POOJAN PRASAD V. UNION OF INDIA AND ORS

WP.CT/40/2023

AI Insights

The case revolves around a dispute concerning the seniority list of Sub Inspectors (Executive) in the Andaman and Nicobar Police, where the petitioner, Poojan Prasad, challenged his placement below direct recruits despite being a promotee. The core issue was whether the seniority should be determined by the date of appointment or by interspacing direct recruits with promotees as per the Supreme Court's decision in N.R. Parmar. The court examined various precedents, including K. Meghachandra Singh and Hariharan, to conclude that the seniority should be based on the date of appointment and the specific vacancies that arose, rather than the rotational system previously advocated in N.R. Parmar.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 735103 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 29-09-2023
• Assessment Year: misc
• Other Referred Cases: Union of India and others vs. N.R. Parmar and others, K.Meghachandra Singh and others vs. Ningam Siro and others, Hariharan and others vs. Harsh Vardhan Singh Rao and others, M. Subba Reddy and another vs. AP State Road Transport corporation and others, Direct Recruit Class II Engg. Officers' Assn. vs. State of Maharashtra, Devendra Prasad Sharma vs. State of Mizoram, S.G. Jaisinghani vs. Union of India, Union of India vs. S.D. Gupta
• Laws Referred To: Constitutional Writ Jurisdiction
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: SHATADRU CHAKRABORTY; DIBESH DWIVEDI
• Assessee Lawyers: RAJINDER SINGH
• Keywords: Direct Recruits; Promotion; Seniority list; Supreme Court; Sub Inspector (Executive); N.R. Parmar; K.Meghachandra Singh
• Section: 147; 148; 143(3); 153A; 68

Judgement Text

"1 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON’BLE JUSTICE HARISH TANDON AND THE HON’BLE JUSTICE RAI CHATTOPADHYAY WP.CT/40/2023 POOJAN PRASAD … PETITIONER Vs. THE UNION OF INDIA AND OTHERS …RESPONDENTS For the petitioner : Mr. Rajinder Singh For the respondents : Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi Heard on : 20.09.2023 & 26.09.2023 Judgment on : 29.09.2023 HARISH TANDON, J. 1. The dispute relates to the confirmed seniority list of the Sub Inspector (Executive) of the Andaman and Nicobar Police dated 11.07.2019, where the petitioner is claiming himself to be promote, was placed below the direct recruits. According to the petitioner the decision of the authority as discerned from the said confirmed 2 seniority list is contrary to the decision of the Supreme Court rendered in case of Union of India and other vs. N.R.Parmar and others reported in (2012) 13 SCC 340. 2. A little background of the dispute raised before us is required to be adumbrated for the purpose of clarity and the decision to be taken herein. Admittedly the petitioner is appointed as constable in the police administration of the islands and promoted to the post of Head Constable and further promoted to the post of the Assistant Sub Inspector in the Executive Branch on the basis of an order dated 16.07.2003. 3. The Director General of Police issued a standing order No. 9048 dated 03.10.2008 formulating the procedure for appointment to the post of a Sub Inspector (Executive) to the effect that the 50% of the vacancy shall be filled up by promotion amongst the serving Assistant Sub Inspector (Executive) on the basis of the seniority-cum-fitness and the remaining 50% vacancy shall be filled up by direct recruitment. 4. It appears from the record that during the relevant year i.e. 2008 the total strength of the Sub Inspector (Executive) cadre in the police administration was 82 out of which 54 posts were filled with promotees and 28 posts with the direct recruits. Subsequently, 17 new posts were created in the year 2008 and were earmarked for direct recruits. 3 5. The recruitment process was initiated and ultimately the aforesaid 17 posts were filled up during the period from 05.02.2009 to 24.02.2009. One of the criteria provided in the said standing order that the Assistant Sub Inspector (Executive) can be considered for promotion to the post of a Sub Inspector (Executive) provided they completed five years of regular service and also pass upper school course. 6. The petitioner claimed the appointment to the post of Assistant Sub Inspector (Executive) on the basis of an order dated 16.07.2003 and became eligible for such promotion with effect from 15.07.2008 as he has also passed the upper school course in the meantime. A Departmental Promotion Committee was constituted and a meeting was held on 17.12.2008 wherein after scrutiny of the records and the rule, it was noticed that the sanctioned strength of the Sub Inspector is 107 out of which 82 posts of Sub Inspectors have been filled up and remaining 25 posts are lying vacant either due to new creation, promotion, retirement and deputation. 7. It is further noticed that out of 25 posts, 17 posts were filled up by a direct recruitment which has already been notified and the remaining 08 vacant posts are required to be filled up by promotion on adhoc basis as earlier 17 Assistant Sub Inspectors were promoted to the rank of Sub Inspector on adhoc basis and the senior amongst them will be regularized on seniority basis. 4 8. Ultimately the said committee found some of the Assistant Sub Inspectors to be eligible for promotion and some were declared unfit. So far as the petitioner is concerned, since he was facing a departmental inquiry, his recommendation was kept in a seal cover. Subsequently by an Order Book No. 3996 dated 02.08.2010, the result of the petitioner was declared and he was promoted to the rank of Sub Inspector (Executive) with effect from 17.12.2008 on adhoc basis against the existing vacancy on which date his junior was promoted as Sub Inspector. 9. It was indicated in the orders giving adhoc promotion to various Assistant Sub Inspectors that their adhoc promotion shall be regularized with effect from the date of occurring the regular vacancies. Simultaneously the petitioner was promoted to the post of Sub Inspector (Executive) by way of regularization with effect from 25.06.2009 as and when the vacancy occurred by virtue of an Office Order No. 3147 dated 15.01.2018. 10. The dispute arose when a provisional list of Sub Inspector (Executive) was published on 23.12.2016 wherein the 17 candidates who were appointed through direct recruitment process were placed above the serial number of the promotees. The representations were made by the petitioner raising such issue and ultimately the authorities decided not to accede to the request of the petitioner and rejected the contention so raised. 5 11. It was a specific stand of the authorities that the newly created 17 posts were earmarked for the direct recruits and all successful candidates were appointed between the period from 03.02.2009 and 20.02.2009 much prior in time when the vacancy for the promotion arises and the petitioner was promoted to such posts. 12. It is the further stand of the authorities that since the promotion was on adhoc basis with clear stipulation that they will not claim any right into the seniority and may be reverted to their substantive post of Assistant Sub Inspector, such adhoc appointment cannot be counted for the purpose of seniority. 13. The tribunal held that the ratio of the judgment delivered in N.R.Parmar cannot be applied as the appointment through a direct recruitment process was made much prior to the date of regularization of the petitioner to such promotional post and also the ratio laid down in N.R.Parmar has been overruled by a Three Judge Bench of the Supreme Court in K.Meghachandra Singh and others vs. Ningam Siro and others reported in (2020) 5 SCC 689. 14. The counsel for the petitioner submits that the Apex court in N.R.Parmar and others categorically held that in case of fixation of seniority amongst the direct recruits and the promotees, the same has been done on a rotation of quotas and the direct recruits shall have to be interspaced with the promotees of the same recruitment year and, therefore, the seniority list has to be prepared on a 1:1 basis meaning 6 thereby interspacing the direct recruit amongst the promotees in such manner and not keeping promotees below the direct recruits. 15. It is further submitted that the decision of the authorities being contrary to the judgment rendered in N.R.Parmar which applies to a case were the decision has been taken by the authorities prior in time as the overruling of said judgment was held to be prospective in a recent decision rendered by the Supreme Court in Hariharan and others vs. Harsh Vardhan Singh Rao and others (SLP (C) No. 16161 of 2018) decided on 14.12.2022. 16. According to the counsel, even if the judgement rendered in N.R.Parmar has been overruled in K.Meghachandra Singh (Supra), but the point has been referred to a larger bench with categorical observation that such overruling is prospective in nature and cannot be applied to a thing or a decision taken on the basis thereof. 17. On the other hand, the counsel for the respondents submits that the law laid down in N.R.Parmar has been expressly overruled by larger Coram Bench in K.Meghachandra Singh and, therefore, the decision taken by the authorities cannot be said infirm and/or illegal. 18. It is further submitted that the decision taken by the authorities in creating a post for direct recruit and appointment having made much prior in time that of the date of regularization of the promotees, the decision rendered in N.R.Parmar is not applicable. 7 19. It is further submitted that even a subsequent decision rendered by the Supreme Court in Hariharan (supra) categorically held that, if the appointment has been made prior in time, the concept of respective year losses its significance and cannot be applied. It is thus submitted that the appointees who were appointed prior in time may be in a relevant year has to be placed in the seniority list over the appointees whose appointment was made later. 20. The point involved in the instant writ petition is whether the person shall be placed in the seniority list on the basis of date of their appointment when the vacancy in the particular quota arose or to be placed in terms of the ratio laid down in N.R.Parmar if the vacancies arise in a relevant year. In N.R.Parmar the Apex Court was dealing a case relating to an interse seniority between a promotee and the direct recruits. It appears that the advertisement for the vacancy both for direct recruit as well promotees were notified and the recruitment process for the direct recruit was initiated by conducting written examination, but it took a longer time to complete the same as the result was declared in the second year after the said advertisement. In the aforementioned perspective it was held: “52. Having interpreted the effect of the OMs dated 7-2-1986 and 3-7-1986 (in paras 25 and 29 hereinabove), we are satisfied, that not only the requisition but also the advertisement for direct recruitment was issued by SSC in the recruitment year in which direct recruit vacancies had arisen. The said factual position, as confirmed by the rival parties, is common in all matters being collectively disposed of. In all these cases the advertised vacancies were filled up in the original/first 8 examination/selection conducted for the same. None of the direct recruit Income Tax Inspectors herein can be stated to be occupying carried- forward vacancies, or vacancies which came to be filled up by a “later” examination/selection process. The facts only reveal that the examination and the selection process of direct recruits could not be completed within the recruitment year itself. For this, the modification/amendment in the manner of determining the inter se seniority between the direct recruits and promotees, carried out through the OM dated 7-2-1986, and the compilation of the instructions pertaining to seniority in the OM dated 3-7-1986, leave no room for any doubt, that the “rotation of quotas” principle, would be fully applicable to the direct recruits in the present controversy. The direct recruits herein will therefore have to be interspaced with promotees of the same recruitment year.” 21. In K.Meghachandra Singh the identical dispute was raised and on interpretation of Rule 28 of the Manipur Police Service Rules, 1965 the Three Judge Bench of the Supreme Court held that the said rule expressly provided that the seniority should be counted from the date of the appointment and not from the stage when the process for appointment was issued in the following paragraph: “34. The judgment in N.R. Parmar is now to be considered in some detail as this is heavily relied on by the appellants’ counsel. At the outset it must however be cleared that the cited case had nothing to do with the MPS Rules, 1965 and that litigation related to the Income Tax Inspectors who were claiming benefits of various Central Government OMs (dated 22-12-1959, 07-02- 1986, 03-07-1986 and 03-03-2008). The judgment was rendered in respect of the Central Government employees having their own Service Rules. The applicable Rules for the litigants in the present case however provide that the seniority in the service shall be determined by the order in which appointments are made to the service. Therefore, the memorandums concerned referred to in N.R. Parmar which deal with general principles for determination of seniority of persons in the Central Government service, should not according to us, have any overriding effect for the police officers serving in the State of Manipur. 9 xxx xxx xxx 38. At this stage, we must also emphasize that the Court in N. R. Parmar (Supra) 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 in as much 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 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, where it was held that even upon empanelment, an appointee does not acquire any right. 39. The Judgment in N. R. Parmar relating to the Central Government employees cannot in our opinion, automatically apply to the Manipur State Police Officers, governed by the MPS Rules, 1965. We also feel that N.R. Parmar had incorrectly distinguished the long-standing seniority determination principles propounded in, inter-alia, Jagdish Ch.Patnaik, Suraj Prakash Gupta v. State of J&K and Pawan Pratap Singh v. Reevan Singh. 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 and consequently we disapprove the norms on assessment of inter-se seniority, suggested in N. R. Parmar. Accordingly, the decision in N.R. Parmar is overruled. However, it is made clear that this decision will not affect the inter-se seniority already based on N.R. Parmar 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 22. Thus the larger Coram Bench of the Apex Court expressly overruled the law declared in the N.R.Parmar as the person who was borne in the carder cannot be placed above the position of a promotee who is within the cadre. 23. In Hariharan (Supra) the Apex Court notice the earlier decision of the Three Judge Bench in case of M. Subba Reddy and another vs. AP State Road Transport corporation and others reported in (2004) 6 SCC 729 wherein it was held that the seniority shall be counted from the date of the appointment to the service or grade in the following: “6. Mr Rakesh Dwivedi, learned Senior Counsel appearing on behalf of the appellants submitted that the appellants had a right to be promoted within their quota during the years 1981 to 1987, when vacancies for promotees' quota became available. During this period, no direct recruits were available. Direct recruits became available in July 1988, November 1990 and June 1992. Appellant M. Subba Reddy was regularised from 27-12-1986 vide order dated 9-9-1988, when no direct recruits were available and, therefore, it was improper for the Corporation to place direct recruits above the promotees. It is the case of the appellants that the direct recruits cannot claim appointments from the date of the vacancy in their quota before their selection. It has been contended that Item 3 of Annexure ‘A’ (Section B) prescribes the method of recruitment in the manner in which vacancy is allocated. According to the learned counsel it does not involve rota for the purposes of seniority. It prescribes only quota, therefore, rota cannot be implied. It was urged that seniority is dealt with only by Regulation 3 of the Service Regulations, 1964 and not by Regulation 34 of the Recruitment Regulations, 1966. Reliance was placed in this connection on Regulation 34 as amended on 15-9- 1995. It was submitted that in view of the said amendments, Annexure ‘A’ refers to only allocation of vacancy and not for determination of seniority. It was to be determined only by Regulation 3 of the Service Regulations. The non-availability of candidates in a particular category, it was urged, may be on account of ban on recruitment or on any other ground. Therefore, in the present case, where promotees were 11 regularised in the promotion quota when direct recruits were not available, the quota in Item 3(1) of Annexure ‘A’ will not apply. It was submitted that in any event, allocation of vacancy under the said clause was not rigid and it cannot be a basis for denying seniority to the promotees from the date of regularisation. Reliance was placed on the judgment of this Court in the case of Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra [(1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348 : AIR 1990 SC 1607]. 7. We do not find any merit in the above arguments. The appellants have not challenged the validity of the above regulations. As stated above, it has been contended before us on behalf of the appellants that Item 3(1) of Annexure ‘A’ (Section B) prescribes method of recruitment and the manner in which vacancy is to be allocated, which does not involve rotation for the purposes of seniority; that Item 3(1) of Annexure ‘A’ (Section B) prescribes only quota and rota cannot be implied. However, the appellants before the High Court unequivocally submitted that under the above regulations, promotions and direct recruitments were required to be made in the ratio of 1:1 and that the said regulations provided for a cycle in which vacancies were to be rotated. (See affidavit of M. Subba Reddy dated 28-12-1994.) In the said affidavit, it is further submitted that in the absence of direct recruits, the slots reserved for direct recruits were liable to be adjusted with the promotees immediately and subsequently arrived direct recruits should be given their positions in the seniority list subsequently in a bunch. In our view, the averments of the appellants before the High Court, if accepted, would result in complete violation of the quota-and-rota rule embodied in the above regulations, which cannot be permitted. As stated above, the appellants were promoted originally subject to the conditions envisaged in Regulation 34 and, therefore, they cannot claim seniority by ignoring the said regulations and on the basis of their officiating services. They were promoted temporarily under Regulation 30 which provides for ad hoc promotions. Regulation 34 ensures induction of qualified direct recruits. But for Regulation 34, candidates from feeder posts would be temporarily promoted to the slots reserved for direct recruits and on their regularisation, the quota prescribed for direct recruits will be defeated. Regulation 34 has been enacted to protect quota prescribed for direct recruits. As stated above, Regulation 3 of the Service Regulations has to be read with Regulations 30 and 34 of the said Recruitment Regulations. The appellants were promoted on temporary basis under Regulation 30 with the clear understanding that the period of officiation will not give them any right over direct recruits in future. It is for this reason that Regulation 30(6) states that if a 12 temporary promotee is subsequently promoted in accordance with the regulations, his probation will commence in the higher category only from the date of subsequent promotions. For the same reason, Regulation 34 states that revertees shall be subsequently considered for repromotion against the quota of vacancies reserved for being filled by promotion. Therefore, Regulation 34 protects the quota prescribed for direct recruits. On reading Regulation 3 of the Service Regulations with Regulations 30 and 34 of the Recruitment Regulations, it becomes clear that neither the date of promotion nor the date of selection is the criterion for fixation of seniority. The fixation of seniority under the above regulations depends upon the number of vacancies falling in a particular category. Therefore, the rule of rota is inbuilt in the quota prescribed for direct recruits and for promotees in terms of Item 3 of Annexure ‘A’ (Section B) to the Recruitment Regulations. In the present case, the above regulations prescribe a quota of 1:1, which leads to rota for confirmation. The fixation of seniority under the above regulations depends upon the number of vacancies against which promotees became due for promotion. In the case of Devendra Prasad Sharma v. State of Mizoram [(1997) 4 SCC 422 : 1997 SCC (L&S) 1053] Rule 25(iii) stated that the relative seniority of direct recruits and of promotees shall be determined according to rotation of vacancies between direct recruits and promotees based on the quota of vacancies reserved for direct recruitment and promotion. Rule 25(iii) is similar to Item 3(1) of Annexure ‘A’ (Section B). It was held by this Court that in cases where there is rotation of vacancies between direct recruits and promotees based on quota of vacancies, the rotation has to be considered in accordance with the vacancies as and when they accrue under the rules. Therefore, the quota rule needs to be strictly adhered to, if not, it would lead to absurdity. If the contention of the appellants is accepted, it would mean that the entire group of direct recruits will have to be placed below the entire group of promotees. We are of the opinion that having fixed the quota between the two sources of recruitment, there is no discretion with the Corporation to alter the quota or to deviate from the quota. In the circumstances, there is no merit in the argument of the appellants that Item 3(1) of Annexure ‘A’ (Section B) prescribes only quota and not rota and that the said item was not for determination of seniority. In the case of S.G. Jaisinghani v. Union of India [AIR 1967 SC 1427] this Court held that having fixed the quota between two sources of recruitment, it is not open to the Government to alter the quota or to deviate from the quota. In the case of Union of India v. S.D. Gupta [(1996) 8 SCC 14 : 1996 SCC (L&S) 811 : AIR 1996 SC 3325] the respondents were promotee Extra Assistant Directors (Class III) in Central Water Commission Engineering Class I Service. The Recruitment Rules were made 13 w.e.f. 15-10-1965. In the earlier litigation, the Tribunal found that one Shri V.P. Misra, Extra Assistant Director was promoted on ad hoc basis on 31-3-1978 and he was required to be confirmed with effect from the date on which vacancy was available to him in the quota of promotees. The vacancy had admittedly arisen in the quota of promotees on 3-5-1979. Shri V.P. Misra was fitted in that vacancy. While doing so, the Department applied the principle of rota and quota and determined the inter se seniority of promotees and direct recruits. Consequently, the promotees were pushed down in the order of seniority which led to the second round of litigation. The question which arose for determination before this Court was whether fitment of seniority determined by the Department was in accordance with the rules. The Court found that 60% of the vacancies were to be filled by direct recruits and 40% by promotees. Among the 40% quota, there was a further demarcation in the ratio of 25% and 15% between promotees and transferees. Admittedly, the promotees were entitled to their fitment within 25% quota. Vacancies for the promotees had arisen on 3-5- 1979 and, therefore, V.P. Misra was entitled to that vacancy which arose on that date. However, as stated above, in the integrated list, the promotees were pushed down. It was contended on behalf of the promotees that the direct recruits were not borne in the service when the promotees were promoted and equity requires that the promotees cannot be pushed down. This Court rejected the said argument by observing that the object of direct recruitment is to blend talent and experience. So long as the system continues, consequences are inevitable. Although the direct recruits were recruited later, their fitment in the order of seniority had to be determined with reference to rota and quota prescribed under the rules. In such a case, there was no illegality even when promotees were pushed downwards in the order of seniority. In our view, the judgment of this Court in S.D. Gupta case [(1996) 8 SCC 14 : 1996 SCC (L&S) 811 : AIR 1996 SC 3325] squarely applies to the facts of the present case.” (emphasis added) 24. It appears from the above noted decision that the fixation of a seniority has a linkage with the number of vacancy falling in a particular category and therefore, the role of rota is inbuilt in quota prescribed for direct recruit and for promotees. It is further held that for the purpose of fixation of seniority the relevant regulation of the 14 decision of the authority is a important factor to be taken into account more particularly on the number of vacancy against which the promotees became due for promotion. 25. It admits no ambiguity that where there is a rotation of vacancy between the direct recruit and the promotees based on the quota of vacancies such rotation has to be considered in accordance with the vacancies as and when it accrue under the rules. 26. In the instant case, a conscious decision was taken that the 50 percent of the vacancy shall be earmarked for direct recruits and remaining 50 percent to the promotees. It was further held that so far as the total number of sanctioned strength for the post of Assistant Sub Inspectors (Executive) is concerned, the vacancy for promotees were filled up and precisely for such reason the vacancy was declared to be filled up through direct recruitment. 27. The Constitution Bench of the Apex Court in Mervyn Countido and others vs.Collector of Customs, Bombay and others reported in 1966(3) SCR 600 was considering the case where 50 percent of the post was earmarked for direct recruits and other 50 per cent vacancy of post were earmarked for promotion and the promotees were put below the direct recruits. 28. An argument was advanced that the promotees who rendered longer service must be placed above the direct recruit who have much lesser service in comparison to them. 15 29. The Constitution Bench held that … “6. Before we come to what has been done in 1963 in the matter of fixing seniority of Appraisers, we may refer to two other circulars. The first is a circular of the Board issued in 1953. That circular in our opinion has nothing to do with the question of fixing of seniority as between direct recruits and promotees. Its main value is that it emphasises that the proportion fixed for direct recruits and promotees should be rigidly maintained. It also directs that promotion to higher grades should be made on the basis of a combined seniority list of both direct recruits and promotees. Then there is another circular of 1955. That circular again emphasises the rotational system and says that it has been decided that “inter se seniority of direct recruits and promotees in the grade of Appraisers should be determined in the order in which the vacancy in that grade is filled by a direct recruit or by a promotee according to the quota fixed for such appointments”. Stress has been laid on behalf of the petitioners on the words “is filled” in this circular, and it is urged that this means that until the direct recruit is actually recruited and fills the vacancy meant for a direct recruit he cannot get seniority from before the date he fills the vacancy merely on the ground of rotational system of fixing seniority. We do not think that this is the meaning of the words “is filled” used in this circular. We have already said that this circular also emphasises the rotational system in the matter of fixing of seniority and all that it means is that vacancies should be filled either by direct recruits or by promotees according to the quota fixed for such appointments. 30. In Hariharan (supra), the Apex Court held that the decision in K.Megachandra has prospective operation and if any list has already been prepared, in accordance with the ratio laid down in N.R.Parmar,the same should not be reversed and shall be governed by the said decision in the following 16 “32. In any event, the decision in the case of K. Meghachandra has a prospective operation. The seniority list of 7th September 2016 was made in terms of the decision in the case of N. R. 40 Parmar . Hence, the same could not have been altered on 13th February 2018 when the said decision was in force.” 31. We are not unmindful of the proposition of law that mere referring a point to a larger bench, the binding efficacy of the judgment cannot be effaced and there is not difficulty on the part of the court to rely thereupon pending answer to such reference. 32. It was noticed that in Hariharan & Ors.(supra) that if the decision which the authority on the basis of N.R.Parmar has been altered because of the judgment rendered in K.Megachandra such stand of the authority cannot be sustained because of the prospective overruling of N.R.Parmar. 33. In the instant case, it is a specific stand of the authorities that while fixing the seniority among the direct recruit and the promotees the ratio of 1:1 as held by N.R.Parmar is not applicable and hence not been insisted upon. Neither there is any alteration of the decision taken on the basis of N.R.Parmar by virtue of a subsequent decision rendered in K.Megachandra. The authorities have adopted the recourse in putting the person in the seniority list on the basis of the date of appointment and such conscious decision having taken on the basis of the vacancy having arisen which cannot be said to be infirmed. Thus, we do not find any merit in the instant writ petition. 34. The writ petition is thus dismissed. No order as to costs. 17 35. Urgent photostat certified copy of this order, if applied for, may be supplied to the parties upon compliance of usual formalities. ( HARISH TANDON, J.) I agree. (RAI CHATTOPADHAYA, J.) "