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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • K.K Trivedi
  • Harish Agnihotri, Government Advocate
  • None for respondent No. 3.
  • P.N Tiwari (For respondent No. 2 in W.P.S No. 1119/05)
Judges
  • R.K Gupta, J.
Acts
  • rule 12 of the rules of 1961
  • rule 12 (b). Rule 12 (b)
  • rule 12 (b) or 12 (c)
  • rule (3) of rule 15
  • rules. Rule 15 (3)
  • (24) Rule 15 (3)
  • rule 12 (b)
  • rule 12 (c)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • K.K Trivedi
  • Harish Agnihotri, Government Advocate
  • None for respondent No. 3.
  • P.N Tiwari (For respondent No. 2 in W.P.S No. 1119/05)
Judges
  • R.K Gupta, J.
Acts
  • rule 12 of the rules of 1961
  • rule 12 (b). Rule 12 (b)
  • rule 12 (b) or 12 (c)
  • rule (3) of rule 15
  • rules. Rule 15 (3)
  • (24) Rule 15 (3)
  • rule 12 (b)
  • rule 12 (c)
See more information ...
Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

Two petitions involving common questions were decided by a common order: E.W.P. No. 23798/03 and W.P.S. No. 1119/2005.

In E.W.P. No. 23798/03 the petitioner challenged the seniority assigned to respondent no. 4 on the post of joint director. The petitioner had submitted a representation against respondent no. 4 being placed above him; that representation was rejected by order dated 11-8-1997 (annexure A/1).

Relevant factual points (as stated in the opinion):

  • The petitioner was appointed as Assistant Fisheries Officer on 15-11-1971; respondent no. 4 was appointed in 1972.
  • A gradation list dated 31-3-1994 placed the petitioner at serial no. 1 and respondent no. 4 below him (annexure A/3).
  • Both the petitioner and respondent no. 4 were selected by the Public Service Commission for promotion to Assistant Director (petitioner at serial no. 1 on the panel; respondent no. 4 at serial no. 4 on the waiting list).
  • The petitioner was appointed Assistant Director in October 1978 and promoted to Deputy Director by order dated 24-7-1990; respondent no. 4 was promoted in 1991.
  • On 23-7-1996 (annexure A/2), both the petitioner and respondent no. 4 received temporary promotions on an officiating basis to the post of Joint Director; the DPC placed respondent no. 4 above the petitioner in the merit list for the promotion based on exceptional merit (rule 15(3) of the recruitment rules).

W.P.S. No. 1119/2005 concerns a subsequent promotion of respondent no. 4 to the post of Director by order dated 13-9-2004 (annexure P/7), which the petitioner challenged on the ground that the seniority dispute on the post of Joint Director (E.W.P. No. 23798/03) was pending and a tribunal order of 8-11-1997 had restrained giving respondent no. 4 regular charge of the Director post.

Legal Issues Presented

  1. Whether a junior officer who has been placed above a senior officer in a DPC merit list under Rule 15(3) can, upon promotion on an officiating/temporary basis, be assigned higher inter se seniority on the promoted post than the officer who was senior in the feeder cadre.
  2. Whether Rule 15(3) (merit-cum-seniority provision for preparing a merit list) operates to fix inter se seniority on the promoted post, or whether inter se seniority of promotees is governed separately by Rule 12(b) and 12(c) of the M.P. Civil Services (General Conditions of Service) Rules, 1961.
  3. Whether the promotion of respondent no. 4 to the post of Director (annexure P/7) should be quashed because it was based on an incorrect seniority position on the post of Joint Director.

Arguments of the Parties

Petitioner's Arguments

  • Petitioner asserted that he was senior to respondent no. 4 in the feeder post (Assistant Fisheries Officer) and that, when both officers were promoted by the same DPC by the same order, their inter se seniority in the higher post (Joint Director) should follow their seniority in the feeder post.
  • The petitioner contended that respondent no. 4 should not have been assigned higher seniority on the Joint Director post merely because the DPC considered respondent no. 4 to be of exceptional merit under Rule 15(3).
  • Petitioner challenged respondent no. 4's later promotion to Director on the ground that the pending seniority dispute affected entitlement to promotion to Director.

Respondents' Arguments

  • Respondents contended that Rule 15(3) allows the DPC to assign a junior officer a higher place in the merit list if the committee considers him to be of exceptional merit and suitability, and on that basis seniority was assigned to the junior (respondent no. 4) above the petitioner.
  • In the return filed in W.P. No. 1119/05 respondents stated (para 5, quoted in the opinion) that the DPC for promotion to Director on 6-8-2004 considered the petitioner within the zone of consideration but recommended respondent no. 2 (the return refers to respondent no. 2) who "was senior to the petitioner in the feeder cadre of Joint Director" and had superior confidential reports for the five-year period considered; the return asserted respondent no. 2/4 was recommended and promoted on that basis.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Vasant Kumar Jaiswal v. State of M.P., 1985 MPLJ 778 (confirmed by Supreme Court in AIR 1987 SC 2322) Interpretation of Rule 12(c): when persons are promoted together to officiate in a higher cadre, their inter se seniority during officiation should be the same as in their substantive (feeder) cadre irrespective of dates on which they began officiating; avoids injustice where promoted persons join on different dates. The court relied on this ratio to conclude that, because the petitioner and respondent no. 4 were promoted together on an officiating basis by the same DPC and same order, their inter se seniority on the higher post must be reckoned by their seniority in the feeder cadre; thus respondent no. 4 could not be assigned higher seniority over the petitioner on the Joint Director post.
Umesh Narayan Mishra (referenced) Discussed as a case where the seniority list was prepared on a memorandum and not in accordance with Rule 12(c); not an authoritative exposition of Rule 12(c)'s scope in that context. The court explained that Umesh Narayan Mishra was distinguishable and did not assist the petitioner because in that case the list was not prepared in accordance with Rule 12(c); it therefore did not decide the real meaning, scope and ambit of Rule 12(c).

Court's Reasoning and Analysis

The court's analysis proceeded in distinct steps, applying the recruitment rules and the Civil Services rules cited in the opinion, and examining the factual record and the parties' pleadings:

  1. Identification of applicable rules:
    • Rule 15(3) of the M.P. Fisheries (Gazetted) Service Recruitment Rules, 1987 regulates preparation of merit lists for promotion and permits the DPC to place a junior officer above a senior in the merit list if the junior is of "exceptional merit and suitability".
    • Rule 12 of the M.P. Civil Services (General Conditions of Service) Rules, 1961 (pre-amendment) governs fixation of seniority for direct recruits, promoted government servants (12(b)) and officiating government servants (12(c)).
  2. Characterisation of the promotions at issue:
    • The promotion order dated 23-7-1996 (annexure A/2) was a temporary promotion on an officiating basis for both the petitioner and respondent no. 4. Because the promotion was officiating in nature, Rule 12(c) applies to determine inter se seniority during officiation.
  3. Interpretation of Rule 12(c) and precedent application:
    • The court relied on its earlier decision in Vasant Kumar Jaiswal (1985 MPLJ 778), confirmed by the Supreme Court in AIR 1987 SC 2322, holding that where persons are promoted together to officiate in a higher cadre, their inter se seniority during officiation remains the same as in their substantive cadre, irrespective of the dates on which they began to officiate. This interpretation avoids unfairness that would result if seniority were affected by administrative delays in joining the higher cadre.
    • The court treated Vasant Kumar as controlling for the present facts because both officers were promoted together, by the same DPC and the same order.
  4. Distinction between Rule 15(3) and rules governing fixation of seniority:
    • The court emphasized that Rule 15(3) governs preparation of a merit list for promotion and the ordering in that list for purposes of selection; it does not itself operate to fix inter se seniority on the promoted post. Rule 15(3) ensures that a junior officer of exceptional merit is not deprived of promotion opportunities by strict seniority, but it does not automatically confer seniority on the promoted post.
    • Fixation of inter se seniority of promoted government servants is governed by Rule 12(b) and, where applicable, Rule 12(c).
  5. Application of Rule 12(b) proviso (confirmation scenario) and absence of evidence:
    • Rule 12(b) provides that promoted government servants' seniority is to be fixed from confirmation in the promoted post, and where two or more promotees are confirmed with effect from the same date the appointing authority shall determine inter se seniority with regard to the order in which they were included in any merit list and their relative seniority in the lower service.
    • The court found that respondents did not file any order or averment showing that respondent no. 4 had been confirmed earlier than the petitioner on the Joint Director post. In the absence of any confirmation-based fact, the proviso to Rule 12(b) could not assist the respondents. The fixation of seniority upon confirmation had not occurred and thus the proviso was inapplicable.
  6. Conclusion from combined application:
    • Because the promotions in July 1996 were officiating and both promotees were promoted together by the same DPC and same order, Rule 12(c) controls and requires that inter se seniority on the higher post follow the seniority in the feeder cadre.
    • Consequently, the court held that respondent no. 4 could not have been assigned higher seniority on the Joint Director post over the petitioner merely because he was placed higher in the DPC merit list under Rule 15(3).
  7. Remedies and directions:
    • The court directed the respondents to pass appropriate orders within two months from receipt of certified copy of the order to re-fix the petitioner's seniority above respondent no. 4 on the post of Joint Director and to provide all consequential benefits for the next higher post.
    • Regarding the Director promotion (W.P.S. No. 1119/05 / annexure P/7), the court quashed the promotion order of 13-9-2004 since it was based on the erroneous seniority assignment on the Joint Director post. The court directed respondents to re-fix seniority and to hold a review DPC (reconstituted as of 6-8-2004) within two months from receipt of certified copy of the order, applying the same criteria as the original DPC to reconsider promotion to Director for those who were within the zone of consideration at the time the original DPC met.

Holding and Implications

Core Ruling: The court held that respondent no. 4 could not have been assigned higher seniority on the post of Joint Director over the petitioner who was senior in the feeder cadre, and accordingly both petitions were allowed to the extent directed below.

Specific orders and direct consequences:

  • The respondents are directed to re-fix the petitioner's seniority above respondent no. 4 on the post of Joint Director and to provide all consequential benefits to the petitioner for the next higher post. The respondents must pass appropriate orders within two months from the date the petitioner supplies a certified copy of the judgment.
  • The promotion order dated 13-9-2004 (annexure P/7) promoting respondent no. 4 to Director was quashed because it was based on an incorrect seniority position for the post of Joint Director.
  • The respondents are directed to hold a review DPC, reconvening the assessment as of 6-8-2004, to consider promotion to Director for the petitioner, respondent no. 2/4 and other persons who were within the zone of consideration when the original DPC met; the review DPC must occur within two months after the certified copy of the order is furnished to the respondents and must apply the same criteria used by the original DPC.

Broader implications:

  • The decision applies established principles from Rule 12(c) (as interpreted in Vasant Kumar Jaiswal and affirmed by the Supreme Court) to hold that officiating promotions given together by the same DPC should preserve inter se seniority as in the feeder cadre. The opinion does not claim to create a new legal precedent beyond applying the cited authorities.
  • The judgment makes clear the distinction between ordering in a DPC merit list (Rule 15(3)) for the purpose of promotion selection and the separate statutory regime for fixation of seniority (Rule 12(b) and 12(c)).

Outcome: Both petitions were allowed in the terms set out above.

Show full summary ...

    Devendra Bapna v. State Of M.P And Others

    (1) As common questions are involved in both the petitions, they are being decided by a common order. The present petition i. E. W. P. No. 23798/03 is filed by the petitioner seeking seniority over respondent no. 4 on the post of joint director. The petitioner submitted a representation against the seniority assigned to the respondent no. 4 above to the petitioner and the said representation was rejected by order dated 11 - 8 - 1997 which is annexure a/1 to the petition.

    (2) In the present case, there is no dispute between the parties that petitioner was senior to the respondent no. 4. The petitioner was appointed as assistant fisheries officer on 15 - 11 - 1971 and respondent no. 4 was appointed as assistant fisheries officer in the year 1972. A gradation list was published by the respondents which is annexure a/3 showing the position as on 31 - 3 - 1994. In this seniority list, the petitioner was placed at serial no. 1 and respondent no. 4 was placed below to the petitioner.

    (3) The petitioner was selected by the public service commission for the post of assistant director and was placed at serial no. 1 in the panel and so far as respondent no. 4 is concerned, he was also selected by the public service commission and was placed at serial no. 4 in the waiting list. The petitioner was placed in the main merit list.

    (4) The petitioner was appointed to the post of assistant director in october, 1978 and was promoted to the post of dy. Director by an order dated 24 - 7 - 1990. So far as respondent no. 4 is concerned, he was promoted in the year 1991. On the basis of the aforesaid facts, it is clear that petitioner was assigned higher seniority than the respondent no. 4. According to the channel of promotion, from the post of assistant director, the promotion is to be regulated to the post of joint director then to the post of director. The matter with regard to promotion to the post of joint director is regulated by the recruitment rules which are known as m. P. Fisheries (gazetted) service recruitment rules, 1987.

    (5) According to rule 15, the promotions are to be regulated by applying the rule of "merit cum seniority". Sub - rule (3) of rule 15 further provides that if the junior officer who, in the opinion of the committee is of exceptional merit and suitability, he may be assigned a higher place of merit than that of the officer senior to him.

    (6) There is no dispute that in terms to rule 15 (3) , the dpc found respondent no. 4 more meritorious than the petitioner and was placed at serial no. 1 in the merit list and the petitioner was placed at serial no. 3 for promotion to the post of joint director. Accordingly the order of promotion was passed by the respondents which is annexure a/2. The order of promotion annexure a/2 states that this is a temporary promotion in the pay scale of rs. 3700 - 5000/ - and the persons are promoted on officiating basis.

    (7) The main grievance of the petitioner is that once the petitioner in the feeder post was senior to the respondent no. 4 then on such promotion, the respondent no. 4 should not have been assigned a higher seniority i. E. Above to the petitioner merely because respondent no. 4 was found to be an officer of excellent merit and suitability by the dpc in terms to rule 15 (3) of the recruitment rules and thus it is submitted that inter se seniority between the two officers promoted by the same dpc and by the same order, the seniority in the feeder post has to be maintained.

    (8) Respondents in the return have stated that by virtue of rule 15 (3) if the dpc found a person to be of exceptional merit then the junior person has to be placed in the merit list above to the senior and accordingly the seniority has been assigned to the junior above to the senior.

    (9) Before appreciating the rival contentions of the parties, it would be appropriate to refer to the recruitment rules. Rule 15 (3) of the m. P. Fisheries (gazetted) service recruitment rules, 1987 reads as under : -

    "15. Preparation of list of suitable officers. - (1) the committee shall prepare a 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 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 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. (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 : 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 the officer senior to him. 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 of this earlier selection. 4. The list so prepared shall be reviewed and revised every year. 5. If in the process of selection, review or revision, it is proposed to supersede any member of the service, the committee shall record its reasons for the proposed supersession."

    (10) Apart from the aforesaid rule, the relevant rule i. E. Rule 12 of the m. P. Civil services (general conditions of service) rules, 1961 was also relevant and rule 12 of the rules of 1961 reads as under : -

    "12. Seniority. - the seniority of the members of service of a district branch or group of posts of that service shall be determined in accordance with the following principles, viz. (a) direct recruits. - (i) the seniority of a directly recruited government servant appointed on probation shall count during his probation from the date of appointment viz: (ii) the same order of inter se seniority shall be maintained on the confirmation of such direct recruits if the confirmation is ordered at the end of the normal period of probation. If, however, the period of probation of any direct recruits is extended, the appointing authority shall determine whether he should be assigned the same seniority as would have been assigned to him if he had confirmed on the expiry of the normal period of probation or whether he should be assigned a lower seniority."

    (b) promoted government servant. - a promoted government servant shall count his seniority from the date of his confirmation in the service to which he has been promoted and shall be placed in the gradation list immediately below the last confirmed member of that service but above all the probationers : 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 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 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 : provided that - (i) if they were selected for officiation from a list in which the names of government servants considered suitable 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 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 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 category of posts above all the others in that gradation 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 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. "

    (11) The aforesaid rule 12 subsequently was amended by the state government and the new rule 12 has been substituted by the state government in m. P. Civil services (general conditions of service) rules, 1961. The aforesaid rule 12 has been substituted with effect from 2 - 4 - 1998. It is not quoted as it is not relevant.

    (12) On the basis of the aforesaid, it is clear that when the order of promotion was passed on 23 - 7 - 1996 (annexure a/2) in pursuance to the recommendations of the dpc, the un - amended rule 12 which has been quoted hereinabove was holding the field and was applicable. However, it is pertinent to mention here that respondents have not filed any circular issued by the state government with reference to fixation of inter se seniority.

    (13) On the basis of the aforesaid, the matter has to be examined in terms to m. P. Civil services (general conditions of service) rules, 1961. According to the same, the inter se seniority of promoted government servant is to be fixed from the date of his confirmation in the service to which he has been promoted and shall be placed in the gradation list immediately below the last confirmed member of that service but above all the probationers. The proviso appended to rule 12 (b) further states 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 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.

    (14) On the basis of the aforesaid rule, it is clear that the competent authority after the confirmation of the promoted government servant shall fix the seniority and while fixing the seniority, due regard shall be given to the merit list in which order they have been placed and their relative seniority in the lower service from which they have been promoted shall also be considered. rule 12 (b) holds the field with regard to fixation of seniority of the promoted government servant.

    (15) Applying the aforesaid test as contemplated under rule 12 (b) , if the order of promotion dated 23 - 7 - 1996 (annexure a/2) is seen then it is a case of temporary promotion of the petitioner as well as respondent no. 4 on officiating basis. Once it is found that the promotion is of officiating basis then rule 12 (c) also governs the field. rule 12 (c) reads as under : -

    "12 (c) officiating government servant. - the inter se seniority 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 : provided that - (i) if they were selected for officiation from a list in which the names of government servants considered suitable 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 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 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 category of posts above all the others in that gradation 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 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."

    (16) In this reference, this court had an occasion to consider the effect of rule 12 (c) in a judgment reported in 1985 mplj 778, vasant kumar jaiswal vs. State of m. P. And in paragraph 5 and 6 following ratio has been laid down : -

    "5. Taking note of the aforesaid constitutional obligation, let us find out if the petitioner's interpretation is the only interpretation of the rule or if there could be any other interpretation of the same. The rule is, no doubt, inartistically worded and can be read in the manner as the petitioner is reading it, but on a deeper understanding, the said reading does not appear to be correct. The use of the words "inter se seniority" in relation to promotion, would only imply determination of seniority between those who have been promoted at the same time. If so read, the rule would mean that seniority of persons promoted together, would remain the same as in the lower cadre as long as they are officiating in the higher cadre. Such a reading of the rule would avoid unreasonableness and the consequent unconstitutionality and would make the rule fully and effectively workable. The submission of the learned counsel for the petitioner, however, is that such a reading would bring the first part of the rule in conflict with the second part which requires the seniority to remain as same as in the lower cadre "irrespective of the dates on which they began to officiate in the higher service of grade. " it is true that the subsequent part of the rule, if read as the petitioner wants it to be read, would make the earlier interpretation unworkable, but the petitioner's reading of the earlier part of the rule does not appear to be correct. Several persons may be promoted together and yet may not join the promoted cadre on the same date. It is not unusual to find persons who, though promoted, are not relieved due to administrative exigencies to take up higher assignment immediately. If this was to affect their seniority, they would suffer for no fault on their part. In such a case, the normal rule of counting the seniority from the date of continuous officiation, would result in injustice and would become unreasonable. Under the circumstances, the rule, in order to survive the test of articles 14 and 16 of the constitution, should be read to mean that seniority between persons promoted together to officiate in higher cadre, would be the same as in their substantive cadre - irrespective of the date from which they joined their service in the promoted cadre. This reading of the rule makes it just and proper and brings it in line with the law on the subject. This interpretation of the rule would lead to an inevitable conclusion that the petitioner's claim to his seniority is devoid of any substance and is not supported by rule 12 (c) of the rules. " 6. The decision of this court in umesh narayan mishra 's case (supra) is said to be supporting the submission of the petitioner and, hence, may be examined. In the said case, this court was considering the seniority of extra assistant conservator of forest, who had been promoted to that cadre on an officiating basis. The seniority list was prepared on the basis of directions contained in a memo dated 8 - 2 - 1978 and not on the basis of rule 12 (c) as in existence. The said memo had the effect of enforcing a decision to amend rule 12 - without actually affecting the amendment. The ambit and scope of rule 12 (c) was not examined in the aforesaid case as it was accepted that the list was not prepared in accordance with rule 12 (c). This court, therefore, quashed the list. The said decision is, therefore, not an authority for deciding the real meaning, scope and ambit of rule 12 (c) of the rules. Indeed, in the instant case, the respondents claim that the seniority list is prepared in accordance with rule 12 (c). Under the circumstances, the aforesaid judgment does not help the petitioner in any manner. "

    (17) The aforesaid judgment has been confirmed by the apex court in a judgment reported in air 1987 sc 2322.

    (18) On the basis of the aforesaid ratio it is seen that the order of promotion dated 23 - 7 - 1996 (annexure a/2) was a temporary promotion and petitioner as well as respondent no. 4 both were allowed to officiate on the post of joint director then keeping in view the nature of promotion, rule 12 (c) would also have the application in the present case. Since rule 12 (c) has already received consideration of this court in the judgment of vasant kumar (supra) which also has been confirmed by the apex court in air 1987 sc 2322 (supra) then if the two persons are allowed to be officiating on a higher post as they were found fit by the same dpc and by the one order they have been promoted then the seniority in the feeder post would be the relevant factor for the purpose of reckoning the seniority on the higher post.

    (19) There is no dispute in the present case that petitioner was senior to respondent no. 4, therefore, the petitioner's seniority in the feeder post has to be reckoned and accordingly the petitioner shall be granted seniority above to respondent no. 4 on the post of joint director.

    (20) The question has to be also considered in the light of rule 12 (b). rule 12 (b) has already been referred to and discussed in earlier paragraphs. According to the same, the inter se seniority of a promoted government servant has to be reckoned from the date of his confirmation in the post on which he is promoted. The proviso attached to this also states that if two or more promoted government servants are confirmed with effect from the same date then 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 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.

    (21) The respondents have not filed any document and have also not stated in their return that respondent no. 4 was confirmed earlier to petitioner on the post of joint director so that a case could have been made out in favour of respondent no. 4 on the basis of confirmation that respondent no. 4 was confirmed earlier so that there would not have any dispute with reference to fixation of inter se seniority between the promotees, i. E. Petitioner and respondent no. 4.

    (22) Apart from the aforesaid, proviso further states that the competent authority has to apply his mind for fixing the inter se seniority of two or more promoted government servants who are confirmed by the same order and with same date on the promoted post respondents have not placed any order and have not made any averments in their return that the respondent no. 4 was confirmed and the petitioner was not confirmed then it is very difficult to hold that in the absence of any confirmation of the petitioner as well as respondent no. 4 on the post of joint director, the respondent no. 4 can be assigned a higher seniority than the petitioner on the post of joint director by exercising the powers vested with the competent authority under the proviso appended to rule 12 (b) which will be applicable only after when the promoted government servants are confirmed then such confirmation would be the date for fixing the seniority and in the absence of any confirmation as such, the proviso shall have no application. The fixation of seniority would only arise after confirmation and not before that.

    (23) Since the respondents have not stated in their return that respondent no. 4 was confirmed earlier to the petitioner, therefore, in terms to rule 12 (b) it is very difficult to hold that merely because respondent no. 4 was placed in a higher rank in merit of joint director than the petitioner, respondent no. 4 would be entitled to get higher seniority than the petitioner.

    (24) Rule 15 (3) which has already been quoted relates to preparation of merit list after the selection by the dpc and if a person is found to be of more meritorious then he can be assigned a higher seniority in the merit list. This has to be applied as a criteria for promotion which is "merit cum seniority". This rule has to do nothing with fixation of seniority. Rule 15 does not state that after when a junior is found to be of more meritorious and suitable then after his promotion, he would also have a right to claim seniority over his senior. The purpose under rule 15 only seems to be that an officer who is of exceptional merit and suitability should not be deprived of his promotion on the ground of 'seniority' because when the rule of "merit cum seniority" is applied then merit has to be given preference and not the seniority and for this reason a person who is junior but is of exceptional merit and suitability has to be placed above to his senior in the merit list so that the chances of promotion will not be adversely affected because of the seniority. This alone is the purpose of assigning the higher merit rank in the merit list to a junior by the dpc but the rule does not provide for conferring seniority also on the basis of exceptional merit. rule 12 (b) which governs the field for the purpose of fixation of seniority of two or more promoted officers.

    (25) Counsel appearing on behalf of the respondents have not argued anything that either rule 12 (b) or 12 (c) have no application in the present case.

    (26) On the basis of the aforesaid, i am inclined to hold that respondent no. 4 could not have been assigned a higher seniority on the post of joint director over the petitioner who was senior in the feeder post and accordingly it is directed that the respondents shall pass appropriate orders within two months from the date the certified copy of this order is submitted by the petitioner to the respondents and shall also provide all consequential benefits to the petitioner for the next higher post.

    (27) The next petition i. E. W. P. S no. 1119/2005 relates to the aspect that the respondent no. 4 from the post of joint director has further been promoted to the post of director.

    (28) The tribunal while admitting the petition i. E. W. P. No. 23798/03 passed an order on 8 - 11 - 1997 that respondent no. 4 should not be given regular charge of the post of director. During the pendency of the petition, the respondent no. 4 was further promoted to the post of director by an order dated 13 - 9 - 2004 (annexure p/7) passed in w. P. S. No. 1119/05. This order has been challenged by the petitioner on the ground that case of seniority on the post of joint director was already pending i. E. W. P. No. 23798/03 and the tribunal has also passed an order of stay in favour of the petitioner that respondent no. 4 should not be given regular charge of the post of director. The stay order was not vacated and the state government by passing an order on 13 - 9 - 2004 (annexure p/7) in w. P. S. No. 1119/05 promoted the respondent no. 4 on temporary basis as a director.

    (29) Since i have already held earlier while deciding the w. P. No. 23798/03 that no higher seniority on the post of joint director would have been assigned to the respondent no. 4 above to the present petitioner and the seniority on the feeder post has to be counted because both i. E. Petitioner and respondent no. 4 were considered by the same dpc and found fit and by a common order both were promoted to the post of joint director, therefore, the seniority on the feeder post would be reckoned on the post of joint director and respondent no. 4 shall be treated junior to the petitioner, therefore, the order passed in w. P. No. 1119/05 (annexure p/7) is also quashed because this order of promotion is based upon wrong seniority of the respondent no. 4. The respondents in para 5 of the return filed in w. P. No. 1119/05 have stated as under : -

    "it is submitted that the name of the petitioner was also under the zone of consideration before the dpc met on 6 - 8 - 2004 for making the promotion to the post of director fisheries. Only one post of director was to be filled up in accordance with the rules of 1987 under the criteria of merit and suitability in all respect with due regard to seniority. The respondent no. 2 was senior to the petitioner in the feeder cadre of joint director. However, the previous five years annual confidential reports from the year ending march, 1999 to year ending march, 2003 were taken into consideration for assigning the merit as per the yardstick evolved by the committee. On scrutiny it was found that the respondent no. 2 was holding the exceptional merit with two excellent (a+) remark and three 'very good' (a) remarks whereas the petitioner was found to have held two good remarks (b) and three excellent (a+). Obviously, the respondent no. 2 was recommended for promotion to the post of director and subsequently he has been promoted vide order dated 13 - 9 - 2004, annexure p/7."

    (30) On the basis of the same, it is clear that there had been only one post of director and the name of the petitioner was also within the zone of consideration before the dpc which met on 6 - 8 - 2004. It is also stated that respondent no. 4 was senior to the petitioner in the feeder cadre of joint director and on the basis of the confidential report of the respondent no. 4 he has been promoted and was assigned a higher seniority on the feeder post i. E. Joint director and further for this reason the name of respondent no. 2 in w. P. No. 1119/05 and respondent no. 4 in w. P. No. 23798/03 was recommended for promotion.

    (31) On the basis of the return it is clear that respondent no. 2/4 was given preference over the petitioner only because of his wrong seniority on the post of joint director and for this reason he was promoted.

    (32) 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, respondent no. 2/4 and other persons those who were within the zone of consideration when the original dpc met on 6 - 8 - 2004. 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 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.

    (33) Accordingly, both the petitions are allowed to the extent above. Petitions allowed.

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    Devendra Bapna v. State Of M.P And Others
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