WA 477/2008 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE BD AGARWAL Judgment And Order AMITAVA ROY , J These appeals project a challenge to the judgment and order dated 17.11.2008 pas sed in WP(C) No. 55/2008 instituted by the respondent Nos. 1 to 11 in WA No. 447 /2008. By the decision impugned, the learned Single Judge sustained the assailme nt of the orders dated 22.06.1999, 30.10.1999 and 04.11.1999 of the concerned St ate authority regularizing the respondent Nos. 3, 4 & 5 in the writ proceeding i n the post of Agriculture Officer of the Department of Agriculture, Manipur w.e. f. 05.11.1988. The seniority list dated 27.11.1999 enlisting the parties and arr aying them on the basis of such regularization has been consequentially interfer ed with. The order dated 08.02.1996, whereby, the respondent No. 2 in the writ p roceeding had been regularized as Agriculture Officer w.e.f. 29.12.1980, though not impeached, the corrigendum dated 09.02.1996 determining her position in the seniority list of Agriculture Officers, however, has been quashed. 02. We have heard Mr. DK Misra, Senior Advocate assisted by Ms. S Ja han, Advocate for the appellant in WA No. 155/2011, Mr. N Bipin, learned counsel appearing for the appellants in WA No. 157/2011, Mr. N Dutta, Senior Advocate f or the respondent Nos. 2 and 5 in WP(C) No. 55/2008, Mr. R Piba, learned counsel for the private respondents in WA No. 155/2011 (petitioners No. 1, 2, 3, 4, 6, 7, & 9 in the writ proceeding) and Mr. A Mohendra, Singh, learned counsel for th e private respondents in WA No. 155/2011 (petitioners No. 5, 8, 10 & 11 in the w rit proceeding). Heard Mr. BP Sahoo, learned counsel for the applicants in MC No . 995/2011 in WA No. 477/2008. 03. The pleaded versions do not record any major dissension on the e ssential facts constituting the background of the lis. As the decision oppugned is common and the legal propositions in the admitted factual backdrop pervade th e gossamer of the appeals, this single adjudicative pursuit would adequately add ress the same. The parties at the initiation of the legal encounter with WP(C) N o. 55/2000 were lodged as Agriculture Officers in the Department of Agriculture, Manipur. 04. For the sake of convenience, they would be referred to as per th eir orientations in the writ petition. The petitioners had averred that they wer e first appointed as Assistant Agriculture officers (AAO) or equivalent on ad-ho c basis on the following dates: - 09.08.1977 Petitioner No. 4 11.08.1977 Petitioner No. 3 06.10.1978 Petitioner No. 9 12.10.1978 Petitioner No. 8 17.10.1978 Petitioner No. 6 13.11.1978 Petitioner No. 2 18.11.1978 Petitioner No. 10 17.07.1979 Petitioner Nos. 1, 5, 7 & 11. While they were serving as such, they were promoted to the next higher post of A griculture Officer (as AO) or equivalent on ad-hoc basis on different dates, i.e 03.01.1981, 09.11.1981, 02.02.1981 and 03.02.1981. 05. The respondent No. 2 was similarly appointed as AAO on ad-hoc ba sis on 09.08.1977 and on the recommendation of the Manipur Public Service Commis sion (for short hereafter referred to as the Commission) was appointed as such o n regular basis w.e.f. 24.05.1980. The petitioner Nos. 1 to 8 and respondent Nos . 3 to 5 were, thereafter, by the notification dated 02.08.1981 recommended to b e appointed to the post of AAO and equivalent. They were placed in the list of t he recommendees as hereunder: - NAME Sl. No. Shri RK Darendchand Respondent No. 3 2 Shri Shri Khaidem Mohendra Singh Respondent No. 4 7 Shri Khumanthem Jugeshora singh Petitioner No. 1 25 Shri Pheiroijam Rajendra Singh Respondent No. 5 31 Shri Nayanglambam Biren Singh Petitioner No. 2 36 Ningthoujam Brojendra Singh Petitioner No. 3 38 Shri Soibam Jaintkumar Singh Petitioner No. 4 84 Shri Gurumayum Indramohon Sharma Petitioner No. 5 86 Shri Yensenbam Ishwarchandra Singh Petitioner No. 6 94 Shri Sapam Nimaichand Singh Petitioner No. 7 96 Shri Th. Gyaneswar Singh Petitioner No. 8 110 These recommendees were, subsequent thereto, appointed as AAO vide order dated 0 2.07.1982 of the Secretary (Agri.) to the Government of Manipur and were placed in the same order interse therein. The Government of Manipur, vide the order dat ed 25.08.1982 fixed the inter-se seniority of the AAO or its equivalent appointe d on regular basis. In the final seniority list of the Assistant Agriculture Off icer in the Department of Agriculture/Horticulture & Soil conservation, Manipur that was circulated by the order dated 14.01.1986 of the Commissioner-cum-Secret ary (Agri.), Government of Manipur, the petitioner Nos. 1 to 8 and the responden t Nos. 2 to 5 were positioned as hereunder: - Respondent No. 2 Sl. No. 93 Respondent No. 3 Sl. No. 102 Respondent No. 4 Sl. No. 106 Respondent No. 5 Sl. No. 130 Petitioner No. 1 Sl. No. 124 Petitioner no. 2 Sl. No. 135 Petitioner No. 3 Sl. No. 137 Petitioner No. 4 Sl. No. 182 Petitioner No. 5 Sl. No. 184 Petitioner No. 6 Sl. No. 192 Petitioner No. 7 Sl. No. 194 Petitioner No. 8 Sl. No. 208 06. Noticeably, till that stage, the petitioner Nos. 9, 10 & 11 did not figure in the scene concerning the parties, as they were regularised as AAO only by order dated 23.08.1986 much thereafter. Significantly, the interse senio rity of the petitioner Nos. 1 to 8 and respondent Nos. 2 to 5 as portrayed by th e seniority list dated 14.01.1986 was accepted by all concerned. 07. Pending the process of regular appointment of the parties as AAO , as alluded hereinabove as and claimed by the petitioners, they were promoted a s Agriculture Officer on ad-hoc basis on the following dates: - Sl. No. Name Dates 1. Petitioner Nos. 3, 4 & 9 03.01.1981 2. Petitioner Nos. 2 & 8 01.08.2001 3. Petitioner Nos. 1, 6, 7 & 11 02.02.1981 4. Petitioner Nos. 4, 5 & 10 03.02.1981 Respondent Nos. 2, 3, 4 & 5 were also promoted as Agriculture Officer on ad-hoc basis as hereinbelow: - Sl. No. Name Dates 1. Respondent No. 2 29.12.1980 2. Respondent Nos. 3 & 4 31.12.1983 3. Respondent No. 5 13.10.1987 08. As it would be apparent from hereinabove, the respondent Nos. 3, 4 & 5 were promoted as Agriculture Officer on ad-hoc basis after the petitioner s. Significantly, all these developments burgeoned in the teeth of the Agricultu re, Horticulture and Soil Conservation Department, Manipur (I) Agriculture Offic ers/Senior Technical Asstt./Subject matter Specialist posts with an identical sc ale of pay and similar duties and (2) Assistant Agriculture Officer and with an identical scale of pay and similar duties Recruitment Rules, 1980 (for short her eafter also referred to as the Rules) framed under Article 309 of the Constituti on of India and published in the issue dated 18.06.1980 of the Manipur Gazette. The Rules proclaimed to regulate the method of recruitment to the post of Agricu lture Officer/Technical Assistant/Subject Matter Specialist etc. The post of Agr iculture Officer and those equivalent thereto were projected thereby to be selec tion posts to be filled up by direct recruitment (40%) and promotion (60%). The conditions of eligibility including the academic qualification and the qualifyin g length of service of the incumbent in the feeder post of Assistant Agriculture Officer were also recited therein. 09. As the promotions to the post of Agriculture Officer on ad-hoc b asis of the parties as referred to hereinabove were, admittedly, not in accordan ce with the prescriptions of these Rules, the Government of Manipur in the Agric ulture Department, by order dated 05.11.1988 regularized the ad-hoc appointment of 35 Nos. AO and other incumbents holding equivalent post w.e.f. 24.05.1986 pur suant to a policy for regularization of ad-hoc appointments embodied in the offi ce memorandum dated 31.05.1986 of the Department of Personnel & Administrative R eforms (Personnel Division), Government of Manipur. In terms of the said office memorandum, ad-hoc appointees appointed upto 31.12.1984 against the vacancies un der the direct recruitment quota under Class-I & II posts could be regularized w .e.f. 24.05.1986, if they complied with the other conditions therefor as mention ed therein. By the order dated 05.11.1988, the ad-hoc appointment of the petitio ner Nos. 1 to 11 as Agriculture Officer/equivalent was thus regularized w.e.f. 2 4.05.1986. It was, however, clarified that their seniority would be fixed later on. 10. Stirred up by this retrospective regularization of the adhoc pro motion of the petitioners as AO, 7 (seven) Agriculture Officer, out of whom 5 (f ive) had been regularised as such w.e.f. 28.10.1988, instituted CR No. 76/1992, questioning the validity of the order dated 05.11.1988. They claimed to have bee n appointed as AAO by way of direct recruitment on ad-hoc basis and, thereafter, promoted as AO on ad-hoc basis, following which the regularization as above had followed. They complained that the petitioners had been promoted as AO on ad-ho c basis by intruding into the quota of direct recruitment and if their (writ pet itioners in CR No. 76/1992) retrospective regularization, as such, was sustained , they would illegally score a march over them. The present petitioners also rel ated their pending grievance in CR No. 131/1989 and CR No. 698/1989 with this ch allenge and joined the fray. A Division Bench of this Court, by judgment and ord er dated 27.04.1992 disposed of the aforementioned proceedings with the followin g observations: - 24. Now coming to the case on hand, the respondents were promoted on ad-hoc bas is in the year 1981 against the quota of direct recruitment and the petitioners were appointed on ad-hoc basis in the years 1979 and 1980. The policy of the Gov ernment of Manipur for regularization with effect from 24.05.1986 relates to ad- hoc appointees against the direct recruitment quota. This being the position, th e respondents who were promoted in the quota of direct recruits cannot be regula rised under the policy as well as quota rules. But, the 33 respondents have been holding the posts for more than 11 years and once they were regularised rightly or wrongly under order dated 05.11.1988 and if they are to be reverted to AAOs it would be not only unjust and inequitable, but also would disturb other AAOs w ho had been appointed to the vacant posts caused on promotion of the 33 responde nts, and as such, their services are to be secured by regularizing their employm ent. This can only be done by relaxing the provisions relating to quota rules, w hich is permissible under the Recruitment Rules referred to above, by treating t he quota of direct recruits as promotional posts for the following reasons. The promotees cannot be treated as direct recruits where the recruitment is from two sources to a service in view of the decisions of the Supreme Court in Badami’s Case (AIR 1980 SC 1561) as well as Sonal’s case (AIR 1987 SC 2389), where it has been held that where the recruitment is from two sources to a service, the quot a rules have to be strictly enforced and it is not open to the authorities to me ddle with on the ground of administrative exigencies. Promotees occupying direct recruit quota cannot claim any right to hold any promotional post. That apart, if the 33 respondents who were ad-hoc promotees are regularised treating them di rect recruits w.e.f. 24.05.1986, it would affect the seniority of the petitioner s - 1 to 5 who were appointed earlier then the 33 respondents and who had been r egularised in their lawful quota in the same cadre or grade in the year 1988. Th erefore, to give such a benefit to the 33 respondents would be violative of Arti cle 14 and 16 of the Constitution as all the promotees in the same cadre or grad e would not be treated equally. 25. The next question which arises for consideration in from which date and year the 33 respondents are to be regularised. The petitioners - 1 to 5, who were ap pointed earlier than the 33 respondents, were regularised w.e.f. 28.10.1988. The Government took the decision to regularise the 33 respondents on 05.11.1988, ri ghtly or wrongly. Therefore, we are of the opinion that if the 33 respondents ar e regularized w.e.f. 05.11.1988 it would meet the ends of justice. 11. Their Lordships therefore returned a finding that the present pe titioners, who were promoted against the quota of direct recruits, could not be regularized under the policy as well as the quota rules. Besides, if they were r egularized treating them as direct recruits w.e.f. 24.05.1986, it would affect t he seniority of the writ petitioners No. 1 to 5 in CR No.76/1992, who had been a ppointed earlier to them and regularized in their lawful quota in the same cadre or grade in the year 1988. Their Lordships, however, noticing that the present petitioners had been holding the post for more than 11 years by then, and that i t would not only be unjust and inequitable to revert them to the post of AAO, bu t also that the same would disturb the other AAOs who had been appointed to the resultant vacant post, sought to ease the stalemate by concluding that if the pr esent writ petitioners and other beneficiaries of the order dated 05.11.1988 wer e regularized with effect from that date i.e. 05.11.1988, it would meet the ends of justice as the petitioner Nos. 1 to 5 in CR No. 76/1992 had been regularised w.e.f. 28.10.1988. The parties are not at issue that the petitioners as a conse quence stood regularised as AO w.e.f. 05.11.1988. 12. While the matter rested at that, the respondent Nos. 2, 3 & 4 we re regularised as AO w.e.f. 19.02.1993 by order dated 12.03.1993 of the Addl. Ch ief Secretary, Government of Manipur, Agriculture Department. The respondent No. 2 having along with three others approached this Court with CR No. 1069/1993, s he, in terms of the judgment and order dated 05.07.1994 passed therein, was regu larized as AO with effect from the date of her initial ad-hoc appointment, as su ch, i.e. 29.12.1980 vide order dated 08.02.1996 of the Under Secretary, Governme nt of Manipur, in the Horticulture and Soil Conservation Department. The respond ent No. 5, subsequent thereto, by order dated 05.01.1999 of the Deputy Secretary (Agri.), Government of Manipur was appointed as Agriculture Officer on the reco mmendation of the DPC in consultation with the Commission w.e.f. 04.01.1999. 13. Aggrieved by and dissatisfied with their belated regularization and that too on and from the dates posterior to that of the petitioners, the res pondent Nos. 3, 4 & 5 instituted WP(C) No. 241/1999, WP(C) No.1111/1999 and WP(C ) No.1145/1999, respectively, seeking judicial intervention for redress. Prior t hereto, they had teamed up with respondent No. 2 to initiate CR No. 1385/1992, C R No. 1399/1992 and CR No. 446/1997, which stood disposed of on 18.02.1999, leav ing them at liberty to file appropriate representations before the concerned Sta te authority to be disposed of keeping in view of the judgment and order dated 2 7.04.1992, passed in CR Nos. 131/1989, 693/1989 and CR No. 76/1992. WP(C) Nos. 1 111/1999, 1145/1999 and 241/1999 were similarly disposed of on different dates s ubstantially in the same lines. 14. Orders dated 04.11.1999, 30.10.1999 and 22.06.1999 as impugned i n WP(C) No.55/2008 followed, regularizing the respondent Nos. 5, 4 and the respo ndent No. 3 as AO w.e.f. 05.11.1988 for the purpose of seniority. By notificatio n dated 27.11.1999, the seniority list of Agriculture Officers and all posts equ ivalent thereto in the Agriculture Department of the State was published, in whi ch the parties were placed as hereunder: - Respondent No. 2 Sl. No. 20 Respondent No. 3 Sl. No. 22 Respondent No. 4 Sl. No. 23 Petitioner No. 1 Sl. No. 24 Respondent No. 5 Sl. No. 25 Petitioner No. 2 Sl. No. 26 Petitioner No. 3 Sl. No. 27 Petitioner No. 4 Sl. No. 28 Petitioner No. 5 Sl. No. 29 Petitioner No. 6 Sl. No. 30 Petitioner No. 7 Sl. No. 31 Petitioner No. 8 Sl. No. 32 Petitioner No. 9 Sl. No. 33 Petitioner No. 10 Sl. No. 34 Petitioner No. 11 Sl. No. 35 Evidently, thus following the above factual interventions, in essence, the inter se seniority of the parties as AAO was restored in the post of AO. As it indicat ed hereinabove, the petitioners’ remonstrance is mounted against the orders date d 22.06.1999, 30.10.1999, 04.11.1999 regularizing the respondent Nos. 3, 4 & 5 a s AO w.e.f. 05.11.1988, the corrigendum dated 09.02.1996 identifying the placeme nt of the respondent No. 2 in the seniority list of AO following her regularizat ion as such, by the order dated 08.02.1996 w.e.f. 29.12.1980 as well as the seni ority list dated 27.11.1999. The order dated 08.02.1996 qua the respondent No. 2 was not assailed in particular. 15. The learned Single Judge, maintained the impugnment and annulled the orders and the seniority list as above with a direction to prepare a fresh seniority list in the light of the determination so made. Relying, inter alia, o n the judgment and order dated 21.05.2008, in WP(C) No.540/2000 (Shri Th. Ranbir Singh Vs. Chief Secretary, Government of Manipur & Ors.) and 24.06.2008 in WA N o. 65/2008 between the same parties as well as various pronouncements of the Hon ’ble Apex Court, it was held that seniority of an incumbent in an earlier cadre on promotion was not of any determinative significance and further the retrospec tive regularization by the Government in absence of any specific empowerment to that effect is non est in law. 16. Mr. Misra, has argued that as admittedly, the ad-hoc promotions to the post of AO, a selection post, were not in accordance with the Rules then in force, the inter-se seniority of the concerned incumbents in the earlier grad e does not loose its import. He has urged that the authorities relied upon by th e learned Single Judge are distinguishable on facts, the promotions as AO on ah- hoc basis not having been made on a comparative evaluation of the merit and suit ability of the candidates. According to him, having regard to the nature of the promotions made, the restoration of the inter-se seniority of the parties as AAO on the regularization of the promotion as AO is legally permissible. Mr. Misra referred to the Rules to indicate that the post of AO was a selection post and d rew our attention to the memorandum of appeal of the State to reveal that the pr omotions of the parties as AO on ad-hoc basis had not been in compliance of the Rules. The learned Senior Counsel urged that a plain perusal of the operative po rtion of the judgment and order dated 27.04.1992 would unambiguously demonstrate that thereby, this Court did not direct regularization of the ad-hoc promotion of the petitioners to be effective from 05.11.1988 and the arrangement was wroug ht only to relieve them of the otherwise apparent yet iniquitous consequences lo oming large in the face of the impermissibility of their adjustment as promotees against direct recruitment portions. Mr. Misra has contended that as this consi deration of the Court had weighed with the Government to deal with the represent ations of the private respondents as well to secure their seniority as AO, the i mpugned interference was uncalled for. Referring to the Catch Up Rule dilated up on by the Hon’ble Apex Court in Ajit Singh & Ors. (II) Vs. State of Punjab & Anr ., (1999) 7 SCC 209 as well as Article 16 (4) A of the Constitution of India, Mr . Misra, has insisted that in the attendant facts and circumstances, the restora tion of seniority of the respondents in the post of AAO as AO cannot be faulted with. He placed reliance on the decisions of the Apex Court in State of Mysore V s. C.R. Sheshadri & Ors., (1974) 4 SCC 308, Devendra Prasad Sharma Vs. State of Mizoram & Ors., (1997) 4 SCC 422, State of Maysore & Ors. Vs. Syed Mahmood & Anr ., AIR 1968 SC 1113, Gurdial Singh Fijji Vs. State of Punjab & Ors., (1979) 2 S CC 368 and N. Suresh Nathan & Ors. Vs. Union of India & Anr., (2010) 5 SCC 692. 17. Mr. Dutta, in addition to the general ratification of the propos itions proffered on behalf of the State insisted that in any view of the matter as the respondent No. 5 is the only incumbent among the sparring parties to have been appointed as AAO on the recommendation of the Commission, the order of his regularization as AO and his seniority position in the impugned select list dat ed 27.11.1999 is unassailable. Contending that the promotions of the petitioners as AO on ad-hoc basis, had been in violation of the Rules, they not having been appointed as AAO as respondent No. 5, the learned Senior counsel has urged that they (petitioners) by no means can claim superior seniority over him on the bas is of the judgment and order dated 27.04.1992, which merely delivered them on eq uitable considerations. He underlined that in any view of the matter, the respon dent No. 2 is senior most amongst the parties and that her regularization as AO w.e.f. 29.11.1980, vide order dated 08.02.1996 having been effected in terms of the judgment and order dated 05.07.1994, passed in CR No. 1069/1993, the impugne d judgment and order vis-a-vis her is unsustainable in law and on facts. The lea rned Senior counsel pointed out as well that the respondent Nos. 2, 3, 4 & 5 wer e not parties in the earlier process of determination culminating in the judgmen t and order dated 27.04.1992. 18. Mr. Piba, while endorsing the decision impugned in the present a ppeals, has heavily relied on the office memorandum dated 09.10.1992 (Annexure A /30 to the writ petition) to contend that the retrospective regularization of th e respondent No. 2, 3, 4 & 5 as AO being in contravention thereof, they are not entitled to any consequential benefit of seniority as sought for. He maintained that as the regularization of the writ petitioners as AO w.e.f. 05.11.1988 has r emained unchallenged, the respondent Nos. 2, 3, 4 & 5, in view of their ad-hoc p romotions thereto after them (writ petitioners) cannot be placed at par on senio rity favouring them with retrospective regularization. Mr. Piba, has alleged sel ective treatment by the Government by applying two varying yardsticks to confer unwarranted benefits on the respondent Nos.2 to 5. The learned counsel argued ag ainst the application of Catch Up Rules and referred to the decisions of this Co urt in WP(C) No.540/2000 and WA No. 65/2008 to urge that on the principle script ed by a co-ordinate bench of this Court on the same issue, the present appeals o ught to be dismissed. Mr. Piba relied on the decision of the Apex Court in Dr. J S Chhabra Vs. State of MP & Ors., (1997) 3 SCC 203 to underline that the office memorandum dated 09.10.1992 was binding on the Government. 19. Mr. Mohendra, while reaffirming the charge led by Mr. Piba, plea ded that retrospective regularization, though for the purpose of financial benef its is conceivable, but for seniority it is an antithesis to the fundamental pre cepts of service jurisprudence and that the decision impugned is beyond reproach . He pressed into service the decision of the Apex Court in RK Mobisana Singh Vs . KH Temba Singh & Ors., (2008) 1 SCC 747 to emphatically repudiated the permiss ibility of retrospective regularization. 20. Mr. Sahoo, while expressing his general agreement with the argum ents advanced on behalf of the appellants, has sought for vacation of the interi