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Madhya Pradesh High Court · body

2007 DIGILAW 44 (MP)

Rameshwar Khare v. State of M. P.

2007-01-15

R.K.GUPTA

body2007
ORDER R.K. Gupta, J. 1. Petitioner by way of filing the original application before the Tribunal has prayed for a relief of conferring seniority above the Respondent No. 2. Petitioner has also prayed for a writ of mandamus to command the respondents to treat the petitioner as confirmed with effect from 1-1-1991 instead of 22-1-1992, which is clear from Annexure A-3 and accordingly prayed for modification of the said order. Petitioner has also prayed for writ of mandamus commanding the Respondents to give him senior scale treating his position in the seniority above the Respondent No. 2. 2. The facts leading to the present case are that petitioner by way of order Annexure A-1 dated 12-12-1988 was appointed on probation for a period of two years. Petitioner in para-6.3 of the petition has also stated that he was required to pass the departmental examination which he cleared in January, 1992. The result of the said examination was declared by Notification dated 23-5-1992 and the result is filed as Annexure A-2 to the petition. It is the claim of the petitioner that though he has completed his probationary period successfully on 31st December, 1990 and was entitled to be confirmed from 1-1-1991 but it was not done. Therefore, petitioner is entitled to count his seniority from the date he has completed his probation. 3. So far as Respondent No. 2 is concerned, he was also appointed on probation on 2-1-1989. He also appeared in the departmental examination which was necessary. He has cleared the said examination on 2-1-1991 and accordingly he has been assigned the date of confirmation from 2-1-1991, which is clear from the order dated 13th September, 1994 filed by the petitioner as Annexure A-3. In the said order dated 13th September, 1994, in paragraph-3 it is specifically mentioned that since one Shri Ashok Goyal as well as petitioner have passed the departmental examination after the period of three years from the date they were appointed, therefore, their date of confirmation shall be in accordance with the same. In para-2 of the said order (Annexure A-3), it is also stated that since the Respondents No. 2 to 7 have passed the requisite departmental examination within a period of three years, therefore, on that basis their date of confirmation is also determined. In para-2 of the said order (Annexure A-3), it is also stated that since the Respondents No. 2 to 7 have passed the requisite departmental examination within a period of three years, therefore, on that basis their date of confirmation is also determined. It is also stated that the inter-se seniority of the aforesaid persons excluding Shri Ashok Goyal and petitioner shall be in accordance with the merit list prepared at the time of selection by the Public Service Commission. 4. The question with regard to determination of seniority after passing the departmental examination has received consideration by the Apex Court in State of M. P. v. Ramkinkar Gupta and others, 2000(10) SCC 77 and also in M. P. Chandoria v. State of M. P. and others, 1996(11) SCC 173 . In the aforesaid cases, the question in relation to a direct recruit for conferring seniority from the date of passing the requisite examination or from the date of joining, was directly involved. The Apex Court in para-5 of its judgment in M. P. Chandoria's case (supra) has held as under: Under Rule 12, the seniority of the members of the service of a district branch or group of posts of that service, shall be determined in accordance with the principles laid down therein. Sub-clause (i) of Clause (a) envisages that the seniority of a directly recruited Government servant appointed on probation shall count during his probation from the date of his appointment; the proviso is not relevant. Sub-clause (ii) envisages that the same order of inter se seniority of direct recruits is maintained by confirmation of the normal period of probation. If, however, the period of probation of any direct recruit is extended, the appointing authority should determine the date from which the candidate should be assigned seniority. Until the probation period is completed and he'is confirmed in the post, he does not become a member of the service on successful completion of the probation and passing of the prescribed tests or conditions precedent to declaration of completion of the probation period. So, mere passage of time of one year does not entitle a probationer to be a member of the service. He remains to be on temporary service. On completion of probation period, the appointing authority should confirm him in a pending post available or grant him a quasi-permanent status. So, mere passage of time of one year does not entitle a probationer to be a member of the service. He remains to be on temporary service. On completion of probation period, the appointing authority should confirm him in a pending post available or grant him a quasi-permanent status. As soon as the post is available, he should be confirmed. In view of the admitted position that he did not pass the test, the appointing authority considered that his seniority would be counted w.e.f. the date of his passing the test. Rule 12(a)(ii) clearly empowers the appointing authority to assign, in these circumstances, the seniority in lower level than the one assigned by the Public Service Commission. We do not find any illegality committed by the authorities in giving seniority from the date of his passing the test. 5. Learned counsel for the petitioner submitted that in the present case, the probationary period of the petitioner was not extended and he continued to work. Therefore, in pursuance to Rule 8, Sub-rule (6) of the M. P. Civil Services (General Conditions of Service) Rules, 1961, a certificate in favour of the petitioner has to be issued that he has already completed the probationary period. Accordingly, he has to be confirmed on a vacant post as soon as a permanent post becomes available. The aforesaid Rule 8, Sub-rule (6) is reproduced as under: 8. Probation- (6) On the successful completion of probation and passing of the prescribed departmental examination, if any, the probationer shall, if there is a permanent post available, be confirmed in the service or post to which he has been appointed, either a certificate shall be issued in his favour by the appointing authority to the effect that the probationer would have been confirmed but for the non-availability of the permanent post and that as soon as a permanent post becomes available he will be confirmed. A bare reading of the aforesaid Rule shows that a certificate in favour of incumbent appointed on probation, on completion of the probation period and passing of the prescribed departmental examination has to be issued. The said certificate is not to be issued merely because incumbent has completed the probationary period. 6. The respondent-State in the present case has already issued order Annexure A-3 by which petitioner has been given seniority from the date he cleared the examination i.e. 22-1-1992. The said certificate is not to be issued merely because incumbent has completed the probationary period. 6. The respondent-State in the present case has already issued order Annexure A-3 by which petitioner has been given seniority from the date he cleared the examination i.e. 22-1-1992. The impact of Rules 8 and 12 of the aforesaid Rules of 1961 is that there is no deemed confirmation. 7. The case of the petitioner himself in para 6.3 of the petition is that petitioner was required to pass the departmental examination. If, this is the case of the petitioner that he was required to pass the departmental examination and has cleared it in January, 1992 then this Court does not find any illegality in the order Annexure A-3 confirming the petitioner from the date he cleared the departmental examination i.e. 22-1-1992. 8. The Apex Court in Ramkinkar Gupta's case (supra) considered this eventuality also where the person is allowed to continue in service after the period of probation and was confirmed subsequently and in paragraphs 8, 9 and 10 of its judgment held as under: 8. Rule 12 of the said rules deals with the question of fixation of seniority. The relevant portion of the said rule is as under: 12. Seniority.- The seniority of the members of a service or a distinct branch or group of posts of that service shall be determined in accordance with the following principles, viz. - (a) Direct recruits.- (i) The seniority of a directly recruited Government servant appointed on probation shall count during his probation from the date of his appointment: * * * (ii) The same order of inter se seniority shall be maintained on the confirmation of such direct recruits if the confirmation is ordered at the end 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 be assigned to him if he had been confirmed on the expiry of the normal period of probation or whether he should be assigned a lower seniority. 9. 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 be assigned to him if he had been confirmed on the expiry of the normal period of probation or whether he should be assigned a lower seniority. 9. According to Sub-clause (ii) of Clause (a) of Rule 12 in case like the present where a person had been allowed to continue in service after the period of probation had been completed and he is confirmed subsequently, it is for the appointing authority to decide as to from what date he should be assigned seniority. In the present case the decision of the State Government was that he should be assigned seniority w.e.f. 19-1-1984. The aforesaid rules have been considered by this Court in the case of M. P. Chandoria v. State of M. P. The principle laid down by this Court in Chandoria case was that if a person does not pass the test then the appointing authority is empowered to assign seniority in a lower level than the one which was assigned by the Public Service Commission. That being so the decision to assign seniority to Respondent No. 1 w.e.f. 19-1-1984 is in accordance with rules. 10. Mr. Verma, however, contends that Rule 12 Clause (a)(ii) postulates a speaking order being passed in order to assign a lower seniority to Respondent 1 not w.e.f. 11-2-1982 but w.e.f. 19-1-1984. It appears that a representation was made for the first time by Respondent 1 on 5-12-1990. Apart from the fact that the said representation was very belated, nearly six years after the fixation of seniority, the State Government rejected that the representation vide order dated 20-5-1993. This shows that, when called upon, the State Government had once again applied its mind and had substantially complied with the provisions of Rule 12. We do not, therefore, find any reason as to why Respondent 1 should be assigned seniority w.e.f. 11-2-1982. This being so, this appeal is allowed, the judgment of the High Court and that of the Administrative Tribunal are set aside and we hold that the seniority of Respondent 1 fixed from 19-1-1984 is in order. However, there will be no order as to costs. 9. This being so, this appeal is allowed, the judgment of the High Court and that of the Administrative Tribunal are set aside and we hold that the seniority of Respondent 1 fixed from 19-1-1984 is in order. However, there will be no order as to costs. 9. Since the matter of confirmation from the date of passing the requisite examination and the authority of the appropriate government for assigning seniority of an incumbent who was required to pass the examination and has passed the examination after the period of probation is directly dealt with in M. P. Chandoria's case (supra) and Ramkinkar Gupta's case (supra), therefore, the ratio of the said two cases shall also be fully applicable in the present case. The persons those who are mentioned in order Annxure A-3 dated 13th September, 1994 though were appointed on probation for a period of two years but many of them could not pass the departmental examination within the period of two years but passed the said examination after three years then the date of confirmation has been fixed by the appointing authority in pursuance to Rule (ii) wherein the appointing authority has been given power to assign seniority on expiry of normal period of probation. 10. No other point is argued. 11. In view of the aforesaid, this Court does not find any illegality committed by the respondent while passing the order dated 13th September, 1994 (Annexure A-3). Petitioner is not entitled to count his seniority without passing the departmental examination and immediately after completion of probationary period, there is no provision either under Rule 8 or Rule 12 of the M. P. Civil Services (General Conditions of Service) Rules, 1961 with regard to deemed confirmation. Accordingly, the present petition is without any substance and is dismissed. Petition dismissed.