H.S.SIDHU versus DEVENDRA BAPNA & ORS.
[2015] 9 S.C.R. 456, Supreme Court of India, 2015
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
A 
B 
[2015] 9 S.C.R. 456 
H.S.SIDHU 
v. 
DEVENDRA BAPNA & ORS. 
(Civil Appeal Nos. 6505-6506 of 2009) 
SEPTEMBER 09, 2015 
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.] 
Service law- Seniority- Fixation of - Two Direct recruits-
C Assistant Directors, promoted to the post of Deputy Director 
- In the cadre, 1st respondent treated as senior to appellant 
-
Thereafter, for the post of Joint Director, Departmental 
Promotion Committee (DCP) placed appellant as senior to 
1st respondent- Both allowed to officiate as Joint Director-
D 
1st respondent challenged the determination of seniority in 
the cadre of Joint Director - During pendency, appellant 
promoted temporan"fy to officiate as Director - 1st respondent 
challenged the same - Single Judge held that 1st respondent 
should have been treated as senior to the appellant- Upheld 
E by the Division Bench - Held: DPC after due evaluation of 
the A CRs and consideration of the merit by ascribing reasons 
had prepared the merit list and found that the appellant had 
received more marks than 1st respondent - Neither the 
appellant nor 1st respondent were confirmed, thus, the rules 
F relating to seniority for confirmed employees not applicable 
- Proviso to r. 12(c) that if an officer has been selected for 
officiation from a list in which he is considered suitable for 
trial in a promotion and the said list has been arranged in 
order of merit, their inter se seniority would be determined in 
G accordance with the order of merit- In
such a situation, when 
DPC had drawn the list on the basis of inter se merit, fixation 
of seniority could not be found fault with - High Court cannot 
sit in appeal over the assessment made by DPC -
H 
456
H.S. SIDHU v. DEVENDRABAPNA& ORS. 
457 
Constitution of India, 1950 - Art. 226 -Madhya Pradesh A 
Services (General Conditions of Service) Rules, 1961. 
Allowing the appeals, the Court 
HELD: 1.1 On a scrutiny of the ACRs, and the other 
materials, the DPC had found that the appellant had B 
received more marks than the 1st respondent. The DPC 
after due evaluation of the ACRs and consideration of 
the merit by ascribing reasons had prepared the merit 
list. Neither the appellant nor the 1st respondent was 
confirmed and, therefore, the rules relating to seni9rity C 
as far as the confirmed employees arc concerned, do 
not apply. The Rule 12(c) of the Madhya Pradesh 
Services (General Conditions of Service) Rules, 1961 
which deals with seniority of Government Servant, 0 
applies. The proviso to Rule makes it quite vivid that if 
an officer has been selected for officiation from a list in 
which he is considered suitable for trial in a promotion 
and the said list has been arranged in order of merit, their 
inter se seniority shall be determined in accordance with E 
the order of merit. In such a situation, when the DPC had 
drawn the list on the basis of inter se merit, the fixation 
of seniority could not be found fault with. Further, while 
exercising the power under Article 226 of the 
Constitution, the High court cannot sit in appeal over F 
the assessment made by the DPC. [Para 10 and 13] [463-
C, 465-C-F] 
1.2 The first respondent retired holding the post of 
Director
after a review DPC was directed to be held by G 
the Division Bench. He would be treated to have retired 
from the post of Director and would get the pensionary 
benefits. As far as the appellant is concerned, by virtue 
of the order passed by the Division Bench, he continued 
in the postof Director till 5.2.2010 and thereafter he was H 
reverted to the post of Joint Director. As he was already
458 
SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
A selected as a Director because of his seniority which was 
erroneously set aside by the High Court, the State 
Government is directed to pay the arrears of ~alary as 
·also the benefits of the post of Director. [Para 14] [466-
B 
c 
B-D] 
Union.of India v. S.P Nayyar2014 (6) SCR 116: (2014) 
14 sec - referred to. 
Case Law Reference 
2014 (6) SCR 116 
Referred to. 
Para 13 
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 
6505-6506 of 2009. 
D 
From the Judgment and Order dated 24.03.2009 of the 
· High Court of Judicature, Jabalpur in Writ Appeal No. 411 of 
2008. 
E 
C.A. No. 7308 of 2009 
C.A. No. 7950 of2015 
WITH 
Subramaniam Prasad, Prashant Kumar, Joseph 
Pookkatt, Sunil Singh Parihar, (For AP & J Chambers), B.S. 
F Banthia, Mishra Saurabh for the Appellant. 
G 
H 
Aniruddha P. Mayee, A. Selvin Raja, Mishra Saurabh, 
Ankit Kumcir Lal, Anshaja Shukla, Dr. Harsh Pathak, Neeraj 
Shekhar, Mohit Chowbey, Siddartha Shukla, Merusagar 
Samantaray for the Respondents.· 
The Judgment of the Court was delivered by 
DIPAK MISRA, J. 1. Leave granted in the Special Leave 
Petition (C) No.28755 of 2009. 
2. The present appeals, one preferred by the aggrieved
H.S. SIDHU v. DEVENDRA BAPNA & ORS. 
459 
. [DIPAK MISRA, J.] 
officer, H.S. Sidhu and the other by the State, call in question A 
the legal vulnerability of the judgment and order dated 
24.03.2009 passed by the Division Bench of the high Court of 
Madhya Pradesh at Jabalpur, in Writ Appeal Nos. 370, 371, 
411 and 442 of 2008 whereby it has concurred with the view 
expressed by the learned Single Judge vide order dated 
B 
04.03.2008 in Writ Petition No.23798 of 2003 and W.P.S. 
No.1119 of 2005. 
3. It is seemly to state that the grievance is common in all 
the appeals. The facts, on a perusal of the order passed by C 
the learned Single Judge as well as by the Division Bench, 
appear to be complex but they are actually not so. Complexity 
has been created with ingenious artificiality. Reference to 
certain dates, the factual position admitted at the Bar, and the 
relevant rules would suffice the narration. It is not in dispute D 
that the app§llaffi, H.S. _Sidhu, and the 1st respondent, 
Devendra Bapna, were initially appointed as Assistant 
Directors as direct recruits through the Public Service 
Commission and their service conditions are governed by the 
Madhya Pradesh Fisheries (Gazetted) Service Recruitment E 
Rules, 1987 (for brevity, 'the 1987 Rules') with certain 
incorporation from the Madhya Pradesh Services (General 
Conditions of Service) Rules, 1961 (For short, 'the 1961 
Rules'). There is no cavil over the fact that they were promoted 
F 
to the post of
Deputy Directors and in that cadre Devendra 
Bopana was treated as senior to the a·ppellant H.S. Sidhu. 
4. The question offilling up the post of Joint Director, which 
is a promotional post from the cadre of Deputy Director, arose 
in the year 1996. At that juncture, a list of officers who had G 
come within the zone of consideration for the promotion to the 
post of Joint Director was drawn up and in the said list, the 
name of Devendra Bopna appeared at serial no.3 and that of 
H.S. Sidhu at serial no.5. When the matter was placed before 
H
460 
SUPREME COURT REPORTS 
[2015) 9 S.C.R. 
A the Departmental Promotion Committee (DPC), it referred to 
the seniority and gradation list, the rule application for 
promotion, and took into consideration the ACRs and 
accordingly placed H.S. Sidhu at serial no.1 and Devendra 
Bapna at serial no.3 in the select list. The DPC for drawing 
B the selection list in the aforesaid manner, ascribed the following 
reason: 
"As per M.P. Fisberies (Gazetted) Service Recruitment 
Rules, 1987 of Sub rule 15(3) DPC found exceptional merit 
C 
and suitable to Shri Harpal Singh Sidhu and given higher 
place against the senior officers." 
5. It is apt to note here that as there were four posts 
available in the cadre of Joint Director, both H.S. Sidhu and 
D Devendra Bapna were allowed to officiate as Joint Directors. 
However, as H.S. Sidhu was treated senior to Devendra 
Bapna, he preferred OA No.927 of 1997 assailing the 
determination of seniority in the cadre of Joint Director. After 
abolition of the State Administrative Tribunal, the matter stood . 
E transferred to the High Court of Madhya Pradesh at Jabalpur 
which was registered as W.P. No.23798 of 2003. At this 
juncture, it is necessary to note that while both of them were 
officiating as Joint Directors, the post of Director fall vacant 
and both of them were considered. The DPC, considering 
F the merit and suitability of H.S. Sidhu, recommended him to 
be promoted to the post of Director. The said exercise was 
carried out
during the pendency of the writ petition no.23798 
of 2003 where the cavil related to the fixation of seniority. 
G 
6. After the appellant was promoted temporarily to 
officiate ~s the Director, the same was also challenged by the 
1st respondent herein in Writ Petition No.1119 of 2005. Tl1e 
learned Single Judge dealt with both the writ petitions together 
and came to hold that thA writ petitioner should have been 
H tceated as· senior to the appellant herein and, accordingly,
H.S. SIDHU v. DEVENDRA BAPNA & ORS. 
461 
[DIPAK MISRA, J.] 
directed as follows : 
A 
"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, s 
respondent no.2/4 and other persons those who were 
within the zone of consideration when the original DPC 
met on 6.8.04. 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 C 
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." 
7. The aforesaid order was assailed by the aggrieved D 
officer as well as by the State. There was an order directing 
stay of the directions issued by the learned Single Judge. The 
Division Bench by the impugned judgment, as it appears to 
us, has gone transient and without proper scrutiny of the rule 
position agre~d with the view expressed by the learned Single E 
Judge on a different score altogether. In fact, it ha!?, if we permit 
ourselves to say so, has exercised the appellate jurisdiction 
over the proceedings of the DPC apart from taking note of 
seniority on an erroneous perception. 
· 
8. We have heard Mr. Subramonium Prasad, learned 
senior counsel along with Mr. Prashant Kumar, learned counsel 
for the
appellant in the appeals preferred by H.S. Sidhu, Mr. 
Ankit Lal, learQed counsel for the State in the appeals p~eferred 
F 
by the State and Mr. Anirudhha P. Mayee on behalf ofthe 151 
G 
respondent, Devendra Bapna. 
9. To appreciate the controversy, we may refer with profit 
to Rule 15 of the 1987 Rules. It reads as follows : 
H
462 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
"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: 
· 
I 
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 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 Kis earlier selection. 
(4) _The
list so prepared shall be reviewed and revised 
every year. 
(5) If in the process of selection, reiew or revision, it is
H.S. SIDHU v. DEVENDRA BAPNA & ORS. 
463 
[DIPAK MISRA, J.] 
proposed to supersede any member of the Service, the A 
committee shall record its reasons for the proposed 
supersession." 
10. On a perusal of the aforesaid Rule, it is clear to us that 
proviso to sub-rule {3) of Rule 15 postulates that any junior B 
officer who in the opinion of the DPC is of exceptional merit 
and suitable can be assigned a higher place in the list than 
that of the officer senior to him. On a scrutiny of the AC Rs, and 
the other materials, the DPC had found that the appellant had 
received more marks than the 1st respondent. The DPC after C 
due evaluation oftheACRs and consideration of the merit by 
ascribing reasons had prepared the IT)erit list. 
11. On a close scrutiny of the judgment and orders passed 
by the learned Single Judge which has been accepted by the D 
Division Bench, we find that they have not appreciated the tenor 
and content of Rule 15(3), especially, the proviso thereof. As 
it seems, they have been guided by the principle of seniority-
cum-fitness, but the proviso to Rule 15(3) states the position 
differently laying emphasis on exceptional merit and suitability. 
E 
12. Mr. Mayee, learned counse~ for the 1st ·respondent 
would submit that as both of them are officiating as Joint 
Directors, he could not have been ranked as junior in the said 
cadre. To bolster the said submission, he has drawn our F 
attention to Rule 12(b) and 12{c) of the 1961 Rules which read 
as
under: 
"(b) Promoted Government Servant.-
a promoted Government servant shall count his seniority G 
from the date of his confirmation in the service to which 
he has been promoted and shall be placed in the gradation 
list immediately before the last confirmed member of that 
service but above all the probationers: 
H
464 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015) 9 S.C.R. 
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
H.S. SIDHU v. DEVENDRA BAPNA & ORS. 
465 
[DIPAK MISRA, J. ] 
category of posts above all the others in that gradation A 
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 
B 
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." 
13. Be it clarified that neither the appellant nor the 1 •1 
respondent was confirmed and, therefore, the rules relating to 
seniority as far as the confirmed employees are concerned, 
c 
do not apply. The Rule that really applies is Rule 12(c) which 
deals with seniority of Government Servant. The proviso to o 
Rule 12(c) makes it quite vivid that if an officer has been 
selected for officiation from a list in which he is considered 
suitable for trial in a promotion and the said list has been 
arranged in order of merit, their inter se seniority shall be 
determined in accordance with the order of merit. In such a E 
situation, there can be no scintilla of doubt that when the DPC 
had drawn the list on the basis of inter se merit, the fixation of 
.. 
seniority could not be found fault with. It needs no special 
emphasis to state that whil~ exercising the power under Article 
226 of the Constitution, the High Court
cannot sit in appeal F 
over the assessment made by the DPC. In Union of India v. 
S.P. Nawar1; it has been stated that if the assessment made 
by the DPC is perverse or not based on record or proper record 
has not been considered by the DPC, it is open to the High 
Court under Article 226 of the Constitution to remit the matter G 
back to the DPC for recommendation, but it cannot assess 
. the merit on its own on perusal of the service record of one or 
.· 1 (2014) 14 sec 310 
H
466 
SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
A 
the other employee. Thus, analysed the view expressed by 
the High Court in the impugned order is wholly unsustainable. 
14. The controversy does not rest there. We have been 
apprised that the first respondent has retired holding the post 
B of Director after a review DPC was directed to be held by the 
Division Bench. Regard being had to the fact that he has 
already retired on 31.10.2010, he shall be treated to have 
retired from the post of Director and shall get the pensionary 
benefits. As far as the appellant is concerned, by virtue of the 
C order passed by the Division Bench, he continued in the post 
of Director till 5.2.2010 and thereafter he was reverted to the 
post of Joint Director. As he was already selected as a Director 
because of his seniority which has been erroneously set aside 
_J 
by the High Court, we direct the State Government to pay the 
D arrears of salary commencing 05.02.2010 to 31. 08.2010. That 
apart, he shall also reap the benefits of the post of Director. 
We will be failing in our duty if we do not state that there was 
serious opposition by Mr. Mayee, learned counsel for the State 
but the said resistance is absolutely inconsequential in view 
E of the findings recorded by us. 
15. Resultantly, the appeals are allowed and the judgment 
and orders passed by the learned Single Judge as well as by 
the Divisioi'I Bench of the High Cpurt are set aside. There 
F 
shall be no order as to costs.
NidhiJain 
Appeals allowed.