SUPREME COURT OF INDIA

Before:- B.N. Kirpal and S. Rajendra Babu, JJ.

Civil Appeal No. 5380 of 1999. D/d. 17.9.1999

State of M.P. - Appellant

Versus

Ramkinkar Gupta and others - Respondents

WITH

Civil Appeal No. 5381 of 1999.

State of M.P. - Appellant

Versus

Anand K. Jain and others - Respondents

WITH

Civil Appeal No. 5382 of 1999.

State of M.P. - Appellant

Versus

Veena Ghanekar and others - Respondents

WITH

Civil Appeal No. 5383 of 1999.

State of M.P. - Appellant

Versus

Ramesh Bhandari and others - Respondents

WITH

Civil Appeal No. 5384 of 1999.

State of M.P. and another - Appellants

Versus

Ram Meshram and others - Respondents

For the Appellant :- Mr. P.P. Rao, Sr. Advocate, Mr. H.V.P. Sharma, Mr. A.N. Bardiyar, Advocates.

For the Respondents :- Mr. Mukul Rohtagi, Additional Solicitor General, Mr. K.C. Kaushik, Ms. Sushma Suri, Mrs. Anil Katiyar, Advocates.

Madhya Pradesh Civil Services (General Conditions of Service) Rules, 1963, Rule 8 - Seniority - Appointment by direct recruitment to State Civil Service on probation for two years on 10.1.80 - For confirmation departmental examination passed only on 19.1.84 - He was confirmed and seniority reckoned from 19.1.84 - But claim for seniority w.e.f. 11.2.82 - Rejected - As he could not pass the test earlier - Held, that if a person does not pass the test then the appointing authority is empowered to assign the seniority in a lower level than the one which was assighned by Public Service Commission - Seniority w.e.f. 19.1.84 in accordance with the Rules.

[Para 9]

Cases Referred :-

M.P. Chandoria v. State of Madhya Pradesh, 1996(3) SCT 317 (SC).

State of M.P. v. Ramkinkar Gupta and others, CA No. 538 of 1999 @ SLP (C) No. 17263/1998.

ORDER

S. Rajendra Babu, J. - Special leave granted.

2. In the instant case respondent No. 1 was appointed by way of direct recruitment to the State Civil Service on probation for two years on 10.1.1980. The Rules provided that every probationer had to pass a departmental examination during his probation period without which he could not be confirmed.

3. It is not in dispute that respondent No. 1 could not pass this examination. Respondent Nos. 2-16 who were junior to him did pass their examination and thereafter respondents Nos. 17-38 who were also junior to respondent No. 1 passed their examination.

4. On 19th January, 1984 respondent No. 1 finally passed his departmental examination and he was confirmed and given seniority with effect from that date. The said respondent then made a representation on 5.12.90 that he should be assigned seniority w.e.f. 11.2.82 and not w.e.f. 19.1.84. The State Government rejected this claim. The respondent No. 1 filed a petition before the State Administrative Tribunal. The Tribunal came to the conclusion that the seniority of the said respondent should be fixed w.e.f 12.2.82. A writ petition was filed by the appellant but the same was summarily dismissed.

5. The point in issue, as we shall presently (see), is no longer re-integra. It is not in dispute that the said respondent No. 1 had not passed his departmental examination till after respondent Nos. 2-38 had passed their examination. Rule 8 of the Madhya Pradesh Civil Service (General Conditions of Service) Rules, 1963, relates to probation of officers and the said Rule is as under :-

"8. Probation - (1) A person appointed to service or post by direct recruitment shall ordinarily be placed on probation for such period as may be prescribed.

(2) The appointing authority may, for sufficient reason, extend the period of probation by a further period not exceeding one year (...)

(3) A probationer shall undergo such training and pass such departmental examination during the period of his probation may as be prescribed.

(4) The service of a probationer may be terminated during the period of probation if in the opinion of the appointing authority he is not likely to shape into a suitable Government servant.

(5) The services of a petitioner who has not passed the departmental examinations or who is found unsuitable for the service or post may be terminated at the end of the period of his probation.

(6) On the successful completion of probation and passing of the prescribed departmental examination, if any, the probationer shall if there is a permanent post available, be confirmed in the service or post to which he has been appointed, otherwise a certificate shall be issued in his favour by the appointing authority to the effect that the probationer would have been confirmed but for the non-availability of the permanent post and that as soon as a permanent post becomes available he will be confirmed.

(7) A probationer, who has neither been confirmed, nor a certificate issued in his favour under sub-rule (6), nor discharged from service under sub-rule (4), shall be deemed to have been appointed as a temporary Government servant with effect from the date of expiry of probation and his conditions of service shall be governed by the Madhya Pradesh Govt. Servants (Temporary and Quasi-Permanent Service) Rules, 1960."

6. Rule 13 of M.P. Civil Services (Executive) Classification Recruitment and Condition of Service of Rule, 1975 reads as under :-

"13. Probation - (1) Every person directly recruited to the Service shall be appointed on probation for a period of two years.

(2) The appointing authority may, for sufficient reasons, extend the period of probation by a further period not exceeding one year.

(3) The probationer shall undergo the prescribed training and pass the prescribed departmental examination by the higher standard during the period of his probation.

(4) The services of the probationer may be terminated during the period of probation, if in the opinion of the appointing authority, he is not likely to shape into suitable Government servant.

(5) The services of probationer who does not pass the prescribed departmental examination or who is found unsuitable for the service also be terminated at the end of the period of probation.

(6) On successful completion of probation and the passing of the prescribed departmental examination, the probationer shall be confirmed in the service provided permanent vacancies exist for him otherwise a certificate shall be issued in his favour by the appointing authority to the effect that the probationer would have been confirmed but for the non-availability of the permanent post and as soon as permanent post become available he will be confirmed. The probationer shall not draw any increments until he is confirmed. On confirmation his pay will be fixed with reference to the total length of service. If the probationery 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 been confirmed, nor a certificate issued in his favour under sub-rule (6) above nor discharged from service under sub-rules (4) and (5) above, 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 shall be governed by the Madhya Pradesh (Temporary and Quasi-Permanent Service) Rules, 1960."

7. It is quite evident that respondent No. 1 who had neither been confirmed, nor certificate had been issued in his favour under sub-rule (6) nor he was discharged from service under sub-rule (4) would fall within the category of those officers referred to in sub-rule (7) of Rule 8. In other words, he was to be deemed to be a temporary Government servant with effect from the date of expiry of probation.

8. Rule 12 of the said Rules deal with the question of fixation of seniority. The relevant portion of said Rule is as under :-

"12. Seniority : The seniority of the members of service of that service shall be determined in accordance with following principles, viz. -

(a) Direct recuits : (i) The seniority of a directly recruited Government servant appointed on probation, shall count during his probation from the date of appointment, viz. :

(ii) the same order of inter se seniority shall be maintained on the confirmation of such direct recruits if the confirmation is ordered at the end of the normal period of probation. If, however, the period of probation of any direct recruit is extended, the appointing authority shall determine whether he should be assigned the same seniority as would be assigned to him if he had been confirmed on the expiry of the normal period of probation or whether he should be assigned a lower seniority."

9. According to sub-clause (ii) of clause (a) of Rule 12 in a case like the present where a person had been allowed to continue in service after the period of probation had been completed and he is confirmed subsequently, it is for the appointing authority to decide as to from what date he should be assigned the seniority. In the present case the decision of the State Government was that he should be assigned the seniority w.e.f. 19.1.1984. The aforesaid rules have been considered by this Court in the case of M.P. Chandoria v. State of Madhya Pradesh and others, JT 1996(5) SC 38 : 1996(3) SCT 317 (SC). The principle laid down by this Court in Chandoria's case (supra) was that if a person does not pass the test then the appointing authority is empowered to assign the seniority in a lower level than the one which was assigned by the Public Service Commission. That being so the decision to assign the seniority to Respondent No. 1 w.e.f. 19.1.1984 is in accordance with Rules.

10. Mr. Verma, however, contends that Rule 12 clause (a)(ii) postulates a speaking order being passed in order to assign a lower seniority to respondent No. 1 not w.e.f. 11.2.1982 but w.e.f. 19.1.1984. It appears that a representation was made for the first time by Respondent No. 1 on 5.12.1990. Apart from the fact that the said representation was very belated, nearly six years after the fixation of seniority, the State Government rejected that representation vide order dated 20.5.93. This shows that, when called upon, the State Government had once again applied its mind and had substantially complied with the provisions of Rule 12. We do not, therefore, find any reason as to why the Respondent No. 1 should be assigned seniority w.e.f. 11.2.1982. This being so, this appeal is allowed, the judgment of the High Court and that of the Administrative Tribunal is set aside and we hold that the seniority of Respondent No. 1 fixed from 19.1.1984 is in order. However there will be no order as to costs.

Civil Appeal Nos. 5381 and 5383 of 1999 (arising out SLP (C) Nos. 3779, 9150 and 6172 of 1999)

11. Leave granted.

12. In view of the aforesaid reasons these civil appeals are also allowed. However, there will be no order as to costs.

Civil Appeal No. 5384 of 1999 (arising out of SLP (C) No. 9072 of 1999)

13. Leave granted.

14. The facts of the case are different from the case of State of M.P. v. Ramkinkar Gupta and others, (CA No. 538 of 1999 @ SLP (C) No. 17263/1998). In the present case, the respondent was granted an extension of one year for completing the probation and within that extended period he passed the requisite test. Therefore, his seniority will be fixed from the date of passing of the departmental examination and not from the date of joining of service. Accordingly this appeal is dismissed with no order as to costs.

Order accordingly.