Madhya Pradesh High Court
Prem Narayan Mishra vs Principal Secretary The State Of Madhya ... on 29 November, 2012
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR.
W.P.No.12702/2010(s)
Prem Narayan Mishra & others.
-Versus-
The Principal Secretary, State of M.P. & others.
W.P.No.12703/2010(s)
Atul Kumar Mishra & others
-Versus-
The Principal Secretary,State of M.P. & others.
PRESENT : Hon'ble Shri Justice K.K. Trivedi.
Shri Sanjay K. Agrawal, learned counsel for the
petitioners.
Shri Sanjay Dwivedi, learned Govt. Advocate for the
respondents No. 1 and 2.
Shri V.S. Shroti, learned Senior counsel assisted by
Shri Vikram Johri, for the respondent No.3.
....[W.P.No.12702/2010(s)]
Shri Sanjay K. Agrawal, learned counsel for the
petitioner.
Shri Sanjay Dwivedi, learned Govt. Advocate for the
respondents No. 1 and 2.
Shri A.M. Trivedi, learned Senior counsel assisted by
Shri Ashish Trivedi, for the respondent No.3.
Smt. Gulab Kali Patel, learned counsel for
respondent No.4.
Shri A.K. Pathak, learned counsel for
respondents No. 5 and 6.
Shri V. S. Shroti, learned Senior counsel assisted by
Shri Vikram Johri, for the respondent No.8.
....[W.P.No.12703/2010(s)]
2
ORDER
( .11.2012) By these two petitions, the petitioners have called in question the validity of order dated 1.9.2010, by which the respondent No.1 has rescinded the order dated 27.7.2009 and has directed fixation of inter se seniority of the petitioner viz-a-viz private respondents, on the grounds that such an order could not have been issued by the respondent State giving unwarranted benefit of seniority to the persons like respondents. It is contended that the specific provisions of the amendment made in the Rules were not looked into and erroneously the benefit of appointment was extended to those who could not otherwise be appointed, only on the basis that certain observations were made by the Court for consideration of the claim of seniority of such respondents. It is contended that in terms of the law laid down by the Apex Court if the claims of persons like private respondents are considered, they would not be entitled to the benefit of seniority with retrospective effect, therefore, such orders issued in this respect are bad in law and are liable to be quashed.
2: There are other similar petitions filed by some of the persons who were similarly situated ventilating the grievance against the very same order. Yet two other writ petitions have been filed by one such person who is arrayed as respondent in Writ Petition No.12703/2010(s) and, therefore, all these petitions were heard together in a bunch. This Court has passed the specific orders relating to the claim made by one such person, namely, Shri Mukund Narain Trivedi, who has filed Writ Petition No.18517/2010 and who has been arrayed as respondent No.3 in Writ Petition No.12703/2010(s). The Scheme of the Rules has been considered various aspects have been taken into account and the matter has been finally disposed of. However as certain controversial facts are required to be adjudicated in these two writ petitions, this order is 3 being passed separately. For the purposes of this order, the facts are taken from Writ Petition No.12702/2010(s).
3: The grievance in these writ petitions is mainly that the services in the department are governed by the Rules known as M.P. State Forest Services (Recruitment) Rules, 1977 (hereinafter referred to as the Rules for brevity). There are yet another set of Rules framed in exercise of powers under the proviso to Article 309 of the Constitution of India by the State Government, prescribing General Condition of Service known as M.P. Civil Services (General Condition of Service) Rules, 1961 (hereinafter referred to as "1961 Rules" for short). It is contended mainly that if a person is not fulfilling the criteria laid down under the Rules to take part in the selection, he or she cannot be allowed to get the advantage of the same and also cannot get the benefit of seniority from the retrospective effect. This being so, if the provisions of 1961 Rules are looked into, at any rate, the petitioner cannot be said to be junior to these private respondents and as such, the order impugned is liable to be quashed.
4: Refuting such allegations, a return has been filed by the official respondents contending that in terms of the order passed by the erstwhile M.P. Administrative Tribunal where the claim was made by one such person with respect to the extension of age limit for the purposes of taking part in direct recruitment process initiated by M.P. Public Service Commission (hereinafter referred to as the "Commission" for short) and since such a direction was issued and ultimately decided, if the benefit is extended to said person, it could not be said that any illegality was committed. In fact, the said person had taken part in the selection held by the Commission in the year 1988 for recruitment in State Forest Services and thus, his appointment would relate back to the selection held in the year aforesaid. It is contended by the respondent State that if such an order is issued, benefit is granted, it cannot be said that any right available to the petitioner is jeopardised or taken away unauthorisedly. In view of these 4 submissions, it is contended that the writ petition is liable to be dismissed.
5: Again reiterating the same contentions as have been raised by the official respondents, the return has been filed by the respondent No.3 and it is contended that the claim was rightly made before the M.P. Administrative Tribunal, which was considered and as the said respondent was found to be eligible to take part in the direct recruitment process, on account of grant of age relaxation, the benefit was rightly extended to the said respondent. Once the seniority was given, under the provisions of the Rules if the orders were issued, it cannot be said that any right available to the petitioner was jeopardised. In view of this, it is submitted that the entire petition is based on misconceived and misleading facts and deserves to be dismissed.
6: After hearing learned counsel for the parties at length and after examining the records, it is clear that there was a complete confusion in the mind of the respondent State as to how the seniority is to be fixed in case of such persons who were inducted in the service. This has resulted in shifting the seniority of persons like respondents as also the petitioners, which has compelled them to approach this Court by way of filing different writ petitions. However, the analysis of the Rules, its application viz-a-viz fixation of seniority in terms of the provisions of 1961 Rules has to be examined and, therefore, the analysis of the Rules is necessary.
7: The constitution of the services is prescribed under Rule 4 of the Rules which prescribe that the services shall consist of the persons, recruited at the commencement of the services and who were holding substantively the post specified in Schedule-I. The persons recruited to the services before commencement of the Rules and the persons recruited after commencement of the Rules in accordance to the provisions of the Rules are also included in the constitution of the services. The method of recruitment is prescribed under Rule 6 of the Rules, which is by direct recruitment through a competitive examination and by promotion from the post 5 of Range Officer or equated post belonging to the sub-ordinate Forest services Class III Executive. The number of vacancies which are to be filled in by direct recruitment or promotion were to be determined on each occasion by the State Government in consultation with the Commission. All appointments to the services after commencement of the Rules were to be made in accordance to the provisions made under Rule 6 of the Rules.
8: The procedure of direct recruitment by holding a competitive examination is prescribed under Rule 8 of the Rules. The conditions of eligibility for direct recruitment are prescribed under Rule 9 of the Rules. Sub-rule (3) of Rule 9 of the Rules prescribes the physical fitness standard and sub-rule (4) of Rule 9 of the Rules prescribes the educational qualification. Under Rule 12 of the Rules, a list of candidates is to be prepared after holding a competitive examination by the Commission and the said list is to be arranged in the order of merit of candidates, who have qualified by such standard as the Commission may determine. Sub-rule (2) of Rule 12 of the Rules as existed to before its amendment specifically prescribes that the candidate will be considered for "training" against the available vacancies in order in which their names appeared in the select list, subject to the provisions of the Rules and the M.P. Civil Services (General Conditions of Service) Rules 1961 (hereinafter referred to as the Rules of 1961 for short). Sub-rule (3) of Rule 12 of the Rules prescribes that the inclusion of the name of a candidate in the aforesaid list will confer no right for training/appointment unless the Government is satisfied after such enquiry as may be necessary that the candidate is suitable in all respect for appointment to the services. Rule 13, 14 and 15 of the Rules are important for the purposes of interpretation of the Scheme of recruitment, therefore, the same are reproduced in full for better appreciation :-
"13. Training in Forestry.-(1) A candidate selected by direct recruitment shall be deputed to undergo a two years Diploma Course in Forestry at the Forest College Dehradun or any other 6 equivalent College as may be decided by Government, in the regular course next following his selection.
(2) Before joining the college, the selected candidate shall execute an agreement and a security bond in the prescribed forms.
(3) Tuition fees for the entire course and travelling allowance for the journey of the candidate from the place of training to the place of posting as also journey expenses during the course of training will be borne by Government. During the course of such training, Government will also grant such stipend and an equipment allowance as may be required under the College rules.
(4) A candidate who does not complete the training successfully and pass the examinations prescribed by the concerned College at the end of two years shall not be appointed to the Service and the terms and conditions of the agreement and the security bond executed by him shall be enforced against him.
14. Appointment.-(1) On successful completion of training, the candidate will be appointed on the post of Extra Assistant Conservator of Forest in the State Forest Service in the time scale of pay as given in Schedule 1:
Provided that candidate will be bound by any alteration or modifications which Government may make in regard to pay-scale and other conditions of service from time to time.
(2) Appointment will be made from the date following the date of Convocation. Salary shall be payable from the date of actual joining the service in the State.
(3) The period of training of two years will qualify for calculating the person of the officer concerned.
15. Probation for Direct Recruits.- A candidate appointed to the Service by direct recruitment will ordinarily be on probation for a period of two years. Probationers will be confirmed after two years subject to their fitness for confirmation and after having passed the prescribed departmental examination within this period."
9: A training is prescribed under Rule 13 of the Rules aforesaid, which makes it clear that the duration of the training would be two 7 years in a college of Forestry. A final selection of candidate is to be made for sending him for training by the State Government. The Commission is simply required to prepare a list of candidates, who have passed the written examination held by the Commission and the same is to be sent to the State Government. The Commission is not required to examine the physical fitness of such candidates. The physical fitness is to be examined by the State Government and as is prescribed under Sub-Rule (3) of Rule 9 of the Rules, a candidate is required to undergo not only the physical test, but also a walk for 26 kms to be crossed in four hours. Only when such a candidate is selected, the selection became final and such a candidate is required to be sent for training.
10 : The appointment is to be made only after completion of training on the post of Assistant Conservator of Forest in the State Forest service in the time scale of pay as mentioned in the Schedule. Earlier the provisions were made that the appointment will be made from the date following the date of convocation and the salary shall be payable from the date of actual joining the service in the State. A protection was given that the period of training of two years will qualify for calculating the same for the purposes of pension of the officer concerned. Rule 15 deals with the probation period of a direct recruit. It prescribes that a candidate "appointed" to the service by direct recruitment will ordinarily be on a probation for a period of two years. Thus, the Rule as existed to before its amendment was very clear that after selection by the Commission, the selected candidates were required to be examined physically and after successfully passing the said test by the candidates, they were required to be sent for training and on successful completion of training, they were to be appointed on probation of two years.
11 : The State Government made the amendment in the Rules on 12.7.1991. The amendment made in Rule 12(2) and (3) of the Rules completely change the nature of appointment. After the amendment, it was prescribed in Sub-rule (2) of Rule 12 of the Rules that subject to the provisions of the Rules and the Rules of 8 1961, the candidate will also be considered for "appointment" against the available vacancies in the order in which their names appear in the list. Similarly, in sub-rule (3) of Rule 12 of the Rules, it is provided after amendment that inclusion of name of a candidate in the aforesaid list will confer no right to appointment unless the Government is satisfied after such enquiry that the candidate is suitable in all respect for "appointment" to the service. Similarly, period of probation as prescribed in Rule 13 of the Rules, the training as prescribed in the College of Forestry and the provisions relating to probation of such appointees have been completely amended which are reproduced for better appreciation :-
(Amended Rules)
"13. Period of Probation:-
(1) Every person appointed to the service out of the list referred to in rule, 12 will ordinarily be on probation for a period of 4 years.
(2) The Government may, if it so thinks fit, extend the period of probation by a period not exceeding 1 year. (3) The Government may at any time during or at the end of the period of probation or extended period of probation discharge the probationer from service, if it is of the opinion that he is not likely to make himself a suitable officer.
14. Training in Forestry etc.-
(1) Every probationer shall on appointment be deputed to undergo a two years Diploma Course in Forestry at the Forest College, Dehradun or any other equivalent College as may be decided by the Government and to pass the prescribed examination at the end of two years.
(2) Before joining the said College the probationer shall execute an agreement and security bond in the prescribed form.
(3) The Government shall bear the cost on account of the tuition fees for the entire course and equipment allowance as required under the College rules.9
(4)(a)During the period of probation the probationer shall be paid the salary and allowances at the minimum of the time scale of pay as given in Schedule-1 and shall also draw travelling allowances as are applicable to officers of his grade.
(b) On satisfactory completion of probation the pay shall be fixed taking into account the probation period. However, in case of extension of period of probation the grant of arrears of pay will be subject to decision of Government which shall, while deciding this matter take note of the fact whether the probationer has diligently pursued the training course/programmes and that the period of probation was not extended because of any neglect or lack of diligence on the part of the probationer in the prosecution of his training course/programme.
(5) A probationer who fails to pass the examination as prescribed by the concerned College at the end of two years shall be afforded two more opportunities of appearing at and passing the same during the remaining period of his probation and if he fails to avail of these opportunities or pass the examination he shall be discharged from service and the terms and conditions of the agreement and security bond executed by him shall be enforced against him.
Note- The two additional opportunities referred to in this sub-rule shall have to be availed of by the probationer only during the period of his initial probation and not the extended period of probation.
(6) After undergoing training in the diploma course for two years the probationer shall undergo such further training in the State as is laid down and pass such departmental examinations as are prescribed.
(7) A probationer who fails to pass the prescribed departmental examinations shall be discharged from service. (8) On completion of the probation to the satisfaction of the Government the probationer shall be confirmed in the service.
1015. Special Provisions relating to probationers and persons undergoing training on the coming into force of these amendments:-
(1) Persons who have already been appointed on probation prior to coming into force of these amendments shall continue to be governed by the existing provisions of the rules.
(2)(a) Such persons who are undergoing training in the diploma course at the Forest College, Dehradun on the coming into force of these amendments shall be deemed to have been appointed on probation to the service with effect from the coming into force of these amendments.
(b) The period already spent on training by such persons shall be counted towards their probation and also for computation of their pension and inclusive of this period, the total period of their probation shall be 4 years as mentioned in sub-rule (1) of rule, 13.
(c) Other provisions of these amendments shall also apply to such persons but no amount on account of difference between salary or allowances and stipend shall be paid."
12 : The fixation of seniority in terms of the Rules of 1961, is completely changed in view of the amendment made by the State Government in the Rules. A comparative statement is required to be made to show what was the difference of the two Rules and how the seniority was required to be fixed :-
Fixation of seniority as per unamended Fixation of seniority after amendment in Rules the Rules.
(i) Protection of period of training was (i) From the day one persons sent on only for the purposes of calculating the training deemed to be appointed in the same for grant of pension, but no service Government service and is entitled to get seniority from the initial date of training. the benefit of service seniority as the same became the part of the probation period in terms of Rule 15(2)(b).
(ii) Salary from the date of joining in the (ii) Salary will be started from the date of State Services and not for the period of joining the training. training
(iii) Appointment has to be made after (iii) Deemed to be appointed in the successful completion of training Government service from the day one, when sent for training.11
13 : From the analysis of the difference in the two Rules referred to herein above, it is clear that those who were appointed under the unamended Rules were in fact sent for training and on successful completion of their training, they were to be appointed in the Government service. It is not known as to how the Rules were made applicable before their publication in the Gazette. Normally, the Rules are always made applicable from the date of publication in the Gazette. However, in the amendment in the Rules as referred to herein above, though specifically the application of the provisions were made in Rule 15 as amended, but it was not said that the same were to be implemented with retrospective effect. What was the protection granted to those who were appointed prior to the coming into force of the amendment is very clear in Rule 15 of the Rules. In case, the persons who were appointed on probation before the amendment came into force they were not going to be affected by the amendment made in the Rules. For them, the period of probation was only two years. Rest of the persons who were appointed after coming into force of the amendment in the Rules, they were required to undergo a period of probation of four years including the period of training. The difference between the two was that earlier the benefit of service rendered during training was not to be extended for the purposes of fixation of seniority, but after the amendment, the period of training was also included in probation and, therefore, the service seniority was to be counted from the date the person was sent on training. As is specifically provided in sub-rule (2) of Rule 15 of the Rules as amended, those who were undergoing training in the Diploma courses in the Forest College were deemed to be appointed on probation from the date of coming into force of the Rules as amended. However, the amendment was again not said to be made with retrospective effect. Though in the order prescribing amendment in the Rules, the date was mentioned to be 17.5.1991, but undisputedly, the Rules were published in the M.P. Gazette dated 12.7.1991. It is very clear as per the General Clauses Act that the Rules would come into operation only when they are published in the Gazette.
12Thus, from 12.7.1991, any appointment made was to be governed by the amended provisions of the Rules. No appointment could have been made prior to coming into force of the Rules, under the amended Rules as is specifically clear from Rule 15 of the Rules.
14 : Now the question would be, from which date the benefit would be given to the respondent No.3 in the present writ petition even pursuance to the order passed by competent authority for grant of benefit of seniority. Undisputedly, the respondent No.3 D.K. Paliwal, was not permitted to take part in the selection by the Commission because of the age relaxation which was not extended to him. He was required to approach the M.P. Administrative Tribunal by way of filing the Original Application. The said Original Application was not only entertained, an interim protection was granted and subsequently the same was allowed. It is not stated that such an order passed by the Tribunal was set aside by any higher Forum. If by virtue of an order passed by a judicial authority, permission was granted to the respondent No.3 to take part in the selection and in case he was allowed to be included in the selection and if he was extended the benefit of seniority with retrospective effect, nothing wrong could be alleged. The order in this respect was issued on 8.10.1993. Now in terms of the Scheme made by the State Government, had the respondent No.3 been allowed to take part in the selection as was held in the year 1988 and had he been selected, he would have been sent for training under the unamended Rules and would have been appointed in the year 1991 on probation on completion of two years of training. At least for him, the interim protection was granted by the Tribunal and it was said that one post of Assistant Conservator of Forest and one post of Forest Range be kept vacant. If a post was kept vacant for the respondent No.3 and if he was so appointed, the natural corollary would be that he would be deemed to be appointed on that post along with the persons who were so appointed through the very same selection process. Further, order so issued in respect of respondent No.3 herein on 8.10.1993 was never disputed. Therefore, it will be a case where benefit under the order of judicial 13 forum has been granted to the respondent No.3 and it cannot be said that any illegality is committed in that respect.
15 : If this situation is accepted, then how the seniority is to be fixed. The Rules do not prescribe any procedure for fixation of seniority. However, Rule 12 of 1961 Rules deals with fixation of seniority of a Government servant. 1961 Rules have been amended in the year 1998. Since this matter is relating to the seniority of direct recruits only, the relevant portion of Rule 12(a) are quoted herein below :-
"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."
16 : Rule 12 of 1961 Rules has been amended with effect from 2.4.1998, which period is not in consideration in these matters, 14 therefore, the amended provisions are not referred. As per the unamended provisions which were applicable in the case in hand at the relevant time if more than one persons have been selected for appointment on probation at the same time, the inter se seniority of the persons so selected has to be fixed according to the order of merit in which they are recommended for appointment by the Commission. In view of the litigation referred to herein above when ultimately the selection of respondent No.3 was finalised, the order dated 8.10.1993 was issued, giving placement in the said select list of 1988 in terms of the inclusion of the name of the said respondent by the Commission in the said select list. As the law was giving benefit of inter se seniority, it has to be granted in that manner. However, the period of probation of the said person would be said to be started after 1.4.1991 even if he was said to be appointed by a subsequent order because of the appointment of his batchmates. The Scheme of recruitment as has been referred to herein above will also grant the benefit of continuity of seniority.
17 : It is contended by learned counsel for the petitioner that the law well settled will make it clear that the respondent herein was not entitled to get the benefit of seniority and the respondents in other case against whom the claim is made would also not be entitled to the benefit of seniority. Placing reliance in the case of State of U.P. Vs. Rafiquddin and others (1988 SC 162), it is contended that once the select list is prepared and acted upon, the said select list cannot be used after result of subsequent examination is declared. It is contended that the law is further well settled by the Apex Court in the case of Rakhi Ray and others Vs. High Court of Delhi and others [(2010) 2 SCC 637], wherein manner of filling the vacancies have been described by the Apex Court and it has been said that unexhausted select list cannot be used for filling the vacancies which arose subsequent to issue of the advertisement. It is further contended that in the case of Pawan Pratap Singh and others Vs. Reevan Singh and others [(2011) 3 SCC 267], fixation of seniority criteria has been prescribed. If the date or year of the vacancy is made the criteria for fixation of seniority, the same would not be proper or justified.
1518 : As against these submissions, learned senior counsel appearing for the respondent No.3 in the present case contended that the law as has been made by the Apex Court has to be kept in mind. In case of Masood Akhtar Khan Vs. State of M.P. [(1990) 4 SCC 24], the law is well settled that once the recruitment is made, in terms of the select list prepared by the Commission seniority has to be fixed. It is contended that in case of Dr. A.R. Sirkar Vs. State of Uttar Pradesh and others [(1993) Supp(2) SCC 734], again the law is reiterated by the Apex Court with respect to the fixation of seniority and even the de facto doctrine has been taken note of by the Apex Court. In the case of Chairman, Puri RRB Vs. Anand Chandra Das [(1994) 6 SCC 301], the Apex Court has laid down specifically that the seniority amongst direct recruits has to be determined on the basis of ranking secured in the selection and not on the basis of date of joining duty. Placing reliance in the case of Sanjay Dhar Vs. State of J & K [(2000) 8 SCC 182], the learned senior counsel for respondents would contain that wrongful denial of appointment followed by appointment in a subsequent recruitment to the same post, would be treated to be justified appointment and seniority has to be determined in terms of such appointment.
19 : The aforesaid annunciation of law are perused. As has been pointed out herein above in the case of respondent No.3 herein, there was a litigation pending and for him a vacancy was kept reserved by order of the judicial authority. Ultimately, the respondent No.3 succeeded in the litigation. Even if the order of appointment was issued in his respect on a later date, for the folly on the part of the official respondent or even the Commission, the said respondent No.3 was not to be denied the benefit of fruits of litigation brought by him. Thus, in so far as his claim is concerned, appropriate orders were to be passed giving him seniority from the proper date. The reliance placed by learned counsel for petitioner on the law laid down by the Apex Court is totally misconceived as in the facts and circumstances available in the case in hand the aforesaid decisions are distinguishable. As far as the other 16 respondents are concerned, for them, by making appreciation of the Rules and by considering the relevant law, this Court has reached to the conclusion that rightful fixation of seniority has to be done keeping in mind the date of appointment on probation as per the amended Rule 15(3) of the Rules, in Writ Petition No.18517/2010(s).
20 : Resultantly, this writ petition is also disposed of with the similar directions in the same manner. Only the respondent No.3, who has got the benefit of orders from the judicial authority, will be deemed to be appointed under the unamended Rules and would rank senior over and above other appointees of the subsequent selections. For the rest of persons, arrayed as respondents in both the writ petitions, the necessary exercise be done as has been directed in the order passed in Writ Petition No.18517/2010(s).
21 : With the aforesaid, the writ petition stands disposed of. However, there shall be no order as to costs.
(K.K.Trivedi) Judge /11/2012 A.Praj.
17HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR W.P.No.12702/2010(s) Prem Narayan Mishra & others.
-Versus-
The Principal Secretary, State of M.P. & others.
W.P.No.12703/2010(s) Atul Kumar Mishra & others.
-Versus-
The Principal Secretary,State of M.P. & others.
O R D E R
Post it for /11/2012
(K. K.Trivedi)
Judge
/11/2012