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Madhya Pradesh High Court · body

2012 DIGILAW 217 (MP)

Masood Akhtar v. R. K. Tripathi

2012-02-17

ALOK ARADHE, SUSHIL HARKAULI, VIMLA JAIN

body2012
Sushil Harkauli, Acting Chief Justice- A division Bench vide order dated 25.3.2009 passed in W.A. No. 1267/2007 (State of M.P. and Another V Prakash Chandra Jangre and Others) held that seniority of a probationer would be counted from the date when he passes the requisite examination. Thereafter another division Bench of this court vide common order dated 17.12.2009 passed in W.A. No. 510/2009 (Suresh Kumar V The State of M.P. and Others) and W.A. No. 511/2009 (Sandeep Kumar Mawkin v. The State of M.P. and Others) held that even though a probationer may not have completed his probation period successfully yet he would be senior to the persons who have been selected/appointed in the subsequent selection process. A Division Bench of this Court vide order dated 22.09.2011 prima facie found that there is conflict in the view taken by aforesaid two Division Benches and referred the matter to his Full Bench as to which of the two view taken by the aforesaid two Division Benches is correct. Since, the same question has been referred in all these writ appeals, therefore, they were heard together. 2. Shri R.D. Jain learned Advocate General submitted that in the order dated 17.12.2009 passed by the Division Bench in W.A. No. 510/2009 and 511/ 2009, the earlier order dated 25.3.2009 passed in W.P. No. 1267/2007 has not been considered. It is also submitted that seniority of a probationer to be reckoned from the date of passing of the prescribed while inviting the attention of this court to Rules 8 (2), 8 (3) as well as 8 (7) of the Civil Services (General Conditions of Services) Rules, 1961 (hereinafter referred to as 'the 1961 Rules') it has been urged that probationer who has neither been confirmed nor a certificate has been issued in his favour under sub-rule (6) nor is discharged from service under sub-rule (4), shall be deemed to be appointed as temporary servant from the date of expiry of probation and his conditions of services shall be governed by the M.P. Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960. In support of his submissions, learned Advocate General has placed reliance on the decisions of the Supreme Court in M.P. Chandoria v. State of M.P. and others, (1996) 11 SCC 173 , State of M.P. v. Ramkinkar Gupta and Other, (2000) 10 SCC 77 and Om Prakash Shrivastava v. State of M.P. and Another, (2005) 11 SCC 488 . 3. On the other hand, Mr. Ravish Agrawal, learned senior counsel submitted that Rule 12 of the 1961 Rules has to be read in conjunction with Rule 12 of the M.P. Civil Services (Executive) Classification Recruitment and Conditions of Services Rules, 1975 in order to ascertain the legislative intent. It is further submitted that the provision of rule 12 (1) (f) and rule 12 (1) (a) of the 1961 Rules have to be read harmoniously and Rule 12 (1) (f) has to be read subject to rule 12 (1) (a) of the satisfactorily completed the period of probation and has passed the requisite departmental examination on completion of a period of three years, shall be deemed to be confirmed, how ever, in case where, the passing of the departmental examination is a condition precedent for confirmation and the employee has not passed the departmental examination, in such a case the employee would not be deemed to confirmed and would not be governed by Rules 8 (7) of the 1961 Rules. In support of his submissions, learned senior counsel has placed reliance on the decision of the Supreme Court is Rajindra Singh Chauhan and Others v. State of Haryana and others, (2005) 13 SCC 179 . 4. We have considered the submissions made on both the sides. In the facts of the cases in hand and in view of the submissions made by learned counsel for the parties the following two issues arise for consideration, namely, (i) the parameters on which the discretion conferred on appointing authority under rule 12 (1) (f) to assign lower seniority to probationer who has either not satisfactorily completed the period of probation or has not passed the departmental examination has to be exercised, (ii) the interpretation” of rule 12 (1) (a) and rule 12 (1).(f) of the 1961 Rules. Before adverting to the first issue it is apposite to notice rule 8 to the 1961 Rules which deals with the probation and relevant extract of rule 12 (1) of the 1961 Rules which deals with seniority. Before adverting to the first issue it is apposite to notice rule 8 to the 1961 Rules which deals with the probation and relevant extract of rule 12 (1) of the 1961 Rules which deals with seniority. The aforesaid provisions read as under: 8. Probation. - (1) A person appointed to a service or post by direct recruitment shall ordinarily be placed on probation for such period as may be prescribed. (2) The appointing authority may, for sufficient reasons, extend the period of probation by a further period not exceeding one year. (3) A probationer shall undergo such training and pass such departmental examination during the period of his probation as may be prescribed. (4) The services of a probationer may be terminated during the period of probation if in the opinion of the appointing authority he is not likely to shape into a suitable Government servant. (5) The services of a probationer who has not passed the departmental examination or who is found unsuitable for the service or post may be terminated at the end of the period of his probation. (6) On the successful completion of probation and passing of the prescribed departmental examination, if any, the probationer shall, if there is a permanent post available, be confirmed in the service or post to which he has been appointed, either a certificate shall be issued in his favour by the appointing authority to the effect that the probationer would have been confirmed but for the non-availability of the permanent post and that as soon as a permanent post becomes available he will be confirmed. (7) A probationer, who has neither been confirmed, nor a certificate issued in his favour under sub-rule (6) nor discharged from service under sub-rule (4), shall be deemed to have been appointed as a temporary Government servant with effect from the date of expiry of probation by the Madhya Pradesh Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960. 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, (1) Seniority of Direct Recruits and Promotees. (a) The seniority of persons directly appointed to a post according to rules shall be determined on the basis of the order of merit in which they are recommended for appointment irrespective the date of joining. (a) The seniority of persons directly appointed to a post according to rules shall be determined on the basis of the order of merit in which they are recommended for appointment irrespective the date of joining. Persons appointed as a result of an earlier selection shall be senior to those appointed as a result of a subsequent selection. (b) Where promotions are made on the basis of selection by a Departmental promotion Committee, the seniority of such promotees shall be in the order in which they are recommended for such promotion by the committee. (c) Where promotions are made on the basis of seniority subject to rejection of the unfit, the seniority of persons considered fit for promotion at the same time shall be the same as the relative seniority in the lower grade from which they are promoted. Where however a person is considered as unfit for promotion and is superseded by a junior, such person shall not, if subsequently found suitable and promoted, take seniority in the Higher grade over the junior persons who had superseded him. (d) The seniority of a person whose case was deferred by the Departmental Promotion Committee for lack of Annual Character Rolls or for any other reasons but subsequently found fit to be promoted from the date on which is junior was promoted. Shall be counted from the date of promotion of his immediate junior in the select list or from the date on which he is found fit to be promoted by the Departmental promotion Committee. (e) The relative seniority between direct recruits and promotes shall be determined according to the date of issue of appointment/ promotion order. Provided that if a person is appointed/promoted on the basis of roster earlier than his senior, seniority of such person shall be determined according to the merit/select/fit list prepared by the appropriate authority. (f) If the period of probation of any direct recruit or the testing period of any promotee is extended, the appointing authority shall determine whether he should be assigned the same seniority as would have been assigned to him if he had completed the normal period of probation testing period successfully, or whether he should be assigned a lower seniority. 5. 5. Form the conjoint reading of the aforesaid rules it is clear that every person appointed to a service or post is initially placed on probation for the prescribed period the probation can be extended for sufficient reasons by the appointing authority for a further period not exceeding one year. The extension of period of probation may be made, inter alia due to the following reasons: (I) a probationer fails to pass the departmental examination where passing of such examination is a condition precedent for confirmation, (II) Although the probationer clears the departmental examination but his performance is not satisfactory during period of probation. (III) non-availability of a permanent post for the purposes of confirmation. (IV) non-consideration of case for confirmation of a probationer by the confirming authority Except is cases where an order of termination of service of a probationer is passed either during the initial period of probation or at the end of the extended period of probation, there may be two kinds of cases: (I) Where the confirming authority has passed an order expressly extending the period of probation. (II) where the confirming authority has not passed any order either extending the period of probation or of confirming services of the probationer. 6. In the second contingency mentioned above, i.e. where the confirming authority has not been able to apply its mind or to take a decision on the question whether to confirm or not to confirm the probationer at the end of initial period of probation and whether or not the probationer has cleared the departmental examination, the scheme of the Rule 8 quoted above suggests that the probation period shall be deemed to have been extended by one year, which is the maximum permissible period of extension. At the end of the extended period of probation, when no further extension of period of probation is permissible, the status of the probationer in the eye of law will be that of a deemed confirmed employee where he has passed the departmental examination and where passing of such departmental examination is the condition precedent for confirmation either in the rules or in the order of appointment. This view finds support from the decisions in High Court of M.P. through Registrar and Others v. Satya Narayan Jhavar, (2001) 7 SCC161 Rajindra Singh Chauhan (supra). This view finds support from the decisions in High Court of M.P. through Registrar and Others v. Satya Narayan Jhavar, (2001) 7 SCC161 Rajindra Singh Chauhan (supra). Moreover taking the other view i.e. an employee does not get status of confirmed employee on successful completion of period of probation and on passing the departmental examination would bring in operation rule 8 (7) of the 1961 Rules which would confer the status of a temporary employee on the probationer. We are not inclined to adopt the aforesaid interpretation since the same is contrary to rule 8 (2) of the 1961 Rules which prescribes the maximum period of probation. Besides that, by such an interpretation, the confirming authority can destroy the service career of a probationer merely by indecision in the matter of confirmation of such an employee. However, Where the probationer at the end of extended period of probation has not been able to pass the departmental examination and that passing of the departmental examination is mandatory for confirmation, and confirmation has neither been granted nor refused the probationer will be deemed to have been refared confirmation at the end of maximum permissible period of probation, because even if the confirming authority would have actually considered the case of probationer for confirmation, it would have no option except to refuse confirmation on the ground that the probationer had not passed the departmental examination. The case of such a probationer would be covered by rule 8 (7) quoted above and he will be deemed to have been appointed as a temporary government servant with effect from the date of expiry of probation and his condition of service shall be covered by the 1960 Rules. 7. Now we may advert to rule 12 (1) (f) of the 1961 Rules. The aforesaid rule confers discretion on the appointing authority is case of a probationer who has not successfully completed the period of probation or has not passed the examination either to assign him the same seniority which would have been assigned to him, if he had completed the normal period of probation successfully or to assign him lower seniority. The aforesaid statutory discretion has to be exercised on a rational and reasonable criteria and cannot be permitted to be exercised either arbitrarily or capriciously which is anathema to the rule of law envisaged in Article 14 of the Constitution. The aforesaid statutory discretion has to be exercised on a rational and reasonable criteria and cannot be permitted to be exercised either arbitrarily or capriciously which is anathema to the rule of law envisaged in Article 14 of the Constitution. [See BEML Employees House Building Cooperative Society Ltd. V. State of Karnataka and Other, (2005) 9 SCC 248 ]. 8. In our opinion, allowing such probationer to retain original seniority would have to be confined to cases where such extension of probation is not due to any fault or short coming on part of the employee concerned. For example, where the employee could not appear at the departmental examination on account of illness or such other cause beyond the control of the employee or where some departmental inquiry was pending in which the employee is ultimately exonerated. The above contingencies are only illustrative and nor exhaustive. 9. However, where the extension of probation is made due to any short coming of the employee, like not being able to pass the departmental examination or not performing well during the initial period of probation, his seniority would have to be pushed down and in that case also the question would arise as to the extent of assignment of lower seniority to such an employee. Again decision in this regard cannot be left to whim and caprice of appointing authority but the same has to be based on rational and reasonable criteria. 10. In our considered opinion, in such an event, such as probationer would have to be assigned a seniority calculated from the date on which he actually overcomes the shortcomings, if that date can be ascertained. For example the date on which he passes the departmental examination and if such date cannot be ascertained, then from the date on which he is considered and found fit to be confirmed. 11. Now we may advert to the second issue, namely, interpretation of rule 12 (1) (a) and (f) of the 1961 Rules. It is well settled rule of statutory interpretation that subsection of a section must be read as parts of an integral whole and as being interdependent; an attempt should be made in construing them to reconcile them if it is reasonably possible to do so, and to avoid repugnancy. It is well settled rule of statutory interpretation that subsection of a section must be read as parts of an integral whole and as being interdependent; an attempt should be made in construing them to reconcile them if it is reasonably possible to do so, and to avoid repugnancy. The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. [See British Airways v. Union of India, (2002) 2 SCC 95 ] Rule 12 (1) (a) of the 1961 Rules inter alia, provides that persons appointed as a result of earlier selection shall be senior to those appointed as a result of subsequent selection whereas rule 12 (1) (f) confers distortion on the appointing authority to assign the same seniority or to assign lower seniority to a probationer whose probation or testing period is extended, In the light of aforesaid well settled rule of statutory interpretation the discretion conferred on the appointing authority to assign lower seniority to an employee under rule 12 (1) (f) of the 1961 Rules has to be confined to the extent that despite assigning lower seniority such a probationer shall always ranks senior to those who appointed/ promoted as a result of subsequent selection/promotion. In other words the power to assign a lower seniority to a probationer has to be interpreted as stated supra so as to give full effect to provision of rule 12 (1) (a) of the Rules which provides that persons appointed as a result of an earlier selection shall be senior to those who appointed as a result of subsequent selection/ promotion. In view of the preceding analysis, our conclusions are as under: (i) A probationer who has passed the departmental examination prescribed either in the rules or in the order of appointment at the end of extended period of probation shall be deemed to be a confirmed employee and shall be assigned seniority accordingly. (ii) A probationer who has not been able to pass the departmental examination prescribed either in the rules or in the order of appointment at the end of extended period of probation shall be deemed to be temporary employee under Rule 8 (7) of the 1961 Rules. (ii) A probationer who has not been able to pass the departmental examination prescribed either in the rules or in the order of appointment at the end of extended period of probation shall be deemed to be temporary employee under Rule 8 (7) of the 1961 Rules. (iii) Under rule 12 (1) (f) an employee would be allowed to retain original seniority where extension of period of probation is not due to any fault or shortcoming of the the employee. However, where extension of period of probation is on account of fault or shortcoming on the part of the employee, in such a case the probationer has to be assigned seniority from the date if that date can be ascertained i.e. the date on which he clears the departmental examination or where such date cannot be ascertained, the date on which he is considered suitable for confirmation. (iv) The discretion to confer lower seniority to a probationer under rule 12 (1) (f) is confined to the extent that despite assigning lower seniority, such probationer shall always rank senior to those who are appointed in subsequent selection. 12. Accordingly, we answer the question referred to us by holding that the order dated 25.3.2009 passed in W.A. No. 1267/2007 and the order dated 17.12.2009 of the Division Bench in W.A. No. 510/2009 and W.A. No. 511/2009 lay down the correct proposition of law only to the extent they are consistent with the conclusions arrived at by us, which have been referred to in preceding paragraph. 13. Let the matters be placed before appropriate Bench for orders.