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PETITIONER: SHRI L. CHANDRAKISHORE SINGH

       Vs.

RESPONDENT: STATE OF MANIPUR & ORS.

DATE OF JUDGMENT:       18/09/1999

BENCH: R.P.Sethi, S. Saghir Ahmed

JUDGMENT:

     SETHI,J.       Leave  granted.  In all these appeals the point of law sought to be determined is regarding the principle governing the  determination of seniority of the persons belonging  to Manipur  Police  Service governed by Manipur Police  Service Rules  (hereinafter referred to as "MPS Rules").  It has  to be  determined  as  to whether or not  the  police  officers belonging  to the service who had continuous, uninterrupted, meritorious  officiating service are entitled to the benefit to  be counted the same towards their seniority.  The  ambit and  scope of the judgment of this Court in Union of India & Anr.   vs.   Harish Chander Bhatia & Ors.  [(1995)2  SCC  48 needs  also  to be ascertained.  The rival  contentions  are required to be adjudicated on comparative study of the Delhi &  Andaman  &  Nicobar  Island Police  Service  Rules,  1971 (hereinafter referred to as "DANI Rules") and the MPS Rules. Brief  facts  of  the  case,  as  extracted  from  SLP   (C) No.18221/98  filed  by Shri L.Chandrakishore Singh are  that the   appellant   herein  joined   the  Manipur  Police   as Sub-inspector  on  the recommendation of the Manipur  Public Service  Commission  and  was  confirmed   to  the  post  on 16.6.1976.   Vide order No.13(1)/9/79- H(PT) dated 3rd June, 1980  (Annexure P-1) the Government of Manipur appointed  31 Sub-inspectors  of  Police,  including  the  appellants,  as Inspectors  of  Police on promotion in the scale of  pay  of Rs.488-28-518-EB-25-749-EB-38-958  plus other allowances  as admissible  under the Rules with effect from 3rd June,  198o on  regular basis, until further orders (emphasis supplied). Vide  order  No.3/12/83-MPS/DF(i) dated 12th  October,  1983 (Annexure  P-2) the Government of Manipur in exercise of the powers  conferred  under  Rule  24 of the  MPS  Rules,  1965 appointed  the appellant along with 27 others, in the  order of their merit, to the Manipur Police Service in officiating capacity  in the pay-scale of Rs.900-40-1220-EB-50-1720 with immediate    effect,   until     further   orders.     Order No.13(1)/4/79-H(i)  dated  16.9.1989  shows   that  on   the recommendation of the DPC held on 14.1.1985, the Governor of Manipur  was pleased to confirm the appellant and others  as Inspectors  of Police in the Manipur Police Department  with effect  from  14.1.1985  i.e.,  the date on  which  the  DPC recommended   for   confirmation,   until  further   orders. However, vide order No.3/12/83-MPS/DP (PT-I) dated 16.8.1989 the  respondent-Government issued an order, purported to  be under  Rule 5(1)(b) read with Rule 16 of the Manipur  Police Service  Rules,  1965, appointing on promotion the  officers mentioned therein including the appellant, in order of their seniority  to Manipur Police (Junior Grade) in the pay-scale

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of  Rs.2000-60-2300-EB-75-3200  with immediate effect.   The tentative  seniority  list  of the MPS officers as  on  22nd September,  1998  showed the appellant’ s name  at  Sr.No.72 allegedly  even below the direct recruits (MPS Grade-II)  of the year 1988.  He submitted his objections to the tentative seniority  list  on  26th   December,  1989.   However,  the seniority list issued on 30th March, 1990 showed his name at Sl.No.71,  still below the direct recuits (MPS Grade-II)  of 1988  batch.   Feeling  aggrieved of his  placement  in  the seniority,  the  appellant filed writ petition  being  Civil Rule  No.166  of  1990 before the Gauhati High Court  for  a direction  to regularise his officiating appointment to  MPS Grade-II     with     effect       from    12.10.1983     by revising/quashing/modifying  the aforesaid appointment order dated  16.8.1989 insofar as it related to him.  He  reserved his  right to challenge the seniority list of the MPS.   The writ  petition  is  stated to have been disposed of  by  the Division  Bench  of Gauhati High Court, Imphal Bench  giving directions  that the appellant shall be given the benefit of regularisation  from the date of his officiating appointment provided the same was continuous.  The appellant again filed a civil writ bearing No.60/91 seeking inter alia a direction to  consider  him for promotion to the next higher  post  of Additional  Superintendent  of Police/Deputy Commandants  of Manipur  Rifles.  During the pendency of the aforesaid  writ petition, the respondent-Government filed an application for modification  of its order dated 20th August, 1980 passed in C.R.   No.166/90 which was subsequently registered as  Civil Review  No.13/96.  The appellant filed another writ petition bearing  Civil Rule No.307/92 for quashing the order of  the Manipur  Government dated 16.9.1985 and seeking a  direction for   his  confirmation  as   Inspector  of  Police.   While disposing  of the aforesaid writ petition on 11.12.1992  the Gauhati High Court directed the Government either to confirm the  appellant  as  Inspector  of Police  with  effect  from 3.6.1980  or from the date when his juniors were  confirmed. The  High  Court directed the deletion of the  words  "until further  orders" mentioned in his regular appointment  order dated  3rd  June, 1980 (Annexure P-1).  It is admitted  that the  aforesaid  judgment was not appealed against.  On  21st May,  1996  Civil  Review  No.13/96 was  disposed  of  by  a Division Bench by setting aside the order dated 20th August, 1990  passed in Civil Rule 166 of 1990.  The said Civil Rule No.166/90  was  restored to the file and the  appellant  was directed  to  implead  all those officers above him  in  the seniority  list  of  MPS  Grade-II, who were  likely  to  be affected  adversely in case if reliefs as prayed for by  him were  granted.  The said writ petition was disposed of by  a Single  Judge  of the High Court on 18.9.1997  allowing  the same  with directions to the respondent Government to  treat the  date of officiating appointment of the appellant to the MPS  Grade-II  as the date of his regular appointment.   Not satisfied   with   the  aforesaid   judgment   the   private respondents  filed Writ Appeal No.162/97 which was  referred to  a larger Bench by formulating three points for  decision vide  order  dated  13.5.1998.   The  Full  Bench  vide  the impugned  order in these appeals set aside the order of  the learned  Single Judge and dismissed the writ petition  being Civil  Rule No.166/90.  The appellant N.  Bijoy Singh in SLP (C)  No.17310/98  was appointed as an Inspector  along  with others including the appellant L.  Chandrakishore Singh vide order  dated  3rd June, 1980 (Annexure P-1).  Under the  MPS Rules,  the meeting of the Selection Committee for  relevant posts  was  held  on  24th   March,  1987.   The   Committee recommended  the  aforesaid  appellant   as  an  officiating

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appointee  solely  on the ground of shortage of  substantive vacant posts at the relevant time but in anticipation of the future  substantive  vacancies  which were likely  to  arise within  the stipulated period as conceived under Rule 14  of the  Rules.  Vide order dated 16th July, 1987, issued  under Rule  24 of the Rules, the said appellant along with  others was  appointed  on officiating basis to the  Manipur  Police Service    (Junior    Grade)   in     the    pay-scale    of RS.900-40-1220-EB-50-1720 with effect from the date on which they  took  over  the  charge of the  post  (Annexure  P-3). However,  vide  order dated 16th August, 1989  purported  to have been issued under Rule 5(1)(b) read with Rule 16 of the Rules,  the  appellant along with others was  appointed,  on promotion,  in order of merit to the Manipur Police  Service (Junior      Grade)     in         the     pay-scale      of Rs.2000-60-2300-EB-75-3200  with  immediate   effect.   Vide order  dated 28th October, 1991 issued in exercise of powers vested  in the Government under Rule 23, the appellant along with others was confirmed to Manipur Police Service Grade-II with  effect  from  16.8.1991.  Feeling  aggrieved  Shri  N. Bijoy  Singh filed writ petition bearing CR No.415/94 in the Gauhati  High  Court praying for seniority from the date  of his   officiating  appointment   along  with   consequential benefits.   His  petition was dismissed on 5.7.1995  on  the ground  that  he was not entitled to the seniority from  the date  of  his  officiating appointment.  He filed  a  review petition  seeking clarification which was also dismissed  on 18.6.1997.   Writ  Appeal No.101/97 preferred by him  before the  Division  Bench  of the High Court was  referred  to  a larger  Bench  along  with  writ appeal  filed  against  the judgment  of  the learned Single Judge  in  L.Chandrakishore Singh’s  case.   The larger Bench dismissed the appeal  vide the  impugned order holding him not entitled to the  benefit of seniority from the date of his officiating appointment or from the availability of first substantive vacant post after the  aforesaid selection.  Smt.Vandana Karki and others  who were  respondents  in  the  writ   petition  filed  by  Shri L.Chandrakishore  Singh  have  filed   SLP  (C)   No.4870/99 alleging  that the High Court was not right in  interpreting eligibility  criteria  laid down under Rule 14(1) read  with Rule   5(1)(b)  of  the  Rules   and  effective   dates   of confirmation  to  the  post of Inspector of Police.   It  is contended  that the High Court erred in holding that the MPS Service  Rules  were  pari materia with DANI Rules.   It  is submitted  that the High Court was not right in holding that the  words "substantively borne on the cadre of Inspector of Police"  appearing  in Rule 5(1)(b) of MPS Rules  could  not mean the inspector of police whose probation to the post had been  confirmed.  It could not be held that the confirmation to  the post of Inspector of Police be taken as  eligibility criteria  for  promotion to MPS Grade-II.  It  is  contended that  the  High  Court failed to appreciate that  since  the inception  of  service,  the Government of Manipur  had  all along  been  interpreting the words "substantively borne  on the  cadre  of  Inspector of Police"  appearing  under  Rule 5(1)(b) of the Rules as the Inspector of Police confirmed to the  post  and  as  such  confirmed  inspectors  alone  were considered  to  be eligible for promotion to  MPS  Grade-II. There  was  no  justification  to  disturb  the   consistent practice of 30 years and to unsettle many settled matters in the   service.    The   respondent    No.1,   namely,   Shri L.Chandrakishore  Singh is contended to be not eligible  for promotion  to MPS Grade-II on regular basis till  14.1.1985, i.e.,  the date of his confirmation to the post of Inspector of  Police  and thus could not be promoted to  MPS  Grade-II

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when  he  was allowed to officiate as MPS  Grade-II  officer vide  orders  dated 12.10.1983 from the list prepared  under Rule  24 of the Rules.  The High Court is further stated  to have  erred  in overruling the decision of a Division  Bench dated  11.4.1997 passed in Writ Appeal No.35/94 and 55/94 as the aforesaid judgments are stated to have been approved and confirmed   by  this  Court  by   dismissing  the  SLP   (C) Nos.12904-12905 of 1997.  Leave is prayed to appeal from the final  judgment  of  the Full Bench and prayer is  made  for passing  such other and further orders as are deemed proper. Shri  H.Nabh Kumar Singh, Senior Advocate, appearing for the appellant  has vehemently argued that after holding the  MPS Rules as synonymous to the DANI Rules, the Full Bench of the High  Court  was not justified in not applying the law  laid down  by  this Court in Union of India & Anr.   Vs.   Harish Chander  Bhatia & Ors.  [(1995) 2 SCC 48].  It is  contended that  after the judgment dated 11.12.1992 of the High  Court in  Civil Rule No.307/92, the respondent-State was  estopped from  arguing  that  the appointment of  the  appellant  was temporary  which disentitled him from getting the benefit of length  of service on the basis of the aforesaid order.   He has  submitted that the learned Single Judge who decided the Civil  Rule  166 of 1990 on 18.9.1997 had rightly held  that since  the DANI Rules were in pari materia of MPS Rules, the judgment  of  the  Apex Court in Bhatia’s case  (supra)  was squarely  applicable  in the facts and circumstances of  the case.   He  has  referred to various  observations  made  in favour of the appellant and assailed the conclusions arrived at  by  the  Full Bench on the ground of  not  applying  the relevant  rules  and the pronouncements made by this  Court. Shri  A.S.  Nambiar, Senior Advocate for the respondents has submitted that the appointment of the appellant as Inspector of  Police  initially being on probation for two years,  the same could not be treated as substantive appointment for the purposes  of  determining  the seniority.  He has  tried  to distinguish  the DANI and MPS Rules to show that the initial appointment  of  the appellant as Inspector  and  subsequent confirmation  entitled  him benefit of seniority  only  with effect  from  the 16th August, 1989.  According to  him  the learned  Single Judge had committed mistake in allowing  the appeal filed by Shri L.Chandrakishore Singh.  The Rules were made  by  the  President  of India  in  exercise  of  powers conferred  under Article 309 of the Constitution of India on 29th  March,  1965.   Rule 3 provides that  there  shall  be constituted  a Central Police Service to be known as Manipur Police  Service,  the posts of which shall be central  civil posts  Class II gazetted.  The authorised permanent strength of  the  service and the post shall be such as specified  in the  Schedule attached to the Rules.  The Central Government or  the  Administrator,  subject  to  such  conditions   and limitations,  as may be prescribed by the Central Government in  this behalf, may, by order, create duty for such  period as may be specified therein.  Rule 5 which deals with method of  recruitment provides:  "Method of Recruitment:  (1) Save as  provided in rule 17, appointment to the service shall be made by the following method namely:-

     (a)  50  per cent of the substantive  vacancies  which occur from time to time in the authorised permanent strength of  M.P.S.   (Junior  Grade) shall be filled  in  by  direct recruitment  in  the  manner specified in Part IV  of  these rules;  and

     (b)  the  remaining  50 percent  of  such  substantive vacancies  shall  be  filled up by selection in  the  manner

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specified in part V of these rules from amongst officers who are substantively borne on the cadre of Inspector of Police, Inspector of Police (Legal) and Subedar/Sub-Major of Manipur Rifles employed under the State of Manipur;

     Provided  that nothing in the case of a person who had been  appointed  to  a  post,  which  post  is  subsequently declared  as  duty post, he shall be deemed to  have  always been  appointed to a duty post from the date on which he was so appointed.

     Provided  further  that  Nothing in  this  rule  shall preclude the Governor from holding a vacancy in abeyance, or filling  it  on an officiating basis in accordance with  the provisions of Part VIII of these rules."

     (2)  If  the  exigencies of service so  requires,  the administrator may, in consultation with the commission, vary the  percentage  of  vacancies to be filled by  each  method specified in sub-rules (1).

     Part V provides for recruitment by selection.  Rule 13 mandates  that:   "Recruitment under clause (b) of  sub-rule (1)  of  Rule 5 shall be made on the recommendation  of  the Selection   Committee  (hereinafter  referred   to  as   the Committee) consisting of -

     Chairman

     i) the Chairman or a Member of the Commission;

     Members

     ii)  a  nominee  of the Ministry of Home  Affairs  not below the rank of Deputy Secretary;

     iii)  the Chief Secretary to the Government of Manipur and

     iv)  an  officer of the rank of Inspector  General  of Police to be nominated by the Ministry of Home Affairs."

     The  Committee  is required to consider, from time  to time,  the  cases of officers eligible under clause  (b)  of sub-rule  (1) of Rule 5 who have served in their  respective cadres  for  not less than two years and prepare a  list  of officers  recommended  taking  into the account  the  actual vacancies at the time of selection and those likely to occur during  a year.  The selection for inclusion in the list has to  be  based on merit and suitability in all  respects  for appointment  to  the service with due regard  to  seniority. The  names of the persons included in the list are  required to  be appointed in order of merit.  The list so prepared is to be forwarded by the Committee to the Governor which shall be approved by him after taking into account the changes, if any,  proposed by the Public Service Commission.  Such  list shall  ordinarily be in force until a fresh list is prepared for  the purpose in accordance with these rules.   According to  Rule  16 appointments to the service are to be  made  in order  of  merit in the list referred to in Sub-rule (4)  of Rule  15 with due regard to the proportion specified in Rule 5  and  subject to sub-rule (2) of Rule 16.   Selection  for officiating appointments have to be made under Rule 24 which provides:   "Selection for officiating appointments:  If  at any time the Administrator is of the opinion that the number

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of  officers  available in the list referred to in  sub-rule (4) of Rule 15 for appointment to duty posts is not adequate having  regard to the vacancies in such posts, he may direct the  Committee  to  consider the cases of officers  who  had officiated  for a period of not less than three years in any of  the  cadres mentioned in clause (b) of sub-rule  (1)  of rule  5  and prepare a separate list of  officers  selected. The  selection  for inclusion in the list shall be based  on merit  and  suitability  in  all  respects  for  officiating appointments  to  duty posts with due regard  to  seniority. The  provisions  of sub-rule (2) and (3) of Rules 14 and  15 shall  apply mutatis mutandis in the preparation of the list under this rule."

     Rule   25  provides:    "Officiating  appointment   to specified  post  +  any  temporary post  carrying  the  same designation  as that post + any other post declared as  duty post:   (1) If a member of the service is not available  for holding  a  duty  post,  the  posts  may  be  filled  on  an officiating basis:

     (a)  By the appointment of an officer included in  the list referred to in sub-rule (4) of Rule 15 or

     (b) If no such officer is available by the appointment of an officer included in the list prepared under Rule 24.

     (2) Notwithstanding anything contained in these Rules, if  the  exigencies of service so require, a duty  post  for which  a member of the service is not available, may,  after consultation   with   the  commission,  be  filled   on   an officiating basis by the appointment of an officer belonging to  any State Police Service on deputation for such  periods ordinarily  not  exceeding three years as the  Administrator may consider necessary.

     (3) Notwithstanding anything contained in these rules, where  appointment to a duty post is to be made purely as  a local  arrangement for a period of not exceeding six months, such  appointment  may  be made by  the  Administrator  from persons who are included in the list prepared under sub-rule (2)  of rule 15 or rule 24 or who are eligible for inclusion in such a list.  (Emphasis supplied)

     The Full Bench after extensively dealing with the DANI Rules  in paras 10 to 13 of its judgment rightly  concluded: "Judicial  decision  given  to  the areas  advanced  in  one statute  does  not afford a guide, but construction  of  the same  areas  in  another statute unless statutes  are  pari- materia legislation.  In the instant case, it is an admitted fact  that  both  the  Rules  were  framed  by  the  Central Government  and even after adoption of the MPS Rules by  the State  of  Manipur,  no major change has been  made  in  the provisions  of Rule 5,14,15,24 and 25 of the MPS Rules.  The minor  modifications  which have been made in the MPS  Rules does not materially affect the provisions of the Rules or it does not change the basic structure of the MPS Rules.  Since both  the rules were framed by the Central Government, there is  no  difficulty  to hold that the  intention  of  Central Government is same in both the Rules.  Therefore, we have no hesitation  to  hold that the DANI Rules is in  pari-materia with  the  MPS  Rules.  The first part of Question  NO.3  is answered accordingly."

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     While dealing with the case of the appellant, the Full Bench  found that he had not been substantively promoted  to the  post  of  Inspector of Police on  3.6.1980  because  of qualified  words  "until  further orders" appearing  in  the aforesaid  order.   It was observed:  "Appointment with  the condition of "until further orders" is purely on a temporary capacity subject to further order made in this behalf by the competent authority.  Regular appointment in a cadre or post should  not allow with the qualifying words, "until  further orders".   If the appointment is made until further  orders, it   cannot   be  said  to   be   a   regular   appointment. Consequently,  we  are of the opinion that the  petitioner’s appointment  in  the post of Inspector of Police  cannot  be termed as a regular appointment."

     It  appears that before arriving at such a  conclusion the  Bench  did not notice the earlier decision of the  High Court   in  Civil  Rule  No.307  of  1992  wherein  it   was specifically  held:   "As  the petitioner was  appointed  on officiating basis, it therefore follows that the appointment was  against  a  permanent  post and he cannot  be  kept  on officiating   basis   for  such  a   long   period   without confirmation.   That apart, as the petitioner was  appointed according  to  rules on officiating basis, the  word  "until further  orders"  is absolutely superfluous and,  therefore, this words are set aside.

     In  the  result,  it is directed that  the  petitioner shall be confirmed in the post of Inspector of Police either from  the date of initial appointment or from the date  when officers  junior to him were confirmed.  I may refer to  the decision  of  the Division Bench of this Court  in  Durgadas Purkayastha  V.  Gauhati High Court, 1988 GLR 6.  Relying on the decision of the Apex Court in S.B.  Patwardhan v.  State of  Maharashtra, AIR 1977 SC 2051, it held that confirmation is  one  of  inglorious and uncertaintly of  the  Government service depending neither on the efficiency of the incumbent nor availability of substantive vacancies."

     It  is  conceded before us that the said judgment  was not  appealed  against and was allowed to become final.   It is, however, contended that as the respondents were not made party  in  the said writ petition, the verdict did not  bind them.   The  argument  has  to be  noticed  for  only  being rejected inasmuch as the petitioner therein was aggrieved by the  order which affected him alone and he had impleaded the State of Manipur as party respondents who, according to him, had  added  superfluous words "until further orders" in  his order  of  promotion.  The record of proceedings of the  DPC held  on 9.9.1983 for consideration of promotion to the  MPS Grade-II  in the Police Department, Manipur shows that there existed  29  substantive/  regular   vacancies  in  the  MPS Grade-II out of which 14 belonging to direct recruits and 15 to the promotees.  Out of 15 posts of promotion 5 posts were reserved  for  ST  only and no reservation for SC.   It  was further  reported by the Government that there were  another 28  short  term vacancies (both direct and  promotion  quota together)  in  MPS Grade-II.  The DPC considered to fill  up those  short term vacancies on officiating basis under  Rule 24  of  the MPS Rules by giving promotion from  amongst  the eligible  officers in the feeder list.  For selection of  15

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officers  for appointment by promotion all eligible officers were  consider.   On  the basis of assessment  made  and  on perusal  of  their  comparative merit and  suitability,  the Committee    recommended     officers      including    Shri L.Chandrakishore  Singh in order of merit for appointment on officiating  basis to the post of MPS Grade-II.  The name of the  appellant L.Chandrakishore Singh was at Sl.No.2 in  the merit  list prepared by the DPC.  The proceedings of the DPC clearly  and unambiguously indicate that all eligible police officers  were  considered  for officiating  appointment  in terms of Rule 24 against available short term vacancies.  It has  further to be noticed that the selection was based upon merit and suitability and the DPC had kept in mind sub-rules (2)  and (3) of Rule 14 and 15 of the Rules while  preparing the  list on merits.  It has further to be noticed that  the appointment  to  the  duty  post was not  made  as  a  local arrangement  as  contemplated by sub-rule (3) or Rule 25  of the  Rules.   We  find that the learned Single  Judge  while disposing of Civil Rule 166/90 had rightly held:  "Since the DANI rules are in pari materia of Manipur Service Rules, the judgment  and order of the Apex Court in Union of India  and Another,  appellants  vs.  Harish Chander Bhatia and  others (supra)  shall  be squarely applicable in the facts  of  the case  at  hand.   On  this score alone,  this  petition  has succeeded.   In my view, therefore, it may not be  necessary to advert to the other points urged by the parties.

     This  apart,  in Direct Recruit  Class-II  Engineering Officer’s  Association, Appellants vs.  State of Maharashtra and  others, respondents (1990) 2 SCC 715, the  Constitution Bench of the Apex Court held in paragraph 47 ’A’ as under:

     "(A)  Once  an  incumbent  is   appointed  to  a  post according  to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation."

     As  already  said,  petitioner was  appointed  to  the Manipur  Police Service (Junior) with effect from 12.10.1983 in accordance with Rules.

     For  the  reasons aforestated, this writ  petition  is allowed  with  a direction to the respondents to  treat  the date  of  officiating appointment of the petitioner  as  the date  of his regular appointment and refix his seniority  in terms  of  the direction, consequently, the  seniority  list published  under  Rule 28 of the rules by Notification  date 30.3.1990   (Annexure  7)  and   the  impugned  order  dated 16.8.1989  (Annexure  3)  are  hereby set aside  in  so  far petitioner is concerned."

     This  Court  in Bhatia’s case (supra)  considered  the scope of DANI Rules which we have found are pari materia the MPS  Rules and held:  "4.  From the above, it is clear  that for  a person to be appointed under sub-rule (1) of Rule 25, he  has to be an officer whose name is included in the  list referred to in sub-rule (4) of Rule 15 or one prepared under Rule  24.   Insofar  as  sub-rule  (3)  is  concerned,  this requirement is not to be satisfied, and further, appointment under  that sub-rule cannot exceed six months and is made as a  local arrangement.  The respondents are those whose names found  place  in the list prepared under Rule 24  and  their appointments  not  having  been  made   purely  as  a  local arrangement  for a period not exceeding six months, we  have

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no  difficulty  in  upholding  the   view  of  the   Central Administrative  Tribunal, Principal Bench whose judgment has been   impugned  in  this   appeal,  that  respondents  were appointed under sub-rule (1).

     5.   There is no serious dispute to this position even by learned Additional Solicitor General, Shri Tulsi, who has appeared  for the appellants.  His first real contention  is that  despite the appointments being under sub-rule (1), the respondents  cannot  be taken to have been appointed to  the Service  and as such the direction of the Tribunal to  treat them  as  permanent  appointees instead  of  as  officiating hands,  is not in consonance with what has been provided  in the  Rules.   Shri  Tulsi submits that  appointment  to  the Service  can be made only as visualised by Rule 16 and  this can  be of those whose names find place in the list referred in  sub-rule (4) of Rule 15.  The respondents not being such incumbents, they cannot be treated as permanent appointee to the Service.

     6.   This submission would not be correct if heart  of the  matter  is  looked into.  To put  it  differently,  the submission  is  not correct in substance, but is so only  in form.   We  have taken this view because an  examination  of Rule  24  shows that the list prepared as required  by  that rule,  has also to satisfy the requirements of provisions of sub-rules  (3) and (4) of Rules 14 and 15.  This shows  that the  incumbents whose names find place in the list  prepared as contemplated by Rule 24 are also those who have been duly selected  and consultation with the Commission has also been made and the list prepared has been forwarded to the Central Government as well for its doing the needful.  There is thus no  difference  in substance between the list  prepared,  as contemplated  by  Rule  14 read with Rule 15,  and  the  one visualised  by  Rule  24.   So,   there  appears  to  be  no justifiable reason to regard Rule 24 selectees as in any way inferior  to Rule 14 selectees.  According to us, they stand almost  at par.  It is because of this that clauses (a)  and (b)  of  sub-rule  (1)  of Rule 25 have  virtually  made  no distinction between these two categories of incumbents.

     7.   Shri  Tulsi,  however,   contends  that  Rule  25 visualises  officiating appointment and not permanent;   and that appointment is required to be made when a member of the Service  is not available.  Though this is so, but the facts of  the present case would show that though the appointments were  stated  to be officiating these continued for  a  very long  period, which in the case of Respondent 1 was of about 12  years  as  he  came to be appointed  under  Rule  25  on 6.11.1972  and  was fixed permanently in the slot meant  for promottes  on 28.7.1984.  An officiating appointing for over a  decade cannot be treated as fleeting appointment with  no service  benefits  to be given.  Any other view  would  very seriously  prejudice  such a service-holder who, even  after having   rendered  service  equal  to  those  of   permanent appointees  for  a  long  period, and that  too  for  proper functioning  of the Service, would be denied the benefit  of the  same for no cogent reasons.  Any other view is bound to have  a  demoralising effect in the Service as a whole.   As the appointments under Rule 25 are also to duty posts, which may  form  part of the strength of Service because what  has been stated in Rule 4(3), we are of the view that justice of the  case and the need to preserve the efficient functioning of  the  Service would require to treat the appointments  of the  respondents  as  permanent, despite their  having  been

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first appointment on officiating basis."

     We are of the firm opinion that the Full Bench was not correct  in  holding that the judgment in Bhatia’s case  was inapplicable  to  the facts and circumstances of the  matter pending  before  it.   Vide the impugned judgment  the  High Court  tried  to make an artificial distinction of the  case from  the  facts  of  the Bhatia’s case  with  reference  to Article  142  of the Constitution with observations:   "But, inspite  of this small difference the Hon’ble Supreme  Court has  given  the relief to the respondents of Harish  Chandra Bhatia’s  case  and  it  appears to us  that  for  making  a complete  justice  to the respondents who have  rendered  12 years  of officiating service, the Apex Court has passed the order  for  regularising  the  officiating  service  of  the respondents by invoking the provisions of Article 142 of the Constitution."

     A  perusal  of the judgment in Bhatia’s case  has  not persuaded  us to agree with the findings of the High  Court. After referring to Sub-rules (3) and (4) of Rules 14, 15 and 24,  the  Court  found  that  there  was  no  difference  in substance between the list prepared as contemplated by Rules 14  and 15 and the one visualised by Rule 24.  The selectees under  Rule  24  were held to be standing at  par  with  the selectees  under Rule 14 of the Rules.  The reference to  12 years  of  service  of  the respondent therein  was  in  the context to emphasize that the appointment was not under Rule 25  being  local  arrangement   for  specified  period  vide sub-rule  (3)  of  Rule  25.   As  the  appointment  of  the appellant could not be held to be under Rule 25, the verdict in  Bhatia’s  case  had  to  be  accepted  by  treating  the appointment  of a person to the service under Rule 24 of the Rules.   The  reliance  of  the   learned  counsel  for  the respondents  upon the judgment in Baleshwar Dass & Ors.  Vs. State of U.P.  & Ors.  [(1980) 4 SCC 226 does not in any way advance the case of his clients inasmuch as in that case the Court  considered  the scope of United Provinces Service  of Engineers  Class  II, Irrigation Branch Rules, 1936  and  by specific  reference  to Rules 3(b) and 4 held that  a  cadre post  can  be permanent or temporary and if an  Engineer  is appointed  substantively to a temporary or permanent post he becomes  a  member of the service.  The touchstone then,  is the  substantive  capacity  of the appointment.   The  Court further  held  that the substantive capacity refers  to  the capacity   in  which  a  person   holds  the  post  and  not necessarily  to  the nature or character of the post.   Even appointment  to a temporary post for long duration would  be sufficient  to hold that such person was holding the post in substantive  capacity.  A person shall be held to be holding a  post in a substantive capacity when he is found to be not holding the post for a definite period.  The Court observed: "To  approximate  to  the  official  diction  used  in  this connection,  we may well say that a person is said to hold a post  in  a  substantive capacity when he holds  it  for  an indefinite   period   especially  of    long   duration   in contradistinction to a person who holds it for a definite or temporary  period  or  holds  it  on  probation  subject  to confirmation."

     The  Respondent-State  has  submitted that  since  the enforcement  of the MPS Rules in 1965, the State  Government

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has  been  construing the words "substantively borne on  the cadre  of the inspector of police" appearing in Rule 5(1)(b) as  confirmed  Inspector of Police and till an Inspector  of Police  of probationary period is not confirmed to the  post he has not been considered for promotion to the MPS Grade-II on  regular  basis.   It  is   contended  that  under   this consistent practice for about 34 years, the State Government has  been  considering  only  the  cases  of  the  confirmed Inspectors  of  Police  for  promotion to  MPS  Grade-II  on regular  basis  as the policy of the State Government is  to promote  only  the  confirmed Inspectors of Police  and  not promote  the  probationary  Inspectors  of  Police.   It  is contended that in the light of the judgment of this Court in N.Suresh  Nathan  & Anr.vs.  Union of India & Ors.   [(1992) Supp.   1  SCC 584, such a practice should be held to be  in consonance   with   the  long   standing  practice  in   the Department.   We  feel  the reliance on this  case  is  also misplaced.   In that case the dispute was whether a  diploma holder  Junior  Engineer  who obtained the degree  while  in service  became  eligible  for   appointment  as   Assistant Engineer  by  promotion  on  completion of  three  years  of service  including  therein the period of service  prior  to obtaining  the degree or the three years service as a degree holder  for  the  purpose to be reckoned from  the  date  of obtaining  the  degree.  The diploma holders contended  that they  were  entitled to include the earlier period and  were eligible for promotion in the category on obtaining a degree if  the total period of service is three years inclusive  of earlier  period.  The degree-holders contested this position and   contended   to  the   contrary.   According   to   the degree-holders  these were to distinct categories, the first being  of  degree-holders  with three years service  in  the grade  as  degree holders, the period of three  years  being susequent to the date of obtaining the degree as in the case of  Junior  Engineers who joined the service with a  degree; and the other category was of diploma holders with six years experience.   The  diploma-holders  went   to  the   Central Administrative  Tribunal and their contention was  accepted. In  appeal the order of the Tribunal was set side mainly  on the  ground that there existed sufficient material including the  admission  of  the diploma-holders  that  the  practice followed in the Department for long time was that in case of diploma-holder  Junior Engineers who had obtained the degree during  service,  the period of three years service  in  the grade  for  eligibility  for promotion  as  degree-  holders commenced  from  the  date of obtaining the degree  and  the earlier period of service as diploma-holders was not counted for  that purpose.  The Union Public Service Commission  was found to be having similar view.  The Court held that if the past practice was based on one of the possible constructions which could be made under the rules, then upsetting the same at  a  later stage was not appropriate.  After referring  to Rules  7  and 11 of the Recruitment Rules, the Court  found: "The entire scheme, therefore, does indicate that the period of   three  years’  service  in   the  grade  required   for degree-holders according to Rule 11 as the qualification for promotion in that category must mean three years’ service in the  grade as a degree-holder and, therefore, that period of three years can commence only from the date of obtaining the degree  and  not  earlier.  The service in the  grade  as  a diploma-holder  prior  to  obtaining the  degree  cannot  be counted  as  service  in  the grade with a  degree  for  the purpose  of  three years’ service as a  degree-holder.   The only  question  before  us  is of the  construction  of  the provision and not of the validity thereof and, therefore, we

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are  only required to construe the meaning of the provision. In   our   opinion,  the   contention  of   the   appellants degree-holders that the rules must be construed to mean that the three years’ service in the grade of a degree-holder for the  purpose  of  Rule 11 is three years from  the  date  of obtaining  the  degree is quite tenable and commends  to  us being   in  conformity  with   the  past  practice  followed consistently."

     The position in the instant case is totally different. After  the judgment in Bhatia’s case, we are of the  opinion that  no other construction of the Rules is possible.   When the  Rules  are  clear  and do not  create  any  doubt,  the adoption  of a contrary practice cannot be made a basis  for depriving  the employees in the service of their entitlement unambiguous.   the Rules which are clear, specific and The Full Bench  of the High Court referred to Government Order dated 28th July, 1997,  claimed to have been issued under Article 309 of  the Constitution  which  was  held to  prescribe  that  officers appointed  on direct recruitment and also by promotion  were to be on probation for a period of two years.  The aforesaid Government order has not been shown to us for the purpose of ascertaining  its scope and ambit and the authority  besides the  purpose  for which it is claimed to have  been  issued. Article  309 of the Constitution authorises the  appropriate Legislature  to  regulate the recruitment and  condition  of service  of persons appointed to public service and post  in connection with the affairs of the Union or of a State.  The President  and the Governor of a State have been  authorised to  make  or  provide  for making of  rules  regulating  the recruitment   and  the  condition  of  service  of   persons appointed  to such services and posts and until provision in that  behalf  is made by or under an Act of the  appropriate legislature  under  the Article and any rule so  made  shall have  effect subject to the provisions of the said Act.  The proviso   to  Article  309  is  a   transitional   provision empowering  the  Executive  to make rules  relating  to  the matters specified therein until the appropriate Legislatures legislate  on the subject.  Any rule made under this Article has  to remain in force for the purposes specified  therein. No  rule in terms of Article 309 is shown to have been  made by  the  respondent  Government  to  provide  regarding  the appointment  to a post to be necessarily on probation for  a period  of  two  years.   It  is  true  that  Government  by Executive  orders  made under constitutional provisions  has the  power to regulate the recruitment and the condition  of service  but no such Government Order can alter or amend the existing  rules  on the subject.  It is conceded  before  us that in the 1965 Rules no period of probation was prescribed for  the post of Inspectors of Police.  The High Court  was, therefore,  not justified in relying upon the earlier office order  to  hold  that the appointment of  the  appellant  as Inspector  of  Police  was deemed to be on probation  for  a period  of  two years as the appellant had  admittedly  been appointed after following of the procedure prescribed in the Recruitment  Rules.   His appointment was to be  treated  as substantive  appointment  in  the absence of a rule  to  the contrary.   The order dated 3rd June, 1980 when read in  the light  of the judgment of the High Court dated 11.12.1992 in C.R.   No.307  of 1992 cannot be construed to mean that  the appellant  was  not substantively promoted as  Inspector  of Police  with effect from 30th June, 1980.  Seniority  itself based  upon  length  of service is an acquired right  of  an

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employee  which  entitles him to be considered  for  further promotion.   It  is  generally regulated by  Service  Rules. Such  rules  normally provide for determined seniority  with reference  to the date of appointment to the class, category and  grade  to  which  the   appointment  is  made.   It  is determined only on the basis of the length of service.  Such length  of service may be on the basis of the difference  of continuous  officiation or on the basis of the difference of substantive  appointment  in the cadre or grade  or  service which  may be reckoned from the date of confirmation on  the basis  of regularisation.  It is now well settled that  even in  cases of probation or officiating appointments which are followed  by a confirmation unless a contrary rule is shown, the  service  rendered  as  officiating  appointment  or  on probation  cannot  be  ignored for reckoning the  length  of continuous  officiating service for determining the place in the  seniority list.  Where the first appointment is made by not following the prescribed procedure and such appointee is approved  later on, the approval would mean his confirmation by  the authority shall relate back to the date on which his appointment  was made and the entire service will have to be computed  in reckoning the seniority according to the length of  continuous  officiation.  In this regard we fortify  our view  by  the judgment of this Court in G.P.  Doval  &  Anr. vs.   Chief Secretary, Government of U.P.  & Ors.  [(1984) 4 SCC  329].  In the light of what we have noted  hereinabove, it  is  apparent that the order impugned in the  High  Court dated  16th  August, 1989 (Annexure P-5) was issued  by  the Government  under a mistaken believe by completely  ignoring the  mandate  of  Rule 24 and the verdict of this  Court  in Bhatia’s case.  Once the appellant had been appointed to the service  in  terms of Rule 24 of the Rules, it was  presumed that his name had been included in the list after compliance of  the provisions of sub-rules (3) & (4) of Rules 14 and 15 of  the  MPS Rules, there being no difference  in  substance between the list prepared as contemplated under Rules 14 and 16  on  the one hand and as visualised under Rule 24 on  the other.   Promotion made after compliance of Rules 14 and  15 is  contemplated to be a selection in terms of Rule  5(1)(b) of  the  Rules.   The Respondent-State, therefore,  was  not justified  in  re-appointing,  on  promotion,  the  officers mentioned in the Government Order dated 16th August, 1989 to the  Manipur Police Service (Junior Grade) with effect  from that  date.  Seen from any angle, we are of the opinion that the  learned  Single  Judge of the High  Court  had  rightly allowed  the  writ  petition  filed by  the  appellant  vide Annexure  P-10  dated  18.9.1997   and  issued   appropriate directions.   The  Full Bench of the High Court wrongly  set aside  the  judgment of the learned Single Judge by  wrongly interpreting  the  provisions of the law applicable  in  the case  and  ignoring  the  judgment in  Bhatia’s  case  which squarely  covers the matters so far as the interpretation of the  MPS  Rules  were concerned.  The judgment  impugned  in these  appeals  is based upon conflicting and  contradictory conclusions  arrived at by the Full Bench.  The  assumptions and  presumptions drawn are neither based upon the  relevant rules  or  supported by any judicial verdict of this  Court. Under  the circumstances, the appeals arising out of SLP (C) Nos.18221/98  and  17310/98 filed by L.Chandrakishore  Singh and  N.Bijoy Singh are allowed by setting aside the judgment of  the  Full  Bench.   The  writ  petitions  filed  by  the appellants  are  allowed.  The respondents are  directed  to treat  the officiating appointments of the appellants as the date of their regular appointment and re-fix their seniority in  terms of the observations made in this judgment.   Fresh

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seniority  list  shall  be  prepared in  the  light  of  our directions  alongwith  the consequential benefits under  the law  to the persons who are found to be senior.  The  appeal arising  out of SLP (C) 4870/99 filed by Smt.Vandana Karki & Ors.     shall    stand     dismissed.     The    appellants L.Chandrakishore  Singh and N.Bijoy Singh are held  entitled to   costs   of  Rs.10,000/-  each  to  be   paid   by   the Respondent-State.