Punjab-Haryana High Court
R.K. Sharma vs State Of Haryana And Others on 4 April, 2014
Bench: Hemant Gupta, Surinder Gupta
CWP No. 4891 of 2013 (O&M) and other connected cases [1]
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Date of decision: April 4, 2014
(i) CWP No. 4891 of 2013 (O&M)
R.K. Sharma ............Petitioner
Versus
State of Haryana and others ...........Respondents
Present: Mr. Anupam Gupta, Senior Advocate, with
Mr. Tejinder Joshi and
Mr. Shruti Sharma, Advocates, for the petitioner.
Ms. Shubhra Singh, DAG,Haryana,
for respondent Nos.1 & 2.
Mr. Puneet Bali, Senior Advocate, with
Mr. Abhinav Gupta, Advocate, for respondent No.3.
Mr. Rajiv Atma Ram, Senior Advocate, with
Mr. Arjun Partap Atma Ram, Advocate,
for respondent No.4.
Mr. Animesh Sharma, Advocate, for respondent No.5.
(ii) CWP No. 6028 of 2013 (O&M)
Om Parkash Sharma ............Petitioner
Versus
Union of India and others ...........Respondents
Present: Mr. Puneet Gupta, Advocate, for the petitioner.
Mr. O.S.Batalvi, Advocate, for respondent No.1, 3 & 4.
Ms. Shubhra Singh, DAG, Haryana, for respondent No.2.
Mr. Rajbir Sehrawat, Advocate, for respondent No.7.
Mr. Rajiv Atma Ram, Senior Advocate, with
Mr. Arjun Partap Atma Ram, Advocate,
for respondent No.8.
Mr. Animesh Sharma, Advocate, for respondent No.9.
Mr. Puneet Bali, Senior Advocate, with
M/s Ranjit Saini & Abhinav Gupta, Advocates, for
respondent No.10.
Singh Dalbir
2014.04.04 17:49
I attest to the accuracy of this
document
High Court Chandigarh
CWP No. 4891 of 2013 (O&M) and other connected cases [2]
(iii) CWP No. 5446 of 2013 (O&M)
R.K. Bhatia ............Petitioner
Versus
State of Haryana and others ...........Respondents
Present: Mr. Akshay Bhan, Senior Advocate, with
Mr. Alok Mittal, Advocate, for the petitioner.
Ms. Shubhra Singh, DAG, Haryana,
for respondent Nos.1 to 3.
Mr. O.S.Batalvi, Advocate, for respondent No.4.
Mr. Animesh Sharma, Advocate, for respondent No.5.
(iv) CWP No. 7397 of 2013 (O&M)
Surinder Singh ............Petitioner
Versus
Union of India and others ...........Respondents
Present: Mr. Ashok Aggarwal, Senior Advocate, with
Ms. Reeta Kohli, Advocate, for the petitioner.
Mr. O.S.Batalvi, Advocate, for respondent Nos.1, 3 & 4.
Ms. Shubhra Singh, DAG, Haryana, for respondent No.2.
Mr. Puneet Bali, Senior Advocate, with
M/s Ranjit Saini & Abhinav Gupta, Advocates,
for respondent No.6.
Mr. Rajiv Atma Ram, Senior Advocate, with
Mr. Arjun Partap Atma Ram, Advocate for the caveator.
(v) CWP No. 11955 of 2013 (O&M)
Rajesh Kumar Gulia ............Petitioner
Versus
State of Haryana etc. ...........Respondents
Singh Dalbir
2014.04.04 17:49
I attest to the accuracy of this
document
High Court Chandigarh
CWP No. 4891 of 2013 (O&M) and other connected cases [3]
Present: M/s D.S.Patwalia & Salil Sabhlok, Advocate,
for the petitioner.
Ms. Shubhra Singh, DAG, Haryana, for respondent No.1.
Mr. O.S.Batalvi, Advocate, for respondent Nos.2 & 3.
Mr. Rajiv Atma Ram, Senior Advocate, with
Mr. Arjun Partap Atma Ram, Advocate for the caveator.
(vi) CWP No. 27537 of 2013 (O&M)
Prashant Sharma ............Petitioner
Versus
State of Haryana and others ..........Respondents
Present: Mr. Puneet Bali, Senior Advocate, with
M/s Ranjit Saini & Abhinav Gupta, Advocates, for the
petitioner.
Ms. Shubhra Singh, DAG, Haryana,
for respondent Nos.1 to 3.
(vii) CWP No. 22798 of 2012 (O&M)
Rajesh Kumar Gulia ............Petitioner
Versus
State of Haryana etc., ...........Respondents
Present: M/s D.S.Patwalia & Salil Sabhlok, Advocate,
for the petitioner.
Ms. Shubhra Singh, DAG, Haryana,
for respondent No.1 to 3.
Mr. O.S.Batalvi, Advocate, for respondent No.4.
(viii) CWP No. 14858 of 2011 (O&M)
Suraj Bhan ............Petitioner
Versus
State of Haryana and another ...........Respondents
Singh Dalbir
2014.04.04 17:49
I attest to the accuracy of this
document
High Court Chandigarh
CWP No. 4891 of 2013 (O&M) and other connected cases [4]
Present: Mr. G.S. Bal, Advocate, for the petitioner.
Ms. Shubhra Singh, DAG, Haryana,
for respondent No.1.
Mr. O.S. Batalvi, Advocate, for respondent No.2.
(ix) CWP No. 4975 of 2013 (O&M)
Ranbir Singh Dhull ............Petitioner
Versus
State of Haryana and others ...........Respondents
Present: Mr. Vipin Mahajan, Advocate, for the petitioner.
Ms. Shubhra Singh, DAG, Haryana, for respondent No.1.
Mr. Rajiv Atma Ram, Senior Advocate, with
Mr. Arjun Partap Atma Ram, Advocate, for respondent
No.2.
Mr. Puneet Bali, Senior Advocate, with
Mr. Vaibhav Jain, Advocate, for respondent No.7.
Mr. Animesh Sharma, Advocate, for respondent No.8.
(x) CWP No. 5016 of 2013 (O&M)
Vijay Laxmi ............Petitioner
Versus
State of Haryana and others ...........Respondents
Present: Mr. G.S. Bal, Advocate, for the petitioner.
Ms. Shubhra Singh, DAG, Haryana, for respondent No.1.
Mr. Rajiv Atma Ram, Senior Advocate, with
Mr. Arjun Pratap Atma Ram, Advocate, for the caveator.
(xi) CWP No. 6128 of 2013 (O&M)
Rajesh Arya ............Petitioner
Versus
State of Haryana and others ...........Respondents
Singh Dalbir
2014.04.04 17:49
I attest to the accuracy of this
document
High Court Chandigarh
CWP No. 4891 of 2013 (O&M) and other connected cases [5]
Present: Mr. Sanjiv K. Tamak, Advocate, for the petitioner.
Ms. Shubhra Singh, DAG, Haryana,
for respondent Nos. 1 and 2.
Mr. Animesh Sharma, Advocate, for respondent No.12.
Mr. Puneet Bali, Senior Advocate, with
Mr. Vaibhav Jain, Advocate, for respondent No.15.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE SURINDER GUPTA
i) Whether Reporters of local papers may be allowed to see the
judgment?
ii) To be referred to the Reporters or not?
iii) Whether the judgment should be reported in the Digest?
Hemant Gupta, J.
This order shall dispose of CWP Nos.4891; 6028; 5446; 7397; 11955 & 27537 of 2013 and CWP No. 22798 of 2012 filed by the promotee members of the State Forest Services against the orders dated 25.5.2011 and 5.11.2012 passed by the Additional Chief Secretary, Government of Haryana; and CWP Nos. 14858 of 2011; 4975 of 2013; 5016 of 2013; 6128 of 2013; filed by the direct recruit members of the State Forest Services. Since the issue is common in all the writ petitions, all the cases are being taken up for decision together. However, for facility of reference, the facts are taken from CWP Nos. 6028 of 2013 and/or 4891 of 2013.
The Haryana Forest Department (State Service Group (B) Rules, 1980 (for short `the Rules') were published on 24.4.1980 after repealing the Punjab Forest Service Class-II Rules, 1941. All the petitioners were appointed after the commencement of the Rules either by way of direct recruitment or by way of promotion, therefore, it is these Rules which are applicable to all the members of the service. It may further be noticed that in terms of Rule 2(h) of the Rules, service means, the Haryana Forest Department State Service, Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [6] Group-B. In terms of Rule 3, the service comprises the posts as shown in Appendix-A. 66-2/3% of the posts are to be filled up by promotion amongst the Forest Rangers and 33-1/3% by direct recruits in terms of Rule 9 of the Rules. In terms of Sub-clause (2) of Rule 9, promotions are required to be made by selection in consultation with the State Public Service Commission on seniority- cum-merit basis, but the seniority alone shall not give anyone the right of appointment. It is Rules 11, 12 and 13 of the Rules, which require adjudication of this Court. For facility of reference, the same are extracted below:-
"11. (1) Every member of the Service shall within two years from the date of his appointment to the Service pass the departmental examination prescribed by the Government from time to time.
(2) If a member of the service passes the departmental examination before the date of his second increment falls due, then the said increment be released to him from the date the increment becomes due.
(3) If a member of the service passes the departmental examination after the date on which his second increment falls due, then the said increment should be given to him from the date following the last day on which the departmental examinations are completed. The increment shall be released with retrospective effect from that date but no arrears shall be paid for the past period.
(4) If a member of the Service fails to pass all the departmental examinations or any part thereof and is subsequently exempted by competent authority from passing the examination(s) his increments shall be released from the date he is given such exemption. The increment shall be released with retrospective effect but no arrears shall be paid for the past period.
12. (1) Persons appointed to any post in the Service shall remain on probation for a period of two years, if appointed by direct recruitment and one year, if appointed otherwise :-
Provided that -
(a) any period after such appointment spent on deputation on a corresponding or a higher post shall count towards the period of probation;
Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [7]
(b) any period of officiating appointment shall be reckoned as period spent on probation, but no person who has so officiated shall, on the completion of the prescribed period of probation, be entitled to be confirmed, unless he is appointed against a permanent vacancy.
(2) If, in the opinion of the appointing authority the work or conduct of a person during the period of probation is not satisfactory, it may,-
(a) if such person is appointed by direct recruitment, dispense with his services, and
(b) if such person is appointed otherwise than by direct recruitment -
(i) revert him to his former post; or
(ii) deal with him in such other manner as the terms and conditions of the previous appointment permit. (3) On the completion of the period of probation of a person, the appointing authority may -
(a) if his work or conduct has in its opinion been satisfactory -
(i) confirm such person from the date of his appointment if appointed against a permanent vacancy; or
(ii) confirm such person from the date when a permanent vacancy occurs, if appointed against a temporary vacancy, or
(iii) declare that he has completed his probation satisfactorily if there is no permanent vacancy; or
(b) if his work or conduct has in its opinion been not satisfactory-
(i) dispense with his services, if appointed by direct recruitment, if appointed otherwise, revert him to his former post or deal with him in such other manner as the terms and conditions of previous appointment permit; or
(ii) extend his period of probation and thereafter pass such order, as it could have passed on the expiry of the first period of probation:
Provided that the total period of probation, including extension, if any, shall not exceed three years.
13. Seniority, interse of members of the Service shall be determined by the length of continuous service on any post in the Service:
Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [8] Provided further that in the case of members appointed by direct recruitment, the order of merit determined by the Commission, shall not be disturbed in fixing the seniority :
Provided further that in the case of two or more members appointed on the same date, A member appointed by direct recruitment shall be senior to a member appointed by promotion." On 9.7.1999, 20 Forest Range Officers (including the petitioners) were promoted to the post of Haryana Forest Service Group-B, on purely temporary ad hoc basis. The services of 24 Officers, including the petitioners, were regularized on 18.9.2003 from the date mentioned against their names such as of Shri O.P.Sharma and Shri R.K.Sharma with effect from 9.7.1999, the day they were promoted on ad-hoc basis. Another order was passed on 16.1.2008, revising the date of regularization of services of certain other officers.
Later, on 26.6.2007, O.P.Sharma and R.K. Sharma were confirmed with effect from 7.4.2003 and 1.10.2005 respectively on the availability of permanent vacancies. The State Government passed an order on 9.3.2010 modifying the order dated 26.6.2007 so as to confirm the services of O.P. Sharma from 11.1.2001 and that of R.K. Sharma from 4.2.2005. Such order was again modified on 7.4.2010 in partial modification of the orders dated 26.6.2007; 18.6.2009 and 9.3.2010, consequently, the date of confirmation of R.K. Sharma was changed to 26.5.2003 while there was no change in the date of confirmation of O.P.Sharma. This order of 7.4.2010 was withdrawn on 16.11.2010. There is no dispute about the orders of confirmation and regularization of the services passed upto 16.11.2010.
However, it was the order Annexure P.8 passed on 25.5.2011, which led to the filing of a number of writ petitions. Such order was passed without granting any opportunity of hearing to the officers thereby affecting their rights. Some of the Officers invoked the writ jurisdiction of this Court. In CWP No. 21453 of 2010 filed by Shri Raj Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [9] Kumar Jhangra, a direction was issued to decide his representation. In pursuance of the orders passed in some other writ petitions filed by the Officers aggrieved against the order dated 25.5.2011, the learned Additional Chief Secretary to Government of Haryana, again considered the dates from which the Officers are to be regularized and confirmed in service. Such order was passed on 5.11.2012. It is the said order, which is also subject matter of challenge in the present set of writ petitions.
In the order dated 25.5.2011, the State Government has modified the order regularizing the services of the promotee officers and the order of confirmation dated 16.11.2010 relying upon the instructions issued by the Chief Secretary on 15.12.1971 in respect of consequences of not passing the departmental examinations. The learned Additional Chief Secretary found that many members of the service have failed to pass the departmental examination within the prescribed period; therefore, such employees are liable to be removed from service or reverted to the previous position in terms of the provisions of the Rules. Since such decision of the reversion from service was not taken at the appropriate time, therefore, by taking a lenient view, such employees are not being removed or reverted especially when they have passed the departmental examination at a later stage. However, interpreting the provisions of the Rules read with instructions dated 15.12.1971; it was held that the employees are entitled to regularization of their service and confirmation against the cadre post of service from the date of passing of the departmental examination. It was also noticed that no exemption was granted to the employees from passing the departmental examination within two years. It was observed that since the instructions and the provisions of the Rules escaped the notice of the authorities, therefore, the date of regularization and date of confirmation are required to be altered and were in fact altered. For example in the case of O.P.Sharma, his Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [10] date of regularization was taken as 31.10.2006 i.e. the day when he passed the departmental examination from the earlier date of 9.7.1999 and was not confirmed since permanent post was not available on that day.
The Additional Chief Secretary did not find any merit in the argument raised by the petitioners that regularization in service depends upon the availability of post and confirmation in service depends upon availability of a permanent vacancy and that date of passing of the departmental examination has nothing to do with the regularization and/or confirmation. It was held that the period prior to the passing of the departmental examination cannot be treated as satisfactory and as a result thereof, they were liable to be reverted to the previous posts in terms of Rule 12 of the Rules. Reliance was placed upon Rule 22 of the Punjab Civil Service (Executive Branch) Rules, 1930, wherein failure to qualify the departmental examinations contemplates the removal of names from the register of the candidates. It was observed as under:-
"In the aforesaid background, I do not merit the contentions of the petitioners that regularization in service depends on the availability of post and date of passing of departmental examination has nothing to do with the regularization. Admittedly, the petitioners remained on probation after appointment in service and they failed to pass the Departmental exam within the prescribed time which was mandatory. Therefore, the period upto passing of Departmental examination cannot be treated as satisfactory and as a result thereof under Rule 12 of the Rules 1980 they were liable to be reverted to the previous post in terms of the provisions of the services of the service Rules. For drawing an analogy, a reference could be taken from the employees governed by Punjab Civil Service (Ex. Br) Rules, 1930 wherein in view of Rule 22, if any candidate failed to pass the prescribed Departmental examination his name shall be removed from the register of candidates and from time to time the Governor of Haryana was pleased to revert various officers under these Rules. In view of Rule 21 of these Rules, the competent authority may determine whether the date of Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [11] appointment for purpose of these Rules shall be postponed by a prescribed period and seniority of officers appointed to the service shall be determined in accordance with order of their appointment. However, in the case of petitioners, they were not reverted to the previous posts and a lenient view taken vide impugned order dated 25.5.2011 through at that time, there was no bar for reverting them to the previous post as their probation period was not satisfactory on account of non passing of Department test within two years. In case they are confirmed on the post from the date of their appointment despite that they failed to pass the department examination within a prescribed period, it will be a premium upon their inability. I also do not find any merit in the contentions of the petitioner that they are required to pass the departmental examination before confirmation only when there is a provision in the relevant service Rule. The provision of the Rule 12 of the Rules 1980 contemplates completion of probation period satisfactorily and it has to be declared by the competent authority. In the case of the petitioners, the orders of confirmation were not passed by the competent authority for the reason that the period of probation was not found satisfactory. Even if maximum period of probation has expired and any order confirmation has not been passed, there cannot be any deemed confirmation merely because the said period has expired. Reliance is placed upon case titled Sankar Deb Acharya and others Vs. Biswanath Chakraborty and others, (2007)1 SCC 309. No doubt the seniority of the members of the service under rule 13 is to be determined by length of continuous service, however, the length of continuous service is to be taken from the date of regularization/confirmation of service is to be taken from the date of regularization/confirmation of service on the post. Fixation of seniority of the members of services is directly connected with the promotion to the higher post. A person who failed to pass the departmental exam cannot be considered as fit for promotion on the higher post. For the purpose of fixing seniority, if the length of continuous service is taken from the date of appointment instead of regularization/confirmation and promotion is given on the basis of such continuous length of service, it will again be a premium liability against the persons who becomes eligible for confirmation on satisfactory completion of probation period."
Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [12] The date of regularization i.e. substantive appointment in the cadre is relevant to determine the eligibility of the members of the service for promotion to the Indian Forest Service, as per the Indian Forest Service (Appointment and Promotion) Regulations, 1966. Such Regulations contemplate preparation of a list of suitable Officers of the State Forest Services for appointment to the service (IFS) including that the number of members of the State Forest Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned. For inclusion in the said list, the Committee has to consider the cases of members of the State Forest Service in the order of seniority provided that the Committee shall not consider the case of a member of the State Forest Service unless on the first day of January of the year for which the select list is prepared, he is confirmed in the State Forest Service and has completed not less than eight years of continuous service. [see Rule 5(2) of the Rules ].
The Select Committee constituted under Regulation 3, held its meeting on 4.5.2011 for preparing a list of members of the State Forest Services suitable for promotion for the vacancies which arose during the year 2008 and 2009. The Committee selected S/Shri O.P. Sharma, Ram Karan Sharma, Rajesh Kumar Gulia, Raj Kumar Bhatia as suitable for promotion against the vacancies of the year 2008, whereas in respect of 2009 vacancies, the Committee recommended the names of Malkiat Singh, Ved Parkash and Surinder Singh, as Officers suitable for promotion.
The order by the State Government passed on 25.5.2011 revised the date of regularization, resultantly; the promotee officers became ineligible for promotion for having less than 8 years of service to their credit in the State Forest Service. As a consequence thereof, the recommendations of the Select Committee were not accepted as the entire issue was required to be re-determined. Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [13] Some of the Officers, who were found suitable by the Select Committee, invoked the jurisdiction of the Central Administrative Tribunal. The Tribunal in its order dated 14.2.2013, inter-alia, observed that the challenge to the seniority list of the Officers, who are members of the State Forest Service is beyond the jurisdictional contours of the Tribunal and that such challenge is only competent before the High Court. It was further observed that the Original Application is not competent for want of challenge to the revised seniority list dated 25.5.2011 and also for want of non-impleadment of Shri P.S. Birthal as a party respondent. The Original Applications were found to be not competent and were found to be premature in view of the pendency of the controversy qua seniority in the High Court.
On the other hand, Shri P.S. Birthal, who was not considered by the Select Committee, filed another OA No. 792-HR-2011 before the Central Administrative Tribunal, Chandigarh Bench. The grievance was that he has been wrongly denied right of consideration for induction into the Indian Forest Service by the Select Committee in its meeting held on 4.5.2011. The stand of the State was that Shri Birthal was charge-sheeted under Haryana Civil Service (Punishment and Appeal) Rules, 1987, but the charge sheet had been dropped on 18.05.2011 i.e. after the meeting of the Select Committee and that he had become eligible for consideration and that the eligibility list of the State Forest Services placed before the Select Committee had consequently changed. It was, thus, found that the relief claimed by Shri Birthal having been granted, no further orders were called for in the Original Application.
We have heard learned counsel for the parties at length and find that the following questions arise for consideration:-
i) Whether the orders passed by the State Government through its Additional Chief Secretary Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [14] on 25.5.2011 and subsequently on 5.11.2012 are legally sustainable?
ii) If the aforesaid orders are not legally tenable, whether the recommendations of the Select Committee dated 4.5.2011 are required to be given effect to or the case of Shri Birthal, who was facing departmental inquiry on that day, is required to be considered from the day his immediate juniors were recommended in view of the subsequent dropping of the charge-sheet on 18.5.2011?
It is the first question which requires a detailed examination. The State Government through its Additional Chief Secretary has changed the date of regularization holding that failure to qualify the departmental examination is proof of unsatisfactory work and conduct, thus the officer cannot be said to have completed probation period prior to qualifying the departmental examination. For such conclusion reliance was placed upon the instructions dated 15.12.1971.
Para. 3 of the said Instructions contemplate that as soon as the Officer/official placed on probation has completed the period of his probation and in any case within 3 months thereof, a decision should be taken whether the probation was completed satisfactorily or not and if the probation was not completed satisfactorily, whether the original period should be extended or whether Government employee concerned should be discharged from service/reverted to his substantive post. It also contemplated that if more than three months lapse after the expiry of the maximum period of probation permissible under Service Rules, then it can result in presumption being drawn in favour of Government employee concerned that he has completed his Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [15] probation satisfactorily. The para. 4 of said Instructions was relied upon by the learned Additional Chief Secretary. It reads as under:-
"4. The exception referred to in para 3 above arises if there is a provision in the relevant Service Rules that a Government employee will not be confirmed unless he has passed the prescribed departmental examinations, or has been exempted from passing them. In that case a Government employee who has completed the period of probation/extended period of probation/maximum period of probation without a decision having been taken within the specified period as to whether the probation was completed satisfactorily or otherwise, but has not passed the prescribed departmental examinations, then his confirmation will be presumed (although the presumption will have to be drawn that he has completed the probation satisfactorily). In such cases confirmation can take place only after the departmental examination have been passed, or exempted from passing them has been allowed and not otherwise. Furthermore, if there is failure to pass the departmental examination (and there is not exemption from passing them) action by way of discharge from service or reversion to substantive rank can also be taken on that ground provided that is permissible under the relevant Services Rules."
A reading of the 1971 Instructions shows that they are applicable only if there is provision in the Rules that an employee will not be confirmed unless he has passed the prescribed departmental examination. The Punjab Civil Services (Executive Branch) Rules 1930 has such a condition that in the event of not qualifying the departmental examination, the name of the officer shall be removed (Rule 21). The Rules in the present case do not make the passing of the departmental examination as a condition precedent for confirmation. In terms of Rule 11, the consequences of not passing the departmental examination are the deferment of the annual increments. Sub Rule (2) contemplates that if the member of the services passes the departmental examination before the date his second increment falls due, then the said increment be released to him from the date the increment becomes due. Sub Rule (3) Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [16] contemplates that if the member of the service passes the examination after the date on which his second increment falls due, then the said increment should be given to him from the date following the last day on which the departmental examinations are completed and that the increment shall be released with retrospective effect from that date but no arrears shall be paid for the past period. Sub clause (4) deals with the situation of the failure to pass the departmental examination. It contemplates that the increment shall be released from the date of exemption if it is so granted, but no arrears shall be paid for the past period.
A reading of Rule 11 thus, leaves no manner of doubt that the failure to pass departmental examination is temporary withholding of increments and on qualifying the departmental examination, a member of the service regains his increments but without any arrears. Since the consequences of passing of the departmental examination is restricted to withholding of increments in the statutory rules, therefore, the Rule of qualifying the departmental examination is mandatory to earn increments only. No other consequence can follow from the reading of the Rules, in respect of regularization or confirmation of the services. A Rule can be said to be mandatory only to the extent of the consequences delineated such as withholding of the increments. Such consequences alone would follow.
The finding that the date of qualifying departmental examination is the date of regularization is untenable for another reason as well. The regularization i.e. promotion to the service as member of the State Forest Services is not dependent upon the qualifying of the departmental examination. The promotion to the State service is based upon seniority-cum-merit. Once promotion has been made keeping in view the Rules for promotion, of which departmental examination is not the criteria or a pre condition for promotion, then, the passing or non passing of such examination Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [17] cannot be taken into consideration for regularization. The act of regularization on a post is prior to the stage of even appearing in the examination.
Even if qualifying of the departmental examination is said to be a relevant part to determine the satisfactory service before confirmation, it would only mean that till such time, the officer has not passed the departmental examination, he may not be said to have completed the probationary period satisfactorily. But after the passing of the departmental examination, it would relate back to his initial promotion or appointment as the case may be. The date of qualifying the examination cannot be treated to be the date of appointment to the cadre, when the consequence of not qualifying the examination is only the withholding of increments. Therefore, once a member of the service qualifies the departmental examination, he will earn his increments without arrears and also be taken to have completed the probationary period.
The Constitution Bench in a judgment reported as The Chief Secretary to the Govt. of Mysore, Bangalore and another v. S.C. Chandraiah, etc., 1967 SLR (SC) 155, has examined the provisions of Mysore State Civil Services (Kannada Language Test and Departmental Examinations) Rules, 1962 and Mysore Secretariat Services Recruitment Rules, 1957. In the said case, it was held as under:-
"10. Orders issued by the Government dated February 23, 1954, July 17, 1956 and October 31, 1957 are also relied upon. But, as we have mentioned earlier, the said orders have been superseded by the Mysore Secretariat Services Recruitment Rules, 1957. that apart, the said orders did not lay down any such condition. After narrating the previous orders on the subject, the relevant order dated February 23, 1954, read:-
"All officials whether in First Division or Second Division, who have not passed the tests prescribed under Official Memorandum dated 14.5.1948 and Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [18] 24.8.1948 should pass then in terms of Government Order dated 15.6.1951 before 15.6.1954 and then take their chances for drawing further increments subject ot the orders that may be in force."
This order has nothing to do with promotion, but only withdrawing of increments.
xxxxx xxxxx The third order dated October 31, 1957, provides for the conduct of Local Service Examinations. Annexure II to that order prescribes some departmental examinations for the First Division Clerks, but does not mention that passing of those examinations is a condition for promotion.
These three orders dated February 23, 1954, July 17, 1956 and October 31, 1957, are at their best executive orders issued by the Government. They have no statutory force and they have been superseded by the Mysore Secretariat Services Recruitment Rules, 1957. Further, they do not lay down any conditions for promotion of Junior Assistant as Assistants.
xx xx xx
12. The result of the discussion may be summarized as follows: The executive orders passed before Octboer 31, 1957, were superseded by the Mysore Secretariat Services Recruitment Rules, 1957. Neither under the 1957 Rules nor under the 1962 Rules, the passing of departmental examinations and tests was made a condition for promotion of Junior Assistants as Assistants. No such condition was imposed on the respondents in the orders issued by the Government promoting them as Assistants. If so, in terms of the rule 10-A of the 1962 Rules, they could not be reverted to the grade from which they were promoted, as their promotions were not subject to the condition that they should pass the departmental examinations and the language test. The order of the High Court is, therefore, correct." Rule 12 requires the satisfaction of the appointing authority regarding the work and conduct of a member of the service. The period of probation shall not exceed three years in terms of the proviso to Rule 12 of the Rules. The Rules permit the appointing authority to dispense with the services of a person appointed by direct recruitment if his work and conduct is not satisfactory or revert him to his former post if such person is appointed otherwise than by direct Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [19] recruitment. The opinion of the appointing authority regarding the work and conduct has to be formed "during the period of probation"
which is two years or in the extended period of probation of three years. If an Officer has been permitted to continue beyond the maximum period of probation, it cannot be recorded that his work and conduct is not satisfactory in terms of sub rule (2). Sub clause (3) of Rule 12 deals with the situation of successful completion of period of probation. The Officer is to be confirmed from the date of his appointment, if appointed against a permanent vacancy or from the date of occurence of permanent vacancy, if appointed against temporary vacancy. The Clause (3)(a)(iii) permits the declaration of completion of probation period, even if there is no permanent vacancy.
The said provisions show that the date of qualifying the departmental examination is not relevant, but if he qualifies the departmental examination, the relevant date is the date of appointment. But if an Officer has been appointed against a temporary post, he is entitled to be confirmed from the date permanent vacancy accrues. But if the work and conduct is not satisfactory, the competent authority can pass an order dispensing with the services of a person and if appointed otherwise, revert him to his former post.
After the expiry of maximum period of probation, the confirmation is to follow only subject to availability of a permanent vacancy. The Constitution Bench in State of Punjab v. Dharam Singh, AIR 1968 SC 1210 held that if the maximum period of probation is prescribed, the officer is deemed to be confirmed. It was observed:
"5. In the present case, Rule 6(3) forbids extension of the period of probation beyond three years. Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [20] a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication".
In the larger Bench judgment reported as Samsher Singh v. State of Punjab, (1974) 2 SCC 831, the Supreme Court was examining a rule, which contemplated existence of a permanent vacancy before confirmation. In that case, the officers were charge sheeted and in terms of the rule, their probationary period was deemed to be extended till the conclusion of inquiry. The Court observed as follows:
"72. In this context reference may be made to the proviso to Rule 7(3). The proviso to the rule states that the completion of the maximum period of three years' probation would not confer on him the right to be confirmed till there is a permanent vacancy in the cadre. Rule 7(3) states that an express order of confirmation is necessary. The proviso to Rule 7(3) is in the negative form that the completion of the maximum period of three years would not confer a right of confirmation till there is a permanent vacancy in the cadre. The period of probation is therefore extended by implication until the proceedings commenced against a probationer like the appellant are concluded to enable the Government to decide whether a probationer should be confirmed or his services should be terminated. No confirmation by implication can arise in the present case in the facts and circumstances as also by the meaning and operation of Rules 7(1) and 7(3) as aforesaid".
In a recent judgment, while examining the earlier judgments on the issue in the case of Kazia Mohammed Muzzammil v. State of Karnataka, (2010) 8 SCC 155, the court held that it is the Rule of service which would determine the principle of deemed confirmation. It observed as:
"48. However, there will be cases where not only such specific rules, as noticed above, are absent but the rules Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [21] specifically prohibit extension of the period of probation or even specifically provide that upon expiry of that period he shall attain the status of a temporary or a confirmed employee. In such cases, again, two situations would rise: one, that he would attain the status of an employee being eligible for confirmation and second, that actually he will attain the status of a confirmed employee. The courts have repeatedly held that it may not be possible to prescribe a straitjacket formula of universal implementation for all cases involving such questions. It will always depend upon the facts of a case and the relevant rules applicable to that service".
The judgment reported as Sankar Deb Acharya and others v. Biswanath Chakraborty, (2007)1 SCC 309 has been wrongly applied by the learned Additional Chief Secretary. In the said case, the rule was that a probationer may not be confirmed until he has passed any test or examination. But in the Rules under consideration, the confirmation is not subject to qualifying the departmental examination as the proviso to Rule 12 (3)(a)(iii) deals with a situation of declaration of completion of probation period even if there is no permanent vacancy.
In the light of the judgments on the subject of confirmation of an officer in the cadre, we find that in view of the Rules fixing the maximum period of probation; and that the declaration of the successful completion of the probation period is not dependant on the availability of the permanent vacancy, we find that on qualifying the departmental examination, the probationary period would be deemed to be satisfactorily completed. But it cannot be said that the probation is completed from the date of qualifying the examination. The consequences of not qualifying the examinations are that of withholding of increments alone. Therefore, the order passed by the Additional Chief Secretary assigning the date of qualifying the departmental examination as the date of regularization is wholly arbitrary, unjust, capricious and not sustainable in law. Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [22] It may be stated that Rule 13 is the Rule of seniority, which contemplates that the seniority has to be determined by the length of continuous service on any post in the service. Though the Additional Chief Secretary was conscious of this fact, yet by giving a strange interpretation, it was observed that the seniority would be determined from the date of qualifying the departmental examination as an Officer becomes member of the cadre on such event only.
We find that the Additional Chief Secretary has re-written the Rules of seniority contained in Rule 13, which specifically stipulates that the seniority is to be determined by the continuous length of service. An Officer becomes member of the service from the date of promotion and not from the date of qualifying the departmental examination. The consequences of not qualifying the departmental examination are mentioned in Rule 11 and can be read into for the purpose of satisfaction regarding work in terms of Rule 12, but qualifying the departmental examination is not the starting point of determination of the seniority. Such findings that an officer who fails to pass the departmental examination cannot be considered fit for promotion to the higher post is wholly untenable, unjustified and contrary to the express language of the Rule.
Thus, we find that the orders passed by the Additional Chief Secretary on 25.5.2011 and 5.11.2012 are not sustainable in law. Consequently, the said orders are set aside, except to the limited extent of confirmation of the officers, who were not confirmed earlier in the above orders as discussed hereinafter.
Shri Birthal, one of the promotee Officers was facing a departmental inquiry when the Select Committee made its recommendation on 4.5.2011. It was on 18.5.2011, the departmental proceedings against Shri Birthal were dropped. Admittedly, a person junior to Shri Birthal was considered by the Select Committee in its meeting on 4.5.2011. As a consequence of dropping of disciplinary Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh CWP No. 4891 of 2013 (O&M) and other connected cases [23] proceedings against Shri Birthal, he is entitled to be considered for appointment to the Indian Forest Service. Since he has not been considered, the Select Committee shall consider Shri Birthal for appointment to the Indian Forest Service from the day his immediate junior was considered and recommended for appointment. Since the services of Shri Birthal have been confirmed for the first time in the order dated 25.5.2011, and that such order of confirmation is not the subject matter of dispute by any person, therefore, though the orders dated 25.5.2011 and 5.11.2012, are not sustainable, but the same shall not affect the confirmation of the service of Shri Birthal.
In view thereof, the recommendations of the Select Committee dated 4.5.2011, are required to be accepted by the State and Union Governments, subject to the consideration of the claim of appointment of Shri Birthal from the day his junior has been recommended for appointment.
Consequently, all the writ petitions are allowed in the above terms.
[ HEMANT GUPTA ] JUDGE [ SURINDER GUPTA ] JUDGE April 4, 2014 ds Singh Dalbir 2014.04.04 17:49 I attest to the accuracy of this document High Court Chandigarh