MHABEMO OVUNG & ORS.versusM. MOANUNGBA & ORS.

                 [2024] 8 S.C.R. 709 : 2024 INSC 641

                       Mhabemo Ovung & Ors.
                                v.
                        M. Moanungba & Ors.
                      (Civil Appeal No. 9927 of 2024)
                              28 August 2024
            [J.K. Maheshwari and Rajesh Bindal,* JJ.]

                          Issue for Consideration
       Issue arose as regards inter-se seniority of the incumbents
       appointed to the post of Junior Engineer on direct recruitment
       basis and those whose posts of Sectional Officer, Grade-I, were
       upgraded to Junior Engineer.

                                Headnotes†
       Service law – Seniority – Members of the cadre of Junior
       Engineers – Inter-se seniority of the incumbents appointed
       to the post of Junior Engineer on direct recruitment basis
       and those whose posts of Sectional Officer, Grade-I, were
       upgraded to Junior Engineer – Direct recruitment of the
       Junior Engineers in 2003 – Circulation of tentative seniority
       list, however its finalization remained pending – During the
       interregnum 47 posts of Sectional Officer, Grade-I, working
       in the Department upgraded to Junior Engineer (Class-II
       Gazetted) and thereafter, seniority list finalized – Appellants-
       direct recruitees shown in the beginning of the seniority list,
       however, the respondents who were upgraded as Junior
       Engineer in 2007 were shown much below – Aggrieved
       thereagainst, writ petitions filed by the incumbents upgraded
       as Junior Engineers – Single Judge of the High Court
       dismissed the same as the Sectional Officer, Grade-I, whose
       post was upgraded only in 2007 as Junior Engineers could
       not be treated to be senior to the Junior Engineers, directly
       recruited in 2003 and the impugned seniority list was upheld –
       However, the Division Bench set aside the order passed by
       the Single Judge – Correctness:
       Held: Division Bench of the High Court totally misdirected
       itself while examining the 1997 Rules; the date of appointment
       of the respondents as Sectional Officer, Grade-I and the date

* Author
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       of their regularization as such – Said facts were not of any
       relevance – Date on which they became members of the cadre
       of Junior Engineers coming from two different sources is to be
       considered – Dates on which the Sectional Officer, Grade-I,
       were promoted as such either on officiating basis or their
       promotions were regularlised as per the order of 2007 will not
       have any bearing to the instant case – Even if the Sectional
       Officer, Grade-I, are treated to be working from the date they
       were officiating as such, nothing hinges on that as far as the
       seniority in the cadre of Junior Engineers is concerned – Post
       of Sectional Officer, Grade-I, on which they were working was
       upgraded to that of Junior Engineer (Class-II Gazetted) in 2007 –
       Pay-scales of Sectional Officer, Grade-I, was ₹4500- 7000 and
       of Junior Engineer was ₹6000-9750, meaning thereby that the
       respondents were working on a lower non-gazetted post –
       Division Bench committed blatant error that upgraded Sectional
       Officer, Grade-I, are directed to be given seniority in the cadre
       of Junior Engineers from a date on which they were not even
       born in the cadre as it was only after 2007 upgradation order
       that they became Junior Engineers, which was much after the
       direct recruitment made in 2003 – Impugned order passed by
       the Division Bench of the High Court set aside – Seniority list
       of the Junior Engineers upheld – Nagaland Engineeing Services
       Rules, 1997. [Paras 9-16]

                                Case Law Cited
       State of Uttaranchal and Another v. Dinesh Kumar Sharma [2006]
       Supp. 10 SCR 1 : (2007) 1 SCC 683 : 2006 INSC 944; P. Sudhakar
       Rao and Others v. U. Govinda Rao and Others [2013] 13 SCR
       540 : (2013) 8 SCC 693 : 2013 INSC 420; Ganga Vishan Gujrati
       and Others v. State of Rajasthan and Others [2019] 11 SCR 444 :
       (2019) 16 SCC 28, 2019 INSC 938 – referred to.

                                   List of Acts
       Nagaland Engineeing Services Rules, 1997.

                                List of Keywords
       Seniority; Post of Junior Engineer on direct recruitment basis;
       Posts of Sectional Officer, Grade-I, upgraded to Junior Engineer;
       Tentative seniority list; Direct recruits; Regularization; Promotions;
       Pay-scales; Lower non-gazetted post.
[2024] 8 S.C.R.                                                       711

            Mhabemo Ovung & Ors. v. M. Moanungba & Ors.


                           Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9927 of 2024
     From the Judgment and Order dated 09.09.2021 of the Gauhati High
     Court in WA No. 4 of 2020
     With
     Civil Appeal No. 9928 of 2024
                         Appearances for Parties
     P.S. Patwalia, Ranji Thomas, K N Balgopal, Rana Mukherjee, Sr.
     Advs., Sudarsh Menon, Shine P. Sasidhar, Manish Kumar Tiwari,
     Ms. Tatini Basu, Byrapaneni Suyodhan, Kumar Shashank, Ms. Nitya
     Nambiar, Avijit Roy, Samarth Mohanty, Advs. for the appearing parties.
                Judgment / Order of the Supreme Court

                               Judgment
     Rajesh Bindal, J.
1.   Leave granted.
2.   The issue under consideration in the present appeals is regarding
     inter se seniority of the incumbents appointed to the post of Junior
     Engineer on direct recruitment basis and those whose posts of
     Sectional Officer, Grade-I, were upgraded to Junior Engineer.
3.   Final seniority list of Junior Engineers was circulated on 26.03.2018
     showing the seniority position of the incumbents manning the posts
     from two different sources. Aggrieved against the seniority list,
     Sectional Officers, Grade-I, who were redesignated/upgraded as
     Junior Engineers challenged the same by filing W.P.(C)No.264(K) of
     2018 and W.P.(C) No.74(K) of 2019 filed by the respondent Nos.1 to
     16 herein. The Learned Single Judge vide order dated 07.02.2020
     dismissed both the writ petitions. Aggrieved against the judgment of
     the learned Single Judge in W.P.(C)No.74(K) of 2019, an intra-court
     appeal, W.A. No.4 of 2020 was filed. The Division Bench of the
     High Court set aside the judgment of the learned Single Judge. As
     a consequence, the impugned seniority list circulated on 26.03.2018
     was set aside and the department concerned was directed to refix
     the seniority of the Junior Engineers in terms of the directions given
     in the judgment.
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       3.1 Aggrieved against the aforesaid judgment, the directly recruited
           Junior Engineers in Civil Appeal arising out of S.L.P.(C)No.17102
           of 2021 and the State in Civil Appeal arising out of S.L.P.(C)
           No.1136 of 2022 are before this Court.
4.     Mr. P.S. Patwalia, learned senior counsel appearing for the directly
       recruited Junior Engineers/appellants in C.A. @ S.L.P.(C)No.17102
       of 2021 submitted that they were selected as such after qualifying
       the exam conducted by the Nagaland Public Service Commission
       and appointed in the pay-scale of ₹6000-9750, vide Notification dated
       01.05.2003. Their selection and appointment were strictly in terms
       of the Nagaland Engineering Service Rules, 1997.1 Ever since their
       appointment they have been performing their duty diligently.
       4.1 The contesting private respondents are incumbents who were
           earlier working in the cadre of Sectional Officers, Grade-I in
           the pay-scale of ₹4500-7000. Their posts were upgraded to
           that of Junior Engineers by the Government of Nagaland vide
           Communication dated 11.10.2007. It was only thereafter that
           they entered in the cadre of Junior Engineer. Prior to that
           they were working in a lower grade as compared to the direct
           recruits/Junior Engineers.
       4.2 After the selection of the direct recruits, a number of tentative
           seniority lists were circulated starting from 31.05.2004. However,
           none of them were finalized. It was only on 26.03.2018 that the
           seniority list was finalized. The appellants herein were shown
           above the incumbents/respondents who entered in the grade of
           Junior Engineers after their post of Sectional Officer, Grade-I,
           was upgraded to Junior Engineer. It was for the reason that the
           appellants have been working as Junior Engineer ever since
           their appointment vide Notification dated 01.05.2003 whereas
           the post of the Sectional Officer, Grade-I, was upgraded to that
           of Junior Engineers only vide Communication dated 11.10.2007.
           Prior to that they were working on non-gazetted lower post of
           Sectional Officer, Grade-I.
       4.3 Even otherwise if considered in terms of the 1997 Rules, the
           manner in which post of Sectional Officer, Grade-I, has been


1    The 1997 Rules
[2024] 8 S.C.R.                                                          713

               Mhabemo Ovung & Ors. v. M. Moanungba & Ors.


             upgraded to Junior Engineer, is not the manner provided in
             which the post of Junior Engineer can be filled up. Be that as
             it may, the appellants are not aggrieved with that action of the
             State, in case they are granted proper position in the seniority
             list. The result of the judgment of the Division Bench of the
             High Court is that the private respondents have been assigned
             seniority in the cadre of Junior Engineers from the date on
             which they were not even born in the cadre, which is legally
             impermissible. In support of the arguments reliance was placed
             upon the judgments of this Court in State of Uttaranchal and
             Another v. Dinesh Kumar Sharma,2 P. Sudhakar Rao and
             Others v. U. Govinda Rao and Others3 and Ganga Vishan
             Gujrati and Others v. State of Rajasthan and Others.4
5.    As the State is also aggrieved by the Judgment of the Division Bench
      of the High Court, in furtherance to the arguments raised on behalf
      of the directly recruited Junior Engineers, Mr. K.N. Balgopal, learned
      senior counsel appearing for the State in C.A. @ S.L.P.(C)No.1136
      of 2022, submitted that the judgment of the Division Bench is based
      on certain wrong facts/premise. The Learned Judge had tried to trace
      out the history from 1997 onwards, which was not relevant for the
      lis to be examined. It is a case in which inter-se seniority was to be
      determined after the first ever direct recruitment to the post of Junior
      Engineer was made on 01.05.2003. Prior to that Junior Engineers
      were being appointed by upgrading different posts.
      5.1 There is no dispute that the private contesting respondents
          herein were not Junior Engineers as on the date when the direct
          recruitments were made. The private contesting respondents
          were promoted on an officiating basis as Sectional Officers,
          Grade-I, on different dates. The Departmental Promotion
          Committee (DPC) was held on 16.03.2007 to consider
          regularization of their officiating promotion. Officiating promotion
          of Sectional Officers, Grade-I, in the pay-scale of ₹4500-7000
          was regularized vide Office Order dated 31.03.2007. Even if
          they had been working as Sectional Officer, Grade-I, from any



2    [2006] Supp. 10 SCR 1 : (2007) 1 SCC 683 : 2006 INSC 944
3    [2013] 13 SCR 540 : (2013) 8 SCC 693 : 2013 INSC 420
4    [2019] 11 SCR 444 : (2019) 16 SCC 28 : 2019 INSC 938
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            date prior to 16.03.2007, the same does not come to their
            rescue for the reason that they were working on a lower post.
            Sectional Officer, Grade-I, is a promotional post from Sectional
            Officer, Grade-II.
6.     In response, Mr. Rana Mukherjee, learned senior counsel appearing
       for the contesting private respondents, who were the writ petitioners
       before the High Court in W.A.No.4 of 2020 submitted that Office
       Order dated 31.03.2007 clearly shows that the private contesting
       respondents were deemed to be promoted from various dates
       as Sectional Officers, Grade-I, as their officiating promotion was
       regularized. The dates as are available in the aforesaid Office Order
       in most of the cases was prior to the date of appointment of the
       appellants in C.A.@S.L.P.(C)No.17102 of 2021. Hence, they were
       rightly granted seniority from that date as it was that post which was
       subsequently upgraded to Junior Engineer. There is no error in the
       order passed by the Division Bench of the High Court and both the
       appeals deserve to be dismissed.
7.     Heard learned counsel for the parties and perused the relevant
       referred record.
8.     The undisputed facts in the case fall in a very narrow compass.
       There are two sets of employees working as Junior Engineers. The
       appellants in C.A.@S.L.P.(C)No.17102 of 2021 are the incumbents
       who were selected by the Nagaland Public Service Commission and
       were appointed as Junior Engineers vide Notification 01.05.2003.
       The private contesting respondents who were the writ petitioners and
       appellants before the Division Bench of the High Court in W.A.No.4
       of 2020 were working as Sectional Officer, Grade-I and the post on
       which they were working was upgraded to that of Junior Engineer
       (Class-II Gazetted), vide letter dated 11.10.2007. The pay-scales on
       which the Sectional Officer, Grade-I, were working was ₹4500-7000
       whereas the pay-scales on which Junior Engineer (Class-II Gazetted),
       were working was ₹6000-9750.
9.     As stated before us, the post of Junior Engineer was governed by
       the 1997 Rules in terms of which 90% recruitment is to be done by
       direct recruitment and 10% by way of promotion. As stated before us,
       prior to 2003 selection by the Nagaland Public Service Commission
       no direct recruitment was made. Any seniority list of Junior Engineer
       which may have been circulated earlier will not have any bearing in
[2024] 8 S.C.R.                                                          715

            Mhabemo Ovung & Ors. v. M. Moanungba & Ors.


     the case in hand. After the direct recruitment of the Junior Engineers
     a tentative seniority list was circulated on 31.05.2004. Its finalization
     remained pending for years. During the interregnum 47 posts of
     Sectional Officer, Grade-I, working in the Nagaland Public Works
     Department were upgraded to Junior Engineer (Class-II Gazetted)
     vide Letter dated 11.10.2007. After considering claims and objections
     of all the incumbents working in the cadre of Junior Engineers, the
     seniority list was finalized on 26.03.2018.
10. The appellants in C.A.@S.L.P.(C)No.17102 of 2021 were shown at
    Serial Nos.71, 72, 74, 75, 76, 77, 78 & 80 in the aforesaid seniority
    list; they being the direct recruits. Respondent Nos.1 to 16 who
    were earlier working as Sectional Officer, Grade-I, the post which
    was subsequently upgraded as Junior Engineer vide letter dated
    11.10.2007 were shown at Serial Nos.156, 135, 136, 137, 138, 139,
    140, 141, 142, 143, 144, 157, 158, 159, 174 & 179.
11. Aggrieved against the aforesaid seniority list, two writ petitions were
    filed before the High Court. W.P.(C) No.74(K) of 2019 was filed by
    the respondent Nos.1 to 16 herein whereas W.P.(C)No.264(K) of
    2018 was filed by 29 other incumbents who were earlier working as
    Sectional Officer, Grade-I, the post which was upgraded to Junior
    Engineer vide order dated 11.10.2007.
12. Learned Single Judge rightly dismissed both the writ petitions as
    the Sectional Officer, Grade-I, whose post was upgraded only on
    11.10.2007 as Junior Engineers could not be treated to be senior
    to the Junior Engineers who were directly recruited on 01.05.2003.
    The impugned seniority list as circulated on 26.03.2018 was upheld.
13. A perusal of the impugned order of the Division Bench of the High
    Court shows that it had totally misdirected itself while examining
    the 1997 Rules; the date of appointment of the private contesting
    respondents as Sectional Officer, Grade-I and the date of their
    regularization as such. The aforesaid facts were not of any relevance
    for the decision of the question of seniority amongst the members
    of the cadre of Junior Engineers. All what was required to be
    considered was the date on which they became members of the
    cadre of Junior Engineers coming from two different sources. As to
    whether the upgradation of the post was right or wrong is not an
    issue canvassed before this Court. The Division Bench of the High
    Court has further gone wrong in considering the upgradation of post
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       of Sectional Officer and certain other posts to that Junior Engineers
       prior to 01.05.2003 when direct recruitment to the post of Junior
       Engineers was made for the first time. That historical background
       did not have any relevance for the reason that prior to 2003 never
       before in the cadre of Junior Engineers there was recruitment from
       two different sources. The dispute arose only thereafter.
14. The dates on which the Sectional Officer, Grade-I, were promoted as
    such either on officiating basis or their promotions were regularlised
    though as per the Order dated 31.03.2007 effective from the date
    when the DPC was held i.e. 16.03.2007 will not have any bearing on
    the case in hand. Even if the Sectional Officer, Grade-I, are treated
    to be working from the date they were officiating as such, nothing
    hinges on that as far as the seniority in the cadre of Junior Engineers
    is concerned. It is for the reason that the post of Sectional Officer,
    Grade-I, on which they were working was upgraded to that of Junior
    Engineer (Class-II Gazetted) vide letter dated 11.10.2007.
15. The pay-scales of Sectional Officer, Grade-I, was ₹4500-7000 and
    the Junior Engineer was having pay-scales of ₹6000-9750. Meaning
    thereby that they were working on a lower non-gazetted post. The
    dispute in the present appeals is only pertaining to the Sectional
    Officer, Grade-I, whose posts were upgraded on 11.10.2007 and
    not those whose posts were upgraded prior to the direct recruitment
    vide Notification dated 01.05.2003. The blatant error committed by
    the Division Bench of the High Court is that upgraded Sectional
    Officer, Grade-I, are directed to be given seniority in the cadre of
    Junior Engineers from a date on which they were not even born in
    the cadre as it was only after 11.10.2007 upgradation order that
    they became Junior Engineers, which was much after the direct
    recruitment made on 01.05.2003.
16. For the reasons mentioned above, appeals are allowed. The impugned
    order passed by the Division Bench of the High Court is set aside.
    The seniority list of the Junior Engineers as circulated on 26.03.2018
    is upheld. There shall be no order as to costs.

       Result of the case: Appeals allowed.



       †
           Headnotes prepared by: Nidhi Jain