Madhya Pradesh High Court
State Of M.P. vs Anand Kumar Jain And Ors. on 19 November, 1998
Equivalent citations: 1999(2)MPLJ134
Author: Shambhoo Singh
Bench: Shambhoo Singh
ORDER B.A. Khan, J.
1. State has filed this petition for setting-aside order dated 11-12-1997 passed by the State Administrative Tribunal in O.A.No. 182/96 restoring seniority of respondent No. 1 in the category of Dy. Collector from the date of his appointment and for fixing his such seniority at par with respondent No. 2 and for consequential promotion.
2. Notice of this petition was given to respondents on 19-8-1998 but though respondent No. 2 was served she has gone unrepresented. It transpires that respondent No. 1 filed O.A.No. 182/96 before the Tribunal claiming that his seniority was wrongly lowered down even though he was senior to private respondent No. 2. His case was that he was appointed as Dy. Collector on probation for two years vide order dated 11-6-1981 on the recommendations of the Public Service Commission. He claimed that he figured higher in order of merit in the merit list of the Commission and as such was to be treated senior to private respondent No. 2 Ku. Suraj Rokade. But he was pushed behind respondent No. 2 eventually. While this respondent was given higher pay-scale in 1987, he got it on 6-9-1989, even though he had cleared the departmental examination on 21-1-1987. He accordingly prayed that his seniority position be corrected and he be assigned proper place in the seniority list.
3. Petitioner-State resisted this petition by taking shelter under Rule 13(iii) of M. P. State Administrative Services (Classification, Recruitment and Conditions of Service) Rules, 1975 and Rules 8 and 12 of M. P. Civil Services (General Conditions of Service) Rules, 1961 and by submitting that respondent No. 1 was neither entitled to be confirmed in service on the post of the Dy. Collector from 1-7-1983, nor could his seniority be reckoned from the date of appointment as he had failed to clear the departmental examination within two years of his probation. It was pointed out that he had cleared the departmental examination on 21-1-1987 and was accordingly confirmed on 22-1-1987, much after the expiry of the probation period and thus his seniority was lowered down in accordance with Rule 12(a)(ii) of M.P.C.S.(General Conditions of Service) Rules, 1961 read with circular dated 30-5-1970 issued under Rule 13 of the other set up Rules i.e. Rules of 1975. It was further explained that he was considered by the D.P.C. on 9-3- 1993 for selection grade but was not found fit. He was later given this grade from 14-9-1994 after the next D.P.C. found him fit. Petition was also contested on the plea of latches as respondent No. 1 and approached the Tribunal after about 9 years.
4. The Tribunal on consideration of the matter and going by the judgment of this Court in Ashok Kumar v. State of M. P., 1996 M.P.L.S.R. 170 and Madhavn Prasad Dwivedi v. State of M.P., 1996 M.P.L.S.R. 405 and a Constitutional Bench judgment of the Supreme Court AIR 1990 SC 160 held in favour of writ-petitioner (respondent No. 1) by allowing his application and directed the petitioner-State to restore his seniority from the date of his appointment and give him consequential promotions and fix his seniority at par with respondent No. 2.
5. All that remained to be seen was whether Tribunal order could be faulted in the light of rule position or in the face of the Supreme Court judgment in Chandoria v. State of M. P., (1996) 11 SCC 172.
6. Though two sets of rules have been invoked, only the relevant Rules are extracted from one set which have a crucial bearing in the matter.
7. Rule 8 of 1961 Rules is pari materia with Rule 13 of 1975 Rules, reads thus :-
"8. Probation. -(1) A person appointed to a service or post by direct recruitment shall ordinarily be placed on probation for such period as may be prescribed.
(2) The appointing authority, may, for sufficient reasons, extend the period of probation by a further period not exceeding one year.
(3) A probationer shall undergo such training and pass such departmental examination during the period of his probation as may be prescribed.
(4) The services of a 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.
(5) The 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.
(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.
(7) A probationer, who has neither been confirmed, nor a certificate issued in his favour under sub-rule (6), nor discharged from service under sub-rule (4), shall be deemed to have been appointed as a temporary Government servant with effect from the date of expiry of probation and his conditions of service shall be governed by the Madhya Pradesh Government Servants (Temporary and Quasi- Permanent Service) Rules, 1960."
8. Similarly Rule 12 of these Rules provides as under:-
"12. Seniority. - The seniority of the members of a service or a distinct branch or group of posts of that service shall be determined in accordance with the following principles, viz. -
(a) Direct recruits. - (i) The seniority of a directly recruited . Government servant appointed on probation shall count during his probation from the date of his appointment:
Provided that if more than one person have been selected for appointment on probation at the same time, the inter se seniority of the persons so elected shall be according to the order of merit in which they were recommended for appointment by the Commission in those cases where the appointments are made after consulting the Commission, and according to the order of merit determined by the appointing authority at the time of selection in other cases,
(ii) The same order of inter se seniority shall be maintained on the confirmation of the normal period of probation. If, however, the period of any direct recruits is extended, the appointing authority shall determine whether he should be assigned the same seniority as would have been confirmed on the expiry of the normal period of probation or whether he should be assigned a lower seniority."
9. The two Rules, as would be apparent, from their 'heading' deal with the probation and seniority of a person appointed to a service or post by direct recruitment. Rule 8 provides that such a person be placed on probation for a prescribed period which may for sufficient reasons be extended for further one year. The probationer shall undergo such training and pass such departmental examination during the period of his probation as may be prescribed and if he fails to do so or if he is found unsuitable for service or post, his services may be terminated at the end of probation period. But if he successfully completes it and passes the prescribed departmental examination, he is to be confirmed in the service or post to which he was appointed. Where he is neither confirmed, nor discharged, he shall be deemed appointed as a temporary Government servant on the expiry of the probation period and his service conditions shall be governed by M.P.G.S. (Temporary and Quasi- Permanent Service) Rules, 1960.
10. It would be thus seen that though it is mandatory for the petitioner to pass the departmental examination during the period of his probation, but his failure can only entail his termination from service. The Rule does not envisage any bearing on the seniority position of the appointee, least of all its lowering down.
11. Rule 12 of 1961 Rules which is crucial for the determination of the point in issue provides for determination of seniority. It lays down that seniority of a direct recruit appointed on probation shall count during his probation from the date of his appointment. But in case more than one appointee stands appointed on probation at the same time, their inter se seniority shall be according to the order of merit in the merit list of the Commission or according to the order of merit determined by appointing authority at the time of selection in other cases. The same order of inter se seniority shall be maintained on the confirmation of the normal period of probation. But if the period of any direct recruit was extended, it would be open to the appointing authority to determine whether he should be assigned the same seniority and would have been confirmed on the expiry of normal period of probation or whether he could be assigned the lower seniority.
12. A careful reading and scrutiny of this Rule nowhere indicates that failure of an appointee to clear departmental examination constitutes any factor in the determination of his seniority in the service. Nor does it permit any lowering of the seniority on that count or as a matter of routine. It gives an option to the appointing authority for such lowering of seniority only where the probation period of such direct recruit appointee was extended.
13. It is firmly settled by now that once a person was appointed to a post according to Rules, his seniority was to be counted from the date of his appointment and not from the date of his confirmation or for that matter from the date of passing any departmental examination. If such appointment was not made according to Rules like an ad hoc or stop-gap arrangement, appointees' officiation period/post would not be reckoned towards his seniority. However, if he was still allowed to continue on the post uninterruptedly till confirmation of his service in accordance with Rules, his period of officiating service was to be counted. (See AIR 1990 SC 1607).
14. Mr. Chitale, LC for petitioner has staked his whole case on a Supreme Court judgment in Chandoria's case (1996) 11 SCC 173 to urge that Rule 12(a)(ii) empowered the appointing authority to lower down the seniority where the appointee had failed to qualify the departmental examination. It is true that judgment suggests so but since it does not give any resume of facts, therefore, it is not known whether the probation period of the appointee was extended in this case to bring him within the rigour of the aforesaid Rule. Therefore, it becomes difficult to overturn the applicant on the basis of the judgment (supra) which is distinguishable both on facts and Rule position. The same holds true about the Apex Court judgment in Mohanlal's case (1997) 4 SCC 416 which related to the fixation of seniority in the Excise and Taxation Department in terms of Rule 11 of the H. P. Excise and Taxation Service Rules.
15. In that case the Rule itself authorised the competent authority to pass any such orders as could have been passed on the expiry of the probation period in case such period was extended. But more than that the candidates themselves who had failed to clear the departmental examination during the probation period had prayed for fixation of their seniority from the date of passing examination and it was on that basis that Supreme Court had affirmed the position which could not be treated as a general preposition applicable to all cases of seniority determination de hors of respective Rule position.
16. Regard being had to all this, we hold that under Rule 12 of the M.P.C.S. (General Conditions of Service) Rules, 1961, the appointing authority could lower down the seniority of a direct recruit appointee only but optionally, if the probation period of such direct recruit was extended. Where no such order of extension was passed, the authority lacked the competence to assign lower seniority to such appointee.
17. Applying all this there is nothing to show that petitioner-State had passed any order extending probation period of respondent No. 1, which could be extended by maximum one year and, therefore, his seniority could not have been fixed either in reference to his date of confirmation in service or the date of qualifying the departmental examination. His seniority was liable to be determined in terms of proviso (ii) to Rule 12(a)(i) of 1961 Rules according to the order of merit in which he was placed by the Public Service Commission and he was liable to be placed ahead of private respondent No. 2 and assigned a higher position to her in the seniority list in the category of Dy. Collector, if found senior unless any other Rule intervened to provide otherwise.
18. Consequently we find no infirmity in the Tribunal order which is affirmed.