondent as the official respondents have published the impugned final seniority of the posts feeder to the post of Director by strictly following the provisions of the Recruitment Rules. The post of Principal, DIET has become a feeder post to the post of Director with effect from 23.1.2016, the date on which the pay scale of the Principal was made identical to the pay scales of the Joint Directors and therefore, there is no merit in the writ petition. 30. It is the case of the contesting third respondent that the seniority of the petitioner should have been counted when his post appeared as feeder to the post of Director, SCERT i.e. after publication of the notification on 9.11.2016, but due to a Note inserted in Column No.11 of the Recruitment Rules of Director, 2016, the proposed insertion of Principal, DIET in the feeder list was given effective from the date of prescription of identical pay scale with Joint Director (NFE)/Joint Director (SCERT). The petitioner was given the said identical pay scale only on 3.1.2017 giving effect from 23.1.2016 and as such, the petitioner has been given one year advantage in counting the seniority as feeder to the post of Director. According to the third respondent the said one year advantage in counting the seniority is also against the law. 31. The facts on record would reveal that the petitioner, who is a First Class M.Sc. in Physics with B.Ed., was initially appointed as Theory Instructor of DIET on regular basis on 18.8.1999. The third respondent, who was serving as a Lecturer of Ramlal Paul Higher Secondary School was utilized as the Joint Director of SCERT Department on 10.5.1999 and thereafter, he was transferred with post to the Directorate of SCERT, Manipur in his grade pay with effect from 11.6.1999. On 27.2.2002, the Deputy Secretary (Edn.) issued an order, whereby it was ordered that the transfer of the third respondent shall be deemed to have effective from 1.2.1999. Pursuant to the direction of the Gauhati High Court given in a batch of writ petitions, the State Government was directed to take a decision if necessary by referring to a Committee for affording a pay scale to the petitioner and other similarly situated persons not less than to that of the Lecturer of the Higher Secondary School within a period of four months.
32. There is no dispute that pursuant to the amendments made, the post of Theory Instructor was re-designated as Lecturer and the earlier Recruitment Rules for the post of Principal, DIET was superseded and a new Recruitment Rules was published and by the said Recruitment Rules, the post of Lecturer/Theory Instructor of DIET, SCERT with years regular service are eligible for promotion to the said post. There is also no dispute that on 15.1.2010, Recruitment Rules for the post of Director, SCERT was published and as per the said Recruitment Rules, the post of Joint Director (NFE)/Joint Director (SCERT) with at least 6 years of regular service in the grade with a second Class Master’s Degree in any subject of any recognized University and B.Ed./PG Diploma in Teaching of any recognized University are eligible for promotion to the said post. It is also not in dispute that the petitioner along with another person were promoted to the post of Principal, DIET, SCERT on regular basis on 18.1.2014 and the third respondent was promoted to the post of Joint Director, SCERT on 28.3.2014. By the order of the Joint Director, SCERT dated 3.1.2017, the pay scale for the post of Principal, DIET was revised from 9300-34800+GP 5400 to Rs.15600-39100+GP 6600 with effect from 23.1.2016. Being unsatisfied with the delay in revising the pay scale for the post of Principal, DIET and challenging the order dated 3.1.2017, the petitioner has filed W.P.(C) No.733 of 2018 before this Court. 33. By the order dated 13.1.2021, W.P.(C) No.733 of 2018 came to be allowed. The operative potion of the order reads thus: “40. In view of the above discussions, admittedly the petitioner, who is presently serving as Principal, DIET shall be entitled to get the pay scale equivalent to that of the Principal of the Government Higher Secondary School. It is settled law that equation of post/pay scale is within the domain of the executive and not under the judiciary, that is not to say, the Court has no jurisdiction and aggrieved employee have no remedy if he is unjustly treated by arbitrary state action or by inaction, but the Court, however, realizing that the difficulty in carrying the job for equation of posts, the matter is referred to the expert body having the assistance of staff of requisite expertise.
Such being the settled position of law, this Court is of the considered view that the writ petitioner is entitled the relief as prayed for in the writ petition. 41. In the result, a) the writ petition is allowed. b) the impugned order dated 03.01.2017 in respect of position for revision of pay for the post of Principal, DIET at the Scale of Pay of Rs. 15600-3900+GP 6600 with effect from 23.1.2016 is set aside. c) the Respondents 1 to 4 are hereby directed to revise the pay scale for the post of Principal, DIET at the scale of Pay of Rs. 15600-39100+GP 6600/- under ROP, 2010 and its corresponding Pay Scale under ROP, 1999 notionally w.e.f. the publication of the Recruitment Rules for the post of Principal, DIET Department of SCERT, Manipur i.e. 29.11.2008 with cash payment w.e.f. 23.01.2016. d) the said exercise shall be done within a period of 4 weeks from the date of receipt of this order.” 34. While allowing the writ petition, this Court has also observed that there is a belated decision of the official respondents in revising the pay scale. In paragraphs 36 and 37, this Court observed as under: “36. On a perusal of the letter of the Director, SCERT, Government of Manipur, it is seen that the said authority has made a proposal to the Commissioner, SCERT to place the scale of pay for the post of Principal, DIET at par with the scale of pay for the post of Principal, Government Higher Secondary School by giving a clear picture regarding functions and duties and qualifications for the past of Principal, DIET in comparison to the Principal, Government Higher Secondary School. The said proposal was made by the Director, SCERT based on the application dated 7.4.2014 submitted by the DIET Employee Association, SCERT seeking to rectify the pay scale in respect of the post of Principal, DIET. Despite receipt of the said proposal and keeping quite for long number of days, on 3.1.2017, the Joint Secretary, SCERT issued the impugned order by giving revised scale of pay for the post of Principal, DIET at Rs.15600-39100+GP6600 with effect from 23.1.2016. 37. It appears that the State Cabinet approved the posts in its meeting held on 5.5.2015 and subsequently on 23.1.2016 for the new DIET Imphal East.
37. It appears that the State Cabinet approved the posts in its meeting held on 5.5.2015 and subsequently on 23.1.2016 for the new DIET Imphal East. However, the revision came to be issued belatedly on 3.1.2017 and there is no reason given in the impugned order for the delay in issuing the same. Thus, it is clear that there is belated action on the part of the official respondents in revising the scale of pay for the post in question.” 35. It is admitted by both parties that aggrieved by the order passed in W.P.(C) No.733 of 2018, the third respondent herein has filed W.A.No.10 of 2021 and the same is pending before a Division Bench of this Court. By the order dated 8.9.201, an interim order of suspension of the judgment and order dated 13.1.2021 passed in W.P.(C) No.733 of 2018, dated 13.1.2021 has been passed pending further orders. 36. In the instant writ petition, the petitioner wants to fix his seniority from 18.1.2014 when he was promoted to the post of Principal, DIET, which is the feeder post of Director, SCERT. It is also the case of the petitioner that the third respondent was promoted to the post of Joint Director only on 28.3.2014. Since the date of promotion of the petitioner is earlier than that of the third respondent, the petitioner should be above the third respondent in the seniority list for promotion to the post of Director, SCERT. 37. There is no dispute and the law is well settled that the seniority of a person who is appointed to a post in accordance with Rules by enjoying all the benefits of regular service are entitled to seniority from the date of appointment. 38. In the present case, the petitioner was duly appointed to the post of Principal, DIET on the recommendation of a duly constituted DPC in consultation with the Manipur Public Service Commission and was enjoying all the benefits of regular Principal, DIET, he is entitled to count his seniority from the date of his promotion to the post of Principal, DIET. The aforesaid view is taken by this Court in view of the dictum laid down by the Hon’ble Supreme Court in the case of Vijay Singh (supra), wherein the Hon’ble Supreme Court held as follows: “25. After examining the relevant rules, the Court in Direct Recruit Class II Engg. Officers' Assn.
The aforesaid view is taken by this Court in view of the dictum laid down by the Hon’ble Supreme Court in the case of Vijay Singh (supra), wherein the Hon’ble Supreme Court held as follows: “25. After examining the relevant rules, the Court in Direct Recruit Class II Engg. Officers' Assn. [ (1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348] culled out the following propositions: (SCC pp. 745-46, para 47) “(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. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. (D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. (F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule. (G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject. (H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. (I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers. (J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinized for finding out any possible error. It is not in the interest of service to unsettle a settled position.” ….. 29. In Chandra Prakash v. State of U.P. [ (2002) 10 SCC 710 : 2003 SCC (L&S) 808] the Court interpreted the U.P. Medical Service (Men's Branch) Rules, 1945; U.P. Medical Services (Men's Branch) (Amendment) Rules, 1981; U.P. Regularisation of Ad Hoc Appointments (on Posts within the purview of the Public Service Commission) Rules, 1979 and held that the appellants who had been appointed against substantive vacancies and were continuing from 1965-1976 to 1983 and were enjoying all the benefits of regular service are entitled to seniority from the date of initial appointment. The Court also observed that the “rule of seniority” had been interpreted by the Court for a long period of time and it would not be proper to upset the principles laid down in other judgments.” 39. According to learned senior counsel for the third respondent, seniority of the petitioner should have been counted when his Principal post appeared as feeder to the post of Director i.e. after the publication of the notification on 9.11.2016 and not from 18.1.2014 and in fact, the date of seniority of the Principal in respect of the petitioner counted by the respondent authorities with retrospective effect from 23.1.2016 is ipso facto wrong. 40.
40. By placing reliance upon the decision of the Hon’ble Supreme Court in the case of Sushma Mutreja (supra), the learned senior counsel for the third respondent submitted that in the present case the principle is brought from a lower grade to a higher grade only on 23.1.2016 which is equivalent to that of the Joint Director, hence, the petitioner must be treated junior to existing Joint Director i.e. the third respondent. 41. In Sushma Mutreja (supra), the Hon’ble Supreme Court held: “3. … That apart, on first principle also when a person is brought from one cadre to other and joins a new cadre then he must be treated to be lowest in the cadre on that date, but he cannot be junior to all those who were not even born in the cadre on that date. ….” 42. In Dinesh Kumar Sharma (supra), the Hon’ble Supreme Court held: “28. It is clear from the above that a person appointed on promotion shall not get seniority of any earlier year but shall get the seniority of the year in which his/her appointment is made. Therefore, in the present fact situation the respondent cannot claim promotion from the date of occurrence of the vacancy which is 1995-96 but can only get promotion and seniority from the time he has been substantively appointed i.e. from 1999. Likewise, the seniority also will be counted against the promotion/appointment in the cadre from the date of issuance of order of substantive appointment in the said cadre, i.e. from 19.11.1999.” 43. It is urged on behalf of the third respondent that in the amended Recruitment Rules of Director SCERT at Column 11, a Note has been provided which states “the proposed insertion of Principal, DIET in the feeder list shall be taken effective from the date of prescription of identical pay scale with Joint Director (NFE)/Joint Director which is approved by the State”, which means that, if the post of Principal, DIET is not given identical pay scale with Joint Director (NFE)/Joint Director (SCERT), the post of Principal, DIET would not even appear as feeder to the post of Director, SCERT. Since, the petitioner has been given identical pay scale vide order dated 3.1.2017 giving effect from 23.1.2016, his seniority has been counted from 23.1.2016.
Since, the petitioner has been given identical pay scale vide order dated 3.1.2017 giving effect from 23.1.2016, his seniority has been counted from 23.1.2016. Further, during the relevant point of time, the Recruitment Rules of Joint Director 2002 was in force, wherein the post of Principal, DIET was feeder to Joint Director (NFE)/Joint Director (SCERT), it would be legally impermissible. 44. It is also urged on behalf of the third respondent that in 2014, the pay scale of Principal was one slab lower than that of the Joint Director i.e. the pay of the Principal was Rs.9300-34800+GP 5400, while the pay of the Joint Director was Rs.15600-39100+GP 6600. Therefore, assuming but not admitting that seniority of Principal was counted from 18.1.2014, then a situation arises where a post carrying lower pay slab is senior over a post of higher scale and grade. This would be completely illegal, improper and against the service jurisprudence. 45. Countering the said argument of Mr. Hemchandra, the learned senior counsel for the third respondent, Mr. Kh. Tarunkuamr, the learned counsel for the petitioner submitted that equivalency of post does not depend upon the pay scale of the posts. Pay scale is not the sole criteria to decide the equivalency of posts. Equivalency of posts is to be decided basing mainly on four factors, namely (i) nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post; the extent of territories or other charge held or responsibilities discharged; (iii) the minimum qualification, if any prescribed for recruitment to the post and (iv) the salary of the post. It is submitted that the salary of a post for the purpose of finding out in equivalency of posts in the last of the criteria. He would submit that if the earlier three criteria are fulfilled, then the fact that the salaries of the two posts are different would not in any way make the post not equivalent. In support, learned counsel for the petitioner placed reliance upon the decision of the Hon’ble Supreme Court in the case of Sub Inspector Rooplal (supra), wherein it has been held as under: “17. In law, it is necessary that if the previous service of a transferred official is to be counted for seniority in the transferred post then the two posts should be equivalent.
In law, it is necessary that if the previous service of a transferred official is to be counted for seniority in the transferred post then the two posts should be equivalent. One of the objections raised by the respondents in this case as well as in the earlier case of Antony Mathew is that the post of Sub-Inspector in BSF is not equivalent to the post of Sub-Inspector (Executive) in the Delhi Police. This argument is solely based on the fact that the pay scales of the two posts are not equal. Though the original Bench of the Tribunal rejected this argument of the respondent, which was confirmed at the stage of SLP by this Court, this argument found favour with the subsequent Bench of the same Tribunal whose order is in appeal before us in these cases. Hence, we will proceed to deal with this argument now. Equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of two posts many factors other than “pay” will have to be taken into consideration, like the nature of duties, responsibilities, minimum qualification etc. It is so held by this Court as far back as in the year 1968 in the case of Union of India v. P.K. Roy [ AIR 1968 SC 850 : (1968) 2 SCR 186 ]. In the said judgment, this Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Reorganisation Act, 1956. These four factors are: (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criteria. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different would not in any way make the post “not equivalent”.
It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criteria. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different would not in any way make the post “not equivalent”. In the instant case, it is not the case of the respondents that the first three criteria mentioned hereinabove are in any manner different between the two posts concerned. Therefore, it should be held that the view taken by the Tribunal in the impugned order that the two posts of Sub-Inspector in BSF and Sub-Inspector (Executive) in the Delhi Police are not equivalent merely on the ground that the two posts did not carry the same pay scale, is necessarily to be rejected. We are further supported in this view of ours by another judgment of this Court in the case of Vice-Chancellor, L.N. Mithila University v. Dayanand Jha [ (1986) 3 SCC 7 : 1986 SCC (L&S) 378 : (1986) 1 ATC 42] wherein at SCC para 8 of the judgment, this Court held: (SCC pp. 10 & 11) “Learned counsel for the respondent is therefore right in contending that equivalence of the pay scale is not the only factor in judging whether the post of Principal and that of Reader are equivalent posts. We are inclined to agree with him that the real criterion to adopt is whether they could be regarded of equal status and responsibility. … The true criterion for equivalence is the status and the nature and responsibility of the duties attached to the two posts.” 46. Mr. Hemchandra, the learned senior counsel for the third respondent distinguishes the decision in the case of Sub Inspector Rooplal (supra) relied upon the by the petitioner and submitted that the aforesaid case is pertaining to seniority disputes arises after deputation of an employee from one organization to another and later on absorbed in the borrowing organization in the same capacity. Whereas, in the instant case, the posts of Joint Director (NFE)/Joint Director (SCERT) and Principal, DIET belong to same Department having different in aspects of nature and duties, responsibilities and powers and salary etc.
Whereas, in the instant case, the posts of Joint Director (NFE)/Joint Director (SCERT) and Principal, DIET belong to same Department having different in aspects of nature and duties, responsibilities and powers and salary etc. Highlighting the duties and responsibilities of the Joint Director, SCERT and the Principal, DIET, more particularly, the nature and responsibilities of Joint Director, SCERT are purely administrative in nature and the nature and responsibilities of the Principal, DIET are quasi-administrative and more academic in nature even teaching in classes at time, learned counsel for the third respondent contended that the territorial extension and responsibilities of exercise also differs. While responsibilities and exercise of power - both administrative and financial of Joint Director, extends to the whole of the SCERT Department under which the DIET Institution also functions, the responsibilities and exercise of power of Principal, DIET is over the DIET Institution only. That apart, in pay scale, the post of Joint Director enjoys Rs.15600-39100+DP 6600 whereas the salary of the Principal is only Rs.9300-34800+GP 5400. Therefore, the decision in the case of Sub Inspector Rooplal is not applicable to the case of the petitioner. This Court is unable to accept the aforesaid submission made by learned counsel for the third respondent for the reason that equivalency of post does not depend upon the pay scale of the said posts and also pay scale is not the sole criteria to decide the equivalency of posts. 47. As rightly argued by Mr. Tarunkumar, the learned counsel for the petitioner, functions and responsibilities of Principal and Joint Director are almost equivalent, though slightly differs. Admittedly, there is no contra view that these two posts are equivalent. That apart, on perusal of the records, it is seen that the educational qualification for promotion to the post of Joint Director, SCERT and Principal, DIET are almost equivalent. Therefore, this Court is of the view that there is no merit in the contention of the third respondent that the Principal, DIET is not equivalent with the Joint Director, SCERT. 48.
Therefore, this Court is of the view that there is no merit in the contention of the third respondent that the Principal, DIET is not equivalent with the Joint Director, SCERT. 48. At this juncture, by placing reliance upon the decision of the Hon’ble Supreme Court in the case of M.Ramachandran (supra), learned counsel for the third respondent submitted that length of service of the Principal, DIET in the upgraded pay has to be taken into account only from 23.1.2016 and that the total length of service as Principal, DIET is not relevant for determining the seniority, but length of service to a particular class, category or grade is relevant consideration for the purpose of counting the period with respect to length of service for the purpose of determining the seniority. 49. In M.Ramachandran (supra), the Hon’ble Supreme Court held: “12. ... Such length of service shall have reference to the class, category or grade which the parties were holding at the relevant time. It, therefore, follows that total length of service is not relevant for determining the seniority but length of service to a particular class, category or grade is relevant consideration for the purposes of counting the period with respect to length of service for the purposes of determining the seniority. ....” 50. The judgment in M.Ramachandran (supra) is not applicable to the case on hand in the given facts and circumstances of the case, as the petitioner has established that the post of Principal, DIET and Joint Director, SCERT are almost equivalent and that on promotion, the petitioner was serving as Principal, DIET from 18.1.2014. 51. By placing reliance upon the decision of this Court in the case of Sanglakpam Nandababu Sharma (supra), an argument was made on behalf of the petitioner that if a post is inserted in a Recruitment Rules by amending the said Recruitment Rules, then the person who is holding the post which has been newly included in the said Recruitment Rules is entitled to count his seniority from the date of his appointment. If his seniority from the date of his appointment is denied and if it is counted from the date of inclusion of his post in the Recruitment Rules, it will be arbitrary and violation of Article 14 of the Constitution of India. 52. In Sanglakpam Nandababu Sharma (supra), this Court held as under: “39.
If his seniority from the date of his appointment is denied and if it is counted from the date of inclusion of his post in the Recruitment Rules, it will be arbitrary and violation of Article 14 of the Constitution of India. 52. In Sanglakpam Nandababu Sharma (supra), this Court held as under: “39. It is a fact that the post of Inspector (MT) which the respondents No. 5 and 6 were holding, came to be included as a feeder post for being considered for promotion to MPS Grade-II for the first time in 2009 provided they fulfilled other conditions mentioned under the rules. If any combined inter-se-seniority list was to be prepared at the time when the post of Inspector (MT) was included in 2009, the inter se seniority was to be determined based on the rules existing at that time i.e., the rules as existing upon implementation of the 1st Amendment made in 2009. The second amendment was brought in subsequently after about 5 (five) years in 2014. Obviously, till the 2nd amendment was made, the rules of seniority as prescribed under the 1st amendment would hold the field. The issue as to the applicability of rules for determining inter se seniority had come up for discussion before the Hon'ble Supreme Court in P. Mohan Reddy v. E.A.A. Charles and Ors., MANU/SC/0108/2001 : 2001) 4 SCC 433 in which the Hon'ble Supreme Court after discussing a number of decisions had emphatically held that seniority is to be determined in accordance with the Rules which remained in force at the time when a person is borne in the cadre. The Supreme Court further held that the question of re-determination of the seniority in the cadre on the basis of any amended criteria or rules would arise only when the amendment in question is given a retrospective effect as held in para 17 thereof, which is reproduced herein below: “17. A conspectus of the aforesaid decisions of this Court would indicate that even though an employee cannot claim to have a vested right to have a particular position in any grade, but all the same he has the right of his seniority being determined in accordance with the Rules which remained in force at the time when he was borne in the cadre.
The question of re-determination of the seniority in the cadre on the basis of any amended criteria or Rules would arise only when the amendment in question is given a retrospective effect. If the retrospectivity of the Rule is assailed by any person then the Court would be entitled to examine the same and decide the matter in accordance with the law. If the retrospectivity of the Rule is ultimately struck down, necessarily the question of re-drawing of the seniority list under the amended provisions would not arise, but if however, the retrospectivity is up held by a Court then the seniority could be re-drawn up in accordance with the amended provisions of the employees who are still in the cadre and not those who have already got promotion to some other cadre by that date. Further a particular Rule of seniority having been considered by Court and some directions in relation thereto having been given, that direction has to be followed in the matter of drawing up of the seniority list until and unless a valid Rule by the Rule Making Authority comes into existence and requires otherwise, as was done in Bola case MANU/SC/0813/1997 : (1997) 8 SCC 522 . It may be further stated that if any Rule or Administrative Instruction mandate drawing up of seniority list or determination of inter se seniority within any specified period then the same must be adhered to unless any valid reason is indicated for noncompliance of the same.” In view of the above principle laid down by the Hon'ble Supreme Court, the seniority list of the petitioners vis a vis the respondents and other eligible officers has to be decided on the basis of the rules which remained in force. Thus, when the seniority list was prepared on 30.08.2013 it was based on the existing rules i.e. the rules has amended vide first amendment made vide notification dated 23rd June, 2009. At that time, the second amendment brought in vide notification dated 08.07.2014 had not yet come into existence. Therefore, to that extent, the submission of the learned Senior counsel for the petitioners that final seniority prepared on 30.08.2013 based on the existing rules is valid, cannot be doubted. … 46.
At that time, the second amendment brought in vide notification dated 08.07.2014 had not yet come into existence. Therefore, to that extent, the submission of the learned Senior counsel for the petitioners that final seniority prepared on 30.08.2013 based on the existing rules is valid, cannot be doubted. … 46. In the present case, by applying the principles discussed in Zile Singh (supra), this Court will examine as to the factors to be taken into consideration by the Court in examining whether the amendment will have retrospective effect or not. …. 49. Further, this Court also holds that the principle laid down in Chairman, Railway Board and Others v. C.Rangadhamaiah and Others, MANU/SC/0954/1997 : (1997) 6 SCC 623 , relied upon by the petitioners’ Ld. Senior counsel, to the effect that retrospective amendment affecting vested or accrued rights of Government employees is not applicable in the present case, for the following reasons. Firstly, as contended by Mr.Romenkumar, learned counsel for the respondents No. 5 and 6, to have a particular position in the seniority list within a cadre can neither be said to be an accrued or vested right of a government servant and losing some places in the seniority list within the cadre does not amount to reduction in rank, even though the future chances of promotion may get delayed (vide S.S. Bola v. B.D.Sardana, MANU/SC/0813/1997 : (1997) 8 SCC 522 . Secondly, as held in P. Mohan Reddy (supra), redetermination of seniority in the cadre on the basis of any amended criteria or rules is permissible when the amendment in question is given a retrospective effect. This Court has already held that the second amendment which restores and make it applicable to all in the feeder grade, the well settled principle of counting continuous regular service in the cadre towards seniority from the date of regular appointment, has retrospective effect. Hence, the respondents No. 5 and 6 will be entitled to seniority from the date when they were regularly appointed as Inspectors (MT) as has been done in respect of other persons in the feeder posts. …. 51. A careful reading of the MPS Rules, 1965 would show that the rules do not contemplate formation of a single unified cadre for the purpose of consideration for promotion to MPS-II. The Schedule to the MPS Rules provides the specific posts under the Manipur Police Service.
…. 51. A careful reading of the MPS Rules, 1965 would show that the rules do not contemplate formation of a single unified cadre for the purpose of consideration for promotion to MPS-II. The Schedule to the MPS Rules provides the specific posts under the Manipur Police Service. These specific posts would form part of the cadre of the Manipur Police Service under different grades and in the Schedule there is no mention of these feeder posts of Inspector of Police/Inspector of Police (Legal)/Subedar/Subedar Major/Inspector (MT). Cadre has been defined under the Fundamental Rules to mean the strength of service or part of a service sanctioned as a separate unit. The employee is empowered to create such cadre/cadres. But in the present case, the rule making authorities or the competent authorities have not deemed it fit to constitute any such single unit to form a separate cadre, as otherwise, it would have found reflection in the MPS Rules, 1965. Constitution of a cadre would envisage that the appointment to such cadre would be through unified and common mode of recruitment and also permit interchangeability of posting etc.” 53. The aforesaid judgment of this Court would strengthen the case of the petitioner that he is entitled to count his seniority from the date of his promotion to the post of Principal, DIET i.e. 18.1.2014, but not from the date of inclusion of the said post in the Recruitment Rules for the post of Director, SCERT. 54. By placing reliance upon P.Mohan Reddy (supra), learned counsel for the petitioner submitted that if the amended Recruitment Rules does not give the retrospective effect, then the seniority of the person is to be counted from the date of his appointment, but not from the date of amendment of Recruitment Rules. 55. In reply, Mr. Hemchandra, the learned senior counsel for the third respondent contended that at the time of the petitioner’s appointment by promotion to the post of Principal, DIET, the post of Principal, DIET is a feeder post for promotion to the post of Joint Director, SCERT. Therefore, as per the relevant portion of the decision in P.Mohan Reddy (supra), the seniority of the petitioner holding the post of Principal, DIET should be determined in terms of the Recruitment Rules in force at that point of time i.e. the Recruitment Rules of Joint Director, SCERT and not that of the Director, SCERT.
Therefore, as per the relevant portion of the decision in P.Mohan Reddy (supra), the seniority of the petitioner holding the post of Principal, DIET should be determined in terms of the Recruitment Rules in force at that point of time i.e. the Recruitment Rules of Joint Director, SCERT and not that of the Director, SCERT. The aforesaid argument of learned counsel for the third respondent cannot be accepted in the given facts and circumstances of the case. 56. It is also the submission of learned senior counsel for the third respondent that seniority has to be decided on the basis of Rules in force on the date of appointment and no retrospective promotion or seniority can be granted from a date when an employee has not even born in the cadre. 57. On 14.8.2019, the Secretary and Commissioner, SCERT issued a notification, whereby tentative seniority list of three officers including the petitioner was notified by calling objections from the concerned persons. In the said tentative list, the name of the petitioner appeared at Serial No.2 showing the date of appointment as 18.1.2014 and the date of eligibility as 23.1.2016 whereas the name of the third respondent appeared at Serial No.1 showing his date of appointment as 28.3.2014 and the date of eligibility as 28.3.2014. In paragraph 3, the second respondent observed as under: “Normally fixation of inter-se seniority is based on their dates of appointments. However, the Recruitment Rules notified by the Department of Personnel has put a condition that insertion of the post of Principal, DIET in the feeder list shall be effective from the date of prescription of identical pay scale with Joint Director (NFE) and Joint Director. This implies that officers holding the post of Principal, DIET become feeder post to the post of Director only from the date their pay scales get upgrade to equate with pay scales prescribed for the posts of Joint Directors irrespective of their dates of appointment to the post. The pay scale of the post of Principal, DIET was upgraded w.e.f. 23/01/2016 vide order No.23/10/2013-S/SCERT/DIET(Pt) dated 03/01/2017.” Aggrieved by the above said tentative list, the petitioner has submitted his objection on 28.8.2019 and the final seniority list was published on 18.9.2019 placing the third respondent at Serial No.1. 58.
The pay scale of the post of Principal, DIET was upgraded w.e.f. 23/01/2016 vide order No.23/10/2013-S/SCERT/DIET(Pt) dated 03/01/2017.” Aggrieved by the above said tentative list, the petitioner has submitted his objection on 28.8.2019 and the final seniority list was published on 18.9.2019 placing the third respondent at Serial No.1. 58. On a perusal of the objection dated 28.8.2019 given by the petitioner, it is seen that in the said objection, the petitioner has heavily relied upon the letter dated 18.4.2013 of the Director, SCERT wherein the Director requested the Commissioner, SCERT to revise the scale of pay for the post of Principal to the scale of pay of Rs.15600-39100+GP 6600. However, while taking decision for revising the said pay, a lot of time was taken. Had the scale of pay for the post of Principal was revised timely, all the disputes could have been sorted out prior to his promotion to the post of Principal on 18.1.2014. However, because of lapses on the part of the concerned authorities, the petitioner’s pay was revised only on 3.1.2017 by giving effect from 23.1.2016. When the Commissioner, SCERT made a proposal to revise/upgrade the pay scale for the post of Principal, DIET in the next higher immediate higher scale of pay by taking into account the job responsibilities, functions and duties as discharged by the Principals, DIET centres, after a long gap of nearly 3 years and 8 months, on 3.1.2017, the scale of pay for the post of Principal, DIET was revised. As rightly argued by learned counsel for the petitioner it is a clear case of administrative lapses, for which the petitioner shall not be a victim. Furthermore, in the year 1989, a recommendation was made to place the post of Principal, DIET at the corresponding pay to that of the Deputy Director of the State Education Department. However, no timely action was taken up by the Government to place the post of Principal at par with the corresponding pay scale of the Deputy Director. Thereafter, the post of Deputy Director was redesignated as Joint Director of School Education Department. 59. Revision of pay in the scale of pay Rs.15600-3900+GP 6600 under ROP 2010 and its corresponding pay scale under ROP 1999 was notionally ordered to be given with effect from 29.11.2008 in W.P.(C) No.733 of 2018.
Thereafter, the post of Deputy Director was redesignated as Joint Director of School Education Department. 59. Revision of pay in the scale of pay Rs.15600-3900+GP 6600 under ROP 2010 and its corresponding pay scale under ROP 1999 was notionally ordered to be given with effect from 29.11.2008 in W.P.(C) No.733 of 2018. It clearly shows that there was a delay on the part of the respondent authorities in revising the pay of Principal, DIET. Had the pay in respect of the Principal, DIET was revised at the earliest point of time, the present dispute could not have occurred. Further, the fact remains that the petitioner has been made a victim of the late action of the respondent authorities. 60. It appears that while issuing the impugned seniority list, the Special Secretary, SCERT, observed as under: “No 12(HC)/13/2016-S/SCERT Whereas, the tentative seniority list of officers as a holder of feeder posts of Director, SCERT, Manipur was issued on 14/08/2019 with a view to finalise the seniority after considering the claims and objections of all concerned, Whereas, Shri A Romel Singh, Principal DIET who is placed at Sl.
No. 2 below Shri Jim Golden Thingujam, Joint Director has submitted a representation on 28/08/2019, Whereas, the claim of Shri A Romel Singh that the Grade Pay of the Principal (DIET) should have been raised w.e.f. either the date of the publication of RR or his promotion and the delay has adversely affected him cannot be entertained at this stage as the Government increased the Grade pay prospectively and not retrospectively, Whereas the claim relating to the footnote to consider all officers senior to the person who is eligible and is being considered even if they have not completed the requisite years of service is unfounded as it is an accepted principle but has nothing to do with fixation of seniority and this footnote would become applicable if Shri A Romal Singh was placed at Sl No.1 but has not completed the requisite years of service for promotion as Director then he would also be considered for promotion; And Whereas, the claim to determine the seniority based on the Recruitment Rules for the post of Director as it has not been amended, the officer has no issue as the seniority has been fixed as per the Recruitment Rules which clearly says that the effective date for inclusion of the post of Principal to the list of feeder posts is from the date, the pay scale is made identical to the pay scales of the posts which are already in the list of feeder post prior to the Insertion of the new post and Principals of DIET become a contender in the seniority list only on 23/01/2016 and not before that, Now, therefore, the Governor of Manipur is pleased to finalise the seniority list of officers as feeder to the post of Director, SCERT as below. Sl. No. Name of the Officer and post held Order No. and date of appointment to the post Effective date of insertion of the post as feeder to the post of Director 1 Shri Jim Golden Thingujam Joint Director No.4/1/2013-S/SCERT Dated 28/03/2014 28/03/2014 2 Shri A.Romel Singh Principal DIET No.12(HC)/1/2013-S/SCERT 18/01/2014 23/01/2016 3 Smt. H.Nekishori Devi Principal DIET No.12(HC)/1/2013-S/SCERT 23/01/2016 61.
No. Name of the Officer and post held Order No. and date of appointment to the post Effective date of insertion of the post as feeder to the post of Director 1 Shri Jim Golden Thingujam Joint Director No.4/1/2013-S/SCERT Dated 28/03/2014 28/03/2014 2 Shri A.Romel Singh Principal DIET No.12(HC)/1/2013-S/SCERT 18/01/2014 23/01/2016 3 Smt. H.Nekishori Devi Principal DIET No.12(HC)/1/2013-S/SCERT 23/01/2016 61. The aforesaid conclusion arrived at by the Special Secretary while fixing the seniority of the petitioner that the Grade Pay of the Principal, DIET should have been raised with effect from either the date of publication of Recruitment Rules or his promotion and the delay has adversely affected him cannot be entertained at this stage as the Government increased the Grade Pay prospectively and not retrospectively, cannot sustainable in the eye of law for the reason that way back in the year 1989 itself the Ministry of Human Resources Development in its guidelines for DIET directed to place the post of Principal, DIET at the corresponding pay to that of the Deputy Director of the State Education Department. However, the authorities concerned have not taken timely action to place the post of Principal in corresponding pay scale of the Deputy Director till 1995 when the post of Deputy Director was redesignated as Joint Director. Thus, there is clear administrative lapses. Only on 3.1.2017, the pay scale for the post of Principal, DIET was revised from 9300-34800+GP 5400 to Rs.15600-39100+GP 6600 with effect from 23.1.2016. 62. Because of the delay on the part of the respondent authorities, the petitioner was constrained to file W.P.(C) No.733 of 2018 seeking revision of pay scale for the post of Principal, DIET and by the order dated 13.1.2021 this Court directed to revise the pay scale under ROP, 2010 and its corresponding pay scale under ROP 1999 notionally with effect from the publication of the Recruitment Rules for the post of Principal, DIET i.e. 29.11.2008 with cash payment with effect from 23.1.2016. Since the delay is on the part of the respondent authorities, the petitioner’s seniority ought to be counted from the date of his promotion i.e. from 18.1.2014 and not from the date of eligibility i.e. 23.1.2016 as said by the respondents. 63.
Since the delay is on the part of the respondent authorities, the petitioner’s seniority ought to be counted from the date of his promotion i.e. from 18.1.2014 and not from the date of eligibility i.e. 23.1.2016 as said by the respondents. 63. As rightly argued by learned counsel for the petitioner that eligibility and seniority are not to be mixed up and there should not be any confusion in between the eligibility and seniority. 64. On a perusal of the relevant Recruitment Rules, it is clear that nowhere it is mentioned that the seniority for the post of Director, SCERT shall be counted from the date of possessing the eligibility. If the seniority of the petitioner is to be counted from 23.1.2016, it should have been clearly worded in the Recruitment Rules of the Director, SCERT by stating that the seniority of the person holding the post of Principal, DIET shall be counted from the date of giving identical scale of pay of the post of Principal with that of the Joint Director, SCERT. Therefore, the question of giving preference to the date of eligibility against seniority does not arise in the instant case. 65. While issuing the impugned seniority list, the Special Secretary observed that the claim relating to the footnote to consider all officers senior to the person who is eligible and is being considered even if they have not completed the requisite years of service is unfounded is quite unacceptable as the same was mentioned without any authority of law. The footnote is in the following manner: “Where a person is considered for such appointment all persons who possess the requisite qualifications and who are senior to him in the grade shall also be considered irrespective of the fact whether or not they fulfil the requirement as to the minimum period of qualifying service for promotion mentioned above.” 66. Thus, it is clear from the footnote that all the senior persons who possess the requisite qualifications shall be considered at the time of promotion irrespective of his eligibility meaning thereby even if a senior person does not possess the eligibility requirement shall be considered if he possess the requisite qualifications. 67.
Thus, it is clear from the footnote that all the senior persons who possess the requisite qualifications shall be considered at the time of promotion irrespective of his eligibility meaning thereby even if a senior person does not possess the eligibility requirement shall be considered if he possess the requisite qualifications. 67. It is apposite to mention that in his writ petition being W.P.(C) No.936 of 2016 challenging the footnote contained in the Recruitment Rules of Director, SCERT, the third respondent admitted that because of the said footnote, persons who are holding the post of Principal, DIET will become senior to him while considering for appointment by promotion to the post of Director, SCERT. Observing that the footnote was inserted by the rule making authorities to protect the interest of the senior persons, this Court not entertained W.P.(C) No.936 of 2016 filed by the third respondent. 68. It is reiterated that the posts Principal, DIET, Joint Director (NFE)/Joint Director (SCERT) are made feeder posts for promotion to the post of Director, SCERT does not form a single cadre as the said posts are not interchangeable/transferable. These posts form separate cadres of their own and not a separate single cadre. Moreover, the Recruitment Rules for the post of Director, SCERT which was notified on 7.11.2016 came into force with effect from 9.11.2016 i.e. the date of publication of the said Recruitment Rules in the Gazette. There is no scope for giving retrospective effect to the said Recruitment Rules and the same was published by amending the earlier Recruitment Rules for the post of Director, SCERT dated 16.1.2010. By the said new amended Recruitment Rules, the post of Principal, DIET was inserted as one of the feeder post for promotion to the post of Director, SCERT. It cannot be said, as argued by learned counsel for the respondent State, that when the Principal, DIET was included in the feeder posts, they joined the common cadre for promotion to Director, SCERT as there is no such common cadre created or maintained under the Recruitment Rules for the post of Director, SCERT.
It cannot be said, as argued by learned counsel for the respondent State, that when the Principal, DIET was included in the feeder posts, they joined the common cadre for promotion to Director, SCERT as there is no such common cadre created or maintained under the Recruitment Rules for the post of Director, SCERT. Thus, the contention of learned counsel for the respondent State to the effect that the seniority of the petitioner will be counted from the date of encadrement will not be applicable in the present case, as the denial of the past service rendered by the petitioner in his respective cadre of Principal, DIET at the time of determination of the common inter-se seniority list under the Recruitment Rules of Director, SCERT is arbitrary and also violative of Article 14 of the Constitution of India. 69. According to the respondent State, the eligibility of the petitioner will be counted from 23.1.2016. Even if the petitioner’s eligibility is counted from 23.1.2016, his seniority is to be counted from the date he was born to the cadre of Principal, DIET, SCERT on 18.1.2014. Thus, the seniority of the petitioner has to be counted from the date of his appointment on promotion to the post of Principal, DIET, but not from the date of insertion in the newly amended Recruitment Rules which was notified on 9.11.2016. 70. The date of appointment of the petitioner to the post of Principal, DIET must be clearly mentioned in the inter-se tentative seniority list as 18.1.2014 as the post of Principal, DIET is also one of the feeder post to the post of Director, SCERT. The Recruitment Rules published on 9.11.2016 still holds the field and the said Recruitment Rules for the post of Director, SCERT has not yet superseded nor amended by any subsequent Recruitment Rules and also if any seniority list is notified, the same must be notified in conformity with the footnote of the Recruitment Rules published on 9.11.2016. If one can read the note contained in Column 11 of the Recruitment Rules for the post of Director together with the footnote, the true picture will come light. On a perusal of Column 11, it is clear that the post of Principal, DIET is placed before the post of Joint Director (NFE)/Joint Director (SCERT).
If one can read the note contained in Column 11 of the Recruitment Rules for the post of Director together with the footnote, the true picture will come light. On a perusal of Column 11, it is clear that the post of Principal, DIET is placed before the post of Joint Director (NFE)/Joint Director (SCERT). Further, the conclusion arrived at in the impugned senior list that the claim to determine the seniority based on the Recruitment Rules for the post of Director as it has not been amended, the officer has no issue as the seniority has been fixed as per the Recruitment Rules which clearly says that the effective date for inclusion of the post of Principal to the list of feeder posts is from the date, the pay scale is made identical to the pay scales of the posts which are already in the list of feeder post prior to the insertion of the new post and Principals of DIET become a contender in the seniority list only on 23.1.2016 and not before it, cannot be sustained in view of the finding arrived at by this Court in the earlier paragraphs. 71. At this juncture, it is pertinent to mention that time and again the Hon’ble Supreme Court held that seniority, even after integration will continue to be determined on the basis of continuous length of service and not from the date of integration. It was also held that reckoning of seniority on the basis of continuous length of service on regular basis is a well accepted principle for determining seniority. Thus, the criteria for determining inter-se seniority does would be based on the dates of regular appointments in the respective cadres. Therefore, in view of the aforesaid settled law, the seniority of the petitioner ought to be counted from the date of his promotion to the post of Principal, DIET and not from the date of incorporation of the post of Principal, DIET as one of the feeder post for promotion to the post of Director, SCERT.
Therefore, in view of the aforesaid settled law, the seniority of the petitioner ought to be counted from the date of his promotion to the post of Principal, DIET and not from the date of incorporation of the post of Principal, DIET as one of the feeder post for promotion to the post of Director, SCERT. Considering the facts and circumstances, coupled with the materials produced by both sides and also the ratio laid down by the Hon’ble Supreme Court, this Court is of the view that the petitioner is entitled to count his seniority from the date of his promotion to the post of Principal, DIET, but not from the date of inclusion of the said post to the Recruitment Rules for the Director, SCERT as stated by the respondents. 72. Coming to the suppression of material facts pleaded by the third respondent by placing several decisions, particularly the decision of the Hon’ble Supreme Court in the case of Arunima Baruah (supra) is concerned, this Court finds that the writ petition does not suffer from the suppression of material facts. 73. In Arunima Baruah (supra), the Hon’ble Supreme Court held that it is trite law so as to enable the court to refuse the exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the Court may not refuse to exercise its discretionary jurisdiction. 74. Admittedly, the petitioner has not suppressed any material facts and the fact remains that he has approached this Court by disclosing all relevant and material facts and furthermore, the petitioner has not mislead the Court. Therefore, the decisions of the Hon’ble Supreme Court in the cases of Kishore Samrite, K.D.Sharma and Ashok Lanka (supra), relied upon by learned counsel for the third respondent to contend that the petitioner has concealed material facts and has approached the Court not only with unclean hands but also unclean mind and that the petitioner has brought some new facts, cannot be countenanced.
This Court is of the view that those decisions are not applicable to the case of the third respondent. 75. It is to be noted that other than the judgments referred and discussed in this order, learned counsel for both parties have relied upon other judgments in support of their case. On perusal of those judgments, this Court finds that those judgments are distinguishable on facts. Therefore, they have not been quoted and elaborated upon in this order. 76. For the foregoing discussions, this Court is of the view that the petitioner has established his case and, therefore, he is entitled to the relief sought in the writ petition. 77. In the result, (i) The writ petition is allowed. (ii) The impugned seniority list/order dated 18.9.2019 issued by the second respondent is set aside in respect of the petitioner and the third respondent, as the same is not sustainable in the eye of law. (iii) The respondents 1 and 2 are directed to count the seniority of the petitioner with effect from 18.1.2014 for the post of Principal, DIET, SCERT, Manipur i.e. the date of his promotion to the post of Principal, DIET and draw a fresh seniority list accordingly. (iv) The said exercise is directed to be completed as expeditiously as possible, preferably within a period of four weeks from the date of receipt of a copy of this order. (v) In view of allowing of the writ petition, pending miscellaneous applications, if any are closed. (vi) No costs. 78. Registry is directed to issue copy of this order to both the parties through their WhatsApp/e-mail.