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Judgment
Heard Mr. K. Modhusudon, learned counsel appearing for the petitioners, Mr. S. Nepolean, learned G.A. for the State and Mr. HS. Paonam,
learned senior counsel assisted by Mr. A. Arunkumar,learned counsel for the private respondents.
The present writ petition has been filed by 19 (nineteen) petitioners who are serving as Civil Service Grade - IIofficers having been appointed
against direct recruitment quota seeking for quashing/setting aside certain provisions of the Manipur Civil Service Rules, 1965 namely, proviso to
Rule 16(2) and proviso (d) to Rule 28 (i) of the Manipur Civil Service Rules, 1965, mainly on the ground that the aforesaid provisos have the
effect of giving benefit of retrospective seniority to the private respondents who have been regularly appointed to MCS Grade-II on a subsequent
date. The aforesaid provisos which are challenged in the petition are reproduced here below :
Proviso to Rule 16(2) of the Manipur Civil Service Rules, 1965 which reads as :
Provided that all the incumbent Jr.MCS (SG) officers would be absorbed into MCS Grade-II counting their seniority from the date they were
promoted to Jr.MCS(SG) and the present higher scale enjoyed by the incumbents would be personal
Proviso (d) of Rule 28(i) of the Manipur Civil Service Rules, 1965 which reads as :
(d) the seniority of the persons absorbed into MCS Grade-II from Jr.MCS(SG) shall be counted from the day they were appointed to
Jr.MCS(SG) and the seniority list determined accordingly.
The petitioners entered service in the Manipur Civil Service Grade - II as direct recruits on the recommendation of the Manipur Public Service
Commission having been appointed vide order dated 15.12.2012.
According to the petitioners, the private respondents were appointed to the posts of Sub Deputy Collector (SDC) in the year 1999.As mentioned
in the petition, 44 (forty four) employees of the Government of Manipur including the private respondents were appointed to the grade of Junior
MCS (Sr. Grade) vide order dated 23.02.2008 under Rule 16 of the Junior Manipur Civil Service Rules, 2007 on the recommendation of the
Selection Committee. Thus, it is to be noted that the private respondents were appointed to the posts of Jr. MCS (Sr. Grade) vide order
23.02.2008. The appointment of private respondents to the Grade of Jr. MCS (Sr. Grade) vide order dated 23.02.2008 is not in dispute nor
could have been disputed by the petitioners inasmuch as the petitioners entered service only in the year 2012 as mentioned above.
Subsequently, vide order dated 20.02.2010, 14 (fourteen) employees including the private respondents who were serving as Jr. MCS (Sr.
Grade) were given promotion to the higher posts of Jr. MCs (Selection Grade) on the recommendation of the Selection Committee vide order
dated 20.02.2010 w.e.f. 17.02.2010 i.e. the date of holding Departmental Promotion Committee (DPC). The aforesaid promotion however, was
challenged by some officers by filing writ petitions being W.P.(C) No. 140 of 2010, W.P.(C) No. 243 of 2010, W.P.(C) No. 123 of 2010 before
the Hon''ble Gauhati High Court, Imphal Bench which were allowed by the Hon''ble Gauhati High Court vide judgment & order dated 04.04.2012
by setting aside the aforesaid promotion order dated 20.02.2010 mainly on the ground that the selection committee did not take into consideration
the ACRs of the preceding 5 (five) years and also on the ground that the selection committee mechanically acted upon and made the assessment of
the officers on the basis of the entries reflected in the ACRs without undertaking any independent assessment and accordingly, directed for holding
of review DPC. Though the review DPC was held as directed by the High Court on 04.08.2012, the recommendation of the review DPC was
however, not accepted by the State Government by issuing a notification dated 18.11.2013 by the Department of Personnel & Administrative
Reforms (PD), primarily on the ground that before passing of aforesaid judgment and order of the Gauhati High Court dated 04.04.2012, the
posts of Jr. MCS (Selection Grade) were abolished vide notification dated 05.03.3012 and 30 (thirty) Jr. MCS (Selection Grade) officers were
also absorbed to the posts of Jr. MCS Grade - II in terms of the amended MCS Rules vide notification dated 05.03.2012.
Subsequently, another DPC was held on 04.12.2013 on the basis of which an order was issued for promotion to the posts of MCS Grade - II
on the basis of the amended Manipur Civil Service Rules, 1965, and the private respondents were appointed to the posts of MCS Grade - II
w.e.f. 05.03.2012 vide appointment order dated 06.12.2013.
It is the case of the petitioners that the private respondents were appointed to the post of MCS Grade - II w.e.f. 05.03.2012 vide order dated
06.12.2013 by virtue of the aforesaid impugned proviso to Rule 16(2) and proviso (d) of rules 28 (i) of the Manipur Civil Service Rules, 1965 as
referred above and the private respondents have been given seniority from aretrospective date as evident from the date of seniority list of the MCS
officers issued vide order dated 10.08.2016. According to the petitioners, though the private respondents were promoted to MCS Grade - II vide
order 06.12.2013 i.e. after the petitioners joined service as MCS Grade - II officers as direct recruits, the private respondents have been given
promotion with the retrospective seniority. In aforesaid tentative seniority list, the names of the private respondents appear at Sl. Nos. 46 onwards
up to 63 above the petitioners by giving them retrospective seniority to the posts of MCS Grade - II w.e.f. 17.02.2010. The petitioners though
have been appointed as MCS grade-II earlier in the year 2012 have been shown to be junior to the private respondents from Sl. No. 64 onwards.
According to the petitioners, law is well settled that seniority cannot be given from a retrospective date which would adversely affect the rights
of those who have already entered service. According to the petitioners, the petitioners entered service as MCS Grade-II officers in the year 2012
whereas the respondents entered service in the same grade subsequently in the year 2013 and as such, the private respondents could not have
been given seniority in the posts of MCS Grade - II from a retrospective date which adversely affect the rights of the petitioners.
In support of his contention, Mr. K. Modhusudon, learned counsel for the petitioner relied on the following decisions:
Tej Prakash Pathak -v- Rajasthan High Court (2013) 4 SCC 540 in which it has been held that, ""...... in the context of employment covered by
the regime of Article 309 the ""law"" - the recruitment rules in theory could be either prospective or retrospective subject of course to the rule of
non-arbitrariness. However, in the context of employment under the instrumentalities of the State which is normally regulated by subordinate
legislation, such rules cannot be made retrospective unless specifically authorized by some constitutionally valid statute."" [Para 9]
Further, it was observed that, ""Under the scheme of our Constitution an absolute and non-negotiable prohibition against retrospective law-making
is made only with reference to the creation of crimes. Any other legal right or obligation could be created, altered, extinguished retrospectively by
the sovereign law-making bodies. However, such drastic power is required to be exercised in a manner that it does not conflict with any other
constitutionally guaranteed rights, such as, Article 14 and 16, etc. Changing the ''rules of game'' either misdream or after the same is played is an
aspect of retrospective law-making power"" [Para10]
In P. Sudhakar Rao -v- U. Govinda Rao (2013) 8 SCC 693, the Hon''ble Supreme Court held that, ""........We see no occasion for interfering
with the view taken by the High Court to effect that the grant of retrospective seniority to the Supervisors on their appointment as Junior Engineers
violates Article 14 of the Constitution. The weightage of service given to the Supervisors can be taken advantage of only for the purpose of
eligibility for promotion to the post of Assistant Engineer. The weightage cannot be utilized for obtaining retrospective seniority over and above the
existing Junior Engineers"" [Para No. 53]
The contentions of the petitioner have been vehemently resisted by the respondents. The State respondents have contended that the private
respondents were initially given appointment to the posts of MCS Grade - II w.e.f. 05.03.2012 vide order dated 06.12.2013. However, it was
interfered by this Court in W.P.(C) No. 897 of 2013 filed by one of the promotees, in which, it was directed for giving benefits w.e.f. 17.02.2010
by virtue of the operation of the amended Rule 16. Accordingly, the said tentative seniority list was published by the Department of Personnel in
terms of the direction of the Court in W.P.(C) No. 897 of 2013. It has been stated that the aforesaid order passed in W.P.(C) No. 987 of 2013
has been also followed in another writ petition being W.P.(C) No. 612 of 2014 filed by some of the private respondents. The aforesaid directions
of the Court in W.P.(C) No. 897 of 2013 and W.P.(C) No. 612 of 2014 have not been disturbed by any higher court and as such, the same have
attained finality. Accordingly, it has been submitted that there is no illegality in granting the seniority to the private respondents w.e.f. 17.02.2010
which was done on the direction of the Court and as such, the petition filed is misconceived.
The private respondents also have vehemently objected to the plea of the petitions by contending that the provisions of the Rules challenged in
this petition were already in existence w.e.f. 06.03.2012 and were already notified in official gazette much before the petitioners entered service in
MCS Grade - II. Therefore, the application of these rules which were already in existence before appointment of the petitioners to MCS Grade -
II cannot be said to have caused any infringement on the rights of the petitioners. It was further submitted on behalf of the private respondents that
after the private respondents were given promotion vide order dated 06.12.2013, by operation of the aforesaid impugned provisos, they have
been given promotion w.e.f. 17.02.2010, that too as per direction of the Court referred to above. The private respondents contended that though
they were given promotion vide order dated 06.12.2013 w.e.f. 05.03.2012, the same was interfered with by the Court in W.P.(C) No. 987 of
2013 which was also followed in W.P.(C) No. 612 of 2014 on the basis of which, the effective date of promotion of the private respondents were
given from 17.02.2010 and as such, till the aforesaid orders passed in the said two writ petitions are set aside by the competent Court, no
grievance can be made against the impugned seniority list. They have also contended that the petitioners have also not challenged the said orders
passed by this court before the appropriate forum.
It has been further contended by the private respondents that once a person enters a cadre, his seniority will have to be counted from the date
of continuous officeationin the cadre. It has been contended that it is not in dispute that the private respondents had been holding the posts of Jr.
MCS (Selection Grade) which are equivalent to the MCS Grade - II at the time of regular appointment as MCS Grade - II by promotion. When
the private respondents were regularly appointed to the posts of MCS Grade - II, they have been continuously officiating in the post of Jr. MCS
(Selection Grade) w.e.f. 17.02.2010 and as such, there is no illegality in the aforesaid act of the official respondents in giving retrospective
seniority.
To understand the issues involved in this petition, it may be necessary to refer briefly to the relevant rules.
The State of Manipur in exercise of the powers conferred under proviso to Article 309 of the Constitution of India framed the rules known as
the Manipur Civil Service Rules, 1965. As per the said service rules, there are 4 (four) grades of Manipur Civil Services namely, (i) MCS (Super
time Scale), (ii) MCS (Selection Grade), (iii) MCS (JAG/Grade-I) and (iv) MCS (Grade-II). We are presently concerned with
appointment/seniority relating to MCS (Grade-II). As provided under Rule 5 of the aforesaid MCS Rules, 50% of the substantive vacancies are to
be filled up by way of direct recruitment and remaining 50% by selection from amongst the posts included in the feeder grades. MCS (Super time
Scale), MCS (Selection Grade), MCS (JAG/Grade-I) are to be filled up by way of promotion from the eligible correspondingly lower posts. As
regards MCS (Grade-II) posts, 50% of these are to be filled up by way of direct recruitment and the remaining 50% by way of promotion as
mentioned above. As regards promotion to the posts of MCS Grade-II, it has been provided that these shall be filled up from amongst Jr. MCS
(Sr. Grade) officers with at least 8 years regular service in Junior and Senior Grade combined.
The Government of Manipur also framed, in exercise of the powers conferred under proviso to Article 309 of the Constitution of India,
another set of Rules called the Junior Manipur Civil Service Rules, 2007 which consists of 3 (three) grades of posts namely, (i) Jr. MCS (Selection
Grade), (ii) Junior MCS (Sr. Grade) and (iii) Jr. MCS (Jr. Grade). As per the aforesaid Jr. MCS Rules of 2007, the appointment toJr. MCS (Sr.
Grades) and Jr. MCS (Selection Grades) are to be made from amongst the Jr. MCS (Jr. Grade) who have completed 6 years or 13 years as the
case may be.
It is to be mentioned that as provided under Schedule II of the Manipur Civil Service Rules, 1965, Jr. MCS (Senior Grade) with at least 8
years regular service in the Junior and Senior Grade combined are eligible for appointment to the post of MCS Grade-II by way of promotion.
There is no mention that Junior MCS (Selection Grade), which is the highest grade amongst Junior MCS officers are to be considered for
promotion to MCS grade II posts.
As mentioned above, the petitioners are direct recruits to the posts of MCS Grade-II appointed under the Manipur Civil Service Rules, 1965
vide order dated 15.12.2012 and as such, their seniority is to be counted from the date of appointment. The issue is about assignment of the
seniority to the private respondents who were promoted to the posts of MCS Grade-II vide order dated 06.12.2013 from the lower posts of Jr.
MCS by giving them seniority w.e.f. 17.02.2010. The aforesaid assignment of seniority w.e.f. 17.02.2010 was given by invoking the proviso
toRule 16(2) as well as proviso (d) of Rule 28 (i) of the Manipur Civil Service Rules, 1965(which have been challenged in this petition) as well as
in terms of the judgment of this Court rendered in WP(C) No. 897 of 2013 on 28.04.2015and order dated 28.05.2015 passed in WP(C) No.
612 of 2014.
It is to be noted that though the petitioners have challenged the vires of the aforesaid provisos, they have not opted to challenge the subsequent
administrative orders issued by the State giving seniority to the private respondents w.e.f. 17.02.2010 on the basis of which the tentative seniority
list has been drawn showing them to be senior to the petitioners. This is a fatal defect in as much as, even if the aforesaid impugned provisions of
the Manipur Civil Service Rules, viz, provisos to Rule 16(2) as well as Rule 28(1) of the Manipur Civil Service Rules, 1965 are held to be bad in
law, unless the administrative orders issued by the official respondents granting seniority to the private respondents from 17.02.2010 are also set
aside, these will stand and benefits granted cannot be denied. Unless these are also challenged, the said administrative orders cannot be nullified as
there is no specific plea/relief claimed in this petition. The administrative orders issued in favour of the private respondents granting them seniority
from an earlier date on 17.02.2010 cannot be nullified by way of implication and inference since there is not such relief claimed in the writ petition.
Be that as it may, since the petitioners have challenged these provisos as bad in law on the ground that it would have the effect of granting seniority
from an earlier date, this issue has to be decided.
The aforesaid impugned provisos brought in the Manipur Civil Service Rules, 1965 were affected by the amendment called the Manipur Civil
Service (1st Amendment) Rules, 2012 which were notified on 05.03.2012 and published in the official gazette on 06.03.2012. The aforesaid
amendment Rules also made an amendment to Rule 5 by inserting a proviso to Rule 5(2) which reads as follows :
provided that due to exigencies of services so require, the Government may in consultation with the Commission may make appointment to the
service by way of absorption from an appropriate organized service.
Thus, proviso to Rule 5(2) of the Manipur Civil Service Rules, 1965 empowers the Government to make appointment to the Manipur Civil
Services by way of absorption from another organized service.
It is to be noted that this provision for making appointment by absorption is a purely policy decision of the State Government which cannot be
faulted with unless it violates the existing rights of any incumbent. This Court has referred to the aforesaid newly added proviso to Rule 5(2) as it
would have a direct relevance to the impugned provisos.
The impugned proviso added to Rule 16(2) by the aforesaid 1st Amendment Rules of 2012 provides that all the incumbent Jr.MCS (SG) officers
would be absorbed into MCS Grade-II counting their seniority from the date they were appointed as Jr. MCS(SG) and the present higher scale
enjoyed by the incumbents would be made personal.
This Court also does not find any impropriety with the said proviso as it merely reflects the policy decision of the State Government for
absorbing those incumbents Jr. MCS (Selection Grade) into MCS Grade-II by counting their seniority from the date they were promoted as
Jr.MCS (Selection Grade). This new proviso, indicates that the State Government considers Jr. MCS (Selection Grade) officers to be equivalent
to MCS Grade-II officers and accordingly, has provided for absorption. In this context, one may refer to the scheme of the Manipur Civil Service
Rules, 1965 as well as Junior Manipur Civil Service Rules, 2007. As mentioned above, the Junior Manipur Civil Service Rules consist of 3 (three)
grades of officers, namely, (i) Jr. MCS (Selection Grade), (ii) Jr. MCS (Sr.Grade) and (iii) Jr. MCS (Jr. Grade). Appointment to Senior Grade
and Selection Grade in the Jr. MCS are governed by Rule 27 of the Jr. MCS, Rules 2007. Rule 27(2) provides that a member of the service in the
Jr. MCS (Jr.Grade) shall be eligible for appointment to the Senior Grade on completion of 6 years on regular service in the Grade. Rule 27(3) of
the Jr. MCS Rules, 2007 provides that a member of the service in Jr. MCS (Sr.Grade) shall be eligible for promotion to Selection Grade on
completion of 13 years of regular service.
It is also to be noted that as per the Manipur Civil Service Rules, 1965 as amended from time to time and also notified on 5th March, 2012 it
has been provided that Jr.MCS (Sr. Grade) with at least 8 years regular service in the Junior and Senior Grade combined shall be eligible for
appointment to the post of MCS Grade-II. Therefore, what the MCS Rules, 1965 provide is that a Junior MCS officer if he belongs to Senior
Grade and has rendered 8 years of service in the Junior and Senior Grade combined will be eligible for appointment to the post of MCS Grade-II.
It may be pertinent to note that the MCS Rules, 1965 does not speak for appointment of Jr.MCS (Selection Grade) to the post of MCS Grade-
II. In other words, as per the scheme of the Jr.MCS Rules, 2007 as well as the MCS Rules, 1965 for the purpose of appointment to the post of
MCS Grade-II, one does not necessarily have to be a Jr. MCS (Selection Grade). It will suffice if one is Jr. MCS with the requisite years of
service. A Jr. MCS officer may not necessarily has to be appointed as Jr.MCS (Selection Grade) for appointment to the post of MCS Grade-II
under the MCS Rules, 1965.
Therefore, this Court also does not find any arbitrariness or unreasonableness in the proviso added to Rule 16(2) by 1st Amendment Rule, 2012
which has been challenged in this writ petition. If the State Government by way of policy decision equates the post of Jr. MCS (Selection Grade)
to the post of MCS Grade-II thus enabling the incumbent Jr. MCS (Selection Grade) officers to be absorbed into MCS Grade-II, this Court also
does not find any arbitrariness or illegality in assigning their seniority from the date when such officers were promoted to Jr. MCS (Selection
Grade).
It may be noted that the said impugned proviso (c) added to Rule 28(1) which has been also challenged is merely a reiteration of the aforesaid
decision of the State Government by providing that the seniority of the persons absorbed into MCS Grade-II from Jr. MCS (Selection Grade)
shall be counted from the date they were appointed to Jr. MCS (Selection Grade) and their seniority to be determined accordingly. This Court is
of the view that there is no illegality in the aforesaid amendments challenged in this petition.
The issue has arisen only because these provisos have been applied to the private respondents in 2013 after the petitioners have already
entered service in the year 2012. According to the petitioners since the private respondents have been appointed as MCS Grade-II from a
subsequent date, their seniority cannot be given from an earlier date as has been done in the case. Therefore, the grievance of the petitioners is that
if the impugned provisoshave the effect of giving seniority to such officers who have entered services at a later date,these would adverse effect the
petitioners. To that extent, the impugned amendments are liable to be quashed as the impugned amendments have the effect of adversely affecting
the existing rights of the petitioners, contend the petitioners.
Therefore, this Court has to examine as to whether any existing rights of the petitioners has been adversely affected by invoking the aforesaid
impugned amendments in favour of the private respondents.
To undertake this exercise, this Court has to examine the circumstances under which the private respondents were appointed to MCS Grade-II
and how seniority was assigned to them from an earlier date.
To enable us to understand, we have to refer to certain relevant developmentsof the past.
As referred to above, a Departmental Promotion Committee in association with the Manipur Public Service Commission was held on 17.02.2010
for promotion to 14 posts of Jr.MCS (Selection Grade) from amongst the eligible Jr.MCS (Senior Grade) officers under Rule 27(3) of the Junior
Manipur Civil Service Rules, 2007. On the basis of the said recommendation, 14 persons were promoted, vide order dated 20.02.2010 which
also includes some of the private respondents in this petition, namely, private Respondents no. 2,3,4,5,16,9,10,11,18,12,13 and 14 with effect
from the date of holding of the said Departmental Promotion Committee to the post of Jr.MCS (Selection Grade),i.e., 17.02.2010. In other
words, the aforesaid 14 persons were given promotion to the Jr.MCS (Selection Grade) w.e.f. 17.02.2010 vide appointment order dated
20.02.2010. It is to be mentioned that subsequently, the MCS Rules, 1965 were amended vide Notification dated 05.03.2012 bringing certain
amendments to Rules 16(2) and Rule 28 which have been challenged in this writ petition. The said Notification dated 05.03.2012 was issued prior
to entry in service of the present petitioners in December, 2012. By virtue of the operation of the aforesaid impugned provisos, the aforesaid 14
Jr.MCS (Selection Grade) who were promoted vide order dated 20th February, 2010 w.e.f. 17.02.2010 were absorbed into MCS Grade-II
w.e.f. 17.02.2010. Thus, had this promotion order dated 20.02.2010 not been disturbed, the issue of adversely affecting the rights of the
petitioners who entered service only in the year 2012 would not have arisen. Insuch an eventuality,no cause of action would have arisen for the
petitioners to assail the said provisos as illegal.
However, what had happened was that the aforesaid promotion of 14 Jr. MCS (Senior Grade) vide order dated 20.02.2010 to the higher post of
Jr.MCS (Selection Grade) was challenged by some of the Jr.MCS (Senior Grade) officers who were not recommended, by filing writ petitions,
being WP(C) No. 140 of 2010, WP(C) No. 243 of 2010 and WP(C) No. 123 of 2010 before the Hon''ble Gauhati High Court, Imphal Bench,
on various grounds including that the DPC did not follow the norms for considering promotion to higher post as discussed above. Accordingly, the
High Court allowed the said petitions setting aside the aforesaid promotion order dated 20.02.2010 and directed for holding fresh DPC within a
period of two months.
In terms of the aforesaid direction of the Hon''ble Gauhati High Court, a review DPC was held on 04.08.2012 and which recommended 14 Jr.
MCS (Senior Grade) officers for promotion to the higher post of Jr. MCS (Selection Grade). While making the said recommendation, there were
some changes in the said list of recommendees. While most of those who were earlier recommended for promotion vide order dated 20.02.2010
were also recommended, four new recommendees found place in the fresh list recommended by the Review DPC namely, Respondents No.
15,6,7 and 8. Had this Review DPC dated 04.08.2012 been accepted and appointments made, the aforesaid 14 persons who were
recommended for promotion to the posts of Jr.MCS (Selection Grade)would have been absorbed to MCS Grade-II by virtue of the impugned
provisos. Since by that time, the petitioners had not yet entered service as direct recruits as MCS Grade-II officers, the question of adversely
affecting the service of the petitioners would not have arisen.
However, the recommendation of the aforesaid Review DPC held on 04.08.2012 was not accepted by the State Government this time on the
ground that before the order dated 04.04.2012 was passed by the Hon''ble Gauhati High Court in the aforesaid writ petitions, there had been
certain amendments made in the Junior Manipur Civil Service Rules, 2007 as well as the Manipur Civil Service Rules, 1965 and vide Notification
dated 05.03.2012, by which 31 posts of Jr. MCS (Selection Grade) were abolished by the State Government. It may be noted that the aforesaid
31 posts of Jr. MCS (Selection Grade) formed part of the cadre of the Jr. MCS Rules, 2007 as provided under Rule 4(2) thereof. At the same
time, Manipur Civil Service Rules, 1965 were also amended vide Notification dated 05.03.2012 bringing in the impugned provisos. The State
Government also had issued another Notification dated 17.03.2012 for absorption of 30 Jr. MCS (Selection Grade) officers to the posts of MCS
Grade-II in the scale of Rs.9,300-34,800 plus Grade Pay of Rs. 5400/- with effect from the dates they were promoted to Jr. MCS (Selection
Grade) i.e. 17.02.2010. This absorption order was issued prior to passing of the order by the High Court in the said batch of writ petitions. The
State Government after taking into consideration the aforesaid facts of abolition of 31 posts of MCS (Selection Grade) and absorption of 30 Jr.
MCS (Selection Grade) officers to the posts of MCS Grade-II, and also considering the fact that Jr. MCS (Selection Grade) were no more
existing when the Review DPC was held on 04.08.2012, decided not to accept the recommendation of the Review DPC and directed for holding
a fresh DPC for promotion to MCS Grade- II posts by considering all the eligible incumbents of Jr. MCS officers as on 05.03.2012, by issuing an
order dated 18.11.2013. By the aforesaid order dated 18.11.2013, the State Government directed to consider the case of 20 eligible Jr. MCS
officers as on 05.03.2012 for promotion to the post of MCS Grade-II. Thereafter, the Review DPC was held on 04.12.2013 and on the basis of
the recommendation of the said Review DPC, 20 Jr. MCS officers were promoted to the posts of MCS Grade-II w.e.f. 05.03.2012 vide order
dated 6th December, 2013. Thus, by the aforesaid appointment order dated 06.12.2013 as many as 20 Jr.MCS officers were given promotion to
the posts of MCS Grade-II w.e.f. 05.03.2012.
It is to be noted that one of the aforesaid promotees, namely, A. Shivdas Sharma (who is impleaded as Respondent no. 16 in this petition) filed
a writ petition being, WP(C) No. 897 of 2013, before this Court claiming that he is entitled to be appointed to the MCS Grade-II w.e.f.
17.02.2010 by virtue of the aforesaid impugned provisos to MCS Rules, 1965. It was the case of this Respondent no. 16 in the said writ petition
that he initially joined service as SDC in the year 1999 and thereafter, he was appointed as Jr. MCS (Junior Grade) in the year 2007. Later, he
along with others were appointed to the higher grade of Junior MCS (Senior Grade) vide order dated 23.02.2008. Thereafter, he was appointed
to the higher post of Jr. MCS (Selection Grade) vide order dated 20th February, 2010 w.e.f. 17.02.2010 and in ordinary course, Respondent
No. 16 and others who were appointed to the posts of Jr. MCS (Selection Grade) would have been absorbed to the post of MCS Grade-II by
virtue of the impugned proviso to Rule 16(2) of MCS Rules, 1965 and would have enjoyed the seniority to the said post of MCS Grade-II from
the date he was promoted to the post of Jr.MCS (Selection Grade) by virtue of the proviso to Rule 20(i). However,it did not happen because of
the fact that the said promotion order dated 20.02.2010 was challenged by some others as mentioned above which led to the delay in the
absorption to MCS Grade-II.
This Court in WP(C) No. 897 of 2013 considered the relevant rules as well as theearlier judgment of the Hon''ble Gauhati High Court whichset
aside the promotion order dated 20.02.2010 and which directed for holding Review DPC, as well as the order dated 18th November, 2013
issued by the State Government which did not accept the recommendation of the Review DPC held on 04.08.2012.This Court, thereafter, vide
order dated 28.04.2015 in WP(C) No. 897 of 2013 considering the peculiar facts and circumstances of the case, the litigations, amendment of the
rules, directed that the said petitioner (Respondent no. 16) would be entitled to the benefit for being absorbed to the MCS Grade-II w.e.f.
17.02.2010 by virtue of the operation of the said amendment to Rule 16 of the MCS Rules, 1965. To the extent indicated, the order dated
18.11.2013 as well as the subsequent promotion order dated 16.12.2013 were interfered by the Court. Perusal of the aforesaid order dated
28.04.2015 passed in WP(C) No. 897 of 2013 would indicate that the Court took the said view that since vacancies were available in the posts
of Jr. MCS (Selection Grade) to which the petitioner (Respondent no. 16) and others were promoted in 2010, they would have been entitled to
absorption to the post of MCS Grade-II on the basis of the provisos to Rule 16 and Rule 28(1). This Court in WP(C) No. 897 of 2013 seems to
have taken the view that the right of eligible officers in the feeder grade to be considered for promotion to the higher posts, if vacancies exist cannot
be allowed to be negated for no fault of the eligible candidates. It is to be noted that two DPCs were held on 17.02.2010 and 04.08.2012 against
14 vacancies which were already existing. These vacancies could not have been allowed to be rendered irrelevant or redundant as far as eligible
suitable candidates were concerned, who on being promoted to the Jr. MCS (Selection Grade) would have the vested right to be absorbed to the
MCS Grade-II.
Therefore, as 14 posts of MCS Grade-II were already available, there would not be any difficulty for considering promotion/absorption of 14
Jr. MCS officers to the post of MCS Grade-II.However, from the last order of promotion dated 06.12.2013, it is seen that 20 Jr. MCS officers
were promoted to the posts of MCS Grade-II who all have been given the benefit of seniority w.e.f. 17.02.2010. From the list of 20 officers who
were promoted to the post of MCS Grade-II vide order dated 06.12.2013, it is seen that 18 officers had been appointed either under the order
dated 20th February, 2010 or recommended by the Review DPC held on 04.08.2012 and as such, they were found suitable for promotion to the
posts of MCS Grade-II. On the other hand, there are two persons, Respondents no. 17 and 19 who were neither recommended by either of the
DPC held on 17.02.2010 or the Review DPC held on 04.08.2012 for promotion to the post of MCS Grade-II. The appointment order dated
06.02.2013 was issued on the basis of the recommendation of the DPC held on 06.02.2013. As mentioned above, there cannot be any issue
about absorption of 14 officers to the higher posts of MCS Grade-II vide DPC dated 17.02.2010 as there were clear vacancies available in the
year 2010 itself, before the petitioners entered service. As such, there cannot be any grievance for giving seniority to those 14 MCS Grade-II
officers w.e.f. 17.02.2010. However, there may be certain issues about the remaining 6 MCS Grade-II officers (20-14) about them being given
retrospective seniority from 17.02.2010. In this regard, it is to be mentioned that High Court in the orders dated 28.04.2015 in WP(C) No. 897
of 2013 and dated 28.05.2015 passed in WP(C) No. 612 of 2014,had directed for giving the benefit of promotion to the post of MCS Grade-II
w.e.f. 17.02.2010 by virtue of amendment of Rule 62(d) of the Manipur Civil Service Rules, 1965. Hence, this Court may not interfere with such
benefits.It can be said that appointment of those 18 officers of MCS Grade-II w.e.f. 17.02.2010 had been reinforced by judicial decision. That
leaves, after taking into account of 18 officers, the remaining 2 MCS officers, namely, Respondents no. 17 and 19. They were neither
recommended by the DPC held on 17.02.2010 nor by the Review DPC held on 04.08.2012 but recommended by the last DPC held on
04.12.2013. However, from the records it is seen,as evident from the appointment order dated 23.02.2008, that these 2 Respondents, No. 17
and 19, were held to be deemed to have been appointed to the posts of Jr. MCS (Sr. Grade) w.e.f. 27.03.2005. The only issue to be considered
now is, whether there were sufficient vacancies to the posts of MCS Grade-II for these 2 (two) Respondents also before the petitioners were
appointed as MCS Grade-II on 15th December, 2012. If there were vacancies available for promotion to the posts of MCS Grade-II at the time
of appointment of the petitioners on 15th December, 2012, the said 2 (two) Respondents can be also granted the benefits of the retrospective
seniority w.e.f. 17.02.2010.
It is to be remembered that as far as the direct recruits are concerned, their rights would start accruing only from the moment they are borne in
the cadre. In the present case, from 15th December, 2012 onwards and not prior to that. On the other hand, as far as the promotees are
concerned since they were already in service though in a feeder grade, their service conditions in the higher posts would depend on a number of
contingencies, viz., availability of vacancies, suitability, holding of higher posts on officiating, adhoc, in-charge basis etc. as the case may be. For
example, if a person in the lower grade is allowed to hold the higher post on officiating or in-charge basis or adhoc basis for a long time and if he is
found to be eligible and suitable to the higher post by the competent DPC, grant of benefit of regularization is not unknown in service
jurisprudence. Therefore, in the present case, if the Respondents no. 17 and 19 had been also holding the higher posts of MCS Grade-II either on
officiating or adhoc or in-charge basis and there were vacancies to the said posts of MCS Grade-II, the benefit of giving them seniority w.e.f.
17.02.2010 by treating them to be MCS Grade-II w.e.f. 17.02.2010 cannot be said to be per se illegal.
It may be stated that the appointments of the Respondents no. 17 and 19 as MCS Grade-II vide order dated 6th December, 2013 w.e.f.
05.03.2012 and subsequent order dated 31st August, 2016 by giving them retrospective by absorbing them to the grade of MCS Grade-II w.e.f.
17.02.2010 have not been challenged in the writ petition. Since, these orders have not been challenged, it cannot be said that the rights of the
petitioners have been prejudiced, by operation of the impugned provisos. If the aforesaid administrative orders giving the benefit of
appointment/absorption to the post of MCS Grade-II w.e.f. 17.02.2010 have not been challenged by the petitioners, it cannot be said that they
are prejudiced by the aforesaid impugned provisos challenged in the present petition.
It may be also mentioned that the aforesaid impugned provisos are to deal with certain specific situations arising out of abolition of 31 posts of
Jr. MCS (Selection Grade) which are no more in existence. As per Junior MCS Rules, 2007, there were only 31 posts of Jr. MCS (Selection
Grade) and after the abolition of these 31 posts to Jr.MCS (Selection Grade) vide Notification dated 05.03.2012, the impugned provisos have
practically become redundant as the question of invoking these provisos would not arise unless the posts of Jr. MCS (Selection Grade) exist. As
the posts of Jr.MCS (Selection Grade) do not exist any more, the question of invoking the said impugned provisos also does not arise.
Accordingly, for reasons stated above, this Court is of the view that no case is made out for interfering with the impugned provisos.
Accordingly, the petition stands dismissed.