Er. Rattan Jeet & Ors. vs H.P. State Electricity Board Ltd. & Ors.

“As per latest instructions issued vide Department of Personnel to GoI letter No. 20011/1/2012-Estt.(D) dated 4^th March, 2014 endorsed vide Department of Personnel to GoHP letter No. 1-9/73-DP(Apptt.II)Vol.II dated 16^th May, 2014 & further endorsed vide this office letter No. HPSEB(SECTT)R&E/Misc. Govt. Inst/2014-52317-537 dated 8.12.2014 (CP:170) with respect to fixation of seniority of the officers belonging to direct recruits and promotees category has been followed strictly & the main operative part of the order is as under:-

1)

Initiation of recruitment process against a vacancy year would be the date of sending of requisition for filling up of vacancies to the recruiting agency in the case of direct recruits; in the case of promotees the date on which a proposal, complete in all respects, is sent to UPSC/Chairman-DPC for convening of DPC to fill up the vacancies through promotion would be the relevant date.

2)

The above principles for determination of inter se seniority of direct recruits and promotes would be effective from 27.11.2012, the date of Supreme Court Judgment in Civil Appeal No. 7514-7515/2005 in the case of N.R. Parmar vs. UOI & Ors.

… … … …

So far as the objection raised by the officers at Sr. No. 17 to 20, it is submitted that all belong to the categories of AMIE and they have been promoted as AE against the post meant for these categories in the R&P Regulations. Since the inter-se seniority positions the candidates who have been promoted from amongst different categories candidates and direct recruitees in the amended provisional seniority list of Assistant Engineers as it stood on 1.1.2017 has assigned strictly in accordance with the instructions contained in Department of Personnel & Training to GOI letter No. 20011/1/2012-Estt.(D) dated 4^th March, 2014 and advertised by the GOHP vide Department of Personnel to GoHP letter No. 1-9/1973-DP(Apptt.II)Vol.II dated 16^th May, 2014 and also made applicable in JHPSEBL vide office Memorandum No. HPSEB (SECTT) R & E/Misc./Govt.Inst./2014-52317-537 dated 8.12.2014 (CP:42) as a res.. which the direct recruitee candidates became senior to the promote candidates, therefore seniority position assigned to the representee officers warrants no change.”

“Parties are ad-idem that the controversy at hand has been set at rest by a Division Bench of this Court in judgment dated 28.10.2020, passed in CWPOA No.4323 of 2020 titled as Er. Suresh Pal and others versus Himachal Pradesh State Electricity Board and another, relying upon the judgment of Hon’ble Supreme Court in K. Meghachandra Singh and Ors. Vs. Ningam Siro and Ors., (2020)5 SCC 689.

2.

Consequently, in view of the aforesaid, this Court finds no impediment in accepting the prayer made in the petition and accordingly same is allowed by making the directions in Er. Suresh Pal (supra) mutatis mutandis applicable, also to the present petition. Pending applications, if any, also stand disposed of accordingly.

“By way of instant Review Petition filed under Section 114 read with Order 47 Rule 1 of CPC, prayer has been made on behalf of the review petitioners to review/recall judgment dated 17.12.2020, passed by this Court in CWPOA No.6523 of 2019, titled Sumit Azad vs. H.P. State Electricity Board Ltd. & others on the ground that they despite being arrayed as party respondent from 6 to 23 were not afforded an opportunity of being heard before passing of judgment sought to be reviewed. Besides above, it has been further averred in the review petition that though CWPOA No. 6523 of 2019, having been filed by the respondents rightly came to be disposed of in terms of judgment passed by Hon’ble Apex Court in K. Meghachandra Singh and others vs. Ningam Siro and others, (2020) 5 Supreme Court Cases 689, but same is not being implemented in its letter and spirit by applying the ratio of the judgment passed by Hon’ble Apex Court in K. Meghachandra Singh case ( supra)

2.

Mr. Sunil Mohan Goel, learned counsel representing the review petitioners, contends that had review petitioners were afforded an opportunity of being heard at the time of passing of judgment dated 17.12.2020 they would have invited attention of this Court to para-39 of the judgment passed by Hon’ble Apex Court in K. Meghachandra Singh case (supra), wherein it has been categorically held that decision made in this case will not affect the inter-se seniority already based on the judgment passed by Hon’ble Apex Court in Union of India versus N.R.Parma (2012)13 SCC 340, and the same is protected. Mr. Goel, further submits that now pursuant to judgment dated 17.12.2020 passed by this Court respondents have revised seniority list of Assistant Engineers (CM) in terms of the judgment passed by Hon’ble Apex Court in K. Meghachandra Singh case (supra), and have conveniently ignored specific findings returned in para-39 of K. Meghachandra Singh case (supra), with regard to protection given to those employees whose interse seniority stood settled in terms of the judgment rendered by Hon’ble Apex Court in N.R.Parma case (supra)

3.

Mr. Dilip Sharma, learned Senior Counsel representing respondent No.1 and Mr. T.S.Chauhan, learned counsel representing respondent No.2 submit that present review petition is not maintainable because there is no error apparent on the face of the judgment sought to be reviewed. Above named counsels contend that since review petitioners himself admit that case at hand is squarely covered by the judgment rendered by Hon’ble Apex Court in K. Meghachandra Singh case (supra), no prejudice, if any, can be said to have been caused to the review petitioners on account of judgment dated 17.12.2020 passed by this Court in the Civil Writ Petition having been filed by respondent No.1.

4.

Learned counsel representing respondent No.1 while referring to para-39 of the judgment passed by Hon’ble Apex Court in K. Meghachandra Singh case (supra), submits that protection as is being claimed by petitioners in terms of para-39 of judgment in K. Meghachandra Singh case is not available to the review petitioners for the reason that seniority list in dispute never came to be finalized. Mr. Sharma, further submits that immediately after dismissal of objections raised by respondent No.1 qua the tentative seniority list drawn by respondent No.2, he filed original application and same could not be finalized till the time writ petition/original application having been filed by respondent No.1 was decided vide judgment sought to be reviewed. He further submits that mere rejection of objections qua the tentative list filed by respondent No.1 and other persons would not amount to finalization of tentative seniority list, especially when the same was under challenge in the petition having been filed by respondent No.1.

5.

Having heard learned counsel representing the parties and perused the original file i.e. CWPOA No.6523 of 2019, this Court finds that though erstwhile Tribunal, where original petition was filed, ordered for issuance of notice to review petitioners vide order dated 24.5.2018 and in that regard steps were also taken by learned counsel for the petitioner, but they were never served and as such, they could not come present at the time of passing of judgment dated 17.12.2020, which is now sought to be reviewed. Since review petitioners despite being arrayed as respondents were not afforded an opportunity of being heard at the time of passing of judgment dated 17.12.2020, their review petition deserves to be considered on account of error apparent on the face of the record. However, this court having taken note of the fact that review petitioners are not aggrieved of the directions contained in the judgment dated 17.12.2020 and they are only concerned with the implementation of the judgment passed by Hon’ble Apex Court in K. Meghachandra Singh case (supra) in its letter and spirit, there appears to be no reason for this Court at this stage to issue notice to review petitioners and afford them an opportunity of being heard, especially when they are being represented by Mr. Sunil Mohan Goel, Advocate in the instant proceedings.

6.

Though, in the instant review petition, review petitioners have laid challenge to communication dated 22.01.2021 (Annexure RP-3), whereby in terms of judgment dated 17.12.2020 passed by this Court in CWPOA No.6523 of 2019, respondent No.2 has drawn provisional seniority list of Assistant Engineers (C/M) in terms of the law laid down by Hon’ble Apex Court in K. Meghachandra Singh case (supra), but this Court in the instant proceedings definitely cannot look into the correctness/legality of aforesaid order/communication dated 22.1.2021 passed by respondent No.2 in purported compliance of judgment dated 17.12.2020. However to avoid multiplicity of litigation interse parties, this court can definitely clarify that in para-39 of the judgment passed by Hon’ble Apex Court in K. Meghachandra Singh case (supra), it has been clarified that decision made in K. Meghachandra Singh case (supra), will not affect interse seniority already based on N.R.Parma case (supra), meaning thereby that seniority interse petitioners and the respondents as per the judgment rendered in N.R.Parma case (supra) prior to passing of judgment in K. Meghachandra Singh case (supra), shall not be disturbed, rather benefit, if any, granted in terms of N.R.Parma case (supra) would be protected.

7.

Though, learned counsel representing respondent No.1 submits that tentative seniority list, which was under challenge in CWPOA No.6523 of 2019 was never finalized and as such, no protection in terms of para-39 of the judgment passed by Hon’ble Apex Court in K. Meghachandra Singh case (supra), can be claimed by the review petitioners, but this Court may not agree with the aforesaid submission of learned counsel for respondent No.1 for the reasons that it is not in dispute that before filing of the petition, objections filed by respondent No.1 qua tentative seniority list were rejected and that rejection was laid challenge in CWPOA No.6523 of 2019. Since order rejecting objections filed by the respondent and other similar situate persons never came to be stayed or declared null and void by this Court, it cannot be said that tentative seniority list, which was subject matter of the writ petition was not finalized.

8.

Consequently, in view of the above, present review petition is allowed and judgment dated 17.12.20220 passed by this Court in CWPOA No.6523 of 2019 is modified to the extent that respondent No.2 while doing needful in terms of the directions contained in judgment dated 17.12.2020, shall also take into consideration the observations made by Hon’ble Apex Court in para-39 of the judgment rendered in K. Meghachandra Singh case (supra). Pending applications, if any, also stand disposed of.”

“39.

… … … Accordingly, the decision in N.R. Parmar is overruled. However, it is made clear that this decision will not affect the inter-se seniority already based on N.R. Parmar and the same is protected. This decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy/the date of advertisement.”

“4.

Learned Single Judge, vide judgment dated 4.8.2021, while allowing the review petition, modified the judgment dated 17.12.2020, to the extent that respondent No.2 while doing needful in terms of the directions contained in judgment dated 17.12.2020, shall also take into consideration the observations made by Hon’ble Apex Court in para-39 of the judgment rendered in K. Meghachandra Singh and Others vs. Ningam Siro and Others, (2020) 5 SCC 689. The review petitioners had also challenged communication dated 22.1.2021, whereby provisional seniority list had been drawn in terms of judgment dated 17.12.2020.

5.

In the facts and circumstances of the case, it would have been appropriate to recall the judgment dated 17.12.2020 passed by learned Single Judge and hear the matter afresh instead of modifying the judgment dated 17.12.2020 while deciding the review petition.

6.

Accordingly, we are persuaded to set aside the judgment dated 4.8.2021, passed by learned Single Judge in review petition No.12 of 2021. Consequently, the Letters Patent Appeal is allowed and judgment dated 4.8.2021 as well as judgment dated 17.12.2020 passed by the learned Single Judge, are set aside. It is ordered that the CWPOA No.6523 of 2019 be heard and decided afresh.

7.

Let the matter (CWPOA No.6523 of 2019) be listed before learned Single Judge on 27.12.2021.”

“a)

That this Hon’ble Court may be pleased to issue writ of certiorari quashing impugned seniority list circulated vide letter dated 16.12.2021 of the Assistant Engineer (C/M) as on 1.1.2021 (Annexure P-13).

b)

That this Hon’ble Court may further be pleased to issue writ of certiorari quashing the impugned office order dated 23.12.2021 (Annexure P-12) whereby promotions to the post of Senior Executive Engineers have been made on the basis of impugned seniority list circulated vide letter dated 16.12.2021.

c)

That this Hon’ble Court may be pleased to issue writ of mandamus directing the respondent No. 1 not to carry out any further promotion to the post of Senior Executive Engineer on the basis of impugned seniority list circulated vide letter dated 16.12.2021 and further direct the respondents that in case any promotions are to be carried out in case of exigency of service then the same may be strictly on the basis of seniority list dated 19.08.2017 of the Assistant Engineers (C/M) which till date stands and has not been set aside by any court of law.

d)

That this Hon’ble Court may be further pleaded to issue writ of mandamus directing the respondent No. 1 to reinstate the seniority list dated 19.08.2017 which stood finalized and even protected in terms of the judgment passed in K. Meghachandra Singh case para-39 and further direct the respondent No. 1 to carry out review DPC strictly in accordance with seniority list as circulated on 19.8.2017 of the Assistant Engineer alongwith all consequential benefits.

e)

That if during the pendency of present writ petition the private respondents or any one of them is promoted to the higher post(s) on the basis of impugned erroneous seniority list at Annexure P-13, in that event, the respondent HPSEBL may be directed to consider the petitioners for promotion above such of the private respondent(s) with all consequential benefits by quashing the promotion of such private respondent(s), if it becomes necessary to do so, to consider the claim of the petitioners for promotion from the due date.”

“i)

That retrospective operation, if any, of instructions dated 8.12.2014, Annexure P-4, issued by respondent No. 2 w.r.t. applicability of instructions dated 16.5.2014 of respondent No. 1 and 4.3.2014, Annexure P-3, issued by Government of India, as applicable to respondent No. 2 may be quashed and set aside;

ii) That impugned para 7(iii) of the OM dated 13.8.2021, Annexure P-14, as adopted by respondent No. 1 vide OM dated 28.1.2022, Annexure P-15 and made applicable to the employees of respondent No. 2 vide OM dated 24.3.2022, Annexure P-16, may be quashed and set aside being unconstitutional, violative of Articles 14 and 16 of the Constitution of India and also being contrary to the law declared in the case of K. Meghachandra Singh.”

“49.

Besides the interpretation of the relevant OMs issued by the DOPT, learned counsel representing the promotees placed reliance on some judgments of this Court in order to press their contention, that seniority for direct recruits could not be determined with reference to a date preceding the date of their recruitment. In so far as the instant aspect of the matter is concerned, reliance was placed on Jagdish Ch. Patnaik & Ors. v. State of Orissa and others (1998) 4 SCC 456, Suraj Prakash Gupta & Ors. v.State of J&K & Anr. (2000) 7 SCC 561; and Pawan Pratap Singh & Ors. v. Reevan Singh & Ors. (2011) 3 SCC 267.

50.

The seniority rule applied in Jagdish Ch. Patnaik’s case (supra) has been extracted in paragraph 24 of the said judgment. The seniority rule in question, inter alia expressed, that seniority would be determined with reference to the date of recruitment. In Suraj Prakash Gupta’s case (supra), the relevant seniority rule was extracted in paragraph 53 which provided, that seniority would be determined with reference to the date of first appointment. The rule itself expressed that the words “date of first appointment” would mean the date of first substantive appointment against a clear vacancy. In Pawan Pratap Singh’s case (supra) the question which arose for consideration, related to determination of inter se seniority between two sets of direct recruits. The first set comprised of vacancies advertised in 1987 which came to be filled up in 1994, and the second set comprised of vacancies of the year 1990 which came to be filled up in the year 1991. The controversy in Pawan Pratap Singh’s case (supra) was conspicuously different from the controversy in hand. In view of the fact that the seniority rules, as also the factual matrix in the cases relied upon was substantially at variance with the relevant OMs dated 7.2.1986 and 3.7.1986 (which are the subject of interpretation in so far as the present case is concerned), as also the facts of the cases in hand, it is apparent, that the judgments relied upon by the learned counsel are inapplicable to determine the present controversy.

51.

One finds attracted to the observations recorded in Jagdish Ch. Patnaik’s case (supra) wherein it was observed:

“24.

… … when the language used 46 Page 47 in the statute is unambiguous and on a plain grammatical meaning being given to the words in the statute, the end result is neither arbitrary, nor irrational nor contrary to the object of the statute, then it is the duty of the court to give effect to the words used in the statute because the words declare the intention of the law making authority best”.

We are of the view that the aforesaid observations are fully applicable to the present controversy. We may add that the various ONs and letters issued by the DOPT (referred to above) do not leave room for any ambiguity.

52 Having interpreted the effect of the OMs dated 7.2.1986 and 3.7.1986 (in paras 25 to 29 hereinabove), we are satisfied, that not only the requisition but also the advertisement for direct recruitment was issued by the SSC in the recruitment year in which direct recruit vacancies had arisen. The said factual position, as confirmed by the rival parties, is common in all matters being collectively disposed of. In all these cases the advertised vacancies were filled up in the original/first examination/selection conducted for the same. None of the direct recruit Income Tax Inspectors herein can be stated to be occupying carried forward vacancies, or vacancies which came to be filled up by a “later” examination/selection process. The facts only reveal, that the examination and the selection process of direct recruits could not be completed within the recruitment year itself. For this, the modification/amendment in the manner of determining the inter-se seniority between the direct recruits and promotees, carried out through the OM dated 7.2.1986, and the compilation of the instructions pertaining to seniority in the OM dated 3.7.1986, leave no room for any doubt, that the “rotation of quotas” principle, would be fully applicable to the direct recruits in the present controversy. The direct recruits herein will therefore have to be interspaced with promotees of the same recruitment year.

53.

In view of the above, the Civil Appeals, the Transferred Case, as well as, the Transfer Case (filed by the direct recruits and the Union of India) are hereby allowed. The claim of the promotees, that the direct recruit Income Tax Inspectors, in the instant case should be assigned seniority with reference to the date of their actual appointment in the Income Tax Department is declined.”

“5.

The matter has been examined in pursuance of Hon’ble Supreme Court Judgment on 27.11.2012, in Civil Appeal No. 7514-7515/2005 in the case of N.R. Parmar Vs. UOI & Ors. in consultation with the Department of Legal Affairs and it has been decided that the manner of determination of inter-se-seniority of direct recruits and promotees would be as under:

a)

DoPT OM No. 20011/1/2006-Estt.(D) dated 3.3.2008 is treated as non-existent/withdrawn ab initio;

b)

The rotation of quota based on the available direct recruits and promotees appointed against the vacancies of a Recruitment year, as provided in DoPT O.M. datd 7.2.1986/3.07.1986, would continue to operate for determination of inter se seniority between direct recruits and promotees;

c)

The available direct recruits and promotees, for assignment of inter se seniority, would refer to the direct recruits and promotees who are appointed against the vacancies of a Recruitment Year;

d)

Recruitment Year would be the year of initiating the recruitment process against a vacancy year;

e)

Initiation of recruitment process against a vacancy year would be the date of sending of requisition for filling up of vacancies to the recruiting agency in the case of direct recruits; in the case of promotees the date on which a proposal, complete in all respects, is sent to UPSC/Chairman-DPC for convening of DPC to fill up the vacancies through promotion would be the relevant date.

f)

The initiation of recruitment process for any of the modes viz. direct recruitment or promotion would be deemed to be the initiation of recruitment process for the other mode as well;

g)

Carry forward of vacancies against direct recruitment or promotion quota would be determined from the appointments made against the first attempt for filling up of the vacancies for a Recruitment Year;

h)

The above principles for determination of inter se seniority of direct recruits and promotees would be effective from 27.11.2021, the date of Supreme Court Judgment in Civil appeal No. 7514-7515/2005 in the case of N.R. Parmar Vs. UOI & Ors.

i)

The cases of seniority already settled with reference to the applicable interpretation of the term availability as contained in DoPT O.M. dated 7.2.86/3.7.86 may not be reopened.”

“(i)

That the impugned decision rejecting the representation of applicant for assigning him seniority above directly recruited private respondents conveyed vide letter dated 15.02.2018, Annexure A-17 may kindly be quashed and set aside;

(ii)

That the impugned seniority list dated 19.08.2017, Annexure A-14, or any other seniority list circulated thereafter, may kindly be quashed and set aside qua applicant and private respondents and the respondent company may be directed to issue revised seniority list and assign seniority to the applicant at appropriate place above respondents No. 2 to 23 by holding the Review DPC and considering the applicant for promotion against the four vacancies of AMIE quota meant for promotion to the post of Assistant Engineer which were wrongly not taken into consideration in the DPCs held during August 2012 and /or by treating him having been promoted pursuant to the same process, which resulted in promotion of Assistant Engineers during August 2012 vide orders dated 18.08.2012 and 31.08.2012, Annexures A-6 and A-7, with all consequential benefits;

(iii)

That if during the pendency of this Original Application, the private respondents or any one of them is promoted to the higher posts(s) on the basis of impugned erroneous seniority list at Annexure A-14, in that event, the respondent company may be directed to consider the applicant for promotion above such of the private respondent(s) with all consequential benefits by quashing the promotion of such private respondent(s), if it becomes necessary to do so, to consider the claim of the applicant for promotion from due date”.

“39.

The Judgment in N. R. Parmar (Supra) relating to the Central Government employees cannot in our opinion, automatically apply to the Manipur State Police Officers, governed by the MPS Rules, 1965. We also feel that N.R. Parmar (Supra) had incorrectly distinguished the long-standing seniority determination principles propounded in, inter-alia, J.C. Patnaik vs. State of Orissa^{55.2025 SCC OnLine Bombay 4773}, Suraj Prakash Gupta & Ors. vs. State of J&K & Ors.^{66.2024 SCC OnLine Delhi 2209} and Pawan Pratap Singh & Ors. Vs. Reevan Singh & Ors.^{77.2025 SCC OnLine Delhi 4906}. These three judgments and several others with like enunciation on the law for determination of seniority makes it abundantly clear that under Service Jurisprudence, seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre. In our considered opinion, the law on the issue is correctly declared in J.C. Patnaik (Supra) and consequently we disapprove the norms on assessment of inter-se seniority, suggested in N. R. Parmar (Supra). Accordingly, the decision in N.R. Parmar is overruled. However, it is made clear that this decision will not affect the inter-se seniority already based on N.R. Parmar and the same is protected. This decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy/the date of advertisement.”

“The instant petition has been filed for grant of following substantive reliefs:

(i)

that respondents may kindly be directed to redetermine the seniority of applicants in the seniority lists of Junior Engineer (Electrical) from the year 2007 as Annexure A-6 and subsequently, the seniority list of Assistant Engineer (Electrical) from the year 2009 in light of the judgment lay down by Hon’ble Ap[ex Court in Union of India and others vs. N.R. Parmar and other in the interest of law, equity and justice.

(ii)

that respondents may kindly be directed to consider the representation/objection raised by the applicants to the office memorandum vide letter No. HPSEBL(Sectt.)/GE/101-23/Vol-18/2017-40675-700, dated 19.08.2017 as Annexure A-5 and amend the seniority list accordingly.

2.

It is not in dispute that the judgment in N.R. Parmar’s Case has been subsequently overruled by the larger bench of the Hon’ble Supreme Court in K.Meghachandra Singh and ors. vs. Ningam Siro and Ors., (2020) 5 SCC 689.

3.

In this view of the matter, we deem it proper to dispose of the instant petition by directing the respondents to consider the case of the petitioners, in light of the aforesaid judgment, within a period of four weeks from today. Ordered accordingly. Pending application(s), if any, also stands disposed of.

For compliance, list on 25.11.2020.”

“6.

The determination of inter se seniority of direct recruits and promotees, as laid down by the Hon'ble Supreme Court of India, in its Order dated 19.11.2019 in K. Meghachandra Singh case, has been carefully examined in consultation with the Department of Legal Affairs, and the following principles have emerged:-

(i)

The rotation of quota, based on the percentage of vacancies allocated to direct recruitment and promotion in the notified recruitment rules/service rules, shall continue to operate for determining vacancies to be filled by the respective quotas in a recruitment year. The term 'recruitment year' shall mean the year in which the vacancy arises. However, inter se seniority between direct recruits and promotees, who are appointed against the vacancies of respective quota, would be reckoned with reference to the year in which they are appointed i.e. year in which they are borne in the cadre or formal appointment order is issued.

(ii)

The terms ‘recruitment' and ‘appointment' have to be read harmoniously and the determination of seniority for recruitees would depend on their actual appointment and not the initiation of recruitment process itself. It thus follows that the seniority of direct recruits and promotees henceforth stands delinked from the vacancy/year of vacancy.

(iii)

The source of legitimacy of determination of seniority would be with reference to the date of joining of a person against a vacancy, irrespective of the fact that it may have arisen in the previous year(s) and not being a carried forward vacancy of any quota.

(iv)

If adequate number of direct recruits (or promotees) do not become available, "rotation of quotas' for the purpose of determining seniority, would stop after the available direct recruits and promotees are assigned their slots on joining in a particular year.

(v)

The term 'availabl’, both in the case of direct recruits as well as promotees, for the purpose of rotation and fixation of seniority, shall be the actual year of appointment after declaration of results/selection and completion of pre-appointment formalities as prescribed.

(vi)

Thus, appointees who join in the concerned recruitment year and those who join in subsequent year(s), would figure in the seniority list of the respective years of their being appointed. To that extent it may not be necessary to go into the question of quota meant for direct recruits and promotees to find out as to the year in which the vacancy arose against which the recruitment is made.”

“7.

Based on the above, it has been decided to modify the instructions relating to determination of inter se seniority between promotees and direct recruits as under:

(i)

DoPT's O.M. No. 20011/l/2012-Estt.(D) dated 4.3.2014. issued in pursuance of Order dated 27.11.2012 in N.R. Parmar case. is treated as non-est/withdrawn well 19.11.2019.

(ii)

As the Order dated 19.11.2019 is prospective, cases of inter se seniority of direct recruits and promotees already decided in terms of O.M. No. 2001l/l/2012-Estt.(D) dated 4.3.2014, shall not be disturbed i.e. old cases are not to be reopened.

(iii)

In case of direct recruits and promotees appointed/joined during the period between 27.11.2012 and 18.11.2019 and in which case inter se seniority could not be finalised by 18.11.2019, shall also be governed by the provisions of O.Ms. dated 7.2.1986/3.7.1986 read with OM dated 4.3.2014, unless where a different formulation/manner of determination of seniority has been decided by any Tribunal or Court.

(iv)

For cases where the recruitment process has been initiated by the administrative Department/Cadre Authority before 19.11.2019 and where some appointments have been made before 19.11.2019 and remaining on or after 19.11.2019, the inter se seniority of direct recruits and promotees shall also be governed by the provisions of O.Ms. dated 7.2.1986/3.7.1986 read with OM dated 4.3.2014 to ensure equal treatment of such appointees.

(v)

For recruitments initiated on or after 19.11.2019 as well as for future recruitments, in addition to cases where the recruitment process has been initiated by the administrative Department/ Cadre Authority before 19.11.2019, but where all appointments, subsequent to the initiation of recruitment process could be made only on or after 19.11.2019 i.e. date of order of Apex Court, the inter se seniority of direct recruits and promotes shall be determined in the following manner-

(a)

The rotation of quota based on the percentage of vacancies allocated to direct recruitment and promotion in the notified recruitment rules/service rules, shall continue to operate for determination of vacancies to be filled by the respective quotas in a recruitment year.

(b)

Determination of inter-se seniority between direct recruits and promotees, who are appointed against the vacancies of respective quota would, however, be reckoned with reference to the year in which they are appointed i.e. year in which they are borne in the cadre or formal appointment order is issued. In case where the recruitment year is the same as the year of appointment. the appointees shall be given seniority of that year.

(c)

Where in case of promotees or direct recruits, the year of appointment is the next year or any year subsequent to the recruitment year, the seniority of such promotees and direct recruits would be determined with reference to the year of their actual joining/appointment to the post, since they were not able to join in the said recruitment year in which the vacancy arose. Thus, they would get seniority of the year in which they actually join i.e. year in which formal appointment order is issued or they are borne in the service/cadre and that they shall not get seniority of any earlier year (viz. year of Vacancy/panel or year in which recruitment process is initiated).

(d)

In terms of OMs dated 7.2.1986/3.7.1986, rotation between promotees and direct recruits for the purpose of determination of inter-se seniority, would be undertaken only to the extent of available direct recruits and promotees in a particular year. The term 'available direct recruits or promotees' appearing in these OMs dated 7.2.1986/3.7.1986, for the purpose of rotation of quota in fixation of inter-se seniority, shall mean the actual number of direct recruits and promotees appointed during the year after declaration of results/selection and completion of pre-appointment formalities as prescribed.

(e)

As per (d) above, if adequate number of direct recruits (or promotees) do not become available in a particular year, the “rotation of quotas" for the purpose of determining inter se seniority, would stop after the available direct recruits and promotes are assigned their slots on their appointment/joining in that year.

(f)

If no direct recruit is available in a particular year, available promotees would he bunched together in accordance with their position in the panel approved for promotion. Similarly. if no promotee is available in that year, available direct recruits would be bunched together, as per their position obtained in the selection process.

(g)

In case, where direct recruits or promotees, as the case may be, belonging to two more selections/panel approved for promotion, join in the same year, then those who have been appointed/joined as a result of earlier selection/panel would be placed senior in the seniority list to those been appointed/joined as a result of a subsequent selection/panel.

(h)

Instructions contained in OMs dated 7.2.1986 and 3.7.1986, stand modified to the extent indicated in above paragraphs.”

“19.

The offer of appointment (provisional) dated 9^th March 2017 issued to the petitioners in Writ Petition No. 6152 of 2024 indicated that the selectees will be on probation for two years and have to pass the prescribed departmental examination within two years from the date of their joining for receiving annual increment. The petitioners and the promotees were not recruited in the same year. They were not appointed in the same transaction and the petitioners were not borne in the cadre of Inspector (Examiner) on the date when the respondent nos. 5 to 15 got promoted and entered in the cadre of Inspector (Examiner) on 26th December 2016. The instructions under the OMs dated 7^th February 1986 and 3^rd July 1986 are the policy decisions of the government which govern the field of inter se seniority between the direct recruits and the promotee Inspectors (Examiner). This is necessary to maintain the rule of law as also in public interest that the binding decisions of the Court are followed by the subordinate Courts/Tribunals. The governing rules in the present case do not provide that the seniority should be counted from the date of vacancy or from the recruitment year. The decision in "K. Meghachandra Singh" has a prospective operation and the Hon'ble Supreme Court made it clear that; "This decision will apply prospectively except where seniority is to be fixed under the relevant rules from the date of vacancy/the date of advertisement". The observations in "Hariharan" shall not affect the direction issued by the Tribunal that the seniority of the rival Inspector (Examiner) should be determined in the light of "K. Meghachandra Singh". The decision in "K. Meghchandra Singh" has been referred for reconsideration before a larger Bench but that can not be a ground not to follow "K. Meghchandra Singh". This is necessary for continuity, certainty and productivity in the administration of justice that the decision in "K. Meghchandra Singh" is followed without awaiting a decision by the larger Bench in "Hariharan". Merely because a doubt was raised and the decision in "K. Meghchandra Singh" has been referred to a larger Bench, a presumption cannot be raised that the larger Bench would take a contrary view and the decision in "K. Meghchandra Singh" shall be overruled. This is also not in the public interest that the administration of justice shall be put on hold awaiting a decision by the larger Bench in "Hariharan". This is not in dispute that a seniority list was prepared in the light of the decision in "N.R. Parmar" the inter se seniority of the direct recruit and the promotee Inspectors (Examiner) who were parties in Original Application No. 991 of 2022 was not finalised till the decision in "K. Meghchandra Singh". This is also not in dispute that the seniority list of the government employees prepared following the decision in "N.R. Parmar" is saved only where the said seniority list was prepared prior to the decision in "K. Meghchandra Singh". Therefore, on admitted facts, it shall not make any difference in the present case even though there is no finding recorded by the Tribunal as to validity of the instructions under paragraph no. 7 (iii) of the OM dated 13^th August 2021 which provided that: "In case of direct recruits and promotees appointed/joined during the period between 27.11.2012 and 18.11.2019 and in which case inter se seniority could not be finalised by 18.11.2019, shall also be governed by the provisions of OMs dated 7.2.1986/3.7.1986 read with OM dated 4.3.2014, unless where a different formulation/manner of determination of seniority has been decided by any Tribunal or Court” .”

“43.

The provisional seniority list was published for the first time on 21.05.2015 based on N.R. Parmar (supra) calling for objections/ representations. Private respondents represented/objected against the said provisional seniority list. On 15.03.2016, the objections were rejected. Subsequently, a corrigendum was issued on 24.06.2016 and again representations/objections were called for. Said list was also objected to. Finally the representations/objections were disposed of and the impugned final seniority list was published on 08.11.2016.

44.

Immediately thereafter subject Original Application being O.A. 141 of 2017 dated 28.12.2016 was before the Tribunal and was listed in January, 2017 challenging the seniority lists dated 15.03.2016, 24.06.2016 and 08.11.2016. The Tribunal by order dated 29.10.2020 directed that any promotion that took place in the meanwhile, would be subject to the outcome of the O.A. Further, the promotions made thereafter vide Office Orders dated 19.03.2021 and 23.12.2020 have been made subject to the outcome to the subject Original Application.

45.

Clearly, the impugned seniority lists dated 15.03.2016, 24.06.2016 and 08.11.2016 were not settled Seniority Lists as they had been objected to and immediately challenged by approaching the Tribunal on 28.12.2016.

46.

Since the impugned lists were not final and under a cloud, they are not protected in terms of the saving paragraph in K. Meghachandra (supra). Even the tribunal had directed that any promotion made would be subject to outcome of the said Application and in fact promotions made thereafter were made by ESIC also subject to outcome of the Application. Thus, there is no merit in the contention on behalf of the Petitioner that the lists are protected.”

“10.

In Anju Chawla vs. State (NCT of Delhi)^{88.2024 SCC OnLine Delhi 7290}, this Court reiterated the above position as under:

“11.

This Bench has considered this aspect in some detail in its recent judgment in ICAR vs. Yugal Kishore Sah^{99.2024 SCC OnLine Delhi 7150}. We have taken the view that the saving clause contained in para 39 of Meghachandra would apply only in case the seniority of the concerned officers/employees has been fixed by way of drawing up of a seniority list prior to the rendition of the decision in Mechachandra. Where the seniority list is drawn up for the first time after Meghachandra was rendered, we have held that seniority list has to subscribe to the law laid down in Meghachandra irrespective of the date of recruitment of the DRs or promotees whose inter se seniority is being fixed”.

11.

In the present case, it is an admitted fact that the seniority list of the petitioners had not been finalized before the Judgment of Supreme Court in K. Meghchandra Singh (supra). In our view, therefore, the respondents had rightly determined the seniority of the petitioners from the year of their appointment.”

“No. HPSEBL (SECTT/GE/102-72/2018-81791-74 Dated 15-2-18

To

The Chief Engineer (PCA),

HPSEBL, Shimla.

Subject: Representation regarding objections to the Seniority List of Assistant Engineers (C/M) as on 1.1.2017 and corrections thereof.

Sir,

Kindly refer to your office letter No. CEP/Gaz/Genl/2017-3419-20 dated 27.09.2017, on the above cited subject.

It is intimated that the representee officer belongs to the category of AMIE and he has been promoted as AE against the quota meant for the said category candidates in the R&P Regulations. He has been assigned inter-se-seniority position in the grade of Assistant Engineer (C/M) strictly as per percentage quota provided to the different categories in the R&P Regulations of AE(C/M) by applying 100 points roster.

So far as inter-se-seniority position assigned o the direct recruits above the promotee candidates is concerned, it is stated that the same has also been assigned strictly in accordance with the instructions contained in Department of Personnel & Training to GoI letter No. 20011/1/2012-Estt(D) dated 4^th March, 2014 and adopted by the GoHP vide Department of Personnel to GoHP letter No. 1-9/73-DP(Apptt.II)Vol.II dated 16.05.2014 & also made applicable in HPSEBL vide office Memo No. HPSEB(SECTT)/R&E/Misc.Govt. Inst/2014-52317-537 dated 8.12.2014.

In view of above, the seniority position assigned to the representee officer in the provisional seniority list of AE(C/M) as it stood on 1.1.2017 warrants no change.

All concerned may be informed accordingly please.”