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2022 DIGILAW 1169 (GAU)

Neilhoulie Seyie v. State Of Nagaland

2022-10-21

SONGKHUPCHUNG SERTO

body2022
JUDGMENT : Heard Mr. C.T. Jamir, learned Senior Counsel appearing for the petitioners in WP(C)/62(K) of 2019 who are respondents Nos. 3 and 4 in the other writ petition, i.e., WP(C)/124 of 2019 and also heard Mr. R. Iralu, learned Senior counsel appearing for respondent Nos. 5, 6, 7, 8 and 9 in the former writ petition and the two petitioners in the later writ petition (one whom i.e., petitioner No. 1 is the respondent no. 9 in the former writ petition). 2. Vide a notification dated 19.11.2018, the tentative seniority list of inspectors in the Department of Food and Civil Supplies was circulated wherein the petitioners in WP(C)/62 of 2019 who are direct recruits to the post (through competitive exam conducted by the NPSC) were placed at serial No. 8 and 10 and the private respondents Nos. 5, 6, 7, 8 and 9, who were promoted to the same cadre were placed at serial No. 4, 5, 6, 7 and 9. Being aggrieved by the placement of the respondent Nos. 5 to 8 above the petitioner No.1 and by placement of respondent No. 5 to 9, above the petitioner No. 2, the two petitioners in WP(C)/62 of 2019 came before this Court through the writ petition challenging the same mainly on the ground that inter-se seniority of persons who are directly recruited to the post of Inspectors and those who are promoted to the same cadre should be determined as per the provisions of Rule 15(ii) of the Nagaland Food and Civil Supplies Department, Nagaland Civil Supplies Service (1st Amendment) Rules, 2002 read with Schedule 2 of the same rules. 3. 3. During the pendency of the other writ petition WP(C)/62/2019, the petitioners in WP(C)/124/2019 who are the promotees to the post of Inspector of Supply and one of whom, i.e., petitioner No. 1 is respondent No. 9, in the other writ petition came to know that the Department of Food and Civil Supplies vide their letter No. SPLY-10/3/2003 dated 19.11.2018, had sought for the views of the Personnel and Administrative Reforms(P&AR) Department on the matter of inter-se seniority dispute between the direct recruits and promotees and the P&AR Department in turn had consulted the Justice and Law Department through a note; U.O.No. 700 dated 30.10.2018, and thereafter had expressed their opinion that executive orders issued by the Department of DOPT will not be applicable in determining the inter-se seniority of direct recruits and promotees but the provisions of Rule 15 (ii) of the Nagaland Civil Supplies (1st Amendment) Rules, 2002, (which shall hereafter be referred to as Rules of 2002) will govern the same. And based on that opinion, the tentative Seniority List of Inspectors as on 19.11.2018, has been prepared and circulated, wherein, the respondent No.3 namely Shri. Moanungsang (petitioner No. 1 in the Writ Petition No. 62 of 2019) has been placed at serial No. 8 of the Seniority List and the petitioner No. 1 (in WP(C) No. 124 of 2019), has been placed at serial No. 9 and respondent No. 4 (in WP(C) No. 124 of 2019), has been placed at serial No. 10 and the petitioner No. 2 in (WP(C) No. 124 of 2019), has been placed at serial No. 11. Being aggrieved by their placement in the seniority list as stated above, the petitioners in WP(C) No. 124 of 2019, also came before this Court challenging the same on the ground mainly, that, though as per the provisions of Rule 15 (ii) of the Rules of 2002, inter-se seniority between the direct recruits and promotees are to be determined based on quota-rota rule, the same has never been implemented ever since the Rule came into existence, instead, inter-se seniority between the direct recruits and promotees has always been determined based on continuous length of service. As such, if the provision of Rule 15 (ii) is implemented at this juncture as intended in the tentative Seniority List under challenge, there would be chaos in the service. As such, if the provision of Rule 15 (ii) is implemented at this juncture as intended in the tentative Seniority List under challenge, there would be chaos in the service. The issues involved in the two writ petitions revolves around the determination of inter-se seniority of direct recruits and promotees in the Cadre of Inspector (now upgraded to Senior Inspector of Food & Civil Supplies) therefore, the two writ petitions were heard together and they are being disposed by this common judgment. 4. The undisputed facts and circumstances briefly stated are as follows; On 14.12.2010, vide letter No. DSE/1/88-89, the Director, Food and Civil Supplies, Nagaland, requisitioned three posts of Inspector of Supply for direct recruitment through competitive examination as per the rules and, with subsequent steps taken thereafter the three posts were advertised by the NPSC vide advertisement No. 2/2010-2011, dated 31.03.2011. The two petitioners who also applied for the post, appeared in the examination conducted in pursuance of the advertisement and they were successful in the competitive examination. Accordingly, they were recommended for appointment. Based on the recommendation they were appointed by different orders-being Office order No. (Part-II)No. 989 dated 18.07.2012 and Office order No. (Part-II) No. 988 dated 18.07.2012, respectively, issued by the Director, Food and Civil Supplies, Nagaland. On the other hand, the respondent No. 5 was promoted to the post of Inspector vide order dated 13.05.2010, and respondent Nos. 6 and 7, were promoted to the post of Inspector of Supply vide Office order (Part II) No. 488 dated 11.08.2010, issued by the Director, Food and Civil Supplies, Nagaland, and respondent Nos. 8 and 9, were promoted vide Office order (part II) No. 887 dated 29.02.2012 and 29.02.2012 respectively. The date of vacancy and requisition of the post to which the petitioners and respondents Nos. 5 to 9 in WP(C)/62/2019, were appointed/promoted and their date of appointment and promotion are as follows; Sl. No Name of the Official Year of Requisition/Dt. Of Vacancy Date of Promotion/Dt. Of Appointment to the present Grade 1 Smt. Ali Konyak (respondent No.5 in WP(C)/62/2019 31/10/2009 13.05.2010 2 Shri Sentitemsu Longkumer (respondent No.6 in WP(C)/62/2019) 31/10/2009 30.08.2010 3 Shri Metsisietuo Zhasa (respondent No.7 in WP(C)/62/2019 ) 14/05/2010 30.08.2010 4 Smt. Grace Metha (respondent No.8 in WP(C)/62/2019) 21/12/2011 29.02.2012 5 Shri Moanungsang (petitioner No. 1 in WP(C)/62/2019 and respondent No.3 in WP(C)/124/2019) Dt. Of Vacancy 31/10/2009 Dt. Of Vacancy 31/10/2009 Dt. Of Requisition 14/12/2010 19.07.2012 6 Shri Neilhoulie Seyie (petitioner No. 1 in WP(C)/124/2019 and respondent No.9 in WP(C)/62/2019) Dt. Of Vacancy 21/12/2011 29.02.2012 7 Shri Allen Imchen (petitioner No. 2 in WP(C)/62/2019 and respondent No.4 in WP(C)/124/2019) Dt. Of Vacancy 31/10/2009 Dt. Of Requisition 14/12/2010 19.07.2012 5. Mr. C. T. Jamir, learned senior counsel appearing for the petitioners in WP(C)/62/2019 who are respondent Nos. 3 and 4 in the other writ petition No. 124 of 2019 by referring to the Rule 15 (ii) of the Rules of 2002 submitted that the rule provides how to fix inter-se seniority of direct recruits and promotees recruited and promoted respectively in the same year and according to this rule, the inter-se seniority is to be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of vacancies reserved for the two as given in the Schedule 2; the promotees ranking senior to the direct recruits. Therefore, inter-se seniority of the petitioners and respondents should have been determined accordingly. However, ignoring this existing rule, the tentative seniority of Inspectors of Supply have been prepared as given in the impugned seniority list and put the two petitioners in WP(C)/62/2019, who are respondent Nos. 3 and 4 in the other writ petition at serial No. 8 and serial No. 10 of the seniority list respectively. Whereas, as per the provisions of Rule 15 (ii) read with Schedule 2 of the Rules of 2002, the seniority of the parties involved in the two writ petitions should have been as follows; Serial No. 4 Shri.Moanungsang, petitioner No. 1 in WP(C) No. 62(K) of 2019, (respondent No. 3 in WP(C) 124 (K) of 2019) ; Serial No. 5 Smti. Ali Konyak, respondent No. 5 in WP(C) No. 62(K) of 2019; Serial No. 6 Shri. Sentitemsu Longkumer, respondent No. 6 in WP(C) No. 62(K) of 2019; Serial No. 7 Shri. Metsisietuo Jhase, respondent No. 7 WP(C) No. 62(K) of 2019; Serial No. 8 Smti. Grace Metha, respondent No. 8 in WP(C) No. 62(K) of 2019 and Serial No. 9 Shri Neilhoulie Seyie respondent No. 9 in WP(C) No. 62(K) of 2019 (petitioner No. 1 in WP(C) 124 (K) of 2019). 6. Mr. Grace Metha, respondent No. 8 in WP(C) No. 62(K) of 2019 and Serial No. 9 Shri Neilhoulie Seyie respondent No. 9 in WP(C) No. 62(K) of 2019 (petitioner No. 1 in WP(C) 124 (K) of 2019). 6. Mr. C. T. Jamir, also further submitted that the Rules of 2002 never mentioned the word appointment but the expression recruitment, therefore, the seniority of the appointees under the Rules has to be counted from the time the recruitment process is initiated, that is, when the requisition is made by the Department to the recruitment agencies. This principle of law has been settled in the case of Union of India and Others v. N.R.Parmar and Others reported in (2012) 13 SCC 340 , the relevant paragraphs being Para 34.1 and 34.2. The contents of the relevant paragraphs are reproduced herein below: “34.1. If the process of recruitment has been initiated during the recruitment year (in which the vacancies have arisen) itself, even if the examination for the said recruitment is held in a subsequent year, and the result is declared in a year later (than the one in which the examination was held), and the selected candidates joined in a further later year (than the one in which the result was declared), the selected candidates will be entitled to be assigned seniority, with reference to the recruitment year (in which the requisition of vacancies was made). The logic and reasoning for the aforesaid conclusion (expressed in the ON dated 2.2.2000) is, if the process of direct recruitment is initiated in the recruitment year itself, the selected candidate(s) cannot be blamed for the administrative delay, in completing the process of selection. 34.2. The words “initiation of action for recruitment”, and the words “initiation of recruitment process”, were explained to mean, the date of sending the requisition to the recruiting authority.” 7. After having referred to the relevant paragraphs of the judgment mentioned above, the learned senior counsel submitted that since the post to which the petitioners in WP(C)/62/2019, and the respondent Nos. 5 to 9 in WP(C)/62/2019, were appointed to posts which were requisitioned by the same year, their inter-se seniority has to be determined as per the principle of law settled in that case. 8. Mr. 5 to 9 in WP(C)/62/2019, were appointed to posts which were requisitioned by the same year, their inter-se seniority has to be determined as per the principle of law settled in that case. 8. Mr. R. Iralu, learned senior counsel appearing for the private respondents in WP(C)/62/2019 and the petitioners in the other writ petition submitted that Rule 15 (ii) of the Rules of 2002 has never been followed in fixing the seniority of officers whose service conditions are governed by the Rule, therefore, to implement the provisions of the rule in the case of the parties involved in the two cases all of a sudden would create chaos in the seniority of the employees, including that of the parties involved in the two cases.Therefore, to avoid such a situation, the provisions of the Rule 15 (ii) should not be followed in fixing the seniority of the parties involved in the case at this juncture. The learned senior counsel further submitted that in fact the quota system provided in the Rules for appointment to different posts of the Department has never been followed, therefore, the provisions of Rule 15 (ii) cannot be implemented. Mr. R. Iralu, also submitted that the post of Inspectors of Supply were upgraded in 2017 to Senior Inspectors, but the Rules of 2002 has never been amended to provide how to fix inter-se seniority of the persons appointed to such post through direct recruitment and through promotion. Therefore, the Rules of 2002 will not be applicable in the case of the parties involved in the two cases. 9. Mr.R. Iralu submitted further that the seniority of the Senior Inspectors has been fixed in the impugned seniority list based on the date of entry to the cadre, therefore the same principle should be followed in the case of all the parties involved in the two cases while fixing their seniority. The learned senior counsel also submitted that the principle followed in the Parmar’s case can no longer be followed since the same has been overruled by another Bench of the Supreme Court in the judgment passed in the case of K. Megachandra Singh v. Ningam Siro reported in (2020) 5 SCC 689 , the relevant paragraphs being Para 28 and 39. The contents of the paragraphs are reproduced herein below: “28. The contents of the paragraphs are reproduced herein below: “28. Before proceeding to deal with the contention of the appellants’ Counsel vis-à-vis the judgment in N.R. Parmar (Supra), it is necessary to observe that the Law is fairly well settled in a series of cases, that a person is disentitled to claim seniority from a date he was not borne in service. For example, in J.C. Patnaik (Supra) the Court considered the question whether the year in which the vacancy accrues can have any bearing for the purpose of determining the seniority irrespective of the fact when the person is actually recruited. The Court observed that there could be time lag between the year when the vacancy accrues and the year when the final recruitment is made. Referring to the word “recruited” occurring in the Orissa Service of Engineers Rules, 1941 the Supreme Court held in J.C. Patnaik (Supra) that person cannot be said to have been recruited to the service only on the basis of initiation of process of recruitment but Page 16/32 he is borne in the post only when, formal appointment order is issued. 39. The Judgment in N. R. Parmar 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 long-standing seniority determination principles propounded in, interalia, J.C. Patnaik (Supra), Suraj Prakash Gupta & Ors. vs. State of J&K & Ors. and Pawan 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 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. However, it is made clear that this decision will not affect the inter-se seniority already based on N.R. Parmar and the same is protected. Accordingly, the decision in N.R. Parmar is overruled. However, it is made clear that this decision will not affect the inter-se seniority already based on N.R. Parmar and the same is protected. This decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy/the date of advertisement.” The learned senior counsel in support of his submissions made, has also referred to the judgment passed in the case of G.S. Lamba v. Union of India reported in (1985) 2 SCC 604 , the paragraphs particularly referred to are Para 16,17, 18, 19, 20, 21, 23, 25 and 28. The contents of the paragraphs are reproduced herein below: “16. If Rule 25(1)(ii) which provides for inter-se seniority of direct recruits to a grade and persons substantively appointed to the grade from the select list for the grade, upon its true construction, permits leaving open placement in the seniority list to be filled in at a later date by recruits coming from the source for whom placements according to rotation are kept open, would such rule or such implementation of the rule of seniority be violative of Article. 16 ? 17. It is too late in the day to dispute that it would be open to the Government, while constituting a service, to provide for recruitment to it from more than one source and also to reserve quota for each source. As a logical corrolory, it would equally be open to the Government to provide for seniority rule related to rotation of vacancies. Shortly this is called quota rule of recruitment and rota of rule of seniority inter-linking them. So far there is no controversy. The contention of the petitioners is that in implementing this rule there has been such large scale deviation that it results in denial of equality to the members of the service similarly circumstanced. It will be presently demonstrably established that where rota rule of seniority is interlinked with quota of rule of recruitment, and if the latter is unreasonably departed from and breaks down under its own weight, it would be unfair and unjust to give effect to the rota rule of seniority. To some extent this is not res integra. Though some advance has been made on this proposition in later decisions. 18. To some extent this is not res integra. Though some advance has been made on this proposition in later decisions. 18. In B.S. Gupta v. Union of India(1) a Constitution Bench of this Court after taking note of the fact that 214 posts were upgraded from Income-tax Officers Grade II to Income Tax Officers Grade I, held that with the upgrading of a large number of posts and the appointment to them of promotees, the quota rule collapsed and the seniority rule having a link with the quota rule would meet the same fate. In A.K. Subramana v. Union of India (2) it was observed that : When recruitment is from two or several sources, it should be observed that there is no inherent invalidity in introduction of quota system and to work it out by a rule of rotation. The existence of a quota and rotational rule by itself will not violate Article. 14 or Article 16 Of the Constitution. It is the unreasonable implementation of the same, which may, in a given case attract the frown of the equality clause. 19. In P.S. Mahal and Others v. Union of India & Ors. the Court after reiterating the afore-quoted observations in A.K. Subramana case observed as under: The rotational rule of seniority is inextricably linked with the quota rule and if the quota rule is not strictly implemented and there is large deviation from it regularly from year to year, it would be grossly discriminatory and unjust to give effect to the rotational rule of seniority In the period between the decisions in B.S. Gupta's case and A.K. Subramana's case, this Court threadbare examined the legal position in relation to quota-rota rule and a large scale deviation from it with its consequent effect on the seniority rule. In Janardhana's case this Court in terms held that As quota rule was directly inter related with the seniority rule, and once the quota rule gave way, the seniority rule became wholly otiose and ineffective. It is equally well-recognised that where the quota rule is linked with the seniority rule, if the first breaks down or is illegally not adhered to giving effect to the second would be unjust, inequitous and improper. It may incidentally be mentioned that this view was approved and reiterated in P.S. Mahal's case. 20. In O.P. Singla and Anr. v. Union of India & Ors. It may incidentally be mentioned that this view was approved and reiterated in P.S. Mahal's case. 20. In O.P. Singla and Anr. v. Union of India & Ors. (1) Chandrachud, C.J. speaking for the majority after taking note of the proviso to Rule 7 and Rule 8 of the Delhi Higher Judicial Service Rules, 1979 held that upon its true interpretation, the proviso prescribed a quota and Rule 8(2) provided for rotational system of giving seniority according to the quota. After taking note of the earlier decisions it was held that where recruitment is from two independent sources, the rule of seniority on a rotational basis could not be held to be unconstitutional or violative of Article. 16. The Court then proceeded to examine the effect of enormous departure in the matter of recruitment according to quota and its shadow over the interlinked seniority. Says the learned Chief Justice: However, instances are not unknown wherein though the provision of a rule or a Section is not invalid, the manner in which the provision is implemented in practice, leads to the creation of disparities between persons, who, being similarly, circumstanced are entitled to equal treatment After taking note of Rule 16 and 17 of the same rules, it was observed as under: Promotees who were appointed under Rule 16 have been officiating continuously without a break as Additional District and Sessions Judges for a long number of years. It is both unrealistic and unjust to treat them as aliens to the Service merely because the authorities did not wake up to the necessity of converting the temporary posts into permanent ones, even after some of the promotees had worked in those posts from five to twelve years. It was found as a fact that the provision prescribing the quota of direct recruitment and promotees was put in cold storage for a long time. After noticing this ugly fact, the majority proceeded to observe as under: In these circumstances, it will be wholly unjust to penalise the promotees for the dilatory and unmindful attitude of the authorities. It is not fair to tell the promotees that they will rank junior to the direct recruits who were appointed five to ten years after they have officiated continuously in (1) AIR 1984 SC 1595 the posts created in the service and held by them though such posts may be temporary. It is not fair to tell the promotees that they will rank junior to the direct recruits who were appointed five to ten years after they have officiated continuously in (1) AIR 1984 SC 1595 the posts created in the service and held by them though such posts may be temporary. This Court atleast must fail them not The Court after taking note of the fact that large number of persons were promoted to temporary posts and such temporary promotees officiated on substantive posts held that the proviso to Rule 7 which prescribes a quote for direct recruits and provide for rotational system of vacancies between them and the promotees who were appointed to the service, the rule of seniority according to rotation of vacancies between promotees and direct recruits according to quota must inevitably break down when promotions of promotees are made to the service under Rule 16 and 17. The majority quoted with approval the following passage from the judgment in Janardhana's case: But, having done that we do propose to examine and expose an extremely undesirable, unjust and inequitable situation emerging in service jurisprudence from the precedents namely that a person already rendering service as a promotee has to go down below a person who comes into service decades after the promotee enters the service and who may be a schoolian, if not in embryo, when the promotee on being promoted on account of the exigencies of service as required by the Government started rendering service. A time has come to recast service jurisprudence on more, just and equitable foundation by examining all precedents on the subject to retrieve this situation. The learned Chief Justice made a pertinent observation that the observations in the extracted passage are not without relevance to the case before him and lent considerable support to the conclusion which has been recorded in the judgment. Thus the ratio in Janardhana's case has stood the scrutiny of two later decisions of different benches of this Court. It may incidentally be mentioned that the minority view also affirmed the approach and the observations in Janardhana's case. 21. Thus the ratio in Janardhana's case has stood the scrutiny of two later decisions of different benches of this Court. It may incidentally be mentioned that the minority view also affirmed the approach and the observations in Janardhana's case. 21. The sum total of the afore-mentioned three judgments may be freely re-stated in the telling expression in Janardhana's case which reads as under : It is therefore time to clearly initiate a proposition that a direct recruit who comes into service after the promotee was already unconditionally and without reservation promoted and whose promotion is not shown to be invalid or illegal according to the relevant statutory or non-statutory rules, should not be permitted by any principle of seniority to score a march over a promotee because that itself being arbitrary would be violative or Article. 14 and 16 Now proceeding on the assumption that Rule 25 (I) (ii) is valid and therefore seniority inter-se between recruits from three different sources has to be computed according to the quota by rotating substantive vacancies in the grade reserved for each source, if in actual implementation it creates disparities between persons who are similarly circumstanced and thereby deny equal treatment, the rule would be violative of Article. 16. The outcome is not on account of an invidious implementation of the rule but non- implementation of a part of rule for years. The end product as will be demonstrably established is unjust and unfair and yet this unjust and unfair action is being sup- ported by the Union of India which was responsible for utter inaction in implementing the rule in its letter and spirit and for unreasonably long intervals. As pointed out earlier, direct recruitment has not been made for years. Limited competitive examination has also not been held for years. Promotions from the select list have been presumably in excess of the quota but they were appointed to substantive vacancies in the service and have been holding the posts as in the case of petitioners for over 6 to 8 years. Limited competitive examination has also not been held for years. Promotions from the select list have been presumably in excess of the quota but they were appointed to substantive vacancies in the service and have been holding the posts as in the case of petitioners for over 6 to 8 years. The promotions were not styled as temporary, adhoc or stopgap- Blanks related to allocated vacancies kept open for future direct recruits and candidates qualifying at limited competitive examination in the seniority list indicate 17 that if the next direct recruitment is made, say in 1990 and the limited competitive examination is held in 1988, the recruits from the aforementioned two sources will have to be placed at Sr. No. 170 in the case of direct recruits and little down below in case of a candidate qualifying at the limited competitive examination. The direct recruit already placed at Sr. No Fin 170 in 1990 would score a march over departmental promotees of 1978 and persons in service after qualifying at the limited competitive examination in 1988. The emerging situation would be in parimateria with what was found by this Court in Janardhana's case and O.P. Singla's case and the reasons therein mentioned will mutatis mutandis apply for quashing the seniority list for the self same reason 23. Now turning to the impugned seniority lists, what the Union of India appears to have done is that it has applied the quota and rotated the vacancies but where candidates from a particular source were not available, the vacancies were deemed to be kept open (some kind of carry forward) to be filled in by later recruitment from the same source years after the vacancy occurred, but in the meantime the vacancy was filled in presumable by excess recruitment from the other sources. That is clearly either non-implementation of the quota rule or mal-functioning of the quota rule and yet the rota rule is adhered to which is both impermissible under the Rules as well as unjust, unfair and inequitous being violative of Articles. 14 and 16. 25. The language of Rule 13(1) appears to be mandatory in character. Where recruitment to a service or a cadre is from more than one source, the controlling authority can prescribe quota for each source. 14 and 16. 25. The language of Rule 13(1) appears to be mandatory in character. Where recruitment to a service or a cadre is from more than one source, the controlling authority can prescribe quota for each source. It is equally correct that where the quota is prescribed, a rule of seniority by rotating the vacancies can be a valid rule for seniority. But as pointed out earlier if the rule of seniority is inextricably intertwined with the quota rule and there is enormous deviation from the quota rule, it would be unjust, inequiutous and unfair to give effect to the rota rule. In fact as held in O.P. Singla's case, giving effect to the rota rule after noticing the enormous departure from the quota rule would be violative of Article. 14. Therefore assuming that quota rule was mandatory in character as pointed out earlier, its departure must permit rejection of rota rule as a valid principle of seniority 28.Once the promotees were promoted regularly to substantive vacancies even if temporary unless there was a chance of their demotion to the lower cadre, their continuous officiation confers on them an advantage of being senior to the later recruits under Rule 21(4). If as stated earlier by the enormous departure or by the power to relax, the quota rule was not adhered to, the rota rule for inter- se seniority as prescribed in Sec. 25(1)(ii) cannot be given effect In the absence of any other valid principle of seniority it is well established that the continuous officiation in the cadre, grade of service will provide a valid principle of seniority. The seniority lists having not been prepared on this principle are liable to be quashed and set aside.” The learned senior counsel also referred to a judgment passed in the case of Jagdish Ch Patnaik v. State of Orissa reported in (1998) 4 SCC 456 . The paragraphs particularly referred to are Para 32, 33, 34. The contents of the paragraphs are reproduced herein below: “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. The paragraphs particularly referred to are Para 32, 33, 34. The contents of the paragraphs are reproduced herein below: “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 select 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 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 there by 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. 33. The only question that survives for consideration raised by Mr. Banerjee learned senior counsel appearing for the appellants is whether the Tribunal was justified in entertaining an application for review and ultimately reversing the earlier decision? Banerjee, the learned senior counsel appearing for the appellants on this score. 33. The only question that survives for consideration raised by Mr. Banerjee learned senior counsel appearing for the appellants is whether the Tribunal was justified in entertaining an application for review and ultimately reversing the earlier decision? In support of this contention reliance has been placed on the decision of this Court in K. Ajit Babu & Ors. vs Union of India & Ors. - 1997 (6) Supreme Court Cases 473. In the said case what was held by this Court, after analysing the provisions of the Administrative Tribunal Act is that the right of review is available only to those who are party to a case and even if a wider meaning is given to the expression `person feeling aggrieved' accruing in Section 22 of the Administrative Tribunal Act then whether such person can seek the review by opening the whole case has to be decided by the Tribunal in the facts and circumstances. The Court also held that the right to review is possible only on limited grounds although strictly speaking Order 47 R.1 Civil Procedure Code may not be applicable and when such application is filed within the period of limitation. This Court also held that when the application under Section 19 of the Act is filed and the question involved in the said application stands concluded by some earlier decisions of the Tribunal, the Tribunal necessarily has to take into account the judge in the earlier case, s a precedent and decide the application accordingly. But in the case in hand the respondents who were not parties to the earlier proceedings not only filed an application for review but also filed an independent application and the Tribunal being of the view that independent application will not be maintainable reviewed its earlier order and the impugned order has been passed. While the appellants have challenged the reviewed order of the Tribunal respondents have filed a Special Leave Petition against the order of the Tribunal dated 29.10.1994 dismissing their original application No. 2335 of 1992 holding the same to be not maintainable. In this view of the matter the entire dispute is before this Court and we have also heard the parties at length and the question that review is not maintainable really does not arise. 34. In this view of the matter the entire dispute is before this Court and we have also heard the parties at length and the question that review is not maintainable really does not arise. 34. The only other contention which requires consideration is the one raised by Mr. Raju Ramachandran, learned senior counsel appearing for the intervenors to the effect that expression `recruitment' and `appointment' have two different concepts in the service jurisprudence and, therefore, when Rule 26 uses the expression `recruited' it must be a stage earlier to the issuance of appointment letter and logically should mean when the selection process started and that appears to be the intendment of the Rule Makers in Rule 26. We are, however, not persuaded to accept this contention since under the scheme of Rules a person can be said to be recruited into service only on being appointed to the rank of Assistant Engineer, as would, appear from Rule 5 and Rule 6. Then again incase of direct recruits though the process of recruitment starts when the Public Service Commission invites applications under Rule 10 but until and unless the Government makes the final selection under rule 15 and issues appropriate orders after the selected candidates are examined by the Medical Board, it cannot be said that a person has been recruited to the service. That being the position it is difficult for us to hold that in the Seniority rule the expression `recruited' should be interpreted to mean when the selection process really started. That apart the said expression `recruited' applies not only to the direct recruits but also to the promotees. In case of direct recruits the process of recruitment starts with the invitation of application by the Commission and in case of promotees it starts with the nomination made by the Chief Engineer under rule 16. But both in the case of direct recruits as well as in the case of promotees the final selection vests with the State Government under rules 15 and 18 respectively and until such final selection is made and appropriate orders passed thereon no person can be said to have been recruited to the service. In this view of the matter the only appropriate and logical construction that can be made of Rule 26 is the date of the order under which the persons are appointed to the post of Assistant Engineer. In this view of the matter the only appropriate and logical construction that can be made of Rule 26 is the date of the order under which the persons are appointed to the post of Assistant Engineer. It the crucial date for determination of seniority under the said rule. Mr. Raju Ramachandran's contention, therefore, cannot be sustained.” 10. Mr. Moa Imchen, learned Senior Additional Government Advocate appearing for the State respondents submitted that the stand of the respondents has been made very clear in the affidavit filed by the respondent Nos. 3 and 4 particularly at Para 4, 5, 7 and 8. After referring to the said paragraphs of the affidavit, the learned Government Advocate submitted that Rule 15 of the Rules of 2002 which governs the service of the parties involved in the two writ petitions has been applied, while preparing and notifying the impugned Seniority List, therefore no illegality has been committed. The paragraphs of the affidavit referred to by the learned Government Advocate are reproduced herein below: “4. That with regards to statements made in paragraph No.3 of the writ petition, the answering deponent begs to state that no illegality has been committed by the respondents while issuing the Tentative Seniority List of Inspector of supply as on dated 109.11.2018 submitted vide office Letter zno. DSE/P/2016-17/206 dated Dimapur. The 18th March 2019, therefore, a direction to the respondent authorities to re-cast and re-arrange the seniority of the petitioners and the Private respondents strictly in terms of Rule 15(ii) read with Schedule-ii (1) of the Nagaland Food and Civil Supplies (1st Amendment), Rules, 2001 does not arise in as much as the seniority position of the Petitioners and the Private respondents was arrange as per the Rules. 5. That with regards to statements made in paragraph No. 4 , of the writ petition, the answering deponent states that the instant writ petition is a misconceived petition for the reason that the petitioner has failed to interpret the Rules more particularly Rule 15 (ii) read with Schedule-ii (1) of the Nagaland Food and Civil Supplies Services (1 st Amendment), Rules, 2002. It is pertinent to state that the department has implemented the Rules while issuing the Seniority List. 7. That with regards to statements made in paragraph No. 6 of the writ petition, the answering deponent offers no comment as the same are matters of record. It is pertinent to state that the department has implemented the Rules while issuing the Seniority List. 7. That with regards to statements made in paragraph No. 6 of the writ petition, the answering deponent offers no comment as the same are matters of record. It is pertinent to state that the Petitioners Nos. 1 and 2 were appointed against the vacancy arose in the year 2009 and similarly the private respondent Nos. 5 & 6 were also promoted against the vacancy arose in the same year. Therefore, the vacant posts were filled up in terms of Schedule-ii (1) of the Nagaland Civil Supplies Services Rules 1st Amendment 2002. 8. That with regards to statements made in paragraph Nos. 7 & 9 of the writ petition, the answering deponent begs to state that it is a settled position of law the seniority in a particular cadre has to be counted from the date of appointed or regularization/promotion. In the instant case, the respondent Nos. 5, 6, 7, 8 and 9 were promoted to the post of Inspector of Supply in the existing vacancy caused on retirement of Shri. Nzamo Lotha, Inspector with effect from 15.04.2010 vide order dated 13.05.2010, promoted to the post of Inspector vice Shri. S. Y. Chang vide order in the existing vacancy caused on the promotion of Shri. Mayangtemjen promoted to the post of Inspector of supply vice Shri. I. Kiyevi Swu promoted to the post of Inspector vice Shri. Neisazo Domeh promoted respectively. However, in the case of the present petitions, they were appointed dated 18.07.2012 and 18.07.2012 respectively. It is relevant to state that Rule 15 of the Nagaland Civil Supplies Service Rules 1 st Amendment 2002 is clear for determination of Seniority position in a particular cadre which is reproduced as under. 15. SENIORITY: i. The seniority of the member of the service recruited directly by competitive examination under in a particular cadre shall be in order in which their names are arranged in the select list, if the members join their posts within 30 days from the date of issue of the order of the appointment. Thereafter, their seniority shall be determined in accordance, with the date of joining irrespective of merit list. ii. Thereafter, their seniority shall be determined in accordance, with the date of joining irrespective of merit list. ii. The relative seniority of direct recruits and promotes recruited and promoted respectively in the same year shall be determined accordingly to the rotation of vacancy between direct recruits and promotees which shall be on the quota of vacancies reserved for direct recruitment and promotion respectively in Schedule-ii. The promotees ranking senior to the direct recruits. Rule 15 sub-rule (i) of the Rules clearly provides for determination of seniority for members recruited directly by competitive examination to be counted from the date of joining the service irrespective of merit list. Hence, the seniority position for the petitioner Nos. 1 &2 shall be counted from the date of joining the service i.e., 18.07.2012. Furthermore, in case of relative seniority of direct recruits and promotees recruited and promoted in the same year respectively, the promotee shall rank senior to the direct recruits. In the instant case, the petitioner Nos. 1 & 2 were recruited on 18.078.2012 and private respondent Nos. 8 & 9 were promoted on 29.02.2012, therefore the private respondent Nos. 8 & 9 shall be senior to the petition Nos. 1 & 2 by virtue of their dates of appointed and in terms of the Rules 15 sub-rule (i) of the Rules. It is needless to say that the respondent Nos. 5, 6 & 7 shall be senior to the petitioner Nos. 1 & 2 in as much as respondent Nos. 5, 6 & 7 were appointed in the year 2010. Therefore, there is no illegality in the tentative seniority list of Inspector of Supplies as on sated 19.11.2018 and the same has been issued in terms of the Nagaland Civil Supplies Service Rules 1 st Amendment 2002.” 11. Considered the submissions of the learned counsels. Before I proceed any further, it would be appropriate to reproduce the relevant Rules of 2002. Rule 2 Clause (ix) provides as follows; “ix) “Service” means the Nagaland Civil Supplies Service (Class-II) and the Nagaland Civil Supplies Subordinate Service (Class-III)” Rule 3 provides as follows; “(3) Constitution and the classification of the Service. 1. Before I proceed any further, it would be appropriate to reproduce the relevant Rules of 2002. Rule 2 Clause (ix) provides as follows; “ix) “Service” means the Nagaland Civil Supplies Service (Class-II) and the Nagaland Civil Supplies Subordinate Service (Class-III)” Rule 3 provides as follows; “(3) Constitution and the classification of the Service. 1. The service shall consist of three classes of Posts of the following categories scale of pay shown in Schedule -1: provided that the Governor from time to time may reduce or add category of post or posts: A) Category 1 : (Gazetted Class-1) i) Joint Director ii) Deputy Director iii) Assistant Director/ Movement Officer B) Category- II : (Gazetted Class-II) i) Superintendent of Supply ii) Superintendent of Supply(Movement) C) The Nagaland Civil Supplies Sub-ordinate: (Class III) Category III a) Inspector of Supply b) Inspector of Supply(Movement) Category IV a) Sub- Inspector of Supply Category V a) Store Keeper. b) Gate Keeper Category VI a) Store Hand b) Labour Supervisor. 2) Each of the VI category under Sub rule (1) shall form an independent cadre. Member of any lower category shall have no claim for appointment to higher category except in accordance with the provisions made in these rules.” Rule 5, provides methods of recruitment to the service mentioned at Rule 3 as follows : “5. Method of recruitment: 1) Recruitment to the service, after commencement of these rules, shall be by the following methods, viz, a) by direct recruitment by competitive examination/ selection. b) by promotion from lower grade. 2) The quota allotted to each source of recruitment under a) and b) of the sub rule (1) and the minimum education standards and conditions for recruitment shall be as mentioned in Schedule II. 3) Not withstanding anything continued in sub rule (1) if in the opinion of the government the exigencies of the service so required, the government by order after consulting the commission adopt any method of recruitment of service other than those specified in the said sub-rule 4) If sufficient number of the candidates for the posts pertaining to any source of recruitment in the sub-rule (1) above is not available in the course of recruitment in a calendar year, the quota pertaining to that source shall lapse.” Rule 15 provides how seniority is to be fixed between members of the service. Rule 15 is reproduced herein below: “15. Rule 15 is reproduced herein below: “15. Seniority (i) The seniority of the member of the service recruited directly by competitive examination under rule in a particular cadre shall be in order in which their names are arranged in the select list, if the members join their posts within 30 days from the date of issue of the order of the appointment. Thereafter, their seniority shall be determined in accordance, with the date of joining irrespective of merit list. (ii) The relative seniority of direct recruits and promotees recruited and promoted respectively in the same year shall be determined accordingly to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively in Schedule -II, the promote ranking senior to the direct recruits.” 12. Rule 2, Clause (ix) of the Rules of 2002 makes it clear that the Rules of 2002 governs the service conditions of those persons who are in Civil Supply Service (Class-II) and those who are in Nagaland Civil Supply Subordinate Service(Class-III). And Rule 3 of the Rules makes it clear that Inspector of Supply is Civil Supply Subordinate Service (Class-III) and those services which are above that, i.e. which comes under Class-II falls under Nagaland Civil Supply Service (Class-II). The service of the parties involved here are admittedly, Inspector of Supply upgraded to Senior Inspector of Supply. Therefore, there can be no doubt whatsoever that the service of the parties involved in these two writ petitions are governed by the Rules of 2002. 13. Rule 5 of the Rules of 2002 provides the method of recruitment to the post mentioned in Rule 3 which includes Inspector of Supply. As per this Rule there are two methods of recruitment to the post of Inspector: (i) By direct recruitment (selection through competitive examination), and (ii) By promotion from lower grade. Schedule II of the Rules of 2002 provides quota for promotion and direct recruitment (50-50). Rule 5 also provides an exception in the case of exigency. If exigency arises, the Government after consulting the Commission, may adopt any method of recruitment of service other than those specified, i.e., direct recruitment and by selection. Schedule II of the Rules of 2002 provides quota for promotion and direct recruitment (50-50). Rule 5 also provides an exception in the case of exigency. If exigency arises, the Government after consulting the Commission, may adopt any method of recruitment of service other than those specified, i.e., direct recruitment and by selection. It also provides that in case sufficient numbers of candidates are not available from any of the two sources, in a recruitment year, the quota pertaining to that particular source shall lapse. Rule 6 provides how the recruitment is to be conducted and Rules 10 and 11 provides the process and the manner in which the promotion to gazetted and non-gazetted posts are to be carried out. 14. Rule 15, as it would be seen from above, provides for two things: (i) How to fix seniority among the direct recruits, and (ii) How to fix relative seniority of direct recruits and promotes recruited and promoted respectively in the same year. What we are concerned with in these two writ petitions is the second one. The Rule makes it very clear that inter-se seniority of direct recruits and promotees recruited and promoted respectively in the same year has to be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of vacancies reserved for both the sources of recruitment, but promotees taking the first place. In short, the Rule provides the method or the manner in which the inter-se seniority of only the direct recruits and promotees recruited and promoted in the same year should be fixed. So obviously, the Rule does not provide how to fix inter-se seniority of those direct recruits and promotees recruited and promoted in different recruitment years. It also does not mention about how to fix inter-se seniority of those direct recruits and promotees, who are recruited to posts which vacancies arose in the same year but are recruited and promoted in different years. The words “relative seniority of direct recruits and promotees recruited and promoted respectively in the same year” makes it clear enough that a pre condition required to be fulfilled before fixing of relative seniority of direct recruits and promotees in the post of Inspectors of Civil Supply as per the rule is, the persons should have been recruited and promoted respectively in the same year. In other words, it is only those who are recruited and promoted to the post of Inspector in the same year, whose relative seniority can be fixed on quota rotation basis. In the present case, though the post to which the petitioners in WP(C)/62/2019 were appointed and the post to which the respondent Nos. 5 and 6 were appointed, were vacancies of the same year, they were appointed in different years, that of the petitioners being in 2012 and that of the two respondents being in 2010. Therefore, by application of Rule 15 of the Rules of 2002, the name of petitioner No. 1 cannot be placed above the respondent No. 5 in WP(C) No. 62 of 2019, and likewise, the name of petitioner No. 2 cannot be placed above the Respondent No. 6 as claimed by them in the writ petition. As such, the argument put forward by Mr. C. T. Jamir, learned senior counsel appearing for the petitioners that seniority is to be counted from the year of vacancy or year of requisitioning of the post, as per the provisions of Rule 15 is not acceptable. Further, Mr. C. T. Jamir, had relied on the judgment passed in the case of Union of India and Others v. N.R. Parmar and Others reported in (2012) 13 SCC 340 , the relevant portion of which has been reproduced at Para 6 of this judgment. However, the proposition of law made in that case has also been overruled in the case of K. Megachandra Singh v. Ningam Siro reported in (2020) 5 SCC 689 . The relevant paragraphs of the same have also been reproduced at Para 9 of this judgment 15. Furthermore, in the case of Jagdish Ch Patnaik v. State of Orissa reported in (1998) 4 SCC 456 the Hon’ble Supreme Court, after considering the relevant provisions of the relevant rules involved in that case which relates to fixing of seniority between direct recruits and promotees, came to the conclusion that a person can be said to have been recruited to a post only, when the order of appointment is issued. Therefore, seniority is to be reckoned only from that point of time. The relevant portion of the Judgment passed in the case of Jagdish Ch Patnaik v. State of Orissa reported in (1998) 4 SCC 456 , is Para 34, and it is reproduced here below: “34. Therefore, seniority is to be reckoned only from that point of time. The relevant portion of the Judgment passed in the case of Jagdish Ch Patnaik v. State of Orissa reported in (1998) 4 SCC 456 , is Para 34, and it is reproduced here below: “34. The only other contention which requires consideration is the one raised by Mr. Raju Ramachandran, learned senior counsel appearing for the intervenors to the effect that expression `recruitment' and `appointment' have two different concepts in the service jurisprudence and, therefore, when Rule 26 uses the expression `recruited' it must be a stage earlier to the issuance of appointment letter and logically should mean when the selection process started and that appears to be the intendment of the Rule Makers in Rule 26. We are, however, not persuaded to accept this contention since under the scheme of Rules a person can be said to be recruited into service only on being appointed to the rank of Assistant Engineer, as would, appear from Rule 5 and Rule 6. Then again incase of direct recruits though the process of recruitment starts when the Public Service Commission invites applications under Rule 10 but until and unless the Government makes the final selection under rule 15 and issues appropriate orders after the selected candidates are examined by the Medical Board, it cannot be said that a person has been recruited to the service. That being the position it is difficult for us to hold that in the Seniority rule the expression `recruited' should be interpreted to mean when the selection process really started. That apart the said expression `recruited' applies not only to the direct recruits but also to the promotees. In case of direct recruits the process of recruitment starts with the invitation of application by the Commission and in case of promotees it starts with the nomination made by the Chief Engineer under rule 16. But both in the case of direct recruits as well as in the case of promotees the final selection vests with the State Government under rules 15 and 18 respectively and until such final selection is made and appropriate orders passed thereon no person can be said to have been recruited to the service. But both in the case of direct recruits as well as in the case of promotees the final selection vests with the State Government under rules 15 and 18 respectively and until such final selection is made and appropriate orders passed thereon no person can be said to have been recruited to the service. In this view of the matter the only appropriate and logical construction that can be made of Rule 26 is the date of the order under which the persons are appointed to the post of Assistant Engineer. It the crucial date for determination of seniority under the said rule. Mr. Raju Ramachandran's contention, therefore, cannot be sustained.” 16. Going by the above interpretation of the word or expression “recruitment”, the parties involved in the two writ petitions (excluding the Government respondents) can be said to have been recruited only on the date on which their appointment orders were issued or actually appointed. Therefore, their inter-se seniority could not have been fixed from the date on which requisitions of the posts to which they were appointed or promoted. To do so would be against the provisions of Rule 15 (ii) of the Rules of 2002 and the settled principle of law. 17. In view of what has been stated above, this Court is of the view that the claim of the petitioners in WP(C) No. 62 of 2019, is not tenable as far as their prayer for re-fixing the inter-se seniority between them and the private respondent Nos. 5 to 8 is concerned. However, regarding the inter-se seniority between them and respondent No.9,(the petitioner No. 1 in the other writ petition) and the petitioner No. 2, in that writ petition, the provisions of Rule 15 (ii) of the Rules of 2002, will apply since they were appointed on the same day. A glance at the Tentative Seniority List, makes it apparent that the provisions of the said rule has been applied and their interse seniority has been fixed accordingly. As such, there is no reason to interfere with the same. As stated above, the case of the petitioners in WP(C)/124/2019, as submitted by the learned senior counsel, Mr. A glance at the Tentative Seniority List, makes it apparent that the provisions of the said rule has been applied and their interse seniority has been fixed accordingly. As such, there is no reason to interfere with the same. As stated above, the case of the petitioners in WP(C)/124/2019, as submitted by the learned senior counsel, Mr. R. Iralu is that, though the Rules of 2002, came into existence from the date it was notified, it has never been applied in the past in the fixing of inter-se seniority of the direct recruits and the promotees, therefore applying the same at this juncture would highly be discriminatory, inequitable, arbitrary, illegal and violative of the fundamental rights of the petitioners under Article 14 and 16 of the Constitution. But nowhere in the pleadings, the petitioners have shown how and why it would be so. As such, the submission is without any basis. Further, just simply because the rule has not been applied in the past it does not mean that it can never be applied. A rule is made by a legislature after several discussions or deliberations and it is made to be followed or applied unless it violates any provisions of the Constitution, or unless it is grossly unreasonable and illegal. As such, it has to be implemented or followed for the fulfillment of the purpose for which it is made. In these two cases, the issue of seniority is limited to the parties involved only. Therefore, by the application of the Rules of 2002 in fixing the inter-se seniority of the petitioners and the respondents, no other person is going to be adversely affected. Moreover, this Court finds nothing wrong or illegal in applying the provisions of the Rules of 2002 while fixing the inter-se seniority of the petitioners in WP(C)/124/2019 and the respondents therein, who are the petitioners in the other writ petition, i.e., WP(C)/62/2019. It may also be mentioned here that the petitioners in WP(C)/124/2019, did not challenge the rule, and the way or the manner in which it has been implemented. The only ground on which the seniority list is challenged as stated above, is, the sudden implementation of the same. However, in this also, they have not shown sufficient grounds as to why the seniority list should be interfered with on that ground. 18. The only ground on which the seniority list is challenged as stated above, is, the sudden implementation of the same. However, in this also, they have not shown sufficient grounds as to why the seniority list should be interfered with on that ground. 18. Taking into account all that has been stated above, this Court finds no merit in the two writ petitions. Therefore, the tentative seniority list of Civil Supply Inspectors prepared as on 19.11.2018, is not interfered with as far as the parties involved in the two writ petitions are concerned. The two writ petitions are dismissed accordingly.