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Madhya Pradesh High Court · body

2014 DIGILAW 1688 (MP)

Shivpal v. State of M. P.

2014-12-18

RAJENDRA MENON

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ORDER : RAJENDRA MENON, J. 1. Petitioner was appointed in the State Civil Services as a Deputy Collector after due selection by the PSC. He was appointed to the post in the year 1990. It seems that in the seniority list, originally published after he joined on 7.5.1990, he was ranked senior to respondents No. 2 to 11, but subsequently after undergoing training he was only confirmed with effect from 24.1.1996, after he had passed all the departmental examinations. After he was confirmed on the post, he was assigned seniority with effect from 24.1.1996, but he was placed junior not only to his batch-mates, who were selected in the selection process held in the year 1990, but also to the appointees of the subsequent year from 1991 onwards upto 1996. Claiming seniority and refixation of seniority, an application was filed before the State Administrative Tribunal and on winding up of the Tribunal, matter has travelled to this Court. 2. Even though respondents have filed reply and only say that the petitioner has been assigned proper seniority with effect from the date of his confirmation, but the question of assigning seniority to a person on confirmation of probation and the interpretation of rule 12 of the M.P. Civil Services (General Conditions of Service) Rules, 1961 (hereinafter referred to as "Rules of 1961"), has been made by a Full Bench of this Court in its order passed on 17.2.2012 in Writ Appeal No. 607/2011 (Dr. Masood Akhtar v. R.K. Tripathi), and after evaluating the legal principle and after considering the provisions of rule 12(1)(a) and (f) of the Rules of 1961 in paragraph 11, the rule has been interpreted by the Full Bench in the following manner: "11. .... 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 rank 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 earlier selection shall be senior to those who appointed as a result of subsequent selection/promotion." 3. Thereafter, the following principles are laid down by the Full Bench as under: "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 the 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 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." 4. (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." 4. It is pointed out by Shri Manoj Sharma, learned counsel for the petitioner, that in accordance to the aforesaid principle and clause (iv), as reproduced hereinabove, even though petitioner is confirmed in the cadre post with effect from 24.1.1996, it is his case that now in the light of the interpretation given by the Full Bench, petitioner can be assigned lower seniority only with respect to his batch-mates, who were appointed in the year 1990, but viz-a-viz all subsequent selection and promotions after 1990, the seniority of the petitioner has to be fixed in accordance to the principle laid down in clause (iv), as reproduced hereinabove, and to that extent benefit has to be granted to the petitioner. It is stated that claiming the said benefit, petitioner represented to the department, but till date no action has been taken. 5. Shri Manoj Sharma, learned counsel for the petitioner, points out that now this petition can be disposed of directing the respondents to assign proper seniority to the petitioner in the light of the aforesaid enunciation of law by the Full Bench. 6. Keeping in view the aforesaid prayer made by the petitioner, it is directed that on the petitioner's filing a certified copy of this order along with relevant rule, respondent No. 1 shall consider the grievance of the petitioner; the principle of law as laid down in the case of Dr. Masood Akhtar (supra), reproduced hereinabove; and, shall decide the question of assigning proper seniority to the petitioner after considering the directions issued by the Full Bench as indicated hereinabove, particularly the principle laid down in paragraph 11(iv), reproduced hereinabove, and necessary action be taken in this regard and decision communicated to the petitioner within a period of 60 days from the date of receipt of certified copy of this order. 7. That apart, the case of the petitioner for grant of increment with effect from the initial date of appointment be also considered and a decision taken in the light of the judgment rendered by the Division Bench of this Court in Writ Appeal No. 510/2009 (Suresh Kumar v. State of M.P. and others), decided on 17.12.2009. 7. That apart, the case of the petitioner for grant of increment with effect from the initial date of appointment be also considered and a decision taken in the light of the judgment rendered by the Division Bench of this Court in Writ Appeal No. 510/2009 (Suresh Kumar v. State of M.P. and others), decided on 17.12.2009. The aforesaid action be also taken within a period of sixty days. With the aforesaid observations, the petition stands allowed and disposed of.