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Judgment
Kh. Nobin Singh, J.
Heard Shri M. Rarry, learned counsel appearing for the petitioner; R.S. Reisang, learned Senior Government Advocate for the State respondents, Shri S. Nepolean, learned Government Advocate for the MPSC, Shri Serto T. Kom, learned counsel, Shri S. Jhaljit, learned counsel and Shri M. Devananda, learned counsel appearing for the private respondents.
By this writ petition, the petitioner has assailed the validity and correctness of the amendment, to the existing M.P.S. Rules, 1965, called the Manipur Police Service Rules, 1965 (First Amendment), 2013 published vide Notification dated 28-12-2013 issued by the State Government. The petitioner has further challenged the validity and correctness of the Seniority List published vide Government order dated 17-05-2013, the recommendation of the Selection Committee in its meeting held on 18-02-2014 and the consequential orders dated 19-02-2014, 12-03-2014 and 11-07-2014 issued by the State Government.
3.1 According to the petitioner, the Manipur Public Service Commission (in short "MPSC'') issued an advertisement dated 22-08-2005 inviting applications from amongst the eligible candidates for recruitment to Manipur Civil Services and Allied Services/posts including the Manipur Police Service. The written examination known as the MCSCC (Main) Examination, 2005 was held from 04-08-2006 to 18-08-2006 and thereafter, the personality test/viva-voce was held from 28-05-2007 to 06-07-2007. Consequent upon the results thereof, the MPSC issued a notification dated 26-04-2007 recommending a select list of candidates in order of merit wherein the name of the petitioner figured at Sl. No. 44. On the recommendation of the MPSC, the Government of Manipur issued an order dated 14-08-2007 appointing 32 (thirty two) Officers in order of merit in Grade-II of the Manipur Police Service. Since the petitioner could not be appointed in Grade-II of the Manipur Police Service, he was appointed in Grade-II of the Manipur Finance Service in accordance with his own position in merit list. On the resignation of one Shri S. Samarjit Singh who was at Serial No. 6 and was appointed in Grade-II of the Manipur Police Service, the Government of Manipur issued an order dated 24-11-2007 appointing the petitioner, while undergoing training at Faridabad as MFS, in Grade-II of the Manipur Police Service in his place. Having undergone the training, the respondent No. 4 issued an order dated 20-03-2009 notifying that the practical training of the MPS probationers including the petitioner was treated as complete.
3.2 The present petitioner along with thirty others filed a writ petition being W.P. (C) No. 235 of 2012 which was disposed of by the Hon''ble High Court on 18-02-2013 with the direction that the State Respondents should finalise the inter-se seniority list of the MPS Grade-II Officers in accordance with law. In a purported compliance with the court''s order, a tentative seniority list came to be prepared vide Government order dared 12-03-2013 wherein the name of the petitioner was placed at Serial No. 62 and being aggrieved by it, the petitioner filed an objection thereto on the ground that those persons, who were placed below him in the merit list, have been placed above him and his name ought to have been placed just below the name of Shri S. Ibomcha Singh who was placed at Serial No. 38 amongst the direct recruits. The respondent No. 2 published the final seniority list vide Government order dated 17-05-2013 without making any correction as requested by the petitioner and accordingly, the name of the petitioner came to be shown at Serial No. 119. Pursuant to and in compliance with the order dated 02-05-2013 passed by the Hon''ble High Court in a contempt petition being CC (C) No. 62 of 2010, the State Government published another tentative seniority list vide order dated 09-12-2013 and the petitioner, being aggrieved again by it, filed his objection dated 23-12-2013 for rectifying the error which the State respondents failed to consider.
3.3 The State Government issued a Notification dated 28-12-2013 making a rule called the Manipur Police Service Rules, 1965 (First Amendment) 2013 to amend the existing M.P.S. Rules, 1965 by which Rule 4(3) was deleted and Rule 29 was substituted by a new Rule 29. According to him, the provisions of Rule 29(2)(B) are repugnant to and are inconsistent with the other provisions of un-amended portion of the Manipur Police Service Rules, 1965. A Selection Committee was constituted and on its recommendation dated 18-02-2014, the State Government issued an order dated 19-02-2014 appointing as many as 34 MPS Grade-II Officers on promotion to MPS Grade-I. According to the petitioner, the said Government order dated 19-02-2014 was illegal for the reason that while issuing it, the State Government had contravened/circumvented the interim order dated 19-02-2014 passed by this court in W (C) No. 366 of 2013 and MPS Grade-II Officers who were lower in merit list, had been appointed on promotion. Accordingly, on 12-03-2014 the petitioner applied under the Right to Information Act, 2005 for furnishing copies of the Assessment Grading Sheets of the Officers who were in the zone of consideration. In the meantime, the State Government issued two more Government orders dated 12-03-2014 and 01-04-2014 appointing another three MPS Grade-II Officers on promotion to MPS Grade-I and on the recommendation of the Selection Committee in its meeting held on 09-07-2014, one more person namely Shri S. David Piaklian, MPS Grade-II was also appointed on promotion to MPS Grade-I. Being aggrieved by the Notification dated 28-12-2013, seniority list dated 17-05-2013, recommendation dated 18-02-2014 and consequential Government orders dated 19-02-2014, 12-03-2014 and 11-07-2014 are being challenged by the petitioner in the present writ petition.
The present writ petition is contested by the respondent Nos. 1 & 2 by fling an affidavit-in-opposition on their behalf wherein it is stated that the Manipur Police Service Rules, 1965 came to be amended for smooth administration of the service and for better service deliverance to the general public. It is further stated that the final seniority was published after considering the claims and objections of the concerned officers and the petitioner cannot claim seniority over the officers who had been appointed earlier than him, since the seniority is to be counted from the date of appointment to the service in the grade. An affidavit-in-opposition on behalf of the respondent Nos. 6, 8, 10, 12, 14, 15, 17 to 22, 24, 26, 28, 29, 33 34 and 37 was filed wherein it is stated that the Manipur Police Service Rules, 1965 came to be amended from time to time and the amendment published vide Notification dated 28-12-2013 was made as per the Guidelines of the DOPT with a view to avoid supersession amongst the MPS Officers with a bench mark and that since the petitioner had also been promoted to MPS Grade-I vide Government order dated 29-10-2014 without any objection, the question of quashing the said Notification did not arise. Further, an affidavit-in-opposition on behalf of the respondent Nos. 37, 39, 41, 43 to 50 was filed wherein it is stated that the petitioner was appointed only on 24-11-2007 by way of substitution while the answering respondents were appointed on 14-08-2007 and since they were already in the Grade by the time when the petitioner was appointed, he had no right to be senior to them. It is also stated that the amendment published vide Notification dated 28-12-2013 by which the Rule 29 (2)(B) was inserted, is absolutely valid with a rightly titled as "Method of Promotion" which is outside the scope of general principles of promotion "Merit-cum-Seniority" and "Seniority-Cum-Merit".
It is vehemently submitted by Shri M. Rarry, learned counsel appearing for the petitioner that the Rule 29(2)(B) inserted by way of amendment to the existing M.P.S. Rules, 1965 vide Notification dated 28-12-2013 cannot be implemented for the reason that it is in derogation to the provisions of Rule 30 and is inconsistent with the un-amended portion of the M.P.S. Rules, 1965 which govern the methods of selection for appointment to various grades. Rule 29(2)(B) being ultra vires, is liable to be struck down. The seniority list is erroneous for the reason that the private respondents who were below the petitioner in the merit list, have been placed above him. It is further submitted that the selection process alleged to be taken in exercise of power conferred under Rule 29(2)(B), is liable to be set aside and consequently, the recommendations of the Selection Committee based on the said erroneous final seniority list, are bad in law, as a result of which all the Government orders appointing the private respondents on promotion to MPS Grade-I are liable to be quashed and set aside.
Relying upon the averments made in the affidavit filed on behalf of the respondent Nos. 1 & 2, it is submitted by Shri R.S. Reisang, Senior Government Advocate that the amendment has been made for smooth administration of service and it is for the petitioner to prove as to how the amendment can be said to be inconsistent with the un-amended portion of the M.P.S. Rules, 1965. The petitioner was appointed vide Government order dated 24-11-2007 to fill up the vacancy arose consequent upon the resignation of Shri S. Samarjt Singh being accepted by the State Government but the petitioner cannot occupy his position in the merit list and cannot jump over those MPS Grade-II Officers who were appointed on 14-08-2007. His contention is supported by Shri M. Devananda, Shri Serto T. Kom, and Shri S. Jhaljit, the learned counsels appearing for the private respondents. As regards the validity and correctness of the amendment, Shri M. Devananda has submitted that the amendment has been made as the per guidelines of the DOPT so as to avoid supersession amongst the MPS officers.
Admittedly, the appointment to the Manipur Police Services is governed by the provisions of the Manipur Police Service Rules, 1965 (in short "M.P.S. Rules, 1965") which clearly provide for constitution of a State Police Service known as Manipur Police Service. Rule 5 provides for method of recruitment - 50% of the substantive vacancies to be filled by direct recruitment and the remaining 50% by selection. Part-IV of the M.P.S. Rules, 1965 comprising Rules 6 to 12 deals with the manner in which the appointment to MPS Grade-II by direct recruitment is to be made. Rule 9 provides that the Commission shall forward to the State Government a list arranged in order of merit of the candidates who have qualified in the examination. Part-V of the M.P.S. Rules, 1965 comprising Rules 13 to 16 deals with the manner in which appointment to MPS Grade-II by selection is to be made. Rule 14 provides that the Committee shall consider, from time to time, cases of eligible officers who have served in their respective cadres for not less than two years and prepare a list and the names of persons included in the list shall be arranged in order of merit. Rule 29 provides for pay and allowances to be drawn by the MPS at various grades in the service. Rules 29-A and 29-B provide that appointment of member of the services to Grade-I, JAG, SG and Suppertime Scale shall be made by selection on merit with regard to seniority. It may be noted that M.P.S. Rule, 1965 came to be amended vide Notification dated 22-03-2002 and 19-11-2008 issued by the State Government with minor changes as regards Rules 29-A and 29-B. Rule 30 provides that the Governor may make regulations not inconsistent with these rules to provide for all matter for which provisions is necessary or expedient for the purposes of giving effect to these rules. The M.P.S. Rules, 1965 came to be further amended vide Notification dated 28-12-2013 issued by the State Government, wherein Rule 29 has been replaced by a new Rule 29, which is the subject matter in issue before this court. Both the existing Rule 29 and new Rule 29 are reproduced herein below:
"Existing Rule 29:
"29. Pay and allowances:--
(1) The scale of pay attached to the various grades of the service shall be as follows with effect from 01-01-1990 subject to revision by the Government from time to time:--
(i) Suppertime scale - Rs. 14,300 - 400 - 18,300/-
(ii) Selection Grade - Rs. 12,000 - 375 - 18,100/
(iii) Jr. Admn. Grade - Rs. 12,000 - 375 - 16,500/-
(iv) MPS Grade - I - Rs. 10.000 - 325 - 15,200/-
(v) MPS - Grade - II - Rs. 8000 - 275 - 13,500/-
(2) A person recruited on the results of Competitive Examination shall on appointment to the Service, draw pay at the minimum of the time scale, provide that if he held a permanent post, other than a tenure post in a substantive capacity prior to his appointment to the service shall be regulated under the proviso to sub-rule (1) of rule 228 of the Fundamental Rules. The pay and increments in the case of other persons appointed to the Service shall be regulated in accordance with the Fundamental Rules.
(3) Dearness and other allowances shall be paid to persons holding duty posts at such rates as may be determined by the Governor from time to time.
A & 29. B: Appointment of member of the Service to Grade - I, JAG, SG and Suppertime Scale shall be made by Selection on merit with regard to seniority. The Selection Committee shall consists of:--
(i) Chief Secretary, Govt. of Manipur. - Chairman
(ii) Director General of Police, Manipur - Member
(iii) Pr. Secy./Com./Secy. (DP) - Member
(i) A member of the Service who has put in not less than 8 (eight) years of regular service in the MPS Grade - II shall be eligible for consideration for promotion to MPS Grade - I.
(ii) A member of the service who has put in not less than 13 (thirteen) years of regular service including 5 (five) years in MPS Grade - I shall be eligible for consideration for promotion to MPS Junior Administrative Grade.
(iii) A member of the service who has put in not less than 17 (seventeen) years of regular service including 9 (nine) years of service in MPS - I and Junior Administrative Grade taken together shall be eligible for consideration for promotion to MPS Selection Grade. The number of posts of Selection Grade shall be 20% of the total of the posts of MPSs Grade - I and MPS Junior Administrative Grade.
(iv) A member of the service who has put in not less than 20 (twenty) years of regular service including 3 (three) years of service in MPS Selection Grade shall be eligible for consideration for promotion to MPS Suppertime Scale which will have 1 (one) duty post of AIG.
Provided that notwithstanding the provisions of Sub-rule A & B where a member of the service is considered for appointment to a higher grade of the service all persons senior to him/her in the service shall be considered for such appointment even though they have not yet put in the requisite service for appointment to the Grade."
New Rule 29:
"29. Pay and allowances:
The pay scale/band and grade pay attached to the service shall be as follows with effect from 01-01-2006 and subject to revision from time to time by the State Government:
(i) MPS Supertime Scale Rs, 37,400-67,000 + GP Rs. 8,700
(ii) MPS Selection Grade Rs. 15,600 - 39,100 + GP Rs. 7,600
(iii) MPS JAG Rs. 15,600 - 39,100 + GP Rs. 7,600
(iv) MPS Grade - I Rs. 15,600 - 39,100 + GP Rs. 6,600
(v) MPS - Grade - II Rs. 9,300 - 34,800 + GP Rs. 5,400
Dearness and other allowances shall be paid to persons holding duty posts at such rats as may be prescribed by the State Government from time to time.
(A) -Selection Committee:
Appointment of member of the service to Grade I, JAG, SG and Supertime Scale shall be made by the Selection Committee, which shall consist of:--
(i) Chief Secretary, Govt. of Manipur. - Chairman
(ii) Director General of Police, Manipur - Member
(iii) Secretary (DP), Government of Manipur. - Member
[If Chief Secretary also functions as Secretary (DP), then any other Secretary may be nominated by the Government]
(B) -Method of Promotion:
(i) Appointment of a member of the Service to MPS Grade - I and MPS JAG shall be made on the basis of seniority in MPS Grade - II and MPS Grade - I with "Very Good" ACR grading as bench mark.
(ii) Appointment of a member of the Service to MPS Selection Grade and Suppertime Scale shall be made by selection on merit with due regard to seniority.
(C) Eligibility for promotion:
(i) A member of the Service who has put in not less than 5 (five) years of regular service in the MPS Grade - II shall be eligible for consideration for promotion to MPS Grade - I.
(ii) A member of the Service who has put not less than 10 (ten) years of regular service including 5 (five) years in MPS Grade - I shall be eligible for consideration for promotion to MPS Junior Administrative Grade (JAG).
(iii) A member of the service who has put in not less than 14 (fourteen) years of regular service including 9 years of service in MPS - I & Junior Administrative Grade (JAG) taken together shall be eligible for consideration for promotion to MPS Selection Grade.
(iv) A member of the service who has put in not less than 17 (seventeen) years of regular service including 3 (three) years of service in MPS Selection Grade shall be eligible for consideration for promotion to MPS Super-time Scale which will have 1 (one) duty post of AIG."
It may be noted that Shri M. Rarry, learned counsel appearing for the petitioner has fairly admitted that the State Government has the power to amend the existing rules under the provisions of Article 309 of the Constitution of India. His only contention is that the provisions of Rule 29(2)(B) are repugnant to the provisions of Rule 30 and are inconsistent with the provisions of the un-amended portion of the existing rules. While under the existing Rule 29-A and 29-B appointment of members of the service to Grade-I, JAG, SG and Suppertime Scale shall be made by selection on merit with regard to seniority, under the Rule 29 (2)(B) appointment of a member of the service to MPS Grade-I and MPS JAG shall be made on the basis of seniority in MPS Grade-II and MPS Grade-I with "Very Good" ACR grading as benchmark. In respect of appointment to MPS Selection Grade and Suppertime Scale, the method of appointment prescribed in the existing Rule 29-A and 29-B has been continued without any change. According to him, what is contemplated in the un-amended provisions is that any appointment to Manipur Police Service shall be made on the basis of merit and this has been done away with by the amendment introducing a new method of promotion vide Rule 29(2)(B) by which appointment shall be made on the basis of seniority in respect of appointment to MPS Grade-I. Therefore, the amendment vide Notification dated 28-12-2013 being repugnant to Rule 30 and inconsistent with the un-amended portion of M.P.S. Rules, 1965 is bad in law and is liable to be quashed. In support of his contention, the learned counsel appearing for the petitioner has relied upon the decision rendered by the Hon''ble Supreme Court in the case of Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, wherein the question that arose was as to what was the effect of Subordinate Civil Courts Ministerial (Amendment) Rules, 1969, the Hon''ble Supreme Court held that the 1969 amendment do not expressly state that the 1950 rules would no longer be applicable to the ministerial subordinate courts and in the absence of amendment re-enacting Rule 11 in the 1947 rules, it is difficult to hold by the application of the doctrine of implied repeal that the 1950 rules have ceased to be applicable to the ministerial establishment of subordinate civil courts. Reliance has also been placed in the case of A.P. Dairy Development Corporation Federation Vs. B. Narasimha Reddy and Others, wherein the validity of the Andhra Pradesh Mutually Aided Cooperative Societies (Amendment) Act, 2006 was assailed, the Hon''ble Supreme Court held:
"29. It is a settled legal proposition that Article 14 of the Constitution strikes at arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. This doctrine of arbitrariness is not restricted only to executive actions, but also applies to the legislature. Thus, a party has to satisfy that the action was reasonable, not done in unreasonable manner or capriciously or at pleasure without adequate determining principle, rational, and has been done according to reason or judgment, and certainly does not depend on the will alone. However, the action of the legislature, violative of Article 14 of the Constitution, should ordinarily be manifestly arbitrary. There must be a case of substantive unreasonableness in the statute itself for declaring the act ultra vires Article 14 of the Constitution. [Vide Ajay Hasia v. Khalid Mujib Sehravardi, Reliance Airport Developers (P) Ltd. v. Airports Authority of India, Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board, Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union v. Srinivasa Resorts Ltd. and State of T.N. v. K. Shyam Sunder."
It is further submitted by him that the seniority list published vide Government order dated 17-05-2013 is illegal for the reason that the private respondents who were lower in the merit list, have been placed above him. Reliance has been placed in the case of Chairman, Puri Gramya Bank and Another Vs. Ananda Chandra Das and Others, , the Hon''ble Supreme Court held:
"2. This appeal arises from the judgment of the High Court of Orissa in OJC No. 1007 of 1988, dated 4-3-1992. The respondent and others were selected by direct recruitment as managers of Rural Bank. His rank was No. 9 in the merit list. He was directed to be given seniority on the basis of the date of his reporting to duty. It is reported that the first respondent is dead. The only question in this case is that what shall be the ranking among the direct recruits? Is it the date on which they joined duty or according to the ranking given by the Selection Board? On comparative evaluation of the respective merits of the candidates for direct recruitment, the Board had prepared the merit list on the basis of the ranking secured at the time of the selection. It is settled law that if more than one are selected, the seniority is as per ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster. By mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the Selection Board and the arranged one as per roster. The High Court is, therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis. The view, therefore, is wrong. However, we need not interfere with the order, since the first respondent has died."
Reliance has also been placed in the case of Jagdish Lal and others Vs. State of Haryana and others, wherein the questions that arose were: From what date should the seniority of reserved or general candidates be determined? Whether the accelerated promotions given to the reserved candidates to various cadres, applying the rules of reservation will not enure to them the seniority from the date of respective promotion? The Hon''ble Supreme Court held that the reserved candidates became senior to the general candidates in each successive grade/grade from Assistant to Superintendent in Class-III service and 5th respondent in Class-I service. Their seniority is not and cannot have the effect of getting wiped out after the promotion of general candidates from their respective dates of promotion. The general candidates remain junior in higher echelons to the reserved candidates as was held by the High Court.
Defending the validity of the amendment, it is submitted by Shri R.S. Reisang, learned Senior Government Advocate that the amendment has been made for smooth administration of service and it is not inconsistent with the un-amended portion of the M.P.S. Rules, 1965. As has been stated hereinabove, his contention is supported by Shri M. Devananda, Shri Serto T. Kom, and Shri S. Jhaljit, the learned counsels appearing for the private respondents. But none of them has cited any decision of the Hon''ble Supreme Court to substantiate their contention. Only in regards to the validity and correctness of the seniority list, Shri Serto T. Kom, learned counsel appearing for some of the private respondents has relied upon the decision rendered by the Hon''ble Supreme Court in the case of Harish Maganlal Baijal Vs. State of Maharashtra and Others, wherein the provisional/seniority list of the cadre of DSP/Assistant Commissioner of Police (Unarmed) published by the State of Maharashtra came to be challenged by the petitioner on the ground that respondent Nos. 5 to 8 who were from the same batch and were lower in the merit list, were shown above him, the Hon''ble Supreme Court held:
"23. Having carefully considered the submissions made on behalf of the parties, we see no reason to interfere with the order of the Tribunal as affirmed by the High Court. Admittedly, out of all the 22 vacant posts, the first 14 posts were to be filled up by candidates from the open category and the remaining 8 vacancies were reserved for Scheduled Caste and Scheduled Tribe candidates. The last candidate to be included in the first 14 vacancies had obtained 610 marks, whereas the petitioner had obtained 604 marks. In between the last candidate and the petitioner there were 3 other candidates who had obtained 608, 607 and 605 marks respectively, so that in any event, even if the 3 ineligible candidates had been excluded from the very beginning, the petitioner still could not have been included among the first 14 candidates, particularly when one of the ineligible candidates was from the Scheduled Castes and Scheduled Tribes category.
Apart from the above, the selection of the petitioner along with two other candidates as substituted candidates in place of the three ineligible candidates, was under fortuitous circumstances since the original selection had already been made and in keeping with the marks obtained by him and his second preference, the petitioner had been appointed as Sales Tax Officer, Class I and he, in fact, joined in the said post on 22-04-1992.
The petitioner''s contention that since both Mr. Kumbhare and he had joined the post of DSP on 15-09-1993, their seniority should have been reckoned from the same day was rightly rejected both by the Tribunal and the High Court, having regard to the fact that while Mr. Kumbhare had been included in the first select list and his appointment was also deferred on account of verification of his caste certificate, the appointment of the petitioner who had already been appointed and was functioning as Sales Tax Officer, Class I, in the post of DSP, was accidental in view of the ineligibility of three candidates who had been included in the initial list of selected candidates. His claim for seniority could, therefore, be reckoned only from the date of his joining his duties as DSP.
It is also to be kept in mind that Mr. Kumbhare had been initially selected for one of the reserved posts from the Scheduled Castes and Scheduled Tribes category and his appointment had only been deferred for verification of his caste certificate. In the case of the petitioner it was different, in that, he was never included in the initial selection list as a result whereof he was appointed as a Sales Tax Officer, Class I, on account of the marks obtained by him and his position in the list of candidates who were successful in the examination conducted by the Maharashtra Public Service Commission in 1990. In our view, the view taken by the Tribunal as well as the High Court in this regard is the correct view and needs no interference."
From the perusal of the rival contentions of the parties, two main issues have arisen in the matter for consideration by this court - one, with regard to the validity of the amendment published vide Notification dated 28-12-2013 and two, the validity and correctness of the seniority list published vide Government order dated 17-05-2013. As has been stated in the preceding paras, it may be noted that there is no dispute at all as regards the power of the State Government to amend the existing rules under the provisions of Article 309 of the Constitution of India. Almost all the provisions of the M.P.S. Rules, 1965 except Rule 29 are contemplated to deal with the manner as to how persons are to be appointed to the Manipur Police Service either by direct recruitment or by selection. Rule 29 is the only one which deals with as to how a member of the service can be appointed on promotion to MPS Grade-I, JAG, SG and Suppertime Scale. It appears that Rule 29 has nothing to do with other provisions of the M.P.S. Rules, 1965. The grievance of the petitioner is only in respect of Rule 29(2)(B)(i) which provides that an appointment of a member of the service to MPS Grade-I and MPS JAG shall be made on the basis of the seniority in MPS Grade-II and MPS Grade-I with "Very Good" ACR grading in bench mark and by this provision, the basis of appointment on promotion has been changed with a priority being given to ''seniority'' than ''merit''. In the course of hearing, when a query was put to the learned Senior Government Advocate as to what was the reason behind warranting the amendment, he replied saying that the amendment had been made for smooth administration. In supplement thereto, Shri M. Devananda, learned counsel appearing for some of the private respondents submitted that the amendment was made as per the guidelines of the DOPT vide OM dated 08-02-2002 wherein it is provided that the existing guidelines which permit supersession in promotion, have been reviewed and that the promotion would be made on the basis of inter-se seniority of officers who are graded as fit with a bench mark. It is also well settled that an employee has no right to promotion and his only right is to be considered for promotion and that the State Government has the power to amend the rules pertaining to conditions of service so long as it does not take away the rights already accrued in his favour. The petitioner has not been able to show any of his rights being affected or infringed by the said amendment. Moreover, amendment of the existing M.P.S. Rules, 1965 is also a matter of policy decision based on certain reasons as aforesaid and therefore, this court is of the view that the contention of the learned counsel appearing for the petitioner cannot be countenanced and that the provisions of Rule 29(2)(B) are not repugnant to and inconsistent with the other provisions of the un-amended portion of the M.P.S. Rules, 1965. Since the facts of the present case are not similar to that of the case in Om Prakash Shukla v. Akhilesh Kumar Shukla & anr. (supra), its decision cannot be applied to the present case. As regards the principle laid down by the Hon''ble Supreme Court in the case of Andhra Pradesh Dairy Development Corporation Federation v. B. Narasimha Reddy & ors. (supra), there is no doubt about it but it is not applicable to the facts of present case for the reason that there is no unreasonableness in the action of the State Government when it amended the M.P.S. Rules, 1965. As has been stated in the preceding para, the State Government has amended the M.P.S. Rules, 1965 with a view to avoid supersession that has led to disheartening and heartburning amongst the members of the MPS of the State Government and that too, as per the guidelines of the DOPT.
As regards the other issue relating to seniority list, Shri Rarry, learned counsel for the petitioner has submitted that the said seniority list is totally illegal because the private respondents who were below the petitioner in the merit list, have been placed above him. He has relied upon the decision rendered in Chairman, Puri Gramya Bank & anr. v. Ananda Chandra Das (supra) wherein it has been held that it is settled law that if more than one are selected, the seniority is as per ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster. On perusal of the said decision carefully, it is seen that it does not help the case of the petitioner at all and rather, it will help the cases of the private respondents because of the words underlined as above. In the present case, on the recommendation of the MPSC, the Government of Manipur issued an order dated 14-08-2007 appointing 32 (thirty two) Officers in order of merit in Grade-II of the Manipur Police Service including the respondent Nos. 37, 39, 41, 43 to 50 who belong to Schedule Tribes and had been appointed in accordance with the rules of reservation and the roster. By the time when these respondent Nos. 37, 39, 41, 43 to 50 entered into the cadre of MPS Grade-II on 14-08-2007, the petitioner had not yet been appointed at all. Only when a vacancy arose due to the resignation of one Shri S. Samarjit Singh who was at Serial No. 6 and was appointed in Grade-II of the Manipur Police Service, the petitioner was appointed in his place only on 24-11-2007 by the State Government. It is well settled principle that the seniority of an employee shall be counted from the day he enters into the cadre on regular basis and not earlier than that. Therefore, the contention of the petitioner that he ought to have been placed above the said respondent Nos. 37, 39, 41, 43 to 50, cannot be countenanced at all. Similar is the case with the decision, rendered by the Hon''ble Supreme Court in the case of Jagdish Lal & ors. v. State of Haryana & ors. (supra), which will not help the case of the petitioner and the Hon''ble Supreme Court has categorically held that the seniority of a reserved candidate is not and cannot have the effect of getting out after promotion of general candidates from their respective dates of promotion and the general candidates remain junior in higher echelons to the reserved candidates. In fact, the issue involved therein is not exactly the same as that of the present case because in that case the issue has arisen out of the accelerated promotion being given to the reserved candidates and seniority being reckoned from the date of promotion whereas in the present case the issue has arisen out of the initial appointment of the petitioner being made by substitution later and the seniority being reckoned from the date of appointment. But the analogy and the principle underlying the decision thereof can be applied to the facts of the present case. The said decision of the Jagdish Lal & ors. v. State of Haryana & ors. (supra) has been fortified by the Constitutional (Eighty-fifth Amendment) Act, 2001 by which the Article 16(4-A) came to be amended with the words "in the matters of promotion, with consequential seniority" and the validity of which has been upheld by the Hon''ble Supreme Court in the case of M. Nagaraj and Others Vs. Union of India (UOI) and Others, . Moreover, reliance has been placed by Shri Serto T. Kom, learned counsel appearing for the respondent Nos. 37, 39, 41, 43 to 50 in the case of Harish Maganlal Baijal v. State of Maharashtra & ors. (supra), the facts of which are exactly identical with that of the present case, wherein the Hon''ble Supreme Court has held that the appointment of the petitioner therein who had been appointed and was functioning as Sales Tax Officer, Class-I, in the post of DSP, was accidental in view of the ineligibility of three candidates who had been included in the list of selected candidates and his claim for seniority could, therefore, be reckoned only from the date of his joining his duties as DSP. In the present case also, when the petitioner could not be appointed as MPS Grade-II in accordance with his own position in the merit list, he was appointed as Manipur Finance Service and while he was undergoing training as MFS, he was appointed as MPS Grade-II only on 14-11-2007 by the State Government and his appointment was also accidental due to the resignation of one person as mentioned above. Therefore, the issue relating to seniority list can be said to be covered by the decision rendered in Harish Maganlal Baijal v. State of Maharashtra & ors. (supra). Having heard the learned counsels appearing for the parties and considering the facts of the case, this court is of the view that the writ petition is devoid of any merit and accordingly, is liable to be dismissed.
With above observations and for the reasons stated above, the writ petition is dismissed with no order as to costs.