Madhya Pradesh High Court
State Of M.P. & Ors. vs Mahesh Pandey & Ors. on 9 September, 2014
Author: Anil Sharma
Bench: Anil Sharma
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION NO. 2986 OF 1999
State of M. P. & another Petitioners
versus
Mahesh Pandey & others Respondents
Present : Hon'ble Shri Justice Rajendra Menon
Hon'ble Shri Justice Anil Sharma
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Shri Rahul Jain for the appellants.
Shri Udayan Tiwari for respondent no. 1.
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ORDER
(9/09/14) As per Rajendra Menon, J:-
Challenge in this petition under Article 227 of the Constitution is made to an order dated 8 th March, 1999 Annexure P-1 passed by the M. P. State Administrative Tribunal, Jabalpur.
2. Respondent Shri Mahesh Pandey was appointed in the Department of Panchayat and Social Welfare on 28.11.80 on the post of 'Probation Officer'. He joined the service and was kept on probation for a period of two years. The other respondent nos. 2 to 9 were also appointed along with him but in the select list and the gradation list prepared after the appointment in the year 1980, respondent Shri Mahesh Pandey was kept at Serial No. 10 of the seniority list and the private respondents were kept at Serial Nos. 11, 12, 21, 15 and 16 respectively. It was his case that he is senior to the private respondents but while confirming the employees after completion of the period of probation, he was not confirmed on account of the fact that he did not pass the requisite 2 departmental examination.
4. However, the private respondents were confirmed before him and, therefore, they were placed higher in the gradation list and subsequently, they were granted promotion on the post of 'Superintendent Observation Home' on 9.08.84 Annexure P-3.
5. In the meanwhile, Shri Mahesh Pandey was granted adhoc promotion on the post of 'Superintendent Observation Home' but on account of his late confirmation, he was reverted to the post in the year 1990. Challenging his reversion and seeking promotion on the post of 'Superintendent Observation Home', the application was filed before the Central Administrative Tribunal. However, during the pendency of the application, he was promoted .
6. Be it as it may be, the fact remains that on account of his late confirmation on probation after completing the period of probation, he was made junior to the private respondents in the cadre of 'Probation Officer' and the Tribunal found that in the appointment order, there is no condition for passing of any departmental examination for the purpose of confirmation and holding that under Rule 12 of the M. P. Civil Services (General Conditions of Services) Rules, 1961 when the employee has completed the probation of two years, in the absence of any adverse remark etc. available on record, he is entitled for confirmation and as the service of an employee was not terminated during probation after completing the period of probation, accordingly, applying the principles in the case of Direct Recruitment Class II Engg. Officers Association & others Vs. State of Maharashtra (AIR 1990 SC 1607), the application of respondent no. 1 was allowed.
7. The Tribunal found that respondent no. 1 was entitled to be confirmed immediately after completing two years of probation and in the absence of any condition in the 3 appointment order for passing of any departmental examination, the said condition could not be imposed upon him and on account of not passing of departmental examination, his promotion could not be postponed. The Tribunal directed that if found fit, he be promoted to the post of 'Superintendent Observation Home' at par with that of other respondents.
8. Shri Rahul Jain invited our attention to Rule 8 and sub rule (5) and (6) of the M. P. Civil Services (General Conditions of Services) Rules, 1961 and argued that the service of the probationer who has not passed the departmental examination is liable to be terminated at the end of the period of his probation and he is only entitled for confirmation after passing of the departmental examination. It is further stated by Shri Rahul Jain that even if the order of appointment, there is no stipulation for passing of the departmental examination but in the circular dated 6.06.64, the statutory rules framed for the Social Welfare Department by the State of M. P. a condition for passing of the departmental examination is stipulated and it has been notified in the M. P. Gazette and as the respondent no. 1 has not passed the said examination, it is said that the Tribunal has committed an error in giving the direction in favour of respondent no. 1.
9. Placing reliance on a judgment of the Supreme Court in the case of M. P. Chandoria Vs. State of M. P. (1996) 11 SCC 173 and another judgment of the Supreme Court in the case of State of M. P. Vs. Ramkinkar Gupta and others (2000) 10 SCC 77, Shri Rahul Jain argued that under the statutory rule for promotion, an employee to be confirmed after successful completing the period of probation is required to pass all the prescribed departmental examination while on probation and as the respondent no. 1 in the present case did not pass the departmental examination as 4 contemplated in Annexure R-1, he is not entitled for confirmation and promotion.
10. Accordingly, Shri Jain argues that in the absence of the respondent no. 1 having not passed the departmental examination, he cannot be confirmed and in directing for his confirmation on the grounds indicated in the order, the Tribunal has committed an error and, therefore, he prays for interference into the matter.
11. Shri Udyan Tiwari, learned counsel appearing for the respondent employee took us through the order of the Tribunal, return filed by the respondent employee, to say that even though, the department has come out with a case in the matter of passing of the departmental examination but in the absence of any stipulation contained in the order of appointment mentioning about passing of the examination during the period of probation, the order passed by the Tribunal cannot be faulted with and it is further pointed out that respondent no. 1 has passed the departmental examination in the year 1985 and, thereafter, he has been confirmed and his name is incorporated in the seniority list but it is reiterated that in the absence of there being any rule or provision for passing of the departmental examination during the period of probation, the action of the petitioners is said to be unsustainable.
12. We have considered the submissions made and we have taken note of the detailed return filed by respondent no.
2. The only question warranting consideration before us is as to whether in the absence of there being any stipulation in the order of appointment prescribing a condition for passing of the departmental examination as a condition precedent for confirmation, whether the State Government can insist upon the respondent no. 1 for passing the departmental examination for the purpose of his confirmation.
13. In this regard, the provisions of M. P. Civil Services 5 (General Conditions of Services) Rules, 1961 may be taken note of. Rule 8 of the said rule provides conditions for appointment on probation. Sub-rule (1) of this rule contemplates that a person appointed to a service or post by direct recruitment shall ordinarily be placed on probation for such period as may be prescribed. Thereafter, sub-rule (4) contemplates that services of the probationer may be terminated during the period of probation if in the opinion of the appointing authority he is not likely to shape into a suitable Government servant. Further sub-rule (5) contemplates that services of a probationer who has not passed the departmental examination or who is found unsuitable for the service or post may be terminated at the end of the period of his probation . Thereafter, sub-rule (6) has been added by amending the provision w.e.f. 9.12.74 and this sub-rule (6) contemplates that on the successful completion of probation and passing of the prescribed departmental examination, if any, the probationer shall be confirmed if a permanent post is available. For the sake of convenience, sub-rule (6) of Rule 8 is reproduced hereinunder :-
(6). On the successful completion of
probation and passing of the prescribed
departmental examination, if any, the
probationer shall, if there is a permanent post available, be confirmed in the service or post to which he has been appointed , either a certificate shall be issued in his favour by the appointing authority to the effect that the probationer would have been confirmed but for the non-availability of the permanent post and that as soon as a permanent post becomes available he will be confirmed.
(Emphasis Supplied) 6
14. The Tribunal while considering the question has not adverted to consider this requirement of the statutory rule prescribing conditions for passing of the departmental examination by a probationer before his confirmation. The Tribunal was carried away by the fact that there is no condition in the appointment order and simply by referring to Rules 4 and 5 of the Rules of 1961 decided the matter but did not advert to consider sub-rule (6) which was already incorporated on 9.12.74 by way of an amendment.
15. Even though, in para 12 of the impugned order, the Tribunal refers to sub-rule (4) and (5) but the most important and relevant sub-rule (6) as reproduced hereinabove has not been considered. If the provisions of sub-rule (6) if taken note of, it would be seen that successful completion of the probation period and passing of the prescribed departmental examination are conditions precedent for confirmation of the employee and it is not in dispute that vide notification Annexure R-1, certain departmental examinations have been prescribed for confirmation of the employee, the Supreme Court has considered this question in the case of M. P. Chandoria (supra) and it has been held in this case that if a person does not pass the requisite departmental examination then the appointing authority is empowered to assign seniority in a lower level than the one which was assigned by the Public Service Commission. In the case of Ramkinkar Gupta (supra), it has been held by the Supreme Court that once the provisions of the Rules of 1961 contemplates successful passing of the departmental examination for confirmation of a probationer, ignoring the same, no confirmation and seniority can be granted.
16. Even though, Shri Udayan Tiwari, learned counsel appearing for respondent no. 1 argued that it was only in the year 1981 that respondent no. 1 was informed about passing of the departmental examination and before that no such 7 condition was imposed, but we could not accept the aforesaid contention for the simple reason, that requirement of passing of the departmental examination is a mandatory requirement for confirmation of a probationer as is evident from the Rules of 1961 and in view of the law laid down in the case of M. P. Chandoria (supra) and Ramkinkar Gupta (supra), therefore absence of information to the petitioner is of no consequence.
17. Accordingly, in the facts and circumstances of the case, and for the reasons indicated herein above, the impugned order dated 8 th March, 1999 - Annexure P/1 passed by the M.P. State Administrative Tribunal is quashed and it is held that respondent employee shall be entitled to seniority and other consequential benefits from the date of his confirmation after he had passed the departmental examination. On such consideration, in case he is entitled to any other benefit, he may be granted the same.
18. With the aforesaid, the petition stands disposed of.
(Rajendra Menon) (Anil Sharma) JUDGE JUDGE Vy*