Madhya Pradesh High Court
Vinay Nigam vs The State Of Madhya Pradesh on 22 April, 2021
Author: Chief Justice
WP/1539/18 & linked matters
[1]
THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH,
AT JABALPUR
(FULL BENCH)
WP-1539-2018
Arun Parmar ............ Petitioner
Vs.
State of Madhya Pradesh and others ......... Respondents
WITH
WP-1541-2018
Vivek Shrotriya ............ Petitioner
Vs.
Chief Secretary Government of MP and others ...... Respondents
*****
WP-1712-2018
Warad Murti Mishra ......... Petitioner
Vs.
Chief Secretary Government of MP and others ...... Respondents
*****
WP-2644-2018
Smt. Manisha Sentiya ......... Petitioner
Vs.
State of Madhya Pradesh and others ...... Respondents
*****
WP-3706-2018
Smt. Bharati Ogrey ......... Petitioner
Vs.
State of Madhya Pradesh and others ...... Respondents
*****
WP-3716-2018
Rajesh Ogrey ......... Petitioner
Vs.
State of Madhya Pradesh and others ...... Respondents
*****
WP-16735-2018
Vinay Nigam ............ Petitioner
Vs.
State of Madhya Pradesh and others ......... Respondents
*****
WP/1539/18 & linked matters
[2]
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Coram:
Hon'ble Mr. Justice Mohammad Rafiq, Chief Justice
Hon'ble Mr. Justice Rajeev Kumar Dubey, Judge
Hon'ble Mr. Justice Vijay Kumar Shukla, Judge
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Presence:
Mr. Naman Nagrath, Senior Advocate assisted by Mr. Anvesh
Shrivastava and Mr. Jubin Prasad, Advocates for the petitioners in
WP-2644-2018, WP-3706-2018 & WP-3716-2018.
Mr. Anshuman Singh, Advocate for the petitioner in WP-1541-
2018.
Mr. Manoj Kumar Sharma, Advocate for the petitioners in WP-
1539-2018, WP-1712-2018 & WP-16735-2018.
Mr. Pushpendra Yadav, Additional Advocate General for the
respondents-State.
Mr. Abhishek Arjaria, Advocate for the intervenor- Dr. Kedar
Singh in WP-1539-2018.
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Whether approved for reporting: Yes
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Law Laid Down:
Division Bench of this Court vide order dated 30.05.2019 passed in bat ch of W.P.
No.1539/2018 has doubted the correctness of Full Bench decision in State of M.P.
vs. Prakash Chandra Jangre (in fact, said judgment was delivered in lead case
being Masood Akhtar (Dr.) vs. R.K. Tripathi in 2012 (I) MPJR (FB) 375 and
was affirmed on dismissal of SLP and Review Petitions reported as State of M.P.
vs. Masood Akhtar, 2017 SCC OnLine SC 1972 and State of M.P. vs. Masood
Akhtar, 2018 SCC OnLine SC 3568). Doubt is primarily on the ground that Full
Bench had failed to consider Rule 13 of the Madhya Pradesh State Administrative
Service Classification, Recruitment and Conditions of Service Rules, 1975
inasmuch as that the Madhya Pradesh Civil Services (General Conditions of
Service) Rules, 1961 would not apply as according to its Rule 12(1)(a), the Rules
of 1961 apply to the "members of the service" only. The Bench has referred the
matter to Larger Bench. The order dated 30.05.2019 has been assailed in Special
Leave to Appeal (C) No.14036/2019 (Warad Murti Mishra vs. State of M.P. &
WP/1539/18 & linked matters
[3]
another) on the ground that Full Bench decision in Masood Akhtar (Dr.) having
attained finality, reference to the Larger Bench was incompetent. The Supreme
Court in its judgment reported as (2020) 7 SCC 509 held that: Whether the
reference was justified or not will certainly be considered by the bench answering
the reference. We, however, accept the latter submission and direct that the
matters shall first be placed before a bench of three Judges, which may consider
whether the decision [Prakash Chandra Jangre (supra)] of the Full Bench on the
earlier occasion requires reconsideration.
In view of the said fact, the ANSWER:
PRIMARY QUESTION
Since we agree with the ultimate
before the Full Bench is:
conclusion arrived at by the Full
Bench in Masood Akhtar (Dr.)
Whether or not, the reference made by
(supra) despite giving additional
the Division Bench is legally justified?
reasons for our view, we are not
persuaded to hold that the Full Bench
has not correctly answered the
reference. We therefore see no
justification to further refer this matter
to a Larger Bench consisting of five
Judges.
Question No.1: ANSWER:
The judgment of the Full Bench A comparison of Rule 8(7) of the Rules
dealing the issues of probation is of 1961 with Rule 13(7) of the Rules of
relying upon the Rule 8 of the 1975 would clearly show that there is, in
Rules of 1961 although in the light fact, no difference between those two
of Rule 3 which deals the sub-rules. Therefore, in our considered
applicability either in the Rules of view, the opinion expressed by the
1961 or in the Rules of 1975 on Division Bench while making reference
having special provision, the Rules in para-21 of its order that in view of the
of 1961 would not apply and in the above fact, Rule 13(7) of the Rules of
present case, the services of the 1975 would govern the issue and not the
petitioners or the intervenors are Rule 8(7) of the Rules of 1961 and so,
governed by the Rules of 1975 and the conclusion arrived at by the Full
Rule 13 deals the issue of Bench in para 11(iv) of its judgment in
probation, however, the judgment Masood Akhtar (Dr.) (supra) may not
of the Full Bench requires subsist, does not sound convincing.
reconsideration in the said context Therefore, even while observing that the
? Full Bench in Masood Akhtar (Dr.)
(supra) ought to have considered the
Rule 13 of the Rules of 1975, we are
inclined to hold that its non-
consideration does not in any manner
affect the correctness of the conclusion
arrived at by the Full Bench. And now
when we have considered and
interpreted the Rule 13 of the Rules of
1975 we have also arrived at the same
conclusion as the Full Bench has
recorded in Masood Akhtar (Dr.)
(supra) on harmonious interpretation of
WP/1539/18 & linked matters
[4]
Rule 12(1)(a) and 12(1)(f) of the Rules
of 1961. When we compare Rule 3 of
the Rules of 1961 with the Rule 3 of
Rules of 1975, in regard to applicability
of the Rules of 1961 and/or Rules of
1975, the Rules of 1975 would govern
the conditions of service of the members
of the Madhya Pradesh State
Administrative Services but without
prejudice to the generality of the Rules
of 1961. What therefore can be deduced
from this is that the Rules of 1961 shall
continue to apply except insofar as
special provisions have been made in the
Rules of 1975.
Question No.2: ANSWER:
Rule 12 and Rule 12(1)(a) apply Full Bench in Masood Akhtar (Dr.)
to the "members of the service" (supra) has, while making a conjoint
and it do not deal with the reading of the Rule 12(1)(a) and
seniority of the probationers, 12(1)(f) of the Rules of 1961 has placed
who have not qualified the harmonious interpretation so as to
departmental examination reconcile them, which would be evident
within the period of probation from the conclusion arrived at by the
or within the extended period of Bench in para 11 of its judgment.
probation, which shall not be
more than one year, however,
the interpretation made in
Paragraph No.4 of the direction
applying those rules is justified
?
Additional Question in the light of ANSWER:
observation in Warad Murti Mishra
(supra):
Whether it was permissible for the On comparison of the unamended Rule
Full Bench in Masood Akhtar (Dr.) 12 of the Rules of 1961 on
(supra), despite the Supreme Court interpretation of which the ratio of the
consistently holding in above three judgments of the Supreme Court
referred to three judgments that in M.P. Chandoria (supra); Ramkinkar
direct recruits not having qualified Gupta (supra) and Om Prakash
the departmental examination even Shrivastava (supra) is founded, with
within the extended period of the newly inserted Rules 12(1)(a) and
service could not be treated as (f) of the Rules of 1961 by way of
member of service and therefore substitution, which have been
cannot claim seniority of that interpreted by the Full Bench in
period? Masood Akhtar (Dr.) (supra), insofar
as the question of seniority is
concerned, it is clear that amended Rule
12 has taken away the very basis of the
aforementioned three judgments of the
Supreme Court and, therefore, ratio of
those judgments cannot be applied to
WP/1539/18 & linked matters
[5]
the present case. The rule making
authority has now in the amended Rule
12 categorically provided that the
persons appointed as a result of an
earlier selection shall always rank
senior to those appointed as a result of
subsequent selection, thus manifesting
a different intention than the one
expressed in unamended Rule 12 of the
Rules of 1961.
Question No.3: ANSWER:
As per direction No.2 of the The view taken by the Division Bench
judgment of the Full Bench in that once the probationer has not
the case of Prakash Chandra cleared the prescribed departmental
Jangre (supra), it is held that if examination even within the extended
the probationer has not qualified period of probation, he would be
the departmental examination deemed to be a temporary Government
within the period of probation or servant governed by the Rules of 1960
within the extended period of and therefore the conclusion arrived at
probation, he shall be deemed to in para 11(iv) of the Full Bench is not
be a temporary government correct, also cannot be supported
servant and shall be governed by because the Rules of 1960 (Madhya
the Rules of 1960 but without Pradesh Government Servants
dealing the issue of seniority, (Temporary and Quasi-Permanent
how they will achieve, as Service) Rules, 1960) do not, in any
specified in Rules 3, 3A, 4, 5, 6, case, provide for the manner in which
7, the direction issued in Clause the seniority of the persons recruited
4 of the said judgment, is not under the Rules of 1975 would be
contrary to the spirit of the Rules regulated.
of 1960. List of Cases Referred:
(1989) 3 SCC 211 (Buxa Dooars Tea
Co. Vs. State of WB)
(1992) 3 SCC 293 (Lilasons Breweries
vs. State of MP)
(1996) 11 SCC 173 Chandoria vs. State
of M.P. & others
(2000) 10 SCC 77 (State of M.P. vs.
Ramkinkar Gupta)
(2005) 11 SCC 488 (Om Prakash
Shrivastava vs. State of MP)
(2015) 8 SCC 399 (Agricultural Income
Tax Officer and another vs. Goodricke
Group Limited)
(2017) 13 SCC 836 (State of MP vs.
Kedi Great Galeon Ltd)
Further Held: It is a trite that a judgment for the
purpose of precedent can be relied
upon for the proposition of law that it
actually decided and not for what can
be logically deduced from it, for
WP/1539/18 & linked matters
[6]
difference of a minor fact would make
a lot of change in the precedential
value of the judgment.
Referred:
House of Lords judgment reported as
[1901] A.C. 495 titled Quinn v.
Leathem (16 of 21) [CW-
13989/2009].
A statute must be read as a whole and
one provision of the Act should be
construed with reference to the other
provisions in the same Act so as to
make a consistent enactment of the
whole statute. Such a construction has
the merit of avoiding any
inconsistency or repugnancy either
within a section or between a section
and other parts of the statute. It is the
duty of the courts to avoid "a head on
clash" between the two sections of the
same Act and whenever it is possible
to do so, to construe provisions which
appear to conflict so that they
harmonise.
Reliance placed upon:
AIR 1954 SC 202 (Raj Krushna Bose
vs. Binod Kanungo and others),
AIR 1962 SC 1543 (Madanlal
Fakirchand Dudhediya vs. Shree
Changdeo Sugar Mills Ltd.)
(2002) 2 SCC 95 (British Airways vs.
Union of India
Significant Paras: 15 to 31
Heard on : 15.03.2021
ORDER
(Passed on this ___day of April, 2021)
Per: Mohammad Rafiq, Chief Justice
These matters have been laid before the Larger Bench upon a
reference made by the Division Bench of this Court, doubting
correctness of the earlier decision of the Full Bench, consisting of
three Judges, in Masood Akhtar (Dr.) vs. R.K. Tripathi reported in
2012 (I) MPJR (FB) 375 : 2012 SCC OnLine MP 11024. (Though
WP/1539/18 & linked matters
[7]
the Division Bench in the reference order has mentioned Prakash
Chandra Jangre (State of Madhya Pradesh and another vs. Prakash
Chandra Jangre) as the main case, but the lead judgment of the Full
Bench was delivered in Masood Akhtar (supra).) It may be noted at
the outset that the aforementioned decision of Full Bench was
challenged by the State of Madhya Pradesh by filing Special Leave
Petition (Civil) No.20288/2012 (State of M.P. vs. Masood Akhtar)
and other connected matters, which were dismissed by the Supreme
Court vide order dated 01.09.2017 (2017 SCC OnLine SC 1972).
Thereafter, Review Petition (Civil) No.2663/2018, (State of M.P. vs.
Masood Akhtar) arising therefrom was also dismissed by the Supreme
Court vide order dated 18.09.2019 (2018 SCC OnLine SC 3568).
Referring to the aforesaid decision of the Full Bench of this Court in
Masood Akhtar (Dr.) (supra), the Division Bench of this Court by
order under reference dated 30.05.2019, doubting correctness of the
same, made the reference by the following order:
"22. In view of the foregoing observations, we deem it
appropriate to refer the judgment of the Full Bench to the Larger
Bench to answer the aforesaid issues.
23. Registrar (Judicial) is requested to place the matter before
Hon'ble the Chief Justice to do the needful and to take appropriate
steps in this regard in view of the foregoing observations."
2. The writ petitioners before this Court, challenging the aforesaid
order dated 30.05.2019 passed by the Division Bench making
reference to the Full Bench, filed Special Leave to Appeal (C)
No.14036/2019 (Warad Murti Mishra vs. State of M.P. & another)
WP/1539/18 & linked matters
[8]
and connected matters. The Supreme Court by detailed order dated
11.07.2019 initially stayed the operation of the aforequoted paras-22
& 23 of the order passed by the Division Bench and issued notices.
Thereafter, the Supreme Court after granting leave finally decided all
the appeals vide judgment dated 15.06.2020, reported in (2020) 7
SCC 509. Apart from merits of the case, it was also argued before the
Supreme Court that since reference to the Full Bench in Masood
Akhtar (Dr.) (supra) was made on account of divergent views
expressed by two Division Benches of this Court, with the dismissal
of SLP as well as review petition arising therefrom, by the Supreme
Court, the Full Bench judgment in Masood Akhtar (Dr.) (supra)
having attained finality, the Division Bench was bound to follow the
decision of the Full Bench and, therefore, reference to the Larger
Bench was incompetent. Reliance was placed on the judgments of the
Supreme Court in Pradi Chandra Parija vs. Pramod Chandra
Patnaik reported in (2002) 1 SCC 1 and Sakshi vs. Union of India
reported in (2004) 5 SCC 518 to argue that no reference could and
ought to have been made unless the earlier decisions were so
"palpably wrong" or so "very incorrect" that reference was called for
and in any case the reference ought to have been made to a Bench of
equal strength (three Judges) keeping in view the law laid down by the
Supreme Court in Central Board of Dawoodi Bohra Community vs.
State of Maharashtra reported in (2005) 2 SCC 673. It was also
argued that the Full Bench in Masood Akhtar (Dr.) (supra) failed to
consider binding decision of the Supreme Court in M.P. Chandoria
WP/1539/18 & linked matters
[9]
vs. State of M.P. & others reported in (1996) 11 SCC 173, State of
Madhya Pradesh vs. Ramkinkar Gupta reported in (2000) 10 SCC
77 and Om Prakash Shrivastava vs. State of M.P. reported in (2005)
11 SCC 488. The Supreme Court disposed of the appeals with the
following observations as contained in Paras-22 & 24 of the report,
which reads as under:
"22. It is true that the decisions of the Division Bench and the
Full Bench [Prakash Chandra Jangre (supra)] were challenged
and not only the Special Leave Petitions (State of M.P. vs. Sandeep
Kumar Mawkin, 2010 SCC Online SC 86) but the Review Petitions
were also dismissed. But as observed by the Division Bench (Ward
Murti Mishra vs. State of M.P., WP No.1712/2018, order dated
30.05.2019 [MP]) in the instant case, the effect of Rule 13 of 1975
Rules was not considered on the earlier occasions. Since the
Division Bench (Ward Murti Mishra vs. State of M.P., WP
No.1712/2018, order dated 30.05.2019 [MP]) has now made a
reference to a larger bench, we do not propose to enter into the
matter and decide the controversy but leave it to the High Court to
consider and decide all the issues.
**** **** ****
24. Whether the reference was justified or not will certainly be
considered by the bench answering the reference. We, however,
accept the latter submission and direct that the matters shall first be
placed before a bench of three Judges, which may consider
whether the decision [Prakash Chandra Jangre (supra)] of the
Full Bench on the earlier occasion requires reconsideration. The
bench may consider the effect of non-consideration of Rule 13 of
1975 Rules on the earlier occasion as well as the impact of the
decisions of this Court quoted hereinabove on the controversy in
question. The matters shall be considered purely on merits and
without being influenced by the dismissal of Special Leave
Petitions by this Court on the earlier occasions or dismissal of the
Review Petitions. We have not and shall not be taken to have
expressed any view touching the merits of the matters."
WP/1539/18 & linked matters
[10]
3. In view of above, the question that is required to be considered
at the outset is whether or not, the reference made by the Division
Bench is legally justified? If eventually we are persuaded to hold that
the conclusion arrived at by the Full Bench in Masood Akhtar (Dr.)
(supra) was not legally correct, because it failed to specifically
consider the effect of Rule 13 of Madhya Pradesh State
Administrative Service Classification, Recruitment and Conditions of
Service Rules, 1975 (of short the "Rules of 1975") and also failed to
consider above referred to three decisions of the Supreme Court,
would the question of referring the matter to a Larger Bench
consisting of five Judges arise.
4. In order to appreciate the controversy, it has to be examined
first of all as to what was the precise question on which reference was
made to the Full Bench in Masood Akhtar (Dr.) (supra) and how has
the same been answered. The Division Bench of this Court vide order
dated 25.03.2009, passed in Writ Appeal No.1267/2007 (State of M.P.
and another vs. Prakash Chandra Jangre and others) held that the
seniority of a probationer would be counted from the date he passes
the requisite departmental examination. Another Division Bench of
this Court vide order dated 17.12.2009 passed in Writ Appeal
No.510/2009 (Suresh Kumar vs. State of M.P. & others) and other
connected matters held that even though a probationer may not have
completed his probation period successfully, yet he would be senior to
WP/1539/18 & linked matters
[11]
the persons, who have been selected/appointed in the subsequent
selection process. In view of such conflicting opinions, the Division
Bench of this Court vide order dated 22.09.2011 passed in Writ
Appeal No.607/2011 (Dr. Masood Akhtar vs. R.K. Tripathi) and other
connected matters, referred the matter to the Full Bench. The Full
Bench while considering the reference as to which of the two views
taken by the aforesaid Division Benches is correct, framed two
questions, namely:- (i) what are 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 and (ii) what is the interpretation of
Rule 12(1)(a) and Rule 12(1)(f) of the Rules of 1961. It was this
reference which was answered by the Full Bench on consideration of
Rules 8, 12(1)(a) and 12(1)(f) of the Madhya Pradesh Civil Services
(General Conditions of Service) Rules, 1961 (for short "the Rules of
1961") in Paras-5 to 12 of its order in Masood Akhtar (Dr.) (supra),
in the following terms:
"5. From 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.
WP/1539/18 & linked matters
[12]
(II) although the probationer clears the departmental
examination but his performance is not satisfactory during period
of probation.
(III) non-availabilily of a permanent post for the purposes of
confirmation.
(IV) non-consideration of case for confirmation of a probationer
by the confirming authority.
Except in 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
SCC 161 and Rajindra Singh Chouhan (2005) 13 SCC 179.
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
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[13]
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 refused 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 in 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. [See: BEML Employees House Building Cooperative
Society Ltd. v. State of Karnataka and others, (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 shortcoming on part of the
employee concerned. For example, where the employee could not
appear at the departmental examination on account of illness or
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[14]
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 not exhaustive.
9. However, where the extension of probation is made due to
any shortcoming 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 a
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 subsections 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 discretion 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
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[15]
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 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
(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.
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
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[16]
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."
5. When similar writ petitions later came up before the Division
Bench of this Court in the present matters, correctness of the
aforementioned Full Bench decision was doubted, primarily on the
premise that it failed to consider Rule 13 of the Rules of 1975
inasmuch that the Rules of 1961 would not apply as according to its
Rule 12(1)(a) the Rules of 1961 apply to the "members of the service"
only. As would be evident from Para-21 of the aforesaid order dated
30.05.2019, the reference was made on following three questions,
which reads as under:
"21. In view of the foregoing discussion and looking to the
language of the Rules of 1960, the Rules of 1961, the Rules of
1975 an also the directions issued by the Full Bench, the direction
No.2 related to Rule 8(7) of the Rules of 1961 but infact Rule
13(7) of the Rules of 1975 would govern the issue. It is further
seen that after becoming a temporary government servant, how
their seniority be decided, it has not been discussed although Rules
3, 3A, 4, 5, 6, 7 of the Rules of 1960 deals the issue. In case the
above Rules of 1960 is made applicable, the direction No.4 do not
subsist. Similarly, the Court while interpreting Rule 12(1)(a) and
Rule 12(1)(f) issued the direction that the probationers shall be
assigned the lower seniority but they shall remain rank senior to
those who have been subsequently selected. Rule 12(1)(a) do not
apply to the "probationers" but it applies to the "members of
service". It is to further observe here that Rule 12(1)(f) deals a
situation for grant of seniority on passing the departmental
examination within the period of probation or within the extended
period of probation. It do not apply to a case where the probationer
has not passed the departmental examination even after elapse of
the extended period of probation. In such circumstances, the
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[17]
judgment of the Full Bench appears to be contrary to the
provisions of the rules framed under proviso to Article 309 of the
Constitution of India, which requires reconsideration. In view of
the foregoing discussion, the following question arise for
consideration:-
(1) The judgment of the Full Bench dealing the issues of
probation is relying upon the Rule 8 of the Rules of 1961
although in the light of Rule 3 which deals the
applicability either in the Rules of 1961 or in the Rules of
1975 on having special provision, the Rules of 1961
would not apply and in the present case, the services of
the petitioners or the intervenors are governed by the
Rules of 1975 and Rule 13 deals the issue of probation,
however, the judgment of the Full Bench requires
reconsideration in the said context.
(2) Rule 12 and Rule 12(1)(a) apply to the "members of
the service" and it do not deal with the seniority of the
probationers, who have not qualified the departmental
examination within the period of probation or within the
extended period of probation, which shall not be more
than one year, however, the interpretation made in
Paragraph No.4 of the direction applying those rules is
justified.
(3) As per direction No.2 of the judgment of the Full
Bench in the case of Prakash Chandra Jangre (supra),
it is held that if the probationer has not qualified the
departmental examination within the period of probation
or within the extended period of probation, he shall be
deemed to be a temporary government servant and shall
be governed by the Rules of 1960 but without dealing the
issue of seniority, how they will achieve, as specified in
Rules 3, 3A, 4, 5, 6, 7, the direction issued in Clause 4 of
the said judgment, is not contrary to the spirit of the
Rules of 1960."
6. We have heard Mr. Naman Nagrath, learned Senior Counsel,
Mr. Anshuman Singh and Mr. Manoj Kumar Sharma, learned counsel
for the petitioners, Mr. Pushpendra Yadav, learned Additional
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[18]
Advocate General for the respondents-State and Mr. Abhishek Arjaria,
learned counsel for the intervenor- Dr. Kedar Singh.
7. Mr. Naman Nagrath, learned Senior Counsel appearing for the
petitioners in WP-2644-2018, WP-3706-2018 & WP-3716-2018
submitted that in view of law laid down by the Supreme Court in
Pradip Chandra Parija (supra) and Sakshi (supra), no reference
could and ought to have been made by the Division Bench unless a
categorical finding was recorded that the earlier decision was so
"palpably wrong" or so "very incorrect" that reference was called for.
The Division Bench was wrong in observing that the earlier Full
Bench in Prakash Chandra Jangre (supra) [i.e. Masood Akhtar (Dr.)
(supra)] did not consider the applicability of the Rules of 1975. It
further failed to consider that the purpose of departmental
examination is confirmation and not the appointment. There is
basically no difference between what is prescribed in the Rules of
1961 and in the Rules of 1975, with respect to promotion and
seniority. Learned Senior Counsel drew attention of the Court towards
the provisions contained in Rule 8 with respect to "probation" of the
Rules of 1961 and corresponding Rule 13 about "probation" in the
Rules of 1975 and argued that these two provisions are in pari materia
with each other. There is striking similarity between Rule 8(6) of the
Rules of 1961 and Rule 13(6) of the Rules of 1975 in so far as the
issue of probation and confirmation is concerned. The only difference
between two sub-rules is with regard to entitlement of increment,
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[19]
which is not at all relevant for the issue at hand. It is submitted that
there is also striking similarity between Rule 8(7) of the Rules of 1961
and Rule 13(7) of the Rules of 1975. Moreover, there is also similarity
between what is prescribed in Rule 12 of the Rules of 1961 and in
Rule 23 of the Rules of 1975, which both provide that seniority of
persons appointed to the service shall be regulated in accordance with
the provisions of Rule 12 of the Rules of 1961. Since there is
practically no difference between Rule 13 of the Rules of 1975 and
Rule 8 of the Rules of 1961 in so far as issue regarding grant of
seniority is concerned, no consequences would follow on account of
non-consideration of Rule 13 of the Rules of 1975. The Division
Bench erred in holding that the Rules of 1961 would not apply in the
present case as the petitioners are not "members of service". The
Division Bench failed to consider that in the order of confirmation of
the petitioners, the respondents have categorically mentioned that the
seniority of the petitioners would be determined according to Rule
12(1)(f) of the Rules of 1961. The Division Bench in so observing lost
sight of the fact that after completing maximum permissible period of
probation of three years, the petitioners would be deemed to be
temporary government servants as per Rule 13(7) of the Rules of
1975. But even while being temporary government servant, they
continue to be entitled and eligible to appear in the departmental
examination and pass the same. Upon clearing the examination as a
temporary government servant, they would still be entitled to be
confirmed in service. It is not in dispute that petitioners have passed
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the examination and were then confirmed. Soon upon confirmation,
they also become members of service under the Rules of 1975. In
view of Rule 12(1)(a) read with Rule 12(1)(f) of the Rules of 1961,
they are liable to be placed at the bottom of seniority with their batch
but in any case they are entitled to be placed above the subsequent
batch.
8. Mr. Naman Nagrath, learned Senior Counsel argued that the
Division Bench was not justified in making reference to the Larger
Bench by observing that the Madhya Pradesh Government Servants
(Temporary and Quasi-Permanent Service) Rules, 1960 (for short the
"Rules of 1960") have not be considered by the earlier Full Bench
which deals with the seniority. According to him, this conclusion of
the Division Bench is based on misreading of Rules of 1960 which are
absolutely silent about the seniority of the officers. As per Rules 2(b)
and 2(d) of the Rules of 1960, the petitioners fall under temporary
service, which includes "officiating and substantive service in a
temporary post". Their officiating period has to be counted for
determination of their seniority as it is followed by confirmation.
Reliance in this regard has been placed on the judgments of the
Supreme Court in Direct Recruit Class II Engineering Officer's
Association vs. State of Maharashtra reported in (1990) 2 SCC 715
and L. Chandrakishore Singh vs. State of Manipur and others
reported in (1999) 8 SCC 287. Even in the case of probationer, which
is an officiating appointment followed by confirmation, the period so
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[21]
spent cannot be ignored for the purpose of seniority unless a contrary
rule is there. Reliance in support of this argument is placed on the
judgment of Supreme Court G.P. Doval and others vs. Chief
Secretary, Government of U.P. and others reported in (1984) 4 SCC
329. It is further argued that the only provision which gives discretion
to the State Government to fix the seniority of an officer who has not
been able to clear the departmental examination within the extended
period of probation upto three years and has qualified such
examination thereafter, is Rule 12(1)(f), which is however subject to
the provision contained in Rule 12(1)(a) of the Rules of 1961. Apart
from this, there is no other rule empowering the State Government to
re-fix the seniority.
9. Mr. Manoj Kumar Sharma and Mr. Anshuman Singh, learned
counsel appearing for the petitioners in WP-1541-2018, WP-1539-
2018, WP-1712-2018 & WP-16735-2018 mostly adopted the
arguments advanced by Mr. Naman Nagrath, learned Senior Counsel.
Further, in addition to that, Mr. Anshuman Singh submitted that ratio
of judgments of Supreme Court in the cases of M.P. Chandoria
(supra), Ramkinkar Gupta (supra) and Om Prakash Shrivastava
(supra) would not be applicable to the present matters as these
judgments were rendered upon consideration of un-amended Rule 12
of the Rules of 1961, which did not contain any restriction or ceiling
to the extent upto which seniority of officers clearing departmental
examination after the extended period of probation, could be curtailed.
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The rule making authority while incorporating Rule 12(1)(a) in the
Rules of 1961 consciously restricted the power of the State
Government to assign lower seniority to an officer who passes
departmental examination after the extended period of probation. This
power however is limited to lowering down in the same batch and
does not extend to lowering down of seniority below the officers who
have been appointed in subsequent selections. Mr. Anshuman Singh,
learned counsel argued that the aforementioned three judgments of the
Supreme Court were passed placing reliance on the judgments
reported in (2009) 13 SCC 165, (State of HP vs. Narain Singh) and
(2017) 1 SCC 283, (Cheviti Venkanna Yadav vs. State of Telangana).
It is however trite that amendment in law can have the effect of taking
away the foundation of a judgment. Rule 12(1)(a) of the Rules of
1961 after amendment consciously uses the word "selection" for the
purpose of determining inter-se seniority between batches and does
not use the word "confirmation". It mandates that persons appointed
as a result of an "earlier selection" shall be senior to persons
appointed as a result of a "subsequent selection". Therefore those
three judgments would not be applicable now. Reference to selection
by the Public Service Commission at the time of initial recruitment is
made for the purpose of inter-batch seniority. For this purpose, the
date of confirmation is irrelevant and what is material is the date of
selection. It is only within the same batch that seniority may be
changed and a person may be assigned lower seniority if he fails to
pass the departmental examination within the period of probation. The
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[23]
Full Bench in Masood Akhtar (Dr.) (supra) has therefore correctly
interpreted Rule 12(1)(a) read with Rule 12(1)(f) of the Rules of 1961
by giving purposive interpretation and holding that petitioner cannot
be made junior to the subsequent batch even if he did not pass the
departmental examination within three years of probation and at
worst, he could be placed at the bottom of the same batch in which he
was selected. The State of Madhya Pradesh has therefore been rightly
having the practice of allowing the officers to retain the same seniority
which they got in the order of merit in which their names were
recommended for appointment, even if they qualify the departmental
examination after the extended period of probation, but in any case,
they cannot be placed below the officers who have been selected in
subsequent selection.
10. Mr. Pushpendra Yadav, learned Additional Advocate General
for the respondents-State contended that generally three situations
emerge: (I) the persons who have cleared the examination within the
initial period of probation of two years; (II) the persons who have
cleared the examination within the extended period of one year and
(III) the person who have cleared the examination after the expiry of
extended period of probation. The earlier Full Bench in the case of
Masood Akhtar (Dr.) (supra) had dealt with the above Situation-(I)
and in that context considered Rules 8 and 12 of the Rules of 1961
and drawn the conclusion that the discretion to confer lower seniority
to a probationer under Rule 12(1)(f) is confined to the extent that
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[24]
despite assigning lower seniority such probationers shall always rank
senior to those who are appointed in subsequent selection. But the
aforesaid conclusion is valid only for the persons who have cleared
the examination within the extended period of 1 years of probation.
The Full Bench has passed the order for determining the seniority of
the probationer who has cleared the departmental examinations within
extended period of probation. It is further submitted that before
passing of the aforesaid Full Bench decision, the issue of seniority of
persons, who have cleared the departmental examination after the
expiry of extended period of probation, was not under consideration,
therefore, the said Full Bench decision cannot be applied to persons
who fall under the above Situation-(III).
11. Learned Additional Advocate General submitted that the
directions of the Full Bench have to be understood in the context in
which the matter was referred to it for consideration, i.e. the
conflicting opinions given by the two Division Benches of this Court,
wherein both the Division Benches dealt with the situation where
probationers cleared the examination during the extended period of
one year of probation and the Full Bench answered accordingly. But
the present case is related with the persons who have not cleared the
examination even in the extended period of probation and despite that
they are claiming seniority over the persons of subsequent batch, who
have cleared the examination in normal period or extended period of
probation. The cases of persons who have not cleared the examination
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[25]
even within the extended period of probation would be governed by
Rule 13(7) of the Rules of 1975 and Rule 8(7) of the Rules of 1961,
wherein a probationer who has neither been confirmed nor a
certificate issued in his favour nor discharged from the service, shall
be deemed to have been appointed as a temporary government servant
w.e.f. the date of expiry of probation as per the Rules of 1960.
However, after being appointed as temporary servant under the Rules
of 1960, he is not governed by Rule 12 of the Rules of 1961 as the
same deals with seniority of member of service and probationer. It is
further contended that there could be a situation where a person who
cleared the departmental examination within normal period of
probation and person who does not clear the departmental
examination within a period of two years plus one year and is a
temporary government servant after the period of expiry of probation
and does not clear the department examination for the period of ten
years and would come after ten years to claim seniority with his batch.
Such a situation is not envisaged under the Rules as the same would
lead to total chaos and the state of utter confusion and would be very
discouraging for the persons who clear the department examination
within the period of probation as provided under the Rules. Learned
Additional Advocate General therefore submitted that by virtue of
Rule 13(7) of the Rules of 1975 and Rule 8(7) of the Rules of 1961,
the status of government servant who has not cleared the examination
even within the extended period of probation would be that of a
temporary government servant. He would from then onwards cease to
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[26]
be part of the regular service and, therefore, Rule 12 of the Rules of
1961 would be completely inapplicable to him.
12. Mr. Abhishek Arjaria, learned counsel for the intervenor- Dr.
Kedar Singh in WP-1539-2018, submitted that the Full Bench in
Masood Akhtar (Dr.) (supra) considered only two questions, which
would be evident from Para-4 of the judgment itself i.e. (i) the
discretion conferred on appointing authority under Rule 12(1)(f) to
assign lower seniority to "probationer" who has either not
successfully completed the period of probation or has not passed the
department examination and (ii) interpretation of Rule 12 of the Rules
of 1961. The Full Bench held that the persons, who were not able to
qualify the departmental examination within the extended period of
one year, would be covered by Rule 8(7) of the Rules of 1961 and
therefore would be deemed to have been appointed as temporary
servant w.e.f. the date of expiry of probation and their condition of
service shall be then governed by the Rules of 1960. The questions
framed by the Full Bench were answered in Paras-10 and 11 of the
order. Even the conclusion No.(iv) in Para-11 arrived at by the Full
Bench talks about "probationer" and not about the "temporary
government servant". A bare reading of the entire judgment of the Full
Bench thus makes it clear that the issue related to probationer, who
has cleared the departmental examination within the extended period
of time, has been considered and answered. As regards applicability of
the Rules of 1960, Mr. Abhishek Arjaria, learned counsel argued that a
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[27]
bare reading of provisions contained in Rule 8(7) of the Rules of 1961
and also in Rule 13(7) of the Rules of 1975, would make it clear that
the government servant who has failed to clear the departmental
examination in accordance with Rule 8(7) within the extended period
of one year, would cease to be a government servant and the Rules of
1961 would cease to apply to him. On such cessation by virtue of law,
Rules of 1960 will come into the effect and such an employee will be
treated in the temporary service. He further urged that Rule 1(2)
speaks about the applicability of the Rules and clearly stated that the
Rules of 1960 would be applicable to all the persons who are holding
a civil post under the State Government. A temporary employee
cannot claim a post in a particular batch or seniority above any
person, who is in regular employment of the State within the same
service. Rule 7 of the Rules of 1960 specifically mentions that any
person who is in quasi permanent service will be eligible for
permanent appointment only on the occurrence of the vacancy in the
specified post. Thus it is very clear that no post can be held or a lien
be created for such temporary employee. Sub-rule (2) of Rule 7 of the
Rules of 1961 also specifies the procedure about the quasi permanent
servant, who had cleared the examination and became eligible for a
permanent employment, according to which a merit list be prepared of
all such quasi permanent servants and then they will be placed for
permanent appointment in accordance with the vacancies arising in
the department.
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[28]
13. It is submitted that from interpretation of Rule 7 of Rules of
1960, it is very clear that a quasi permanent employee would be
entitled for a fresh appointment in the service only from the date when
he overcomes all the shortcoming i.e. from the date of clearing the
departmental examination. It is also to be noted that once any selected
candidate is declared as temporary employee, then although the
applicability of Rules of 1961 would come to an end but his fresh
appointment in accordance with Rule 7 of the Rules of 1960 cannot be
related back to his earlier appointment or probation period. It is urged
that Rule 11(1) of the Rules of 1960 specifically talks about benefits
available to a temporary/quasi permanent servant on being appointed
to a permanent post and the rule making authority has deliberately
excluded the benefit of seniority to such an employee. At the
transition stage (i.e. when the quasi permanent employee clears the
departmental examination), he would be given a fresh appointment on
the vacant post available at that time by preparing a seniority list
amongst all quasi permanent servants.
14. We have given our anxious consideration to the rival
submissions with regard to the earlier decision of the Full Bench in
Masood Akhtar (Dr.) (supra) and also the Division Bench order dated
30.05.2019 making reference to the Larger Bench.
15. The order of reference is founded on the conclusion arrived at
by the Division Bench in para-21 of its order that once a probationer,
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[29]
by virtue of Rule 13(7) of the Rules of 1975, has neither been
confirmed nor a certificate issued in his favour nor discharged from
the services under Sub-Rules (4) and (5) of Rule 13 of the Rules of
1975, would be deemed to have been appointed as a temporary
Government servant on expiry of a period of probation. His service
conditions would then be governed by the Rules of 1960, therefore,
the conclusion arrived at by the Full Bench in Masood Akhtar (Dr.)
(supra) in para 11(iv) of its judgment that by virtue of Rule 12(1)(f) of
the Rules of 1961, that such probationer shall always rank senior to
those, who are appointed in subsequent selection, cannot be justified.
In order to fully appreciate the conclusion so arrived at and three
questions so framed in para-21 of the reference order, we deem it
appropriate to compare the relevant provisions of the Rules of 1961
and the Rules of 1975, which read as under:-
Rules of 1961 Rules of 1975
8. Probation. - 13. Probation. -
(1) A person appointed to a service (1) Every person directly recruited to
or post by direct recruitment the service shall be appointed on
shall ordinarily be placed on probation for a period of two
probation for such period as may years.
be prescribed.
(2) The appointing authority may, (2) The appointing authority may, for
for sufficient reasons, extend the sufficient reasons, extend the
period of probation by a further period of probation by a further
period not exceeding one year. period not exceeding one year.
(3) A probationer shall undergo such (3) The probationer shall undergo the
training and pass such prescribed training and pass the
departmental examination during prescribed departmental
the period of his probation as examination by the higher
may be prescribed. standard during the period of his
probation.
(4) The services of a probationer (4) The services of the probationer
may be terminated during the may be terminated during the
period of probation if in the period of probation, if in the
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[30]
opinion of the appointing opinion of the appointing
authority he is not likely to shape authority, he is not likely to shape
into a suitable Government into a suitable Government
servant. servant.
(5) The services of a probationer (5) The services of a probationer who
who has not passed the does not pass the prescribed
departmental examination or who departmental examinations or who
is found unsuitable for the is found unsuitable for the service
service or post may be may also be terminated at the end
terminated at the end of the of the period of probation.
period of his probation.
(6) On the successful completion of (6) On the successful completion of
probation and passing of the probation and the passing of the
prescribed departmental prescribed departmental
examination, if any, the examinations, the probationer
probationer shall, if there is a shall be confirmed in the service
permanent post available, be provided permanent vacancies
confirmed in the service or post exist for him otherwise a
to which he has been appointed, certificate shall be issued in his
either a certificate shall be issued favour by the appointing authority
in his favour by the appointing to the effect that the probationer
authority to the effect that the would have been confirmed but
probationer would have been for the non-availability of the
confirmed but for the non- permanent post and as soon as
availability of the permanent post permanent post become available
and that as soon as permanent he will be confirmed.
post becomes available he will be The probationer shall not draw
confirmed. any increments until he is
confirmed. On confirmation his
pay will be fixed with reference to
the total length of service. If the
probationary period is extended,
government will decide at the
time of confirmation whether
arrears of increment shall be paid
or not. Such arrears shall
ordinarily be paid when the
extension of the probationary
period is due to no fault of the
probationer.
(7) A probationer, who has neither (7) A probationer, who has neither
been confirmed, nor a certificate been confirmed, nor a certificate
issued in his favour under sub- issued in his favour under sub-rule
rule (6), nor discharged from (6) above nor discharged from
service under sub-rule (4), shall service under sub-rules (4) and (5)
be deemed to have been above, shall be deemed to have
appointed as a temporary been appointed as a temporary
Government servant with effect government servant with effect
from the date of expiry of from the date of expiry of
probation and his conditions of probation and his conditions of
service shall be governed by the service shall be governed by the
Madhya Pradesh Government Madhya Pradesh (Temporary and
Servants (Temporary and Quasi- Quasi-Permanent Service) Rules,
Permanent Service) Rules, 1960. 1960.
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*** ** ** ***
12. Seniority. - 23. Seniority. -
The seniority of the members of The seniority of persons appointed
a service or a distinct branch or to the service shall be regulated in
group of posts of that service accordance with the provisions of
shall be determined in Rule 12 of the Madhya Pradesh
accordance with the following Civil Services (General
principles, viz - Conditions of Service) Rules,
1961.
(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 of 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 persons 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
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on which his 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 promotees
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.
(g) If orders of direct recruitment
and promotion are issued on the
same date, promotee persons
enblock shall be treated as senior
to the direct recruitees.
A comparison of Rule 8(7) of the Rules of 1961 with Rule
13(7) of the Rules of 1975 would clearly show that there is, in fact, no
difference between those two sub-rules, as both provide that if a
probationer has neither been confirmed, nor has he been issued a
certificate under sub-rule (6) of those Rules, he shall be deemed to
have been appointed as a temporary government servant with effect
from the date of expiry of probation and his conditions of service then
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[33]
would be governed by the Rules of 1960. Therefore, in our considered
view, the opinion expressed by the Division Bench while making
reference in para-21 of its order that in view of the above fact, Rule
13(7) of the Rules of 1975 would govern the issue and not the Rule
8(7) of the Rules of 1961 and so, the conclusion arrived at by the Full
Bench in para 11(iv) of its judgment in Masood Akhtar (Dr.) (supra)
may not subsist, does not sound convincing. Still further, the Sub-
Rules (1) to (6) of Rule 8 of the 1961 Rules and Sub-Rule (1) to (6) of
Rule 13 of the Rules of 1975 show a striking similarity between them
except with a minor addition in Sub-Rule (6) of Rule 13 of the 1975
Rules which provides that the probationer shall not draw any
increments until he is confirmed and that on confirmation, his pay
would be fixed with reference to the total length of service and if the
probation period is extended, the Government will decide at the time
of confirmation whether arrears of increment shall be paid or not. But
this additional part of Sub-Rule (6) of Rule 13 of the Rules of 1975
does not have any bearing on the question with which we are
concerned in the present set of cases. However, the view taken by the
Division Bench that once the probationer has not cleared the
prescribed departmental examination even within the extended period
of probation, he would be deemed to be a temporary Government
servant governed by the Rules of 1960 and therefore the conclusion
arrived at in para 11(iv) of the Full Bench is not correct, also cannot
be supported because the Rules of 1960 do not, in any case, provide
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[34]
for the manner in which the seniority of the persons recruited under
the Rules of 1975 would be regulated.
16. In view of the above, we have to now examine the first question
formulated by the Division Bench in the order of reference, whether
the judgment of the Full Bench in Prakash Chandra Jangre (supra)
[i.e. Masood Akhtar (Dr.) (supra)] requires reconsideration because it
is based on interpretation of Rule 8 of the Rules of 1961 although in
the light of Rule 3 of the Rules of 1961, which deals with its
applicability or the Rules of 1975, the Rules of 1961 would not apply
and that in the present case, the services of the petitioners/the
intervenors are governed by the Rules of 1975 and since Rule 13 of
the Rules of 1975 deals with the issue of probation and therefore, Rule
8 of the Rules of 1961 could not be applied. The question No.(1) does
not appear to be clearly worded but what perhaps the learned Division
Bench intended to convey was that since Rule 3 of the Rules of 1961
provides that these Rules apply to every person who holds a post or is
a "member of a service" and the petitioners or the intervenors having
not qualified the departmental examination even during the extended
period of probation, would not become "member of service",
therefore, Rules of 1961 would not apply to them. In question No.(1)
the learned Division Bench appears to have alluded itself to the idea
that that Rule 13 of the Rules of 1975 would apply to a probationer
and not the Rule 8 of the Rules of 1961 whereas on comparison of
these two Rules, we have seen that both the set of the Rules are
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exactly identically worded in regard to all their sub-rules, except for a
minor and insignificant difference. We shall, however, now examine
the question No.(1), in whatever way it has been formulated, by
splitting it into two parts.
17. Insofar as the applicability of the Rules of 1961 is concerned,
its Rule 3 does not stricto sensu provide that it shall only apply to a
member of service but it rather begins by providing that "The rule
shall apply to every person who holds a post or is a member of a
service in the State". The Rule 3 of the 1961 Rules reads, thus:-
"3. Scope of application. - The rule shall apply to every
person who holds a post or is a member of a service in the State,
except -
(a) person whose appointment and conditions of
employment are regulated by the special provisions of any
law for the time being in force;
(b) persons in respect of whose appointment and
conditions of service special provisions have been made, or
may be made hereinafter by agreement;
(c) persons appointed to the Madhya Pradesh Judicial
Service:
Provided that in respect of any matter not covered by the
special provisions relating to them, their services or their posts,
these rules shall apply to the persons mentioned in clauses (a), (b)
and (c) above."
From a perusal of Rule 3 (supra) it would be evident that this
Rule shall apply not only to a member of service in the State but also
to every person who holds a post. Use of 'or' here is disjunctive. But
applicability of the rule excluded, as it has carved out an exception,
qua those (a) whose appointment and conditions of service are
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regulated by the special provisions of any law for the time being in
force; (b) in respect of whose appointment and conditions of service
special provisions have been made and (c) who are appointed to the
Madhya Pradesh Judicial Service. But when we compare the Rules of
1961 with the Rules of 1975 in regard to their applicability, the Rule 3
of the Rules of 1975 provides as under:-
"3. Scope and Application. - Without prejudice to the
generality of the provisions contained in the Madhya Pradesh Civil
Services (General Conditions of Service) Rules, 1961, these rules
shall apply to every member of the service".
In other words, the Rules of 1975 would govern the conditions
of service of the members of the Madhya Pradesh State
Administrative Services but without prejudice to the generality of the
Rules of 1961. What therefore can be deduced from this is that the
Rules of 1961 shall continue to apply except insofar as special
provisions have been made in the Rules of 1975. Therefore, it
continues to be applicable to those who hold a post.
18. Let us now therefore come to the second part of the question
No.(1) according to which, the case of the probationer should have
been considered in the light of Rule 13 of the Rules of 1975 and not
Rule 8 of the Rules of 1961. At the cost of repetition, it may be stated
that not only there is no material difference between these two
provisions under different set of Rules but they both deal with the case
of the probationer in the same way except Sub-Rule (1) of Rule 8 of
the Rules of 1961 by providing that a direct recruit shall ordinarily be
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placed on probation for such period as may be prescribed but Sub-
Rule (1) of Rule 13 of the Rules of 1975 by specifically providing that
a direct recruit shall be appointed on probation for a period of two
years. In other words, while Rule 8(1) of the Rules has provided that a
direct recruit shall ordinarily be placed on probation as may be
prescribed, the Sub-Rule (1) of Rule 13 of the Rules of 1975 has
specifically provided probation period of two years. It is this Rule,
which would prevail so far as the initial period of probation is
concerned. Thereafter, the Sub-Rule (2) of Rule 8 of the Rules of 1961
has provided that the appointing authority may for sufficient reasons,
extend the period of probation by a further period not exceeding one
year but when we compare this with Sub-Rule (2) of Rule 13 of the
Rules of 1975 it is exactly identically worded. The Sub-Rule (3) in
both the set of Rules provides that the probationer shall undergo the
prescribed training and shall pass departmental examination during
the period of probation. Rule 8(4) of the Rules of 1961 as well as Rule
13(4) of the Rules of 1975, both the set of Rules, have given the
discretion to the appointing authority or the Government to terminate
the services of a probationer during the period of probation if in its
opinion he is not likely to shape into a suitable Government servant.
Sub-Rule (5) of both the set of Rules again thereafter provide that
services of a probationer (i) who has not passed the departmental
examination or (ii) who is found unsuitable for the service or post,
may be terminated at the end of the period of his probation. We are
dealing with a case of those who were probationers but were not been
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able to pass the departmental examination even during the extended
period of probation, yet the appointing authority/Government, despite
having the specific power under Sub-Rule (5) of Rule 8 of the Rules
of 1961 and/or under Sub-Rule (5) of Rule 13 of the Rules of 1975 to
terminate their services, consciously decided not to do so and has
allowed them to continue in service, which is where the Sub-Rule (7)
of both the set of Rules would come into play thereby subjecting the
conditions of service of the directly recruited employees falling in this
category of Rules of 1960. All this while they continue to be eligible
and are entitled to appear in departmental examination and on clearing
such examination, are entitled to be confirmed.
19. In our considered opinion, it would have been ideal if the Full
Bench while answering the reference in Masood Akhtar (Dr.) (supra)
had also specifically examined Rule 13 of the Rules of 1975 but the
mere fact that the Full Bench only considered Rule 8 of the Rules of
1961 and not Rule 13 of the Rules of 1975, would not make any
difference insofar as the interpretation of the Rule that we have made
and further so far as the question of seniority of such Government
servants, who are at that stage considered as temporary Government
servant, is concerned, even while observing that the Full Bench in
Masood Akhtar (Dr.) (supra) ought to have considered the Rule 13 of
the Rules of 1975, we are inclined to hold that its non-consideration
does not in any manner affect the correctness of the conclusion arrived
at by the Full Bench. And now when we have considered and
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interpreted the Rule 13 of the Rules of 1975 we have also arrived at
the same conclusion as the Full Bench has recorded in Masood
Akhtar (Dr.) (supra) on harmonious interpretation of Rule 12(1)(a)
and 12(1)(f) of the Rules of 1961. In any case, non-consideration of
Rule 13 of the Rules of 1975 would not make any material difference
also for an additional reason which is that Rule 23 in the Rules of
1975 itself specifically provides that "the seniority of persons
appointed to the service shall be regulated in accordance with the
provisions of Rule 12 of the Madhya Pradesh Civil Services (General
Conditions of Service) Rules, 1961".
20. Adverting now to the question No.(2) formulated in the order
under reference as to whether Rule 12, and Rule 12(1)(a) in specific,
would apply to the "members of the service" and it does not deal with
the seniority of the probationers, who have not qualified the
departmental examination within the period of probation or within the
extended period of probation, and therefore, the conclusion recorded
in para 11(iv) of the direction is justified. It appears that in
paraphrasing this question, the Division Bench was guided by the
ratio of the three Supreme Court judgments in M.P. Chandoria
(supra), Ramkinkar Gupta (supra) and Om Prakash Shrivastava
(supra), which have been relied upon even before us by the learned
Additional Advocate General and the learned counsel for the
intervenors.
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21. The Supreme Court in M.P. Chandoria (supra), the earliest of
the three judgments rendered on 29th March, 1996, while dealing with
the case of direct recruit, who failed to qualify the prescribed test even
within the extended period of probation but confirmed only after he
passed the test, while dealing with Rule 12 of the Rules of 1961
existing at that point of time, concluded that his seniority shall be
reckoned from the date of passing the prescribed test and not from the
date of joining the services. Again interpreting the Rule 12 of the
Rules of 1961, this very view also reiterated by the Supreme Court in
Ramkinkar Gupta (supra) delivered on 17th September, 1999 relying
upon M.P. Chandoria (supra). On interpretation of the very same
Rule 12 of the Rules of 1961 and relying upon its earlier two
decisions in M.P. Chandoria (supra) and Ramkinkar Gupta (supra),
the same view was again expressed by the Supreme Court in Om
Prakash Shrivastava (supra) in its judgment dated 19th April, 2005.
But what is significant to notice here is that the view taken by the Full
Bench in Masood Akhtar (Dr.) (supra) is based on interpretation of
unamended Rule 12 of the Rules of 1961, which was amended by way
of substitution vide Notification dated 2nd April, 1998. This
amendment has taken away the very basis of these three judgments.
This has made all the difference in regard to placement of the direct
recruits, who inspite of having failed to qualify the prescribed
test/departmental examination within the extended period of probation
i.e. three years and appointing authority/Government having decided
not to terminate their services, despite having power to do so under
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Sub-Rule (5) of Rule 8 of Rules of 1961 read with Sub-Rule (5) of
Rule 13 of the Rules of 1975, as now in the amended Rule 12 of the
Rules of 1961, upon their passing the examination even at the later
stage, in view of amended Rule 12(1)(a) of the said Rules that now the
seniority of persons directly appointed to a post, according to the
rules, shall be determined on the basis of the order of merit in which
they are recommended for appointment irrespective of the date of
joining and that the persons appointed as a result of an earlier
selection shall be senior to those appointed as a result of a subsequent
selection with Rule 12(1)(f) of the said Rules providing that 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.
22. The Full Bench in Masood Akhtar (Dr.) (supra) has, while
making a conjoint reading of the Rule 12(1)(a) and 12(1)(f) of the
Rules of 1961 has placed harmonious interpretation so as to reconcile
them, which would be evident from the conclusion arrived at by the
Bench in para 11 of its judgment, as reproduced above in para 4 of
this judgment. But the question that has also to be additionally
answered in the light of the observation of the Supreme Court in
Warad Murti Mishra (supra) is: as to whether it was permissible for
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the Full Bench in Masood Akhtar (Dr.) (supra), despite the Supreme
Court consistently holding in above referred to three judgments that
direct recruits not having qualified the departmental examination even
within the extended period of service, could not be treated as member
of service and therefore cannot claim seniority of that period?
23. In order to appreciate this question, we need to compare the
unamended Rule 12 of the Rules of 1961 on interpretation of which
the ratio of the aforementioned three judgments of the Supreme Court
in M.P. Chandoria (supra); Ramkinkar Gupta (supra) and Om
Prakash Shrivastava (supra) is founded, with the newly inserted
Rules 12(1)(a) and (f) of the Rules of 1961 by way of substitution,
which have been interpreted by the Full Bench in Masood Akhtar
(Dr.) (supra), insofar as the question of seniority is concerned. The
unamended and the amended Rule 12 of the Rules of 1961 insofar as
they are relevant for the purposes of deciding the present matter, read
as under:-
Unamended Rule 12 of the Amended Rule 12 of the Rules
Rules of 1961 of 1961
(substituted by No.4, dated 2-4-1998)
12. Seniority: 12. Seniority. -
The seniority of the members of The seniority of the members of a
service of a district branch or service or a distinct branch or
group of posts of that service group of posts of that service shall
shall be determined in be determined in accordance with
accordance with the following the following principles, viz -
principles, viz. -
(a) Direct recruits: (1) Seniority of Direct Recruits and
Promotees.-
(i) The seniority of a directly (a) The seniority of persons directly
recruited Government servant appointed to a post according to
appointed on probation, shall rules shall be determined on the
count during his probation from basis of the order of merit in
the date of appointment, viz.: which they are recommended for
appointment irrespective of the
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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.
*** ****
(ii) the same order of inter se (f) If the period of probation of any
seniority shall be maintained on direct recruit or the testing period
the confirmation of such direct of any promotee is extended, the
recruits if the confirmation is appointing authority shall
ordered at the end of the normal determine whether he should be
period of probation. If, however, assigned the same seniority as
the period of probation of any would have been assigned to him
direct recruits is extended, the if he had completed the normal
appointing authority shall period of probation testing period
determine whether he should be successfully, or whether he should
assigned the same seniority as be assigned a lower seniority.
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.
24. It would be evident from the comparative reading of the
unamended Rule 12 with the amended Rule 12 of the Rules of 1961
that while in the old Rule 12 of the Rules of 1961, there is no
provision which would restrict the powers of the appointing authority/
Government by providing that the persons appointed as a result of an
earlier selection shall always rank senior to those appointed in a
subsequent selection. In the new Rule 12 of the Rules of 1961
however it is specifically provided, which would be evident from Rule
12(1)(a), by stipulating that "persons appointed as a result of an
earlier selection shall be senior to those appointed as a result of a
subsequent selection". It would be therefore evident from the above
that the amendment in Rule 12 has taken away the very basis of the
aforementioned three judgments of the Supreme Court in M.P.
Chandoria (supra), Ramkinkar Gupta (supra) and Om Prakash
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Shrivastava (supra) and, therefore, ratio of those judgments cannot be
applied to the present case. The rule making authority has now in the
amended Rule 12 categorically provided that the persons appointed as
a result of an earlier selection shall always rank senior to those
appointed as a result of subsequent selection, thus manifesting a
different intention than the one expressed in unamended Rule 12.
Reference in this connection may be made to the judgment of the
Supreme Court in Agricultural Income Tax Officer and another vs.
Goodricke Group Limited and another reported in (2015) 8 SCC
399. Reliance in that case was placed on an earlier judgment of the
Supreme Court in Buxa Dooars Tea Co. Ltd. Vs. State of W.B.
reported in (1989) 3 SCC 211, wherein two charging provision,
namely, Section 4-B of the West Bengal Rural Employment and
Production Act, 1976 and Section 78-C of the West Bengal Primary
Education Act, 1973, levying cess on production of tea, were struck
down as unconstitutional on the ground that the basis of levy was not
covered under the legislative competence of the State Legislature
under Schedule VII List II Entry 49 and that the said levy encroached
upon the legislative field covered under Schedule VII List I Entry 84
and further contravened Article 301 and was not saved by Article
304(b) of the Constitution of India. However, subsequently by an
amendment the defect was cured by changing the basis of the charging
provision (that is, by levying cess on the yield or income from a given
unit of land) and brining the levy within the legislative competence of
the State Legislature. The two cesses by the said amendment were
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imposed retrospectively from 1981 and 1984 respectively. However,
when the judgment of the Supreme Court in Buxa Dooars Tea Co.
Ltd. (supra) was relied in the aforesaid case of Agricultural Income
Tax Officer and another (supra), it was held as under:
"12. In our view, the purport of these two sections is clear.
Whatever may have been the subject-matter of Buxa Dooars Tea
Co. Ltd. (supra), that is the subject-matter of the two Acts as
originally enacted, will now, notwithstanding the interim order or
the final judgment in Buxa Dooars Tea Co. Ltd. (supra) be deemed
to have been validly levied, collected and paid as rural
employment cess and education cess under the Amended Act.
13. This being the case, it is clear that Section 4-B and Section
78-C have changed the basis of the law as it existed when Buxa
Dooars Tea Co. Ltd. (supra) was decided and consequently, the
judgment and interim order passed in Buxa Dooars Tea Co. Ltd.
(supra) will cease to have any effect. Also, what would have been
payable under the Act as unamended, is now payable only under
the 1989 Amendment Act which has come into force with
retrospective effect."
25. Reference can also be made to another judgment of the
Supreme Court on the similar subject in State of Madhya Pradesh
and another vs. Kedi Great Galeon Limited and another reported in
(2017) 13 SCC 836. In the aforesaid case, in the writ petition before
this Court, argument was made that in view of judgment of the
Supreme Court in M/s. Lilasons Breweries (Pvt.) Ltd. and another vs.
State of Madhya Pradesh and others reported in (1992) 3 SCC 293,
Rule 4 (41) of the M.P. Distillery Rules, 1995 was declared as non est
and void as Rule 22 of old M.P. Brewery Rules, 1970 has already been
declared ultra vires by the Supreme Court, it would be unnecessary to
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seek similar relief of striking down its successor Rule 4(41). Even
though no specific prayer was made in the writ petition to that effect,
but the High Court upholding the aforesaid argument struck down
Rule 4(41) of the M.P. Distillery Rules, 1995. Apart from other
grounds, the Supreme Court set aside the judgment of the High Court
also on the premise that subsequent amendment made in Section 28 of
the M.P. Excise Act, 1915 had the effect of changing the very basis of
the earlier judgment. It would be useful to extract following
observations of the Supreme Court from Para-43 of the report:
"43. The judgment in Banerjee Chandra Banerjee vs. State of
M.P., reported in (1970) 2 SCC 467 was delivered on 19.08.1970.
there has been amendment in Section 28 by Madhya Pradesh Act 6
of 1995 by which provision, specific provision requiring the
license to lift for sale, the minimum quantity of country spirit or
Indian-made liquor, fixed for his shop and to pay the penalty at the
prescribed rate on the quantity of liquor short lifted, has been
brought in the statute book. The scheme of the M.P. Excise Act,
1915 having been amended by the aforesaid 1995 Act, the very
basis of Banerjee (supra) is knocked down and cannot be relied on
in view of changed statutory scheme....."
26. It is a trite that a judgment for the purpose of precedent can be
relied upon for the proposition of law that it actually decided and not
for what can be logically deduced from it, for difference of a minor
fact would make a lot of change in the precedential value of the
judgment. The House of Lords in their celebrated decision reported as
[1901] A.C. 495 titled Quinn v. Leathem aptly observed: (16 of 21)
"every judgment must be read as applicable to the particular facts
proved, or assument to be proved, since generality of the expressions
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which may be found there are not intended to be expositions of the
whole law, but governed and qualified by the particulars facts of the
case in which such expressions are to be found. The other is that a
case is only an authority for what it actually decides. I entirely deny
that it can be quoted for a proposition that any seem to follow
logically from it.... ".
27. It is settled position of law that while interpreting a statute
different parts of a section of the rule have to be harmoniously
construed so as to give effect to the purpose of the legislation and the
intention of the legislature. Even the Full Bench in its judgment in
Masood Akhtar (Dr.) (supra) while relying upon the judgment of the
Supreme Court in British Airways vs. Union of India, (2002) 2 SCC
95 has observed that sub-sections of a section must be read as parts of
an integral whole and as being interdependent and an attempt should
be made in construing them to reconcile them if it is reasonably
possible to do so and to avoid repugnancy. As held by the Supreme
Court in Raj Krushna Bose vs. Binod Kanungo and others, AIR
1954 SC 202, a statute must be read as a whole and one provision of
the Act should be construed with reference to the other provisions in
the same Act so as to make a consistent enactment of the whole
statute. Such a construction has the merit of avoiding any
inconsistency or repugnancy either within a section or between a
section and other parts of the statute. It is the duty of the courts to
avoid "a head on clash" between the two sections of the same Act and
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whenever it is possible to do so, to construe provisions which appear
to conflict so that they harmonise. The Supreme Court in Madanlal
Fakirchand Dudhediya vs. Shree Changdeo Sugar Mills Ltd., AIR
1962 SC 1543 has held that the rule of construction is well settled that
when there are in an enactment two provisions, which cannot be
reconciled with each other, they would be so interpreted that if
possible the effect should be given to both. This is what is known as
"rule of harmonious construction".
28. Unlike the old Rule 12 of the Rules of 1961, the new Rule 12 of
the Rules of 1961 governs the discretion of the appointing
authority/Government, restricting its power to assign the lower
seniority to those who qualify the departmental examination some
time after expiry of the period of probation and gives power to it to
lower down the seniority of such an employee falling in this category
but with a rider that he shall be assigned the bottom seniority with his
own batch but in any case shall be placed above the direct recruits
from the subsequent batch. The employee, who is directly recruited
with reference to Rule 8(1) of the Rules of 1961 or Rule 13(1) of the
Rules of 1975 but is unable to qualify the departmental examination
even within the extended period of probation of three years and yet
not discharged from service by the appointing authority at the end of
the period of probation despite it having power to do so under Rule
8(5) of the Rules of 1961 and Rule 13(5) of the Rules of 1975, his
service conditions, as per the mandate of Rule 8(7) of the Rules of
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1961 or Rule 13(7) of the Rules of 1975 would then be governed by
the Rules of 1960. However, this situation would continue only for the
interregnum period till he qualifies the departmental examination. It
must, therefore, be construed that the person falling in this category as
per Rule 8(1) of the Rules of 1961 continues to be "a person
appointed to a service or post by direct recruitment" or Rule 13(1) of
the Rules of 1975, as "every person directly recruited to the service"
as the Government, despite having power under Rule 8(5) of the Rules
of 1961 or Rule 13(5) of the Rules of 1975, to terminate his services
upon his failure to pass the departmental examination even within the
extended period of probation, having taken a conscious decision to
retain him in service. Obviously, his recruitment was made against a
post and he continues to occupy that post even after expiry of
extended period of probation. He is eventually confirmed when he
passes the departmental examination. Since he continues to work on
the same post on which he was initially appointed and continuing to
draw pay against such post, there would not arise any question of his
needing to retain any lien. Argument to that effect raised on behalf of
the Intervener does not have any force and is rejected. He shall
continue to be entitled to appear in departmental examination even
thereafter and upon passing the same, shall be confirmed in service. If
and when he would qualify such examination and is confirmed, he
would become a member of service with reference to his original
appointment and in that case, would be continued in service and
consequently, would be assigned the seniority below his batchmates,
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who have already earlier qualified the departmental examination. This
is because once such an employee has passed the departmental
examination, he would then cease to be subject to the Rules of 1960
and would be governed from that stage onward by the Rules of 1961
and/or Rules of 1975, as the case may be. Even otherwise, there is no
provision in anywhere in the Rules of 1960 with regard to fixation and
regulation of seniority of the employees falling in this category.
29. We are in taking that view fortified from the ratio of the
Constitution Bench judgment of the Supreme Court in Direct Recruit
Class II Engineering Officer's Association (supra) wherein, in para-
13, it was held as under:-
"13..........the period of continuous officiation by a government
servant, after his appointment by following the rules applicable for
substantive appointments, has to be taken into account for
determining his seniority; and seniority cannot be determined on
the sole 'test of confirmation, for, confirmation is one of the
inglorious uncertainties of government service depending neither
on efficiency of the incumbent nor on the availability of
substantive vacancies..........."
Thereafter, the Supreme Court, in the same very para, further
held that:-
"........The principle for deciding inter se seniority has to conform
to the principles of equality spelt out by Articles 14 and 16 of the
Constitution of India. If an appointment is made by way of stopgap
arrangement, without considering the claims of all the eligible
available persons and without following the rules of appointment,
the experience on such appointment cannot be equated with the
experience of a regular appointee, because of the qualitative
difference in the appointment....."
After holding so, the Supreme Court further held that:-
".........But if the appointment is made after considering the claims
of all eligible candidates and the appointee continues in the post
uninterruptedly till the regularisation of his service in accordance
with the rules made for regular substantive appointments, there is
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no reason to exclude the officiating service for purpose of
seniority.........."
30. The Supreme Court in L. Chandrakishore Singh (supra) in
para 15 has held as under:-
"It is now well settled that even in cases of probation or officiating
appointments which are followed by a confirmation unless a
contrary rule is shown, the service rendered as officiating
appointment or on probation cannot be ignored for reckoning the
length of continuous officiating service for determining the place
in the seniority list......."
31. In view of the above discussion, we are inclined to agree with
the view expressed by the Full Bench in Masood Akhtar (Dr.) (supra)
although we have recorded our own additional reasons in support of
such conclusion. Since we agree with the ultimate conclusion arrived
at by the Full Bench in Masood Akhtar (Dr.) (supra) despite giving
additional reasons for our view, we are not persuaded to hold that the
Full Bench has not correctly answered the reference. We therefore see
no justification to further refer this matter to a Larger Bench
consisting of five Judges.
Referred questions having thus been answered, let the writ
petitions be now listed before the Division Bench for hearing on
merits as per Roster.
(Mohammad Rafiq) (Rajeev Kumar Dubey) (Vijay Kumar Shukla)
Chief Justice Judge Judge
[email protected],
S/
Digitally signed by
CHRISTOPHER PHILIP
Date: 2021.04.22 18:21:32
+05'30'
