Punjab-Haryana High Court
S.K. Bhandari And Another vs Union Of India And Others on 25 February, 2011
Author: Ritu Bahri
Bench: Ritu Bahri
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.W.P. No. 4960-CAT of 2003
Date of Decision: February 25, 2011
S.K. Bhandari and another
...Petitioners
Versus
Union of India and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MS. JUSTICE RITU BAHRI
Present: Ms. Bindu Goel, Advocate,
for the petitioners.
Mr. K.K. Gupta, Advocate,
for respondent Nos. 2 and 3.
Mr. Vipin Mahajan, Advocate,
for respondent No. 4.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the
Digest?
RITU BAHRI, J.
1. This petition filed under Article 226 of the Constitution challenges order dated 2.9.2002 (P-5), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, 'the Tribunal') dismissing OA No. 234/CH/96 filed by the applicant- petitioners, wherein they have challenged the vires of Rule 9 of the Punjab Excise Subordinate Service Rules 1943 (for brevity, 'the Rules')[A-2] and also sought a declaration that seniority in the cadre of Taxation Inspector in the respondent department has to be determined on the basis of date of appointment/promotion. They C.W.P. No. 4960-CAT of 2003 2 further sought the relief of seniority over and above Shri Sher Singh-respondent No. 4
2. The undisputed facts of the present petition are that the applicant-petitioners Sarvshri S.K. Bhandari and Sukhdev Sharma were working as Steno-typist and Clerk respectively in the office of the Deputy Commissioner, Chanidgarh. On 9.3.1984, they were appointed as Taxation Inspectors on purely temporary basis in the office of the District Excise and Taxation Officer, Union Territory, Chandigarh (A-1). Their appointments were subject to the condition that they would be on probation for a period of one year and if during the period of probation their work or conduct in the opinion of the appointing authority is not found satisfactory, they would be reverted to their former posts. They were also required to pass the Departmental Examination prescribed by the Excise and Taxation Commissioner, U.T. Chandigarh, within a period of three years from the date of their appointment failing which they were to face reversion to their former posts. The applicant-petitioners completed the period of probation successfully on 8.3.1985 and qualified the departmental examination on 12.6.1986 within the stipulated period of three years.
3. Shri Sher Singh-respondent No. 4, who was working as a Steno-typist in the Chandigarh Administration Secretariat, was also appointed as Taxation Inspector by way of transfer, vide order dated 25.1.1985, subject to the same stipulations as were imposed in the case of the applicant-petitioners. He joined as such on 29.1.1985. He passed the departmental examination on 7.1.1986 earlier to the applicant-petitioners. On 4.6.1986, the Excise and Taxation Commissioner-respondent No. 3 passed an order of C.W.P. No. 4960-CAT of 2003 3 confirmation of respondent No. 4 against a permanent post of Taxation Inspector w.e.f. 26.5.1986 (A-4).
4. On 26.11.1987, the applicant-petitioners made a representation against the order dated 4.6.1986 pointing out that they were appointed as Taxation Inspectors prior in time and senior to Shri Sher Singh-respondent No. 4 and only because he had passed the departmental examination earlier, he could not have been confirmed against a permanent post and made their senior. The applicant-petitioners, thus, claimed that the seniority of respondent No. 4 be reckoned w.e.f. 29.1.1985 when he joined as Taxation Inspector. Therefore, they sought their confirmation as Taxation Inspector prior to Shri Sher Singh-respondent No. 4 (A-5). On 5.8.1988, the Excise and Taxation Commissioner-respondent No. 3 after examining the representation of the applicant- petitioners and noticing the factual position sent the matter to the Finance Secretary, U.T. Chandigarh, with the recommendation that the case of confirmation of Shri Sher Singh-respondent No. 4 may be reviewed and rectified by the Departmental Promotion Committee (A-6). The relevant portion of the communication dated 5.8.1988 reads thus:
" In the instant case the seniors (the representationist) have not been considered when a junior has been confirmed passing of departmental examination prior to the seniors no where gives a junior a right for confirmation when under the rules of Inspectors are required to pass the Deptt. Examination within a period of 3 years. In this case senior have not been given any notice, nor they were considered while C.W.P. No. 4960-CAT of 2003 4 confirming Sh. Sher Singh. As per case law reported in AIR Allahabad 276Z(V55)(69) Lucknow Bench in the case of K.B. Sharma s/o Ram Sarpur Vs. Transport Commissioner, UP, Lucknow, it has been held that orders determination of seniority and confirmation are notional and are revisable. No time limit can be fixed for the revision of orders each case depends on its own facts.
Keeping in view the facts of the instant case as discussed above and decision of the Allahabad High Court referred to earlier, it is recommended that the case of confirmation of Sh. Sher Singh T.I. may kindly be reviewed and rectified by the Departmental Promotion Committee."
5. On 13.2.1989, the applicant-petitioners sent a reminder for taking a decision on their representation and to fix their seniority (A-7). Instead of deciding their representation, on 26.7.1989, Shri Sher Singh-respondent No. 4 was given the power of Assessing Authority by virtue of his confirmation prior to the applicant-petitioners. Seeking quashing of orders dated 4.6.1986 and 26.7.1989 and direction to the official respondents to assign duties of Assessing Authority in preference to respondent No. 4, the applicant-petitioners filed O.A. No. 775/CH/89 before the Tribunal. The stand taken by the official respondents was that in the cadre of Taxation Inspector there were only 7 posts against which the incumbents could be confirmed. It was further asserted that since respondent No. 4 had passed the departmental examination prior to the applicant-petitioners, therefore, his case for confirmation was considered earlier. The respondents also raised the objection that C.W.P. No. 4960-CAT of 2003 5 the original application was barred by the period of limitation because the order of confirmation of respondent No. 4 was passed in June 1986 whereas the OA was filed in July 1989.
6. On 10.10.1995 (A-8), the Tribunal dismissed the aforementioned Original Application filed by the applicant- petitioners. It was found by the Tribunal that the parties are governed by the Punjab Excise Subordinate Service Rules, 1943 (for brevity, 'the Rules') and Rule 8 concerning confirmation provides that no member of the service could be confirmed in any post until he has served on that post on probation for a specified period, but no member on the completion of his period of probation be confirmed otherwise than against a permanent vacancy. On completion of period of probation, the appointing authority may appoint such members subsequently even with retrospective effect, if a vacancy exists. Thus, as per the said Rule the first condition for being substantively appointed to a substantive post is completion of probation. The second condition laid down under Rule 8 is passing of departmental examination. The Tribunal further found that the seniority of members of the service is governed by Rule 9 of the Rules, which stipulates that the service shall be determined by the date of their substantive appointment to a post. In the opinion of the Tribunal, the seniority is directly related to the substantive appointment i.e. by way of confirmation while determining the inter se seniority. Rule 9 further provides that if two or more members are confirmed on the same date, their seniority would be determined by the Excise and Taxation Commissioner. The reasoning adopted by the Tribunal in dismissing the OA No. 775CH/89 is discernible in para 8 of the order C.W.P. No. 4960-CAT of 2003 6 dated 10.10.1995 (A-8), which reads thus:-
"8. Reading of Rules 8 & 9 shows that completion of probation successfully and passing of departmental examination make a person eligible for confirmation to the substantive post, as and when such a post became available in first week of January, 1986. This fact is also not disputed that in January, 1986, only respondent no. 4 had passed that departmental examination and none of the applicants could pass the same exam even though they had appeared with respondent no. 4 for the same. Applicants No. 1 & 2 having been appointed in March, 1984 had appeared for similar examination earlier also, though the dates of the same were not mentioned before us in January, 1986. Only one person from amongst the parties to this application was eligible. As discussed above, a person can be considered for confirmation to a substantive post falling vacant if he is eligible on the said falling of the vacancy after having successfully completed the probation period and having passed the departmental exam. Since respondent No. 4 was the only eligible person on the said date, we do not find that the respondents committed any illegality in considering his confirmation and thus confirming against the only available vacancy. It may some times happen that many persons may have both the qualifications of probation and passing of the exam, but a vacancy may not be available and they would not be confirmed. Similarly, a situation may arise that out of persons more than one, C.W.P. No. 4960-CAT of 2003 7 only person may have become eligible by fulfilling the said 2 conditions and others may not pass the departmental examination for quite some time. In the latter situation, it would be inequitable to deny confirmation to the person who is otherwise eligible for the same merely on the ground that some persons who had joined the post earlier to him are likely to pass the exam sometime in the future. The Rules being silent on this aspect, this appears to be the just and equitable interpretation in the present case."
7. On the issue of delay in filing the OA, the Tribunal returned the finding that the applicant-petitioners filed a representation in November 1987 and the same was forwarded by the Excise and Taxation Commissioner on 5.8.1988, which shows that the department was considering their plea even in August 1988. Accordingly, the Tribunal condoned the delay, if any.
8. Feeling aggrieved, the applicant-petitioners assailed the order dated 10.10.1995 (A-8) before Hon'ble the Supreme Court by filing S.L.P. (Civil) No. 24503/95, which was dismissed as withdrawn on 5.2.1996 (A-9). However, without expressing any opinion regarding vires of Rule 9 of the Rules that issue was left open. The order dated 5.2.1996 is reproduced as under:
" Heard learned counsel for the parties.
The Special Leave Petition is dismissed as
withdrawn. However, we make it clear that we are not expressing any opinion so far the vires of Rule 9 of the Punjab Excise Subordinate Service Rules, 1943 is concerned. That is left open."
C.W.P. No. 4960-CAT of 2003 8
9. Thereafter the applicant-petitioners against approached the Tribunal by filing OA No. 234/CH/1996 challenging Rule 9 of the Rules ultra vires of Articles 14 and 16 of the Constitution. They also sought a declaration that seniority in the cadre of Taxation Inspector has to be determined on the basis of date of appointment/promotion. The applicant-petitioners also sought the relief that they are to be placed senior over and above respondent No. 4 by taking into account their date of appointment as Taxation Inspector irrespective of the date of confirmation.
10. In the written statement filed before the Tribunal on behalf of the respondents the stand taken was that the OA was barred by the principle of resjudicata and the applicant-petitioners are estopped by their own act and conduct to re-agitate the matter time and again. Earlier O.A. No. 775-Ch/1989 was dismissed on 10.10.1995 and no fresh cause of action had occurred to them. They have already taken all the pleas in O.A. No. 775-ch/1989, which have been taken in the second original application. The benefit already approved and conferred by the statutory rules in the past cannot be taken away by challenging vires of Rule 9 of the Rules. Rule 8 envisages pre-requisite of qualifying the departmental examination for an official to be a member of the service of the Excise Department. Recruitment to the post of Inspector is made by direct appointment or by promotion. As per Rule 8 there is a condition for passing of departmental examination within a period of three years before becoming a member of the service and also for his substantive appointment. These Rules are applicable in this manner for all the members of the service for the last so many years. The applicant-petitioners having failed to qualify the C.W.P. No. 4960-CAT of 2003 9 departmental examination prior to respondent No. 4 could not have assailed Rule 9 of the Rules. Seniority, as per Rule 8 is subject to passing of departmental examination. It was further pleaded that after qualifying the departmental examination an Inspector becomes member of the service of the Excise Department. For substantive appointment in the department, qualifying departmental examination is mandatory as per Rules 8 and 9 of the Rules (P-2 & P-3).
11. The Tribunal first of all considered the issue whether the principle of res judicata would apply in the present case and find that the question of vires of the seniority rule was not decided in the earlier OA and Hon'ble the Supreme Court left the question open without expressing any opinion about the validity or otherwise of the said rule, therefore, the OA could not be dismissed on the ground that it is barred by the principle of res judicata. The other question which was formulated by the Tribunal was "whether the rule which reckons the seniority from the date of the substantive appointment is to be held as bad in law". After referring various judgments of Hon'ble the Supreme Court, the Tribunal upheld vires of Rule 9 of the Rules and dismissed the OA by holding that the inter-se seniority has to be determined with reference to the date of substantive appointment on the fulfillment of two conditions i.e. the successful completion of probation and passing of departmental examination. The observations of the Tribunal made in para 14 of the judgment reads thus:
"14. In the conspectus of the above decisions, we do not find any force in the contention of the learned counsel for the applicants that the seniority rule is C.W.P. No. 4960-CAT of 2003 10 vitiated on account of the introduction of the date of confirmation for determination of seniority. Rule 9 of the Rules of 1943, as it stands, cannot be said to be ultra vires of the Constitution. Passing of the test/departmental examination is one of the essential ingredients for a person to be the "member of the services" and to secure substantive appointment against an available permanent post. He, who passes the test first, will push down the one who has failed to do so. The interse seniority of the applicants and the respondent No. 4 has to be determined with reference to the date of substantive appointment on the fulfillment of the twin conditions mentioned above. In view of the positive rule, the seniority has to be regulated with reference to the substantive appointment which comes into being on the successful completion of the probation and passing of the departmental examination. The rule has been in existence for the last most than five decades and has been working well. We do not, therefore, propose to meddle with the service and to disturb the settled position. In our opinion, the existing seniority rule 9 is not hit by any constitutional mandate."
12. Ms. Bindu Goel has vehemently argued that the language of Rules 8 and 9 of the Rules do not prescribe that passing of the departmental examination is mandatory for the purposes of inter se seniority amongst the Taxation Inspectors. Referring to the explanation under sub-rule (1) of Rule 8, learned counsel states that confirmation of a member of the service would C.W.P. No. 4960-CAT of 2003 11 be against a permanent vacancy. Learned counsel further emphasised that Rule 8(3) lays down that after successful completion of period of probation the appointing authority may appoint such employee substantively with retrospective effect if the vacancy exists and if he has passed the departmental examination prescribed from time to time by the Excise & Taxation Commissioner. Rule 8(3)(iii) lays down a condition that without passing departmental examination within a period of three years a direct appointee is not liable to be retained. If appointment is by transfer, he is liable to be reverted. Confirmation of Taxation Inspector is directly linked with the availability of a permanent vacancy. Retention in service whether by direct or by transfer is based on successful completion of probation and passing of departmental examination. If both these conditions have been fulfilled then the Taxation Inspector is liable to be confirmed on availability of a permanent vacancy.
13. Learned counsel then drawn our attention to Rule 9 of the Rules which deals with seniority of members of service and stipulates that seniority of members of the service shall be determined by the date of their substantive appointment to a post in that class. In other words, it has been linked to date of confirmation on the post. Ms. Goel argued that linking the date of substantive appointment/confirmation to a post for seniority is against the settled principles of law. In that regard reliance has been placed on the judgments of Hon'ble the Supreme Court rendered in the cases of S.B. Patwardhan v. State of Maharashtra, Maharashtra, 1977 (2) SLR 235, Direct Recruit Class-
Class-II Engineering Officers' Association v. State of Maharashtra, Maharashtra, (1990) 2 SCC 715, 715, O.P. Garg v.
C.W.P. No. 4960-CAT of 2003 12State of U.P., U.P., JT 1991 (2) SC 359, Keshav Chandra Joshi v. Union of India, India, AIR 1991 SC 284. Reference has also been made by Ms. Goel to another judgment of Hon'ble the Supreme Court in the case of M.H. Patil v. State of Maharashtra, Maharashtra, (1999 (1999) 1999) 1 SCC SCC 249. In the said case their Lordships' of Hon'ble the Supreme Court examined a dispute concerning seniority list of Sub-Inspectors of Prohibition and Excise framed by the Government of Maharashtra. There also the seniority linked with date of passing a departmental examination. Rule 3 governing that service provided that seniority amongst the Non-gazetted Prohibition and Excise Officers and Clerks for the purpose of confirmation would be decided according to the dates of their passing the departmental examination held after completion of one year's continuous service in the Prohibition and Excise Department. In para 3 of the judgment Hon'ble the Supreme Court has observed as under:-
"3. The appellant contended that in view of this Rule the seniority for the purpose of promotion should be determined on the basis of the date of passing the examination. The High Court has negatived this contention relying upon the wording of Rule 3 which says that the seniority determined on the basis of the date of passing the departmental examination is for the purpose of confirmation only and not for any other purpose. The High Court has also pointed out the advantages which a candidate will derive by early confirmation if he passes the departmental examination earlier than his seniors. The High Court after considering the advantages which may flow from early confirmation under Rule 3, has held C.W.P. No. 4960-CAT of 2003 13 that Rule 3 will not affect the seniority on the basis of continuous officiation for the purposes of promotion provided the persons concerned have passed the departmental examination."
14. Learned counsel further argued that a combined reading of Rules 8 and 9 of the Rules would lead to a conclusion that after clearing the period of probation and passing the departmental examination a member of service could be appointed substantively with retrospective effect if a vacancy exists. Once the Rule making authority was conscious that confirmation of a member of service could be made with retrospective effect if a vacancy exists, it was conscious that confirmation was relatable to existence of a permanent vacancy. Passing of departmental examination and probation were two conditions to be fulfilled before confirmation. A plain reading of Rule 9 of the seniority was to be determined by date of substantive appointment to a post in that class. The Rule making authority has linked confirmation as the basis for determining seniority. Once the appointment has been made in accordance with Rules, seniority has to be counted from the date of such appointment and not from the date of confirmation. Where the initial appointment is not made by following the procedure laid down by the Rules the benefit of that service is not to be counted towards seniority e.g. if appointments are made on ad hoc basis. Where the initial appointment has been made by following the process as per Rules then linking the seniority with the date of confirmation is against the settled principle of law laid down by Hon'ble the Supreme Court.
15. Learned counsel for the respondents on the other hand C.W.P. No. 4960-CAT of 2003 14 sought to raise similar arguments which were raised before the Tribunal and already noticed in preceding para 10.
16. We have heard learned counsel for the parties at length and gone through the paper book with their able assistance. It would be profitable to first read Rule 8 and 9 of the Rules, which are as follows:-
"PART PART-
PART-III CONDITIONS OF SERVICE PROBATION OF MEMBERS OF THE SERVICE 8(1) No member of the service shall be confirmed in any post specified in Appendix 'A' (Except in the post of Excise Sub Inspector (time-scale) until he has served in that post on probation for a period of two years in the case of members recruited by direct appointment, or of one year in the case of members otherwise. Explanation: Continuous officiating service shall be reckoned as period spent on probation but no member be confirmed otherwise than against a permanent vacancy.
(2) If the work or conduct of any member during his period of probation is, in the opinion of appointing authority, not satisfactory the appointing authority may dispense with his service if he has been recruited by direct recruitment or may revert him of his former post if he has been recruited otherwise than by direct appointment.
(3) On the completion of the period of probation of any member, the appointing authority may appoint such member substantively, with retrospective effect if a C.W.P. No. 4960-CAT of 2003 15 vacancy exists, or, if his work or conduct has in the opinion of the appointing authority, not been satisfactory, the appointing authority may dispense with his services if he has been recruited by direct appointment, or revert him to his former post if he has been recruited otherwise than by direct appointment, or may extend the period of probation and thereafter pass such order as it could have passed on the expiry of the first period of probation.
(i) provided that the total period of probation, including extensions, if any, shall not exceed three years in the case of persons recruited by direct appointment, and two years in the case of persons recruited otherwise.
(ii) provided further that, without the sanction of the Excise and Taxation Commissioner to be given only for special reasons, no person shall be appointed substantive Sub Inspector time scale or leave reserve, unless he has passed the departmental examination prescribed from time to time by the Excise and Taxation Commissioner.
(iii) provided further that no person directly appointed to the service shall be retained in the service, unless he passes the departmental examination for Excise Sub Inspectors within three years of continuous officiating or substantive service from the date of his appointment."
SENIORITY OF MEMBERS OF SERVICE SERVICE
9. The seniority of members of the service shall, in so C.W.P. No. 4960-CAT of 2003 16 far as each class of posts specified in Appendix 'A' is concerned, be determined by the date of their substantive appointment to a post in that class.
Provided that if two or more members are confirmed in the same class of post on the same date, their seniority shall be determined by the Excise and Taxation Commissioner, whose decision shall be final."
17. A bare reading of Rule 8 of the Rules would clearly shows that the appointing authority has been given the power to confirm an employee against a permanent vacancy. Confirmation order can be passed with retrospective effect as per Rule 8(3). The maximum period of probation is three years for direct appointment and two years in the case of persons recruited otherwise. For direct recruits passing of departmental examination in three years for retention in service is mandatory.
18. In the present case, the applicant-petitioners and respondent No. 4 were appointed as Taxation Inspectors by way of transfer from the posts of Steno-typist/Clerk. Their appointments were purely on temporary basis and they were put on probation period of one year and required to pass the departmental examination within a period of three years from the date of their appointment failing which they were to be reverted to their former posts. The applicant-petitioner were appointed on 9.3.1984 (A-1) whereas respondent No. 4 was appointed on 25.1.1985. After completing the probation period and passing the departmental examination, respondent No. 4 was confirmed on as Taxation Inspector against a permanent post w.e.f. 26.5.1986, vide order dated 4.6.1986 (A-4). In this manner, respondent No. 4 has made a C.W.P. No. 4960-CAT of 2003 17 march over the applicant-petitioners on the ground that he had cleared the departmental examination before them. The Tribunal has dismissed the OA filed by them by holding that the seniority of an employee has to be determined in accordance with the Rules.
19. In absence of a Rule of seniority the length of service is taken into account for determining seniority. The principle of determination of seniority from the date of substantive appointment has been approved by Hon'ble the Supreme Court in the case of Keshav Chandra Joshi's case (supra). In this case, according to the rules seniority was to be determined according to the date of substantive appointment to the service and the same has been held to be valid. The principle laid down Keshav Chandra Joshi's case (supra) is that once an appointment has been made according to Rules the seniority has to be counted from the date of appointment and not according to the date of confirmation. This is the precise argument of the learned counsel for the applicant- petitioners in the present case. Linking the date of confirmation after passing departmental examination is not the intention of the Rule Making Authority. The interpretation given by the Supreme Court in Keshav Chandra Joshi's case (supra) that substantive appointment to a post would mean regular appointment as per Rules.
20. In the present case, the petitioners and respondent No.4 were appointed by way of transfer on the post of Taxation Inspector by following due procedure. There is no dispute of any irregular appointment. Appointment for all intents and purposes was regular and substantive. Therefore, the language of the Rule 9 which prescribes that seniority is to be determined by date of substantive C.W.P. No. 4960-CAT of 2003 18 appointment to a post should be read to mean date of initial appointment. The meaning prescribed in Rule 9 cannot be stretched to mean that date of confirmation of availability of a permanent vacancy was the criteria of determining seniority.
21. A combined reading of Rules 8 & 9 leaves no doubt that the Rule Making Authority had prescribed two conditions for retention in service i.e. (i) successful completion of probation; and
(ii) passing departmental examination. Power has been given to the Appointing Authority for confirmation of the employee retrospectively on availability of a vacancy. Confirmation in service on availability of a vacancy is an uncertain situation. In many cases, confirmation is not possible and the employees are promoted to higher posts. Therefore, to read the Rule of seniority by taking the date of confirmation would be against the settled preposition of law that once an appointment has been made as per Rules the date of initial appointment will be a substantive appointment and seniority has to be reckoned from initial appointment. The language of Rule 8 is very clear and suffers from no ambiguity. To interpret the language of Rule 9 of seniority the date of substantive appointment to a post will have to be read out to mean date of initial appointment. Substantive appointment as per the general language in the present case would relate to initial date of appointment. The intention of the Rule Making Authority would be affected if date of confirmation is taken as the basis for determining the seniority. In this manner, the intention of Rule Making Authority can be harmoniously read in Rule 9 to determine seniority as per substantive appointment/initial appointment to the post of Taxation Inspector. A harmonious reading of Rules 8 and 9 would lead to a C.W.P. No. 4960-CAT of 2003 19 conclusion that passing of departmental examination was a condition for retention in service. After passing the probation period successfully, confirmation can be made even with retrospective effect on availability of a post. When both the conditions are fulfilled i.e. probation and departmental examination, order of confirmation can be passed.
22. Rule 8(3) further provides that substantive appointment can be made by the Excise & Taxation Commissioner unless departmental examination prescribed has been cleared. Similarly, on completion of period of probation, substantive appointment can be made if a permanent vacancy exists. Reading of Rule 8 shows that the Excise & Taxation Commissioner can substantively appoint a person after clearing departmental examination. In Rule 8(3) substantive appointment can be made retrospectively after successful completion of probation. Both these Rules cannot read independently i.e. as per Rule 8(3)(ii) the Excise & Taxation Commissioner has the power to substantively appoint Sub Inspector if he has passed the departmental examination. The language of the Rule intends to lay down only condition for retention in the service. If an employee clears his departmental examination within one year of probation, his substantive appointment would be made by the Excise & Taxation Commissioner. In that event, he has to successfully complete the period of probation and on availability of a regular vacancy he can be confirmed. The language of these Rules therefore if interpreted that separate orders are to be passed for substantive appointment on clearing departmental examination and then clearing probation was not the intention of the legislature or the Rule Making Authority. In the case of Delhi Transport C.W.P. No. 4960-CAT of 2003 20 Corporation v. D.T.C. Mazdoor Congress, Congress, (1991 (1991) 1991) Supp.
Supp. 1 SCC 600, 600, Hon'ble the Supreme Court has laid down principles whereby provisions of Rule can be laid down in conformity with the intention of the legislation. In paragraph 121 of the judgment it has been observed as under:-
"It is true that there is no actual expression used enabling the legislation or the statute in question indicating the limitations or conditions as aforesaid. But it must proceed on the premise that the law making authority intended to make a valid law to confer power validly or which will be valid. The freedom, therefore, to search for the spirit of the enactment or what is intended to make a valid law to confer power validly or which will be valid. The freedom, therefore, to search for the spirit of the enactment or what is intended to obtain or to find the intention of the Parliament given the court the power to supplant and supplement the expressions used to say what was left unsaid. This is a power which is an important branch of judicial power, the concession of which if taken to the extreme is dangerous, but denial of that power would be ruinous and this is not contrary to the expressed intention of the legislature of the implied purpose of the legislation."
23. Applying the above principles enunciated by Hon'ble the Supreme Court it can be construed that the intention of the Rule making authority prescribing conditions of service on probation was that a member of service could be confirmed after completing the probation period successfully and after clearing the departmental C.W.P. No. 4960-CAT of 2003 21 examination. Confirmation has been restricted against a permanent vacancy. This has been given in Explanation to Rule 8(1) of the Rules. The applicant-petitioners have been regularly appointed on permanent vacancies after following due process of law. The availability of a permanent vacancy may lead to a period beyond probation and departmental examination. This would not mean that they would keep waiting for fixation of their seniority when regular vacancies become available. Once their initial appointment is substantive, their seniority has to be fixed keeping in view the date of their initial appointment. Hon'ble the Supreme Court in paragraph 118 has made the following observations:-
"Legislation, both statutory and constitutional, is enacted, it is true, from experience of evils. But its general language should not, therefore, necessarily be confined to the form that that evil had taken. Time works changes, brings into existence new conditions and purposes and new awareness of limitations. Therefore, a principle to be valid must be capable of wider application than the mischief which gave it birth."
24. On one hand Rule 8(3)(ii) gives power to the Commissioner to substantive appointment of Sub Inspector on completion of departmental examination and on the other hand in Rule 8(3) Appointing Authority can make substantive appointment with retrospective effect on completion of period of probation. In service jurisprudence after regular appointment has been made there is no scope for Appointing Authority to pass two orders, one for confirmation and other for substantive appointment on completion of departmental examination. This interpretation of C.W.P. No. 4960-CAT of 2003 22 Rule 8 would lead to absurd situation. Therefore, a harmonious interpretation of Rule 8 would be that after completing the probation period and departmental examination a member of the service can be confirmed on availability of a regular vacant vacancy. In the same manner, Rule 9 of the seniority cannot be interpreted to mean that the seniority would be from the date of substantive appointment. Substantive appointment as per Rule 8 is on two occasions, one on completion of examination and second on completion of probation period. Under Rule 8 substantive appointment as contemplated under Rule 8 cannot be made basis for fixing seniority under Rule 9. Under Rule 9 the substantive appointment is the initial date of appointment.
25. As a sequel of the above discussion, the instant petition succeeds. The judgment dated 2.9.2002 passed by the Tribunal is quashed. Rules 8 and 9 of seniority is read down to mean that seniority is to be determined by the initial date of appointment which is the substantive appointment to the post in the present case. The department is directed to reconsider the seniority of the applicant-petitioners afresh and pass appropriate orders within a period of three months from the date of receipt of a certified copy of this order.
(RITU BAHRI) (M.M. KUMAR)
JUDGE JUDGE
February 25,
25, 2011
rupi/Pkapoor