H.S.SIDHUversusDEVENDRA BAPNA & ORS.

                         [2015] 9 S.C.R. 456


A                            H.S.SIDHU
                             v.
                    DEVENDRA BAPNA & ORS.
               (Civil Appeal Nos. 6505-6506 of 2009)
B                      SEPTEMBER 09, 2015
          [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]

          Service law- Seniority- Fixation of- Two Direct recruits-
C   Assistant Directors, promoted to the post of Deputy Director
    - In the cadre, 1st respondent treated as senior to appellant
    - Thereafter, for the post of Joint Director, Departmental
    Promotion Committee (DCP) placed appellant as senior to
    1st respondent- Both allowed to officiate as Joint Director-
D   1st respondent challenged the determination of seniority in
    the cadre of Joint Director - During pendency, appellant
    promoted temporan"fy to officiate as Director - 1st respondent
    challenged the same - Single Judge held that 1st respondent
    should have been treated as senior to the appellant- Upheld
E   by the Division Bench - Held: DPC after due evaluation of
    the A CRs and consideration of the merit by ascribing reasons
    had prepared the merit list and found that the appellant had
    received more marks than 1st respondent - Neither the
    appellant nor 1st respondent were confirmed, thus, the rules
F   relating to seniority for confirmed employees not applicable
    - Proviso to r. 12(c) that if an officer has been selected for
    officiation from a list in which he is considered suitable for
    trial in a promotion and the said list has been arranged in
    order of merit, their inter se seniority would be determined in
G   accordance with the order of merit- In such a situation, when
    DPC had drawn the list on the basis of inter se merit, fixation
    of seniority could not be found fault with - High Court cannot
    sit in appeal over the assessment made by DPC -
H                                456
        H.S. SIDHU v. DEVENDRABAPNA& ORS.                      457


Constitution of India, 1950 - Art. 226 -Madhya Pradesh          A
Services (General Conditions of Service) Rules, 1961.
    Allowing the appeals, the Court
      HELD: 1.1 On a scrutiny of the ACRs, and the other
materials, the DPC had found that the appellant had             B
received more marks than the 1st respondent. The DPC
after due evaluation of the ACRs and consideration of
the merit by ascribing reasons had prepared the merit
list. Neither the appellant nor the 1st respondent was
confirmed and, therefore, the rules relating to seni9rity       C
as far as the confirmed employees arc concerned, do
not apply. The Rule 12(c) of the Madhya Pradesh
Services (General Conditions of Service) Rules, 1961
which deals with seniority of Government Servant,
                                                                0
applies. The proviso to Rule makes it quite vivid that if
an officer has been selected for officiation from a list in
which he is considered suitable for trial in a promotion
and the said list has been arranged in order of merit, their
inter se seniority shall be determined in accordance with       E
the order of merit. In such a situation, when the DPC had
drawn the list on the basis of inter se merit, the fixation
of seniority could not be found fault with. Further, while
exercising the power under Article 226 of the
Constitution, the High court cannot sit in appeal over          F
the assessment made by the DPC. [Para 10 and 13] [463-
C, 465-C-F]

     1.2 The first respondent retired holding the post of
Director after a review DPC was directed to be held by G
the Division Bench. He would be treated to have retired
from the post of Director and would get the pensionary
benefits. As far as the appellant is concerned, by virtue
of the order passed by the Division Bench, he continued
in the postof Director till 5.2.2010 and thereafter he was H
reverted to the post of Joint Director. As he was already
458         SUPREME COURT REPORTS                  [2015] 9 S.C.R.


A      selected as a Director because of his seniority which was
       erroneously set aside by the High Court, the State
       Government is directed to pay the arrears of ~alary as
      ·also the benefits of the post of Director. [Para 14] [466-
       B-D]
B
          Union.of India v. S.P Nayyar2014 (6) SCR 116: (2014)
      14 sec - referred to.

                        Case Law Reference

c        2014 (6) SCR 116           Referred to.        Para 13

         CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
      6505-6506 of 2009.

D         From the Judgment and Order dated 24.03.2009 of the
    · High Court of Judicature, Jabalpur in Writ Appeal No. 411 of
      2008.
                                   WITH
          C.A. No. 7308 of 2009
E
          C.A. No. 7950 of2015

          Subramaniam Prasad, Prashant Kumar, Joseph
      Pookkatt, Sunil Singh Parihar, (For AP & J Chambers), B.S.
F     Banthia, Mishra Saurabh for the Appellant.

          Aniruddha P. Mayee, A. Selvin Raja, Mishra Saurabh,
      Ankit Kumcir Lal, Anshaja Shukla, Dr. Harsh Pathak, Neeraj
      Shekhar, Mohit Chowbey, Siddartha Shukla, Merusagar
      Samantaray for the Respondents.·
G
          The Judgment of the Court was delivered by

           DIPAK MISRA, J. 1. Leave granted in the Special Leave
      Petition (C) No.28755 of 2009.
H         2. The present appeals, one preferred by the aggrieved
         H.S. SIDHU v. DEVENDRA BAPNA & ORS.                        459
                  . [DIPAK MISRA, J.]

officer, H.S. Sidhu and the other by the State, call in question A
the legal vulnerability of the judgment and order dated
24.03.2009 passed by the Division Bench of the high Court of
Madhya Pradesh at Jabalpur, in Writ Appeal Nos. 370, 371,
411 and 442 of 2008 whereby it has concurred with the view
expressed by the learned Single Judge vide order dated B
04.03.2008 in Writ Petition No.23798 of 2003 and W.P.S.
No.1119 of 2005.

     3. It is seemly to state that the grievance is common in all
the appeals. The facts, on a perusal of the order passed by          C
the learned Single Judge as well as by the Division Bench,
appear to be complex but they are actually not so. Complexity
has been created with ingenious artificiality. Reference to
certain dates, the factual position admitted at the Bar, and the
relevant rules would suffice the narration. It is not in dispute     D
that the app§llaffi, H.S. _Sidhu, and the 1st respondent,
Devendra Bapna, were initially appointed as Assistant
Directors as direct recruits through the Public Service
Commission and their service conditions are governed by the
Madhya Pradesh Fisheries (Gazetted) Service Recruitment              E
Rules, 1987 (for brevity, 'the 1987 Rules') with certain
incorporation from the Madhya Pradesh Services (General
Conditions of Service) Rules, 1961 (For short, 'the 1961
Rules'). There is no cavil over the fact that they were promoted     F
to the post of Deputy Directors and in that cadre Devendra
Bopana was treated as senior to the a·ppellant H.S. Sidhu.

     4. The question offilling up the post of Joint Director, which
is a promotional post from the cadre of Deputy Director, arose
in the year 1996. At that juncture, a list of officers who had G
come within the zone of consideration for the promotion to the
post of Joint Director was drawn up and in the said list, the
name of Devendra Bopna appeared at serial no.3 and that of
H.S. Sidhu at serial no.5. When the matter was placed before H
460       SUPREME COURT REPORTS                   [2015) 9 S.C.R.


A the Departmental Promotion Committee (DPC), it referred to
  the seniority and gradation list, the rule application for
  promotion, and took into consideration the ACRs and
  accordingly placed H.S. Sidhu at serial no.1 and Devendra
  Bapna at serial no.3 in the select list. The DPC for drawing
B the selection list in the aforesaid manner, ascribed the following
  reason:

        "As per M.P. Fisberies (Gazetted) Service Recruitment
        Rules, 1987 of Sub rule 15(3) DPC found exceptional merit
C       and suitable to Shri Harpal Singh Sidhu and given higher
        place against the senior officers."

        5. It is apt to note here that as there were four posts
  available in the cadre of Joint Director, both H.S. Sidhu and
D Devendra Bapna were allowed to officiate as Joint Directors.
  However, as H.S. Sidhu was treated senior to Devendra
  Bapna, he preferred OA No.927 of 1997 assailing the
  determination of seniority in the cadre of Joint Director. After
  abolition of the State Administrative Tribunal, the matter stood .
E transferred to the High Court of Madhya Pradesh at Jabalpur
  which was registered as W.P. No.23798 of 2003. At this
  juncture, it is necessary to note that while both of them were
  officiating as Joint Directors, the post of Director fall vacant
  and both of them were considered. The DPC, considering
F the merit and suitability of H.S. Sidhu, recommended him to
  be promoted to the post of Director. The said exercise was
  carried out during the pendency of the writ petition no.23798
  of 2003 where the cavil related to the fixation of seniority.

G       6. After the appellant was promoted temporarily to
  officiate ~s the Director, the same was also challenged by the
  1st respondent herein in Writ Petition No.1119 of 2005. Tl1e
  learned Single Judge dealt with both the writ petitions together
  and came to hold that thA writ petitioner should have been
H tceated as· senior to the appellant herein and, accordingly,
         H.S. SIDHU v. DEVENDRA BAPNA & ORS.                            461
                    [DIPAK MISRA, J.]

directed as follows :                                                    A

     "In view of the aforesaid, respondents are directed to re-
     fix the petitioner's seniority above to respondent no.2/4
     on the post of Joint Director and then to hold a review
     DPC of 6.8.2004 to consider the case of the petitioner, s
     respondent no.2/4 and other persons those who were
     within the zone of consideration when the original DPC
     met on 6.8.04. The review DPC shall take place within a
     period of two months from the date the petitioner furnishes
     certified copy of this order to the respondents and the C
     review DPC shall apply the same criteria which was
     applied by the original DPC to consider the case of the
     petitioner for his promotion on the post of Director."

     7. The aforesaid order was assailed by the aggrieved                D
officer as well as by the State. There was an order directing
stay of the directions issued by the learned Single Judge. The
Division Bench by the impugned judgment, as it appears to
us, has gone transient and without proper scrutiny of the rule
position agre~d with the view expressed by the learned Single            E
Judge on a different score altogether. In fact, it ha!?, if we permit
ourselves to say so, has exercised the appellate jurisdiction
over the proceedings of the DPC apart from taking note of
seniority on an erroneous perception.                        ·
                                                                         F
     8. We have heard Mr. Subramonium Prasad, learned
senior counsel along with Mr. Prashant Kumar, learned counsel
for the appellant in the appeals preferred by H.S. Sidhu, Mr.
Ankit Lal, learQed counsel for the State in the appeals p~eferred
by the State and Mr. Anirudhha P. Mayee on behalf ofthe 151              G
respondent, Devendra Bapna.

    9. To appreciate the controversy, we may refer with profit
to Rule 15 of the 1987 Rules. It reads as follows :
                                                                         H
462     SUPREME COURT REPORTS                        [2015] 9 S.C.R.


A     "15. Preparation of list of suitable officers-(1) The
                                 a
      Committee shall prepare list of such persons who satisfy
      the conditions prescribed in rule 14 above and as are held
      by the committee to be suitable for promotion/transfer to
      the service. The list shall be sufficient to cover the
 B    anticipated vacancies on account of retirement and
      promotion during the course of one year from the date of
      preparation of the select list. A reserve list consisting of
      25% of the number of persons included in the said list
      shall also be prepared to meet the unforeseen vacancies
c     occurring during the course of the aforesaid period.

      (2) The selection for inclusion in such list shall be based
      on merit and suitability in all respects with due regard to
      seniority.
D
      (3) The names of the officers included in the list shall be
      arranged in order of seniority in the service or posts as
      specified in column (2) of Schedule IV, at the time ·of
      preparation of each select list:                  ·
E                                                I
      Provided that any junior officer who in the opinion of the
      Committee is of exceptional merit and suitability may be
      assigned in the list a higher place than that of officer senior
      to him.
F
      Explanation-A person, whose name is included in a
      select list but who is not promoted during the validity of
      the list shall have no claim to seniority over those
      considered in a subsequent selection, merely by the fact
G     of Kis earlier selection.

      (4) _The list so prepared shall be reviewed and revised
      every year.

      (5) If in the process of selection, reiew or revision, it is
H
        H.S. SIDHU v. DEVENDRA BAPNA & ORS.                         463
                   [DIPAK MISRA, J.]

    proposed to supersede any member of the Service, the             A
    committee shall record its reasons for the proposed
    supersession."

     10. On a perusal of the aforesaid Rule, it is clear to us that
proviso to sub-rule {3) of Rule 15 postulates that any junior B
officer who in the opinion of the DPC is of exceptional merit
and suitable can be assigned a higher place in the list than
that of the officer senior to him. On a scrutiny of the AC Rs, and
the other materials, the DPC had found that the appellant had
received more marks than the 1st respondent. The DPC after C
due evaluation oftheACRs and consideration of the merit by
ascribing reasons had prepared the IT)erit list.

     11. On a close scrutiny of the judgment and orders passed
by the learned Single Judge which has been accepted by the           D
Division Bench, we find that they have not appreciated the tenor
and content of Rule 15(3), especially, the proviso thereof. As
it seems, they have been guided by the principle of seniority-
cum-fitness, but the proviso to Rule 15(3) states the position
differently laying emphasis on exceptional merit and suitability.    E

     12. Mr. Mayee, learned counse~ for the 1st ·respondent
would submit that as both of them are officiating as Joint
Directors, he could not have been ranked as junior in the said
cadre. To bolster the said submission, he has drawn our              F
attention to Rule 12(b) and 12{c) of the 1961 Rules which read
as under:

    "(b) Promoted Government Servant.-

    a promoted Government servant shall count his seniority G
    from the date of his confirmation in the service to which
    he has been promoted and shall be placed in the gradation
    list immediately before the last confirmed member of that
    service but above all the probationers:
                                                              H
464     SUPREME COURT REPORTS                     [2015) 9 S.C.R.


A     Provided that where two or more promoted Government
      servants are confirmed with effect from the same date,
      the appointing authority shall determine their inter se
      seniority in the service in which they are confirmed, with
      due regard to the order in which they were included in the
 B    merit list, if any, prepared for determining their suitability
      for promotion and their relative seniority in the lower
      service from which they have been promoted.

      (c) Officiating Government Servant.- The inter se seniority
c     of Government servant promoted to officiate in a higher
      service or a higher category of posts shall, during the
      period of their officiation, be the same as that in their
      substantive service or grade irrespective of the dates on
      which they began to officiate in the higher service or grade:
D
      Provided that-

      (i) If they were selected for officiation from a list in which
      the names of Government servants considered suitable
E     for trial in a promotion, to the Higher service or grade were
      arranged in order of merit, their inter se seniority shall be
      determined in accordance with the order of merit in such
      list;

      (ii) The seniority of a permanent Government servant
F
      appointed to officiate in another service or post by transfer
      shall be determined ad hoc by the appointing authority.

      Provided that the seniority proposed to be assigned to
      such Government servant shall be determined and
G     intimated to him in the order of appointment,

      (iii) Where a permanent Government servant is reduced
      to a lower service, grade or category of posts, he shall
      rank in the gradation list of the latter service, grade or
H
                  H.S. SIDHU v. DEVENDRA BAPNA & ORS.                       465
                             [DIPAK MISRA, J. ]

              category of posts above all the others in that gradation        A
              list, unless the authority ordering such reduction by a
              special order indicates a different position in the gradation
              list for such reduced Government servant.

              (iv) Where an officiating Government servant is reverted        B
              to his substantive service or post, he shall revert to his
              position in that gradation list relating to his substantive
              appointment which he held before he was appointed to
              officiate in the other service or post."
                                                                              c
          13. Be it clarified that neither the appellant nor the 1•1
     respondent was confirmed and, therefore, the rules relating to
     seniority as far as the confirmed employees are concerned,
     do not apply. The Rule that really applies is Rule 12(c) which
     deals with seniority of Government Servant. The proviso to o
     Rule 12(c) makes it quite vivid that if an officer has been
     selected for officiation from a list in which he is considered
     suitable for trial in a promotion and the said list has been
     arranged in order of merit, their inter se seniority shall be
     determined in accordance with the order of merit. In such a E
     situation, there can be no scintilla of doubt that when the DPC
     had drawn the list on the basis of inter se merit, the fixation of
.. seniority could not be found fault with. It needs no special
     emphasis to state that whil~ exercising the power under Article
     226 of the Constitution, the High Court cannot sit in appeal F
     over the assessment made by the DPC. In Union of India v.
     S.P. Nawar1 ; it has been stated that if the assessment made
     by the DPC is perverse or not based on record or proper record
     has not been considered by the DPC, it is open to the High
     Court under Article 226 of the Constitution to remit the matter G
     back to the DPC for recommendation, but it cannot assess
   . the merit on its own on perusal of the service record of one or

  .·
       1
           (2014) 14 sec 310
                                                                              H
466         SUPREME COURT REPORTS                    [2015] 9 S.C.R.


A     the other employee. Thus, analysed the view expressed by
      the High Court in the impugned order is wholly unsustainable.

           14. The controversy does not rest there. We have been
      apprised that the first respondent has retired holding the post
B     of Director after a review DPC was directed to be held by the
      Division Bench. Regard being had to the fact that he has
      already retired on 31.10.2010, he shall be treated to have
      retired from the post of Director and shall get the pensionary
      benefits. As far as the appellant is concerned, by virtue of the
C     order passed by the Division Bench, he continued in the post
      of Director till 5.2.2010 and thereafter he was reverted to the
      post of Joint Director. As he was already selected as a Director
      because of his seniority which has been erroneously set aside      _J


      by the High Court, we direct the State Government to pay the
D     arrears of salary commencing 05.02.2010 to 31. 08.2010. That
      apart, he shall also reap the benefits of the post of Director.
      We will be failing in our duty if we do not state that there was
      serious opposition by Mr. Mayee, learned counsel for the State
      but the said resistance is absolutely inconsequential in view
E     of the findings recorded by us.

           15. Resultantly, the appeals are allowed and the judgment
      and orders passed by the learned Single Judge as well as by
      the Divisioi'I Bench of the High Cpurt are set aside. There
F     shall be no order as to costs.

      NidhiJain                                       Appeals allowed.