OMBEER SINGH PARMAR & ORS.  v. UNION OF INDIA & ORS.

correct seniority position to the petitioners in light of judgment passed by the Hon'ble Supreme Court dated

19.1 1.2019 in Civil Appeal No. 8833- 8835/2019 titled as K. Meghachandra Singh Vs. Nigam Siro& Ors.

(iv) Allow the present petition with costs in favour of the petitioner."

2. It is the case of the petitioners that the petitioners had joined the respondents as Sub-Inspectors between the period from 2011- 2014. Pursuant to an advertisement/notification issued by the Union Public Service Commission (UPSC) for the Limited Departmental Competent Examination to be held on 03.03.2019, for filling up the post of Assistant Commandant (Executive), they had applied for the same. The result of the examination was declared on 13.08.2019, and an appointment letter dated 22.09.2019 was issued to the petitioners. The petitioners joined the training with the 13^thBatch AC/DE on 13.10.2019.

3. Simultaneously, the result of the Central Armed Police Forces (CAPF)-2018 Examination was declared on 02.08.2019, however, the officers selected were offered appointments on 01.09.2020 and joined the respondent Department for training on

12.10.2020.

4. In the impugned seniority list dated 19.04.2023, published by the respondents, these officers who have been appointed through the CAPF 2018 Examination have been placed in the seniority list, however, the petitioners have not been so placed, presumably,

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because they are treated to be junior to these officers and these officers have been granted seniority from the date of the vacancy year.

5. The learned counsel for the petitioner placing reliance on the judgment of the Supreme Court in K.Meghachandra Singh v. Ningam Siro, (2020) 5 SCC 689, submits that a person cannot be granted retrospective seniority even before he/she was born in the Cadre. He submits that in the present case, admittedly, the persons qualifying for the CAPF-2018 Examination, were born in the Cadre of the respondent only on 12.10.2020, when they joined for training. The petitioners were already in the cadre, having been appointed and joined training on 13.10.2019, almost a year before these other personnel.

6. On the other hand, the learned counsel for the respondents submits that the Supreme Court in Hariharan & Ors. v. Harsh Vardhan Singh Rao & Ors., 2022 SCC OnLine SC 1717, has referred the decision of K.Meghachandra Singh (supra) to be considered by a Larger Bench. He submits that the present petition should be adjourned sine die to await the outcome of the said reference. In support, he places reliance on an Order dated 17.01.2023 passed by this Court in W.P.(C) No.13747/2019, titled Vinod Dabade & Ors. v. Union of India & Ors., whereby the said petition has been adjourned sine die.

7. He further submits that the judgment in K.Meghachandra Singh

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(supra) is prospective in nature and, therefore, may not apply to the facts of the present case.

8. We have considered the submissions made by the learned counsels for the parties.

9. In K.Meghachandra Singh (supra), the Supreme Court held as under:

37. When we carefully read the judgment in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] , it appears to us that the referred OMs (dated 7-2-1986 and 3-7-1986) were not properly construed in the judgment. Contrary to the eventual finding, the said two OMs had made it clear that seniority of the direct recruits be declared only from the date of appointment and not from the date of initiation of recruitment process. But surprisingly, the judgment while referring to the illustration given in the OM in fact overlooks the effect of the said illustration. According to us, the illustration extracted in N.R. Parmar [Union of India v. N.R. Parmar, (2012)

13 SCC 340: (2013) 3 SCC (L&S) 711] itself, makes it clear that the vacancies which were intended for direct recruitment in a particular year (1986) which were filled in the next year (1987) could be taken into consideration only in the subsequent year's seniority list but not in the seniority list of 1986. In fact, this was indicated in the two OMs dated 7-2-1986 and 3-7-1986 and that is why the Government issued the subsequent OM on 3-3-2008 by way of clarification

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of the two earlier OMs.

38. At this stage, we must also emphasise that the Court in N.R. Parmar [Union of India v. N.R. Parmar, (2012)

13 SCC 340: (2013) 3 SCC (L&S) 711] need not have observed that the selected candidate cannot be blamed for administrative delay and the gap between initiation of process and appointment. Such observation is fallacious inasmuch as none can be identified as being a selected candidate on the date when the process of recruitment had commenced. On that day, a body of persons aspiring to be appointed to the vacancy intended for direct recruits was not in existence. The persons who might respond to an advertisement cannot have any service- related rights, not to talk of right to have their seniority counted from the date of the advertisement. In other words, only on completion of the process, the applicant morphs into a selected candidate and, therefore, unnecessary observation was made in N.R. Parmar [Union of India v. N.R. Parmar, (2012)

13 SCC 340 : (2013) 3 SCC (L&S) 711] to the effect that the selected candidate cannot be blamed for the administrative delay. In the same context, we may usefully refer to the ratio in Shankarsan Dash v. Union of India [Shankarsan Dash v. Union of India, (1991) 3 SCC 47 : 1991 SCC (L&S) 800], where it was held that even upon empanelment, an appointee does not acquire any right.

39. The judgment in N.R. Parmar [Union of India v. N.R. Parmar, (2012)

13 SCC 340 : (2013) 3 SCC (L&S) 711] relating to the Central Government employees cannot in our opinion,

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automatically apply to the Manipur State Police Officers, governed by the MPS Rules, 1965. We also feel that N.R. Parmar [Union of India v. N.R. Parmar,

(2012) 13 SCC 340 : (2013) 3 SCC

(L&S) 711] had incorrectly distinguished the long-standing seniority determination principles propounded in, inter alia, Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] , Suraj Parkash Gupta v. State of J&K [Suraj Parkash Gupta v. State of J&K, (2000) 7 SCC 561 : 2000 SCC (L&S)

977] and Pawan Pratap Singh v. Reevan Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] . These three judgments and several others with like enunciation on the law for determination of seniority makes it abundantly clear that under service jurisprudence, seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre. In our considered opinion, the law on the issue is correctly declared in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] and consequently we disapprove the norms on assessment of inter se seniority, suggested in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711]. Accordingly, the decision in N.R. Parmar [Union of India v. N.R. Parmar,

(2012) 13 SCC 340 : (2013) 3 SCC

(L&S) 711] is overruled. However, it is made clear that this decision will not affect the inter se seniority already based on N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 :

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(2013) 3 SCC (L&S) 711] and the same is protected. This decision will apply prospectively except where seniority is to be fixed under the relevant rules from the date of vacancy/the date of advertisement."

10. From a reading of the above, it would be apparent that the Supreme Court has clarified that it is only upon completion of the selection process, that the person so selected can claim seniority and that such seniority cannot be claimed from the date when the incumbent is yet to be born in the Cadre.

11. It is further clarified that though the decision in Union of India v. N.R.Parmar, (2012) 13 SCC 340, has been overruled, however, the decision will not affect the inter se seniority already based on

N.R.Parmar (supra) and the same is protected. The decision in

K.Meghachandra Singh (supra) was therefore, held to be applicable prospectively.

12. In the present case, the impugned seniority list, has been issued by the respondents on 19.04.2023. The same therefore, has to be governed by the decision of the Supreme Court in

K.Meghachandra Singh (supra).

13. Applying the above principle, retrospective seniority even before the personnel is born in the Cadre, cannot be granted. The impugned seniority list insofar as it determined seniority in violation of the said principal, is liable to be quashed.

14. As far as the prayer of the learned counsel for the respondents

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that as the judgment in K.Meghachandra Singh (supra) has been referred to a Larger Bench, this Court should adjourn the present petition sine die is concerned, it is settled law that merely because the Supreme Court has referred a judgment to the Larger Bench, it would not prohibit or restrain the High Court from following the judgment that is presently holding forth.

15. In this regard, we may make a reference to the judgment of the Supreme Court in Union Territory of Ladakh & Ors. v. Jammu and Kashmir National Conference & Anr., 2023 SCC OnLine SC 1140, wherein this principle has been explained as under :

"32. The Court would categorically emphasize that no litigant should have even an iota of doubt or an impression (rather, a misimpression) that just because of systemic delay or the matter not being taken up by the Courts resulting in efflux of time the cause would be defeated, and the Court would be rendered helpless to ensure justice to the party concerned. It would not be out of place to mention that this Court can even turn the clock back, if the situation warrants such dire measures. The powers of this Court, if need be, to even restore status quo ante are not in the realm of any doubt. The relief(s) granted in the lead opinion by Hon. Khehar, J. (as the learned Chief Justice then was), concurred with by the other 4 learned Judges, in Nabam Rebia and Bamang Felix v Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1 is enough on this aspect. We know full well that a 5-Judge Bench in

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Subhash Desai v Principal Secretary, Governor of Maharashtra, 2023 SCC OnLine SC 607 has referred Nabam Rebia (supra) to a Larger Bench. However, the questions referred to the Larger Bench do not detract from the power to bring back status quo ante. That apart, it is settled that mere reference to a larger Bench does not unsettle declared law. In Harbhajan Singh v State of Punjab, (2009) 13 SCC 608, a 2-Judge Bench said:

"15. Even if what is contended by the learned counsel is correct, it is not for us to go into the said question at this stage; herein cross-examination of the witnesses had taken place. The Court had taken into consideration the materials available to it for the purpose of arriving at a satisfaction that a case for exercise of jurisdiction under Section 319 of the Code was made out. Only because the correctness of a portion of the judgment in Mohd. Shafi [(2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 :

(2007) 4 SCR 1023 : (2007) 5 Scale 611] has been doubted by another Bench, the same would not mean that we should wait for the decision of the larger Bench, particularly when the same instead of assisting the appellants runs counter to their contention."

(emphasis supplied)

16. However, keeping in view that the reference is pending before the Larger Bench, we direct that the seniority list, which shall be redrawn by the respondents pursuant to our judgment, shall be subject to the outcome of the reference.

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17. The respondents shall rework the Seniority List and publish the revised list after considering objections, if any, filed to a draft seniority list, within six months from today.

18. The petition is disposed of in the above terms.

NAVIN CHAWLA, J

RENU BHATNAGAR, J

MARCH 25, 2025

RN/DG

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