Holding

In the absence of a contrary rule, service rendered in officiating or probationary capacity must be counted for seniority, and the Manipur Police Service Rules are pari materia with the DANI Rules, so the Bhatia precedent applies.

Summary

The petitioners, police officers of the Manipur Police Service, were appointed in officiating capacity under Rule 24 and later re‑appointed under Rule 5(1)(b) and Rule 16, but their officiating service was ignored in the seniority list. They challenged the order in the Gauhati High Court; a Single Judge treated their officiating appointment as regular and refixed seniority, but a Full Bench set aside that order. The Supreme Court held that, unless a rule expressly excludes it, service rendered on probation or officiating appointment must be counted for seniority, and that the Manipur Police Service Rules are pari materia with the Delhi and Andaman and Nicobar Island Police Service Rules, making the precedent in Union of India v. Harish Chander Bhatia applicable. Consequently, the appellants' seniority was to be refixed and their officiating appointments treated as regular. The Court allowed the appeals and dismissed a related SLP.

Issues considered

Whether period of service rendered on probation or officiating appointment can be counted towards seniority under the Manipur Police Service Rules.
Whether the Manipur Police Service Rules are pari materia with the Delhi and Andaman and Nicobar Island Police Service Rules, thereby rendering Bhatia's judgment applicable.
Whether an appointment qualified by ‘until further orders’ constitutes a substantive appointment for seniority purposes.
Whether any rule under Article 309 imposes a mandatory two‑year probation that would affect the seniority of the officers.

Legislation cited

Constitution of Indias. Article 309

Subjects

service lawseniorityprobationofficiating appointmentManipur Police Service Rulespari materiaArticle 309promotionadministrative law

Judgment

S.L. CHANDRAKISHORE SINGH ETC. ETC. A
v.
STATE OF MANIPUR AND ORS. ETC. ETC.

OCTOBER 1, 1999

[S. SAGHIR AHMAD AND R.P. SETHI, JJ.] B

Service Law :

Manipur Police Se1vice Rules, 1965-Rules 24, 5( l)(b ), 14, 15 and
l6-Se11iority--Detenni11atio11 of-Length of service-Reckoning of--Officiat- C
-- ing promotion under R. 24-Subsequent promotion order under R. 5(1)(b)
r/w R.16-Fixation of seniority--Period of service rendered 011 officiating
appoi11tme11t-No11-co11sideration of-Held, unless there is a contrary rule,
service rendered 011 probation or officiating capacity cannot be ignored-No
substantive difference between the list prepared under R. 24 and the one
prepared under R. 14 and R. 16 since both have been prepared on the basis D
of merit-No justification for issuing promotion order under R. 5(1)(b) r/w

-- R.J(r-()Jficiating appointment directed to be treated as regular and seniority
to be refixed accordingly-Delhi and Andaman and Nicobar Island Police
Service Rules, 1971-Constitution of India, 1950 Article 309.

Delhi and Andaman and Nicobar Island Police Service Rules,
E
1971-Manipur Police Service Rules, 1965-Held, are in pari materia. .

The issue involved in the present appeals was whether the period
of service rendered by a person on probation or officiating appointment
could be counted towards his seniority. Appellant-police officers were F
promoted to the post of Manipur Police Service Grade II in officiating
capacity under Rule 24 of Manipur Police Service Rules, 1965. Sub-
sequently, another order was issued purporting to re-appoint the appel-
lants on promotion in terms of Rule S(l)(b) r/w rule 16 of the Rules.
Services rendered by appellants in officiating capacity was not taken into
consideration while preparing the seniority list. On challenge before High G
Court, Single Judge held that the Delhi and Andaman and Nicobar Island
Police Service Rules, 1971 were
w
in pari materia w.ith
.
·Manipur Police Service
Rules and relying upon the judgment of this Court in Bhatia's case
directed the respondent State to treat the date of officiating appointments
of appellants as regular appointments and to refix the seniority accord- H
323
324 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A ingly. However, on appeal, Full Bench of High Court held that the Delhi
an-d Andaman and Nicobar Island Police Service Rules were in pari
materia with Manipur Police Service Rules; thus it set aside the order of
Single Judge on the ground that the judgment of this Court in Bhatia's
case was not applicable to the facts and circumstances of the case. Hence
B the present appeals.

Disposing of the appeals, the Court

HELD : 1.1. It is well settled that even in cases of probation or
officiating appointments which are followed by a confirmation unless a
C contrary rule is shown, the service rendered as officiating appointment or
on probation cannot be ignored for reckoning the length of continuous
officiating service for determining the place in the seniority list. Where the
first appointment is made by not following the prescribed procedure and
such appointee is approved later on, the approval would mean his confir-
mation by the authority shall relate back to the date on which his appoint-
D ment was made and the entire service will have to be computed in reckoning
the seniority according to the length of continuous officiation. [343-B-C-D]

1.2. Thus, in the instant case, the period of service rendered by the
appellants in officiating capacity should be treated as regular service and
their seniority should be refixed accordingly. [344-D]
E
G.P. Doval & Anr. v. Chief Secretary, Government of U.P. & Ors.,
[1984] 4 sec 329, relied on.

1.3. No rule in terms of Article 309 is shown to have been made by the
F respondent Government which provides that appointment to a post would
necessarily be on probation for a period of two years. It is true that Govern-
ment by Executive orders made under constitutional provisions has the
power to regulate the recruitment and the condition of service but no such
Government Order can alter or amend the existing rules on the subject. In
the 1965 Rules no period of probation was prescribed for the post of
G Inspectors of Police. Thus, the appointment of the appellants was to be
treated as substantive appointment in the absence of a rule to the contrary.
[342-D; E; F]
•
2. The Delhi and Andaman and Nicabor Island Police Service Rules,
1971 are in pari materia with Manipur Police Service Rules, 1965 and the
H judgment of this Court in Bhatia's case is squarely apptic,able to the facts
S.L. CHANDRAKISHORESINGHv. STATE 325

and circumstances of the present case. In Bhatia's case, this Court after A
referring to sub-rules (3) and (4) of Rules 14, 15 and 24 of Delhi and
Andaman and Nicobar Island Police Service Rules found that there was no
difference in substance between the list prepared as contemplated by Rules
14 and 15 and the one visualised by Rule 24. The selectees under Rule 24
were held to be standing at par with the selectees under Rule 14 of the Rules.
Similarly, in the instant case a>Jo once the appellant had been appointed to
B
the service in terms of Rule 24 of the Rules, it was presumed that his name
had been included in the list after compliance of the provisions of sub-rules
(3) and (4) of Rules 14 and 15 of the Manipur Police Service Rules, there
being no difference in substance between the list prepared as contemplated
under Rules 14 and 16 on the one hand and as visualised under Rule 24 on c
the other. The proceedings of the DPC clearly and unambiguously indicate
that all eligible police officers were considered for officiating appointment
in terms of Rule 24 against available short term vacancies. It has further to
be noticed that the selection was based upon merit and suitability and the
DPC had kept in mind sub-rules (2) and (3) and Rules 14 and 15 of the D
Rules while preparing the list on merits. Thus, promotion made after
compliance of Rules 14 and 15 is contemplated to be a selection in terms of
Rule S(l)(b) of the Rules. The respondent-State, therefore, was notjustified
in re- appointing, on promotion, the officers mentioned in the Government
Order dated 16th August, 1989 to the Manipur Police Service (Junior
Grade) with effect from that date. E
[330-D; 343-G; 335-G-H; 336-A; 339-8; C; DJ
Union of India & Anr. v. Barish Chander Bhatia & Ors., [1995] 2
sec 48, relied on.
Baleshwar Dass & Ors. v. State of U.P. & Ors., [1980] 4 SCC 226 and F
N. Suresh Nathan & Anr. v. Union of India & Ors., [1992] Suppl. 1 SCC
584, distinguished.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5664 of
1999 Etc. Etc.
G
From the Judgment and Order dated 14.9.98 of the Gauhati High
Court in W.A. No. 565 of 1997 (Gau) 162 of 1997 lmph.

H. Nabh Kr. Singh, A.S. Nambiar, Ashok Kumar Sharma, G.D.
Gupta, Suresh C. Gupta, Ms. Rekha Pandey, P.K. Manohar, B.P. Sahu, K. H
326 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A Nobin Singh, K.K. Gupta for the appearing parties.

The Judgment of the Court was delivered by

SETHI, J. Leave granted.

B In all these appeals the point of law sought to be determined is
regarding the principle governing the determination of seniority of the
persons belonging to Manipur Police Service governed by Manipur Police
Service Rules (hereinafter referred to as 'MPS Rules'). It has to be
determined as to whether or not the police officers belonging to the service
C who had continuous, uninterrupted, meritorious officiating service are
entitled to the benefit to be counted the same towards their seniority. The
ambit and scope of the judgment of this Court in Union of India & Anr. v.
Harish Chander Bhatia & Ors., [1995] 2 SCC 48 needs also to be ascer,
tained. The rival contentions are required to be adjudicated on compara-
tive study of the Delhi and Andman and Nicobar Island Police Service;
D Rules, 1971 (hereinafter referred to as 'DANI Rules') and the MPS Rules.

Brief fact of the case, as extracted from SLP (C) No. 18221/98 filed
by Shri L. Chandrakishore Singh are that the appellant herein joined the
Manipur Police as Sub-inspector on the recommendation of the Manipur
E Public Service Commission and was confirmed to the post on 16.6.1976.
Vide order No. 13(1)/9/79- H(PT) dated 3rd June, 1980 (Annexure P-1)
the Government of Manipur appointed 31 Sub-inspectors of Police, includ-
ing the appellants, as Inspectors of Police on promotion in the scale of pay
of Rs. 488-25-518-EB-25-749-EB-38-958 plus other allowances as admis-
F sible under the Rules with effect from 3rd June, 1980 on regular basis, until
further orders (emphasis supplied). Vide order No. 3/12/83-MPS/DF(i)
dated 12th October, 1983 (Annexure P-2) the Government of Manipur in
exercise of the powers conferred under Rule 24 of the MPS Rules, 1965
appointed the appellant along with 27 others, in the order of their merit,
to the Manipur Police Service in officiating capacity in the pay-scale of Rs.
G 900-40-1220-EB-50-1720 with immediate effect, until further orders. Order
No. 13(1)/4/79-H(i) dated 16.9.1989 shows that on the recommendation of
the DPC held on 14.1.1985, the Governor of Manipur was pleased to
confirm the appellant and others as Inspectors of Police in the Manipur
Police Department with effect from 14.1.1985 i.e., the date on which the
H DPC recommended for confirmation, until further orders. However, vide
S.L. CHAND RAKISH ORE SINGH v. STATE [SETHI, J.] 327

order No. 3/12/83-MPS/DP (PT-I) dated 16.8.1989 the respondent- A
··Government issued an order, purported to be under Rule 5(1)(b) read with
Rule 16 of the Manipur Police Service Rules, 1965, appointing on promo-
tion the officers mentioned therein including the appellant, in order of their
seniority to Manipur Police (Junior Grade) in the pay-scale of 1.s. 2000-
60-2300-EB-75-3200 with immediate effect. The tentative seniority list of the
B
MPS officers as on 22nd September, 1998 showed the appellant's name at
Sr. No. 72 allegedly even below the direct recruits (MPS Grade-II) of the
year 1988. He submitted his objections to the tentative seniority list on 26th
December, 1989. However, the seniority list issued on 30th March, 1990
showed his name at SI. No. 71, still below the direct recruits (MPS
Grade-II) of 1988 batch. Feeling aggrieved of his placement in the c
seniority, the appellant filed writ petition .being Civil Rule No. 166 of 1990
before the Gauhati High Court for a diredion io regularise his officiating
appointment to MPS Grade-II with effect from12.10.1983 by revis-
ing/quashing/modifying the aforesaid appointment order dated 16.8.1989
insofar as it related to him. He reserved his right to challenge the seniority D
list of the MPS. The writ petition is stated to have been disposed of by the
Division Bench of Gauhati High Court, Imphal Bench giving directions that
the appellant shall be given the benefit of regularisation from the date of
his officiating appointment provided the same was continuous. The appel-
lant again filed a Civil Writ bearing No. 60/91 seeking inter alia a direction
to consider him for promotion to the next higher post of Additional
E
Superintendent of Police/Deputy Commandants of Martipur Rifles. During
the pendency of the aforesaid writ petition, the respondent-Government
filed an application for modification of its order dated 20th August, 1980
passed in C.R. No. 166/90 which was subsequently registered as Civil
Review No. 13/96. The appellant filed another writ petition bearing Civil F
Rule No. 307/92 for quashing the order of the Manipur Government dated
16.9.1985 and seeking a direction for his confirmation as Inspector of
Police. While disposing of the aforesaid writ petition on 11.12.1992 the
Gauhati High Court directed the Government either to confirm the appel-
lant as Inspector of Police with effect from 3.6.1980 or from the date when G
·his juniors were confirmed. The High Court directed the deletion of the
words "until further orders" mentioned in his regular appointment order
dated 3rd June, 1980 (Annexure P·l). It is admitted that the aforesaid
judgment was not appealed against. On 21st May, 1996 Civil Review No.
13/96 was disposed of by a Division Bench by setting aside the order dated H
328 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A 20th August, 1990 passed in Civil Rule No. 166 of 1990. The said Civil
Rule No., 166/90 was restored to the file and the appellant was directed to
implead all those officers above him in the seniority list of MPS Grade-II,
who were likely to be affected adversely in case if reliefs as prayed for by
him were granted. The said writ petition was disposed of by a Single Judge
B of the High Court on 18.9.1997 allowing the same with directions to the
respondent Government to treat the date of officiating appointment of the
appellant to the MPS Grade-II as the date of his regular appointment. Not
satisfied with the aforesaid judgment the private respondents filed Writ
Appeal No. 162/97 which was referred to a larger Bench by formulating
three points for decision vide order dated 13.5.1998. The Full Bench vide
C the impugned order in these appeals set aside the order of the learned
Single Judge and dismissed the writ petition being Civil Rule No. 166/90.

The appellant N. Bijoy Singh in SLP (C) No. 17310/98 was appointed
as an Inspector along with others including the appellant L..
D Chandrakishore Singh vide order dated 3rd June, 1980 (Annexure P-1).
Under the MPS Rules, the meeting of the Selection Committee for relevant
posts was held on 24th March, 1987. The Committee recommended the
aforesaid appellant as an officiating appointee solely on the ground of
shortage of substantive vacant posts at the relevant time but in anticipation
E of the future substantive vacancies which were likely to arise within the
stipulated period as conceived under Rule 14 of the Rules. Vide order
dated 16th July, 1987, issued under Rule 24 of the Rules, the said appellant
along with others was appointed on officiating basis to the Manipur Police
Service (Junior Grade) in the pay- scale of Rs.900-40-1220-EB-50-1720
F with effect from the date on which they took over the charge of the post
(Annexure P-3). However, vide order dated 16th August, 1989 purported
to have been issued under Rule 5(1)(b) read with Rule 16 of the Rules,
the appellant along with others was appointed, on promotion, in order of
merit to the Manipur Police Service (Junior Grade) in the pay-scale of Rs.
2000-60-2300-EB-75-3200 with immediate effect. Vide order dated 28th
G October, 1991 issued in exercise of powers vested in the Government under
Rule 23, the appellant along with others was confirmed to Manipur Police
Service Grade- II with effect from 16.8.1991. Feeling aggrieved Shri N.
Bijoy Singh filed writ petition bearing CR No. 415/94 in the Gauhati High
Court praying for seniority from the date of his officiating appointment
H along with consequential benefits. His petition was dismissed on 5.7.1995
S.L. CHANDRAKISHORE SINGH v. STATE [SETHI, J) 329

on the ground that he was not entitled to the seniority from the date of his A
officiating appointment. He filed a review petition seeking clarification
which was also dismissed on 18.6.1997. Writ Appeal No. 101/97 preferred
by him before the Division Bench of the High Court was referred to a
larger Bench along with writ appeal filed against the judgment of the
learned Single Judge in L. Chandrakishore Singh's case. The larger Bench B
dismissed the appeal vide the impugned order holding him not entitled to
the benefit of seniority from the date of his officiating appointment or from
the availability of first substantive vacant post after the aforesaid selection.

Smt. Vandana Karki and others who were respondents in the writ
petition filed by Shri L. Chandrakishore Singh have filed SLP (C) No. c
4870/99 alleging that the High Court was not right in interpreting eligibility
criteria laid down under Rule 14(1) read with Rule 5(1)(b) of the Rules
and effective dates of confirmation to the post of Inspector of Police. It is
contended that the High Court erred in holding that the MPS Service
Rules were pari materia with DANI Rules. It is submitted that the High D
Court was not right in holding that the words "substantively borne on the
cadre of Inspector of Police" appearing in Rule 5(1)(b) of MPS Rules
could not mean the inspector of police whose probation to the post had
been confirmed. It could not be held that the confirmation to the post of
Inspector of Police be taken as eligibility criteria for promotion to MPS
Grade-II. It is contended that the High Court failed to appreciate that E
since the inception of service, the Government of Manipur had all along
been interpreting the words "substantively borne on the cadre of Inspector
of Police" appearing under Rule S(l)(b) of the Rules as the Inspector of
Police confirmed to the .Post and as such confirmed inspectors alone were
considered to be eligible for promotion to MPS Grade-II. There was no F
justification to disturb the consistent practice of 30 years and to unsettle
many settled matters in the service. The respondent No. 1, namely, Shri L.
Chandrakishore Singh is contended to be not eligible for promotion to
MPS Grade-II on regular basis till 14.1.1985, i.e., the date of his confirma-
tion to the post of Inspector of Police and thus could not be promoted to
MPS Grade-II when he was allowed to officiate as MPS Grade-II officer G
vide orders dated 12.10.1983 from the list prepared under Rule 24 of the
Rules. The High Court is further stated to have erred in overruling the
decision of a Division Bench dated 11.4.1997 passed in Writ Appeal Nos:
365/94 and 55/94 as the aforesaid judgments are stated to have been
approved and confirmed by this Court by dismissing the SLP (C) Nos. H
330 SUPREME COURT REPORTS [1999] SUPP.3 S.C.R.

A 12904-12905 of 1997. Leave is prayed to appeal from the final judgment of
the Full Bench and prayer is made for passing such other and further
orders as are deemed proper.

Shri H. Nabh Kumar Singh, Senior Advocate, appearing for the
appellant has vehemently argued that after holding the MPS Rules as
B synonymous to the DANI Rules, the Full Bench of the High Court was not
justified in not applying the law laid down by this Court in Union of India
& Anr. v. Harish Chander Bhatia & Ors., (1995] 2 SCC 48. It is contended
that after the judgment dated 11.12.1992 of the High Court in Civil Rule
No. 307/92, the respondent-State was estopped from arguing that the
C appointment of the appellant was temporary which disentitled him from
getting the benefit of length of service on the basis of the aforesaid order.
He has submitted that the learned Single Judge who decided the Civil Rule
166 of 1990 on 18.9.1997 had rightly held that since the DANI Rules were
in pari materia of MPS Rules, the judgment of the Apex Court in Bhatia's
D case (supra) was squarely applicable in the facts and circumstances of the
case. He has referred to various observations made in favour of the
appellant and assailed the conclusions arrived at by the Full Bench on the
ground of not applying the relevant rules and the pronouncements made
1

by this Court.
E
Shri A.S. Nambiar, Senior Advocate for the respondents has
submitted that the appointment of the appellant as Inspector of Police
initially being on probation for two years, the same could not be treated as
substantive appointment for the purposes of determining the seniority. He
F has tried to distinguish the DANI and MPS Rules to show that the initial
appointment of the appellant as Inspector and subsequent confirmation
entitled him benefit of seniority only with effect from the 16th August, 1989.
According to him the learned Single Judge had committed mistake in
allowing the appeal filed by Shri L. Chandrakishore Singh.

G The Rules were made by the President of India in exercise of powers
conferred under Article 309 of the Constitution of India on 29th March,
1965. Rule 3 provides that there shall be constituted a Central Police
Service to be known as Manipur Police Service, the posts of which shall be
central civil posts Class II gazetted. The authorised permanent strength of
H the service and the post shall be such as specified in the Schedule attached
S.L. CHANDRAKISHORE SINGH v. STATE [SETHI, J.] 331

to the Rules. The Central Government or the Administrator, subject to A
sueh conditions and limitations, as may be prescribed by the Central
Government in this behalf, may, by order, create duty for such period as
may be specified therein. Rule 5 which deals with method of recruitment
provides :

"Method of Recruitment : ~1) Save as provided in rule 17, ap- B
pointment to the service shall be made by the following method
namely:

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

(b) the remaining 50 percent of such substantive vacancies shall
be filled up by selection in the manner specified in part V of
these rules from amongst officers who are substantively borne D
on the cadre of Inspector of Police, Inspector of J'olice
(Legal) and Subedar/Sub-Major of Manipur Rifles employed
under the State of Manipur;

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

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

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

Part V provides for recruitment by selection. Rule 13 mandates that :

"Recruitment under clause (b) of sub-rule (1) of Rule 5 shall be H
332 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A made on the recommendation of the Selection Committee
(hereinafter referred to as the Committee) consisting of -

Chainnan

(i) The Chairman or a Member of the Commission;
B
Members

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

c (iii) the Chief Secretary to the Government of Manipur; and

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

D The Committee is required to consider, from time to time, the cases of
officers eligible under clause (b) of sub-rule (1) of Rule 5 who have served
in their respective cadres for not less than two years and prepare a list of
officer ~ecommended taking into the account the actual vacancies at the
time of selection and those likely to occur during a year. The selection for
_inclusion in the list has to be based on merit and suitability in all respects
E for appointment to the service with due regard to seniority. The names -of
the persons included in the list are required to be appointed in order of
merit. The list so prepared is to be forwarded by the Committee to the
Governor which shall be approved by him after taking into account the
changes, if any, proposed by the Public Service Commission. Such list shall
p ordinarily be in force until a fresh list is prepared for the purpose in
accordance with these rules. According to Rule 16 appointments to the
service are to be made in order of merit in the list referred to in Sub-rule
(4) of Rule 15 with due regard to the proportion specified in Rule 5 and
subject to sub-rule (2) of Rule 16. Selection for officiating appointments
have to be made under Rule 24 which provides :
G
"Selection for officiating appointments : If at any time the Ad-
ministrator is of the opinion that the number of officers available
in the list referred to in sub-rule (4) of Rule 15 for appointment
to duty posts is not adequate having regard to the vacancies in
H such posts, he may direct the Committee to consider the cases of
S',L. CHANDRAKISHORE SINGH v, STATE [SETHI, J,] 333

officers who had officiated for a period of not less than three years A
in any of the cadres mentioned in clause (b) of sub-rule (1) of rule
5 and prepare a separate list of officers selected. The selection for
inclusion in the list shall be based on merit and suitability in all
respects for officiating appointments to duty posts with due regard
to seniority. The provisions of sub-rules (2) and (3) of Rule 14 and B
15 shall apply mutatis mutandis in the preparation of the list under
this rule."

Rule 25 provides :

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

(a) By the appointment of an officer included in the list referred D
to in sub-rule (4) of Rule 15 or
•
(b) If no such officer is available by the appointment of an officer
included in the list prepared under Rule 24.
E
(2) Notwithstanding anything contained in these Rules, if the
exigencies of service so require, a duty post for which a member
of the service is not available, may, after consultation with the
commission, be filled on an officiating basis by the appointment of
an officer belonging to any State Police Service on deputation for
such periods ordinarily not exceeding three years as the Ad- F
ministrator may consider necessary.

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

The Full Bench after extensively dealing with the DANI Rules in paras 10
to 13 of its judgment rightly concluded : H·
334 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

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

While dealing with the case of the appellant, the Full Bench found that he
D had not been substantively promoted to the post of Inspector of Police on
3.6.1980 because of qualified words 'until further orders' appearing in the
aforesaid order. It was observed :

"Appointment with the condition of 'until further orders' is purely
on a temporary capacity subject to further order made in this
E
behalf by the competent authority. Regular appointment in a cadre
or post should not allow with the qualifying words, 'until further
orders'. If the appointment is made until further orders, it cannot
be said to be a regular appointment. Consequently, we are of the
opinion that the petitioner's appointment in the post of Inspector
F of Police cannot be termed as a regular appointment."

It appears that before arriving at such a conclusion the Bench did not
notice the earlier decision of the High Court in Civil Rule No. 307 of 1992
wherein it was specifically held :

G
"As the petitioner was appointed on officiating basis, it therefore
follows that the appointment was against a permanent post and he
cannot be kept on officiating basis for such a long period without
confirmation. That apart, as the petitioner was appointed accord-
ing to rules on officiating basis, the word 'until further orders' is
H absolutely superfluous and, therefore, these words are set aside.
S.L. CHANDRAKISHORE SINGH v. STATE [SETHI, J.] 335

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

It is conceded before us that the said judgment was not appealed against C
and was allowed to become final. It is, however, contended that as the
respondents were not made party in the said writ petition, the verdict did
not bind them. The argument has to be noticed for only being rejected
inasmufh as the petitioner therein was aggrieved by the order which
affected him alone and he had impleaded the State of Manipur as party D
respondents who, according to him, had added superfluous words 'until
further orders' in his order of promotion.

The record of proceedings of the DPC held on 9.9.1983 for con-
sideration of promotion to the MPS Grade-II in the Police Department,
Manipur shows that there existed 29 substantive/regular vacancies in the E
MPS Grade-II out of which 14 belonging to direct recruits and 15 to the
promotees. Out of 15 posts of promotion 5 posts were reserved for ST only
and no reservation for SC. It was further reported by the Government that
there were another 28 short term vacancies (both direct and promotion
quota together) in MPS Grade-II. The DPC ccmsidered to fill up those F
short term vacancies on officiating basis under Rule 24 of the MPS Rules
by giving promotion from amongst the eligible officers in the feeder list.
For selection of 15 officers for appointment by promotion all eligible
officers were considered. On the basis of assessment made and on perusal
of their comparative merit and suitability, the Committee recommended
officers including Shri L. Chandrakishore Singh in order of merit for G
appointment on officiating basis to the post of MPS Grade-II. The name
of the appellant L. Chandrakishore Singh was at SI. No. 2 in the merit list
prepared by the DPC. The rroceedings of the DPC clearly and unam-
biguously indicate that all eligible police officers were considered for
officiating appointment in terms of Rule 24 against available short term H
336 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A vacancies. It has further to be noticed that the selection was based upon
merit and suitability and the DPC had kept in mind sub-rules (2) and (3)
of Rules 14 and 15 of the Rules while preparing the list on merits. It has
further to be noticed that the appointment to the duty post was not made
as a local arrangement as contemplated by sub- rule (3) or Rule 25 of the
B Rules. We find that the learned Single Judge while disposing of Civil Rule
166/90 had rightly held :

"Since the DANI rules are in pari materia of Manipur Service
Rules, the judgment and order of the Apex Court in Union of India
and Another, Appellants v. Harish Chander Bhatia and Others
c (supra) shall be squarely applicable in the facts of the case at hand.
On this score alone, this petition has succeeded. In my view,
· therefore, it may not be necessary to advert to the other points
urged by the parties.

This .apart, in Direct Recrnit Class-II Engi,neering Officers' Associa-
D tion, Appellants v. State of Maharashtra and Others, Respondents,
(1990] 2 SCC 715, the Constitution Bench of the Apex Court held
in paragraph 47 'A' as under :

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

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

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

H This <:;ourt in Bhatia's case (supra) considered the scope of DANI Rules
S.L. CHANDRAKISHORE SINGH v. STATE [SETHI, J.] 337

which we have found are pari materia the MPS Rules and held : A
. "4. From the above, it is clear that for a per£on to be appointed
under sub-rule (1) of Rule 25, he has to be an officer whose name
is included in the list referred to in sub-rule (4) of Rule 15 or one
prepared under Rule 24. Insofar as sub-rule(3) is concerned, this
requirement is not to be satisfied, and further, appointment under B
that sub-rule cannot exceed six months and is made as a local
arrangement. The respondents are those whose names found place
in the list prepared under Rule 24 and their appointments not
having been made purely as a local arrangement for a period not
exceeding six months, we have no difficulty in upholding the view c
... of the Central Administrative Tribunal, Principal Bench whose
judgment has been impugned in this appeal, that respondents were
appointed under sub-rule (1).

(5) There is no serious dispute to this position even by learned
D
Additional,Solicitor General, Shri Tulsi, who has appeared for the
appellants. His first real contention is that despite the appoint-
ments being Under sub-rule (1), the respondents cannot be taken
to have been appointed to the Service and as such the direction
of the Tribunal to treat them as permanent appointees instead of
as officiating hands, is not in consonance with what has been E
"""'!
provided in the Rules. Shri Tulsi submits that appointment to the
Service can be made only as visualised by Rule 16 and this can be
of those whose names find place in the list referred in sub-rule (4)
of Rule 15. The respondents not being such incumbents, they
cannot be treated as permanent appointee to the Service.
F
6. This submission would not be correct if heart of the matter is
looked into. To put it differently, the submission is not correct in
substance, but is so only in form. We have taken this view because
an examination of Rule 24 shows that the list prepared as required
- by that rule, has also to satisfy the requirements of provisions of G
sub-rules (3) and (4) of Rules 14 and 15. This shows that the
incumbents whose names find place in the list prepared as con-
templated by Rule 24 are also those who have been duly selected
and consultation with the Commission has also been made and the
list prepared has been forwarded to the Central Government as H
338 SUPREME COURT REPORTS [1999] SUPP.'3 S.C.R.

A well for its doing the needful. There is thus no difference in
substance between the list prepared, as contemplated by Rule 14
read with Rule 15, and the one visualised by Rule 24. So, there
appears to be no justifiable reason to regard Rule 24 selectees as
in any way inferior to Rule 14 selectees. According to us, they
stand almost at par. It is because of this that clauses (a) and (b)
B of sub-rule (1) of Ruic 25 have virtually made no distinction
between these two categories of incumbents.

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

G We are of the firm opinion that the Full Bench was not correct in holding
that the judgment in Bhatia's case was inapplicable to the facts and
circumstances of the matter pending before it. Vide the impugned judg-
ment the High Court tried to make an artificial distinction of the case from
the facts of the Bhatia's case with reference to Article 142 of the Constitu-
H tion with observations :
S.L. CHANDRAKISHORE SINGH v. STATE [SETHI, J.] 339

"But, inspite of this small difference the Hon'ble Supreme Court A
has given the relief to the respondents of Harish Chandra Bhatia's
case and it appears to us that for making a complete justice to the
respondents who have rendered 12 years of officiating service, the
Apex Court has passed the order for regularising the officiating
service of the respondents by invoking the provisions of Article
142 of the Constitution."
B

A perusal of the judgment in Bhatia 's case has not persuaded us to agree
with the findings of the High Court. After referring to Sub-rules (3) and
(4) of Rules 14, 15 and 24, the Court found that there was no difference
in substance between the list prepared as contemplated hy Rules 14 and C
15 and the one visualised by Rule 24. The selectees under Rule 24 were
held to be standing at par with the selectees under Rule 14 of the Rules.
The refe~ence to 12 years of service of the respondent therein was in the
context to emphasize that the appointment was not under Rule 25 being
local arrangement for specified period vide sub-rule (3) of Rule 25. As the
appointment of the appellant could not be held to be under Rule 25, the D
verdict in Bhatia's case had to be accepted by treating the appointment of
a person to the service under Rule 24 of the Rules.

The reliance of the learned counsel, for the respondents upon the
judgment in Baleshwar Dass & Ors V. State of U.P. & Ors., [1980] 4 sec E
226 does not in any way advance the case of his clients inasmuch as in that
case the Court considered the scope of United Provinces Service of
Engineers Class II, Irrigation Branch Rules, 1936 and by specific reference
to Rules 3(b) and 4 held that a cadre post can be permanent or temporary
and if an Engineer is appointed substantively to a temporary or permanent
F
post he becomes a member of the service. The touchstone then, is the
substantive capacity of the appointment. The Court further held that the
substantive capacity refers to the capacity in which a person holds the post
and not necessarily to the nature or character of the post. Even
appointment to a temporary post for long duration would be sufficient to
hold that such person was holding the post in substantive capacity. A G
person shall be held to be holding a post in a substantive capacity when he
is found to be not holding the post for a definite period. The Court
observed :

"To approximate to the official diction used in this connection, we H
340 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A may well say that a person is said to hold a post in a substantive
capacity when he holds it for an indefinite period especially of long
duration in contradistinction to a person who holds it for a definite
or temporary period or holds it on probation1subject to confirma-
tion."

B The Respondent-State has submitted that since the enforcement of the
MPS Rules in 1965, the State Government has been construing the words
"substantively borne on the cadre of the inspector of police" appearing in
Rule 5(1)(b) as confirmed Inspector of Police and till an Inspector of
Police of probationary period is not confirmed to the post he has not been
C considered for promotion to the MPS Grade-II on regular basis. It is
contended that under this consistent practice for about 34 years, the State
Government has been considering only the cases of the confirmed Inspec-
tors of Police for promotion to MPS Grade- II on regular basis as the
-
policy of the State Government is to promote only the confirmed Inspec-
D tors of Pol_ice and not promote the probationary Inspectors of Police. It is
contended that in the light of the judgment of this Court in N. Suresh
Nathan & Anr. v. Union of India & Ors., [1992] Supp. 1.SCC 584, such a
practice should be held to be in consonance with the long standing practice
in the Department. We feel the reliance on this case is also misplaced. In

-
that case the dispute was whether a diploma holder Junior Engineer who
E obtained the degree while in service became eligible for appointment as
Assistant Engineer by promotion on completion of three years of service
including therein the period of service prior to obtaining the degree or the
three 'years service as a degree holder for the purpose to be reckoned from
the date of obtaining the degree. The diploma holders contended that they
F were entitled to include the earlier period and were eligible for promotion
in the category on obtaining a degree if the total period of service is three
years inclusive of earlier period. The degree-holders contested this position
and contended to the contrary. According to the degree-hol,ders these were
two distinct categories, the first being of degree-holders with three years
service in the grade as degree-holders, the period of three years being
G subsequent to the date of obtaining the degree as in the case of Junior
Engineers who joined the service with a degree; and the other category
was of diploma holders with six years experience. The diploma-holders
went to the Central Administrative Tribunal and their contention was
accepted. In appeal the order of the Tribunal was set aside mainly on the
H ground that there existed sufficient material including the admission of the
'
S.L. CHANDRAKISHORE SINGH v. STATE [SETHI, J.] 341

diploma-holders that the practice followed in the Department for long time A
was that in case of diploma-holder Junior Engineers who had obtained the
degree during service, the period of three years service in the grade for
eligibility for promotion as degree-holders commenced from the date of
obtaining the degree and the earlier period of service as diploma-holders
was not counted for that purpose. The Union Public Service Commission
was found to be having similar view. The Court held that if the past practice
B
was based on one of the possible constructions which could be made under
the rules, then upsetting the same at a later stage was not appropriate.
After referring to Rules 7 and 11 of the Recruitment Rules, the Court
found:
c
"The entire scheme, therefore, does indicate that the period of
three years' service in the grade required for degree-holders ac-
cording to Rule 11 as the qualification for promotion in that
category must mean three years' service in the grade as a degree-
holder and, therefore, that period of three years can commence D
only from the date of obtaining the degree and not earlier. The
service in the grade as a diploma-holder prior to obtaining the
degree cannot be counted as service in the grade with a degree
for the purpose of three years' service as a degree-holder. The only
• question before us is of the construction of the provision
and not of the validity thereof and, therefore, we are only E
required to construe the meaning of the provision. In our opinion,
the contention of the appellants degree-holders that the rules must
be construed to mean that the three years' service in the grade of
a degree-holder for the purpose of Rule 11 is three years from the
date of obtaining the degree is quite tenable and commends
F
to us being in conformity with the past practice followed consis-
tently."

The position in the instant case is totally different. After the judgment in
Bhatia's case, we are of the opinion that no other construction of the Rules
is possible. When the Rules are clear and do not create any doubt, the G
adoption of a contrary practice cannot be made a basis for depriving the
employees in the service of their entitlement under the Rules which are
clear, specific and unambiguous.

The Full _bench of the High Court referred to Government Order H
342 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A dated 28th July, 1997, claimed to have been issued under Article 309 of the
Constitution which was held to prescribe that officers appointed on direct
recruitment and also by promotion were to be on probation for a period
of two years. The aforesaid Government order has not been shown to us
for the purpose of ascertaining its scope and ambit and the authority
B besides the purpose for which it is claimed to have been issued. Article 309
of the Constitution authorises the appropriate Legislature to regulate the
recruitment and condition of service of persons appointed to public service
and post in connection with the affairs of the Union or of a State. The
President and the Governor of a State have been authorised to make or
provide for making of rules regulating the recruitment and the condition
C of service of persons appointed to such services and posts and until
provision in that behalf is made by or under an Act of the appropriate
legislature under the Article and any rule so made shall have effect subject
to the provisions of the said Act. The proviso to Article 309 is a transitional
provision empowering the Executive to make rules relating to the matters
D specified therein until the appropriate Legislatures legislate on the subject.
Any rule made under this Article has to remain in force for the purposes
specified therein. No rule in terms of Article 309 is shown to have been
made by the respondent Government to provide regarding the appointment
to a post to be necessarily on probation for a period of two years. It is true •
that Government by Executive orders made under constitutional provisions
E has the power to regulate the recruitment and the condition of service but .:
no such Government Order can alter or amend the existing rules on the
subject. It is conceded before us that in the 1965 Rules no period of
probation was prescribed for the post of Inspectors of Police. The High
Court was, therefore, not justified in relying upon the earlier office order
F to hold that the appointment of the appellant as Inspector of Police was
deemed to be on probation for a period of two years as the appellant had
admittedly been appointed after following of the procedure prescribed in
the Recruitment Rules. His appoiiitment was to be tr(;ated as substantive
appointment in the absence of a rule to the contrary. The order dated 3rd
June, 1980 when read in the light of the judgment of the High Court dated
G 11.12.1992 in C.R. No. 307 of 1992 cannot be construed to mean that the
appellant was not substantively promoted as Inspector of Police with effect
from 30th June, 1980.

Seniority itself based upon length of service is an acquired right of
H an employee which entitles him to be considered for further promotion. It
S.L. CHANI'RAKISHORE SINGH v. STA1E [SETHI,J.] 343

is generally regulated by Service Rules. Such rules normally provide for A
determined seniority with reference to the date of appointment to the class,
category and grade to which the appointment is made. It is determined
only on the basis of the length of service. Such length of service may be on
the basis of the difference of continuous officiation or on the basis of the
difference of substantive appointment in the cadre or grade or service
which may be reckoned from the date of confirmation on the basis of
B
regularisation.

It is now well settled that even in cases of probation or officiating
appointments which are followed by a confirmation unless a contrary rule
is shown, the service rendered as officiating appointment or on probation C
cannot be ignored for reckoning the length of continuous officiating service
for determining the place in the seniority list. Where the first appointment
is made by not following the prescribed procedure and such appointee is
approved later on, the approval would mean his confirmation by the
authority shall relate back lo the date on which his appointment was made
and the entire service will have to be computed in reckoning the seniority D
according to the length of continuous officiation. In this regard we fortify
our. view by the judgment of this Court in G.P. Doval & Anr. v. Chief
Secretary, Government of U.P. & Ors., [1984) 4 SCC 329.

In the light of what we have noted hereinabove, it is apparent that E
the order impugned in the High Court dated 16th August, 1989 (Annexure
P-5) was issued by the Government under a mistaken belief by completely
ignoring the mandate of Rule 24 and the verdict of this Court in Bhatia's
case. Once the appellant had been appointed to the service in terms of
Rule 24 of the Rules, it was presumed that his name had been included in F
the list after compliance of the provisions of sub-rules (3) and (4) of Rules
14 and 15 of the MPS Rules, there being no difference in substance
between the list prepared as contemplated under Rules 14 and 16 on the
one hand and as visualised under Rule 24 on the other. Promotion made
after compliance of Rules 14 and 15 is contemplated to be a selection in
terms of Rule 5(1)(b) of the Rules. The Respondent-State, therefore, was G
not justified in re- appointing, on promotion, the officers mentioned in the
Government Order dated 16th August, 1989 to the Manipur Police Service
'(Junior Grade) with effect from that date.

Seen from any angle, we are of the opinion that the learned Single H
344 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A Judge of the High Court had rightly allowed the writ petition filed by the
appellant vide Annexure P-10 dated 18.9.1997 and issued appropriate
directions. The Full Bench of the High Court wrongly set aside the judg-
ment of the learned Single Judge by wrongly interpreting the provisions of
the law applicable in the case and ignoring the judgment in Bhatia's case
B which squarely covers the matters so far as the interpretation of the MPS
Rules were concerned. The judgment impugned in these appeals is based
upon conflicting and contradictory conclusions arrived at by the Full
Bench. The assumptions and presumptions drawn are neither based upon
the relevant rules or supported by any judicial verdict of this Court.

C Under the circumstances, the appeals arising out of SLP (C) Nos.
18221/98 and 17310/98 filed by L. Chandrakishore Singh and N. Bijoy Singh
are allowed by setting aside the judgment of the Full Bench. The writ
petitions filed by the appellants are allowed. The respondents are directed
to treat the officiating appointments of the appellants as the date of their
regular appointment and re-fix their seniority in terms of the observations
D made in this judgment. Fresh seniority list shall be prepared in the light of
our directions alongwith the consequential benefits under the law to the
persons who are found to be senior. The appeal arising out of SLP (C)
4870/99 filed by Smt. Vandana Karki & Ors. shall stand dismissed. The
appellants L. Chandrakishoie Singh and N. Bijoy Singh are held entitled
E to costs of Rs. 10,000 each to be paid by the Respondent State.
S.V.K. C.A. No. 5664/1999 & 5663/1999 - Allowed.
C.A. No. 5665/1999 - Dismissed.

-