Mhabemo Ovung vs M. Moanungba

2024 INSC 641 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 9927 OF 2024 (Arising out of S.L.P.(C) No.17102 of 2021)

MHABEMO OVUNG & ORS. … Appellant (s)

VERSUS

M. MOANUNGBA & ORS. … Respondent(s)

WITH

CIVIL APPEAL NOS. 9928 OF 2024 (Arising out of S.L.P.(C) No.1136 OF 2022)

THE STATE OF NAGALAND & ORS. … Appellant (s)

VERSUS

M. MOANUNGBA & ORS. … Respondent(s)

JUDGMENT

Rajesh Bindal, J.

Signature Not Verified Digitally signed by Nidhi Ahuja

1. Leave granted.

Date: 2024.08.29 18:02:20 IST Reason:

Page 1 of 11

2. The issue under consideration in the present appeals is

regarding inter se seniority of the incumbents appointed to the post of

Junior Engineer on direct recruitment basis and those whose posts of

Sectional Officer, Grade-I, were upgraded to Junior Engineer.

3. Final seniority list of Junior Engineers was circulated on

26.03.2018 showing the seniority position of the incumbents manning

the posts from two different sources. Aggrieved against the seniority

list, Sectional Officers, Grade-I, who were redesignated/upgraded as

Junior Engineers challenged the same by filing W.P.(C)No.264(K) of

2018 and W.P.(C) No.74(K) of 2019 filed by the respondent Nos.1 to 16

herein. The Learned Single Judge vide order dated 07.02.2020

dismissed both the writ petitions. Aggrieved against the judgment of

the learned Single Judge in W.P.(C)No.74(K) of 2019, an intra-court

appeal, W.A. No.4 of 2020 was filed. The Division Bench of the High

Court set aside the judgment of the learned Single Judge. As a

consequence, the impugned seniority list circulated on 26.03.2018 was

set aside and the department concerned was directed to refix the

seniority of the Junior Engineers in terms of the directions given in the

judgment.

3.1 Aggrieved against the aforesaid judgment, the directly

recruited Junior Engineers in Civil Appeal arising out of

Page 2 of 11 S.L.P.(C)No.17102 of 2021 and the State in Civil Appeal arising out of

S.L.P.(C)No.1136 of 2022 are before this Court.

4. Mr. P.S. Patwalia, learned senior counsel appearing for the

directly recruited Junior Engineers/appellants in C.A. @ S.L.P.(C)

No.17102 of 2021 submitted that they were selected as such after

qualifying the exam conducted by the Nagaland Public Service

Commission and appointed in the pay-scale of ₹6000-9750, vide

Notification dated 01.05.2003. Their selection and appointment were

strictly in terms of the Nagaland Engineering Service Rules, 1997 1.

Ever since their appointment they have been performing their duty

diligently.

4.1 The contesting private respondents are incumbents who

were earlier working in the cadre of Sectional Officers, Grade-I in the

pay-scale of ₹4500-7000. Their posts were upgraded to that of Junior

Engineers by the Government of Nagaland vide Communication dated

11.10.2007. It was only thereafter that they entered in the cadre of

Junior Engineer. Prior to that they were working in a lower grade as

compared to the direct recruits/Junior Engineers.

1 The 1997 Rules

Page 3 of 11 4.2 After the selection of the direct recruits, a number of

tentative seniority lists were circulated starting from 31.05.2004.

However, none of them were finalized. It was only on 26.03.2018 that

the seniority list was finalized. The appellants herein were shown

above the incumbents/respondents who entered in the grade of Junior

Engineers after their post of Sectional Officer, Grade-I, was upgraded

to Junior Engineer. It was for the reason that the appellants have been

working as Junior Engineer ever since their appointment vide

Notification dated 01.05.2003 whereas the post of the Sectional Officer,

Grade-I, was upgraded to that of Junior Engineers only vide

Communication dated 11.10.2007. Prior to that they were working on

non-gazetted lower post of Sectional Officer, Grade-I.

4.3 Even otherwise if considered in terms of the 1997 Rules, the

manner in which post of Sectional Officer, Grade-I, has been upgraded

to Junior Engineer, is not the manner provided in which the post of

Junior Engineer can be filled up. Be that as it may, the appellants are

not aggrieved with that action of the State, in case they are granted

proper position in the seniority list. The result of the judgment of the

Division Bench of the High Court is that the private respondents have

been assigned seniority in the cadre of Junior Engineers from the date

on which they were not even born in the cadre, which is legally

Page 4 of 11 impermissible. In support of the arguments reliance was placed upon

the judgments of this Court in State of Uttaranchal and Another v.

Dinesh Kumar Sharma 2, P. Sudhakar Rao and Others v. U. Govinda

Rao and Others 3 and Ganga Vishan Gujrati and Others v. State of

Rajasthan and Others 4.

5. As the State is also aggrieved by the Judgment of the

Division Bench of the High Court, in furtherance to the arguments

raised on behalf of the directly recruited Junior Engineers, Mr. K.N.

Balgopal, learned senior counsel appearing for the State in C.A. @

S.L.P.(C)No.1136 of 2022, submitted that the judgment of the Division

Bench is based on certain wrong facts/premise. The Learned Judge

had tried to trace out the history from 1997 onwards, which was not

relevant for the lis to be examined. It is a case in which inter-se

seniority was to be determined after the first ever direct recruitment to

the post of Junior Engineer was made on 01.05.2003. Prior to that Junior

Engineers were being appointed by upgrading different posts.

5.1 There is no dispute that the private contesting respondents

herein were not Junior Engineers as on the date when the direct

recruitments were made. The private contesting respondents were

2 (2007) 1 SCC 683, [2006] Supp. 10 SCR 1, 2006 INSC 944 3 (2013) 8 SCC 693, [2013] 13 SCR 540, 2013 INSC 420 4 (2019) 16 SCC 28, [2019] 11 SCR 444, 2019 INSC 938

Page 5 of 11 promoted on an officiating basis as Sectional Officers, Grade-I, on

different dates. The Departmental Promotion Committee (DPC) was

held on 16.03.2007 to consider regularization of their officiating

promotion. Officiating promotion of Sectional Officers, Grade-I, in the

pay-scale of ₹4500-7000 was regularized vide Office Order dated

31.03.2007. Even if they had been working as Sectional Officer, Grade-

I, from any date prior to 16.03.2007, the same does not come to their

rescue for the reason that they were working on a lower post. Sectional

Officer, Grade-I, is a promotional post from Sectional Officer, Grade-II.

6. In response, Mr. Rana Mukherjee, learned senior counsel

appearing for the contesting private respondents, who were the writ

petitioners before the High Court in W.A. No.4 of 2020 submitted that

Office Order dated 31.03.2007 clearly shows that the private contesting

respondents were deemed to be promoted from various dates as

Sectional Officers, Grade-I, as their officiating promotion was

regularized. The dates as are available in the aforesaid Office Order

in most of the cases was prior to the date of appointment of the

appellants in C.A. @ S.L.P.(C)No.17102 of 2021. Hence, they were

rightly granted seniority from that date as it was that post which was

subsequently upgraded to Junior Engineer. There is no error in the

Page 6 of 11 order passed by the Division Bench of the High Court and both the

appeals deserve to be dismissed.

7. Heard learned counsel for the parties and perused the

relevant referred record.

8. The undisputed facts in the case fall in a very narrow

compass. There are two sets of employees working as Junior

Engineers. The appellants in C.A.@S.L.P.(C)No.17102 of 2021 are the

incumbents who were selected by the Nagaland Public Service

Commission and were appointed as Junior Engineers vide Notification

01.05.2003. The private contesting respondents who were the writ

petitioners and appellants before the Division Bench of the High Court

in W.A.No.4 of 2020 were working as Sectional Officer, Grade-I and the

post on which they were working was upgraded to that of Junior

Engineer (Class-II Gazetted), vide letter dated 11.10.2007. The pay-

scales on which the Sectional Officer, Grade-I, were working was

₹4500-7000 whereas the pay-scales on which Junior Engineer (Class-II

Gazetted), were working was ₹6000-9750.

9. As stated before us, the post of Junior Engineer was

governed by the 1997 Rules in terms of which 90% recruitment is to be

done by direct recruitment and 10% by way of promotion. As stated

Page 7 of 11 before us, prior to 2003 selection by the Nagaland Public Service

Commission no direct recruitment was made. Any seniority list of

Junior Engineer which may have been circulated earlier will not have

any bearing in the case in hand. After the direct recruitment of the

Junior Engineers a tentative seniority list was circulated on 31.05.2004.

Its finalization remained pending for years. During the interregnum 47

posts of Sectional Officer, Grade-I, working in the Nagaland Public

Works Department were upgraded to Junior Engineer (Class-II

Gazetted) vide Letter dated 11.10.2007. After considering claims and

objections of all the incumbents working in the cadre of Junior

Engineers, the seniority list was finalized on 26.03.2018.

10. The appellants in C.A.@S.L.P.(C)No.17102 of 2021 were

shown at Serial Nos.71, 72, 74, 75, 76, 77, 78 & 80 in the aforesaid

seniority list; they being the direct recruits. Respondent Nos.1 to 16

who were earlier working as Sectional Officer, Grade-I, the post which

was subsequently upgraded as Junior Engineer vide letter dated

11.10.2007 were shown at Serial Nos.156, 135, 136, 137, 138, 139, 140,

141, 142, 143, 144, 157, 158, 159, 174 & 179.

11. Aggrieved against the aforesaid seniority list, two writ

petitions were filed before the High Court. W.P.(C) No.74(K) of 2019

was filed by the respondent Nos.1 to 16 herein whereas

Page 8 of 11 W.P.(C)No.264(K) of 2018 was filed by 29 other incumbents who were

earlier working as Sectional Officer, Grade-I, the post which was

upgraded to Junior Engineer vide order dated 11.10.2007.

12. Learned Single Judge rightly dismissed both the writ

petitions as the Sectional Officer, Grade-I, whose post was upgraded

only on 11.10.2007 as Junior Engineers could not be treated to be

senior to the Junior Engineers who were directly recruited on

01.05.2003. The impugned seniority list as circulated on 26.03.2018

was upheld.

13. A perusal of the impugned order of the Division Bench of

the High Court shows that it had totally misdirected itself while

examining the 1997 Rules; the date of appointment of the private

contesting respondents as Sectional Officer, Grade-I and the date of

their regularization as such. The aforesaid facts were not of any

relevance for the decision of the question of seniority amongst the

members of the cadre of Junior Engineers. All what was required to be

considered was the date on which they became members of the cadre

of Junior Engineers coming from two different sources. As to whether

the upgradation of the post was right or wrong is not an issue canvassed

before this Court. The Division Bench of the High Court has further

gone wrong in considering the upgradation of post of Sectional Officer

Page 9 of 11 and certain other posts to that Junior Engineers prior to 01.05.2003

when direct recruitment to the post of Junior Engineers was made for

the first time. That historical background did not have any relevance

for the reason that prior to 2003 never before in the cadre of Junior

Engineers there was recruitment from two different sources. The

dispute arose only thereafter.

14. The dates on which the Sectional Officer, Grade-I, were

promoted as such either on officiating basis or their promotions were

regularlised though as per the Order dated 31.03.2007 effective from

the date when the DPC was held i.e. 16.03.2007 will not have any

bearing on the case in hand. Even if the Sectional Officer, Grade-I, are

treated to be working from the date they were officiating as such,

nothing hinges on that as far as the seniority in the cadre of Junior

Engineers is concerned. It is for the reason that the post of Sectional

Officer, Grade-I, on which they were working was upgraded to that of

Junior Engineer (Class-II Gazetted) vide letter dated 11.10.2007.

15. The pay-scales of Sectional Officer, Grade-I, was ₹4500-

7000 and the Junior Engineer was having pay-scales of ₹6000-9750.

Meaning thereby that they were working on a lower non-gazetted post.

The dispute in the present appeals is only pertaining to the Sectional

Officer, Grade-I, whose posts were upgraded on 11.10.2007 and not

Page 10 of 11 those whose posts were upgraded prior to the direct recruitment vide

Notification dated 01.05.2003. The blatant error committed by the

Division Bench of the High Court is that upgraded Sectional Officer,

Grade-I, are directed to be given seniority in the cadre of Junior

Engineers from a date on which they were not even born in the cadre

as it was only after 11.10.2007 upgradation order that they became

Junior Engineers, which was much after the direct recruitment made on

01.05.2003.

16. For the reasons mentioned above, appeals are allowed.

The impugned order passed by the Division Bench of the High Court is

set aside. The seniority list of the Junior Engineers as circulated on

26.03.2018 is upheld. There shall be no order as to costs.

……………….……………..J. (J.K. MAHESHWARI)

……………….……………..J. (RAJESH BINDAL)

New Delhi August 28, 2024.

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