Warad Murti Mishra v. State of Madhya Pradesh

5. It may be mentioned that while issuing the Seniority List dated 08.08.2001, the Appellant and similarly situated persons were declared as confirmed/permanent on the date when they had cleared the examination, which incidentally was later than the date of confirmation of the officers in the subsequent selection. The relevant order also dealt with cases of certain officials who had not cleared the departmental examination in the initial period of two years, but had cleared the concerned examination within the extended period. Thus, the order dealt with three kinds of officials (a) those who had cleared the examination in the initial period of probation of two years; (b) those who had cleared the examination within the extended period of one year of probation; and (c) those who had cleared the examination after the expiry of extended period of probation.

(i) The second category of persons was dealt with as under:- “All the abovenamed officers by not passing all the departmental examinations within the prescribed period of 2 years, have passed the same in the extended period i.e. within 3 years. Therefore, their seniority in State Administrative Service shall remain as it as per the seniority of the Select List of M.P. Public Service Commission. Abovenamed officers have passed the departmental examination during the extended probation period, therefore, the arrears of increment in pay as per Rule 13 (6) of the M.P. State Administrative Service (Executive) (Classification, Recruitment & Conditions of Service) Rules, 1975, shall not be paid to these officers. The benefit of notional date of permanency of these officers shall be available only for the seniority. The benefit of notional date of regularization shall not be available for revision of pay.” ii) After setting out the names of candidates who had cleared the departmental examination after the expiry of extended period of probation, the order stated:- “Abovenamed officers have passed departmental examination after the expiry of probation period of 2 years and extended period of 1 year i.e. after 3 years. Therefore, by not maintaining the seniority of aforementioned officers in permanent cadre of the State Administrative Service as it is as per the Select List of M.P. Public Service Commission, and by lowering their seniority as per Rule 12(1)(f) of the M.P. Civil Service (General Conditions of Service) Rules, 1961, same shall be revised in reference to the date of passing the departmental examination.”

6. In a challenge raised by the concerned candidates, the Division Bench of the High Court considered the matter vide its judgment and order dated 17.12.2009 in Writ Appeal No. 510 of 2009 and all other connected matters (Suresh Kumar vs. The State of M.P. and others). The submission advanced in support of the challenge was noted as under:-

After going into Rule 12 of 1961 Rules, the Division Bench concluded:-

7. State of Madhya Pradesh, being aggrieved, challenged the correctness of the decision of the Division Bench by filing Special Leave Petition (Civil) No. 13888 of 2010 (State of Madhya Pradesh vs. Sandeep Kumar Mawkin) which was dismissed by this Court on 13.09.2010. Review Petition (Civil) No.1034 of 2011 arising therefrom was also dismissed by this Court on 13.04.2011.

8. Thereafter, in view of the divergence of views expressed by two Division Benches of the High Court, the matter was referred to the Full Bench of the High Court in Writ Appeal No. 607 of 2011 (Dr. Masood Akhtar vs. R.K. Tripathi) and other connected matters, which were dealt with by the Full Bench vide its order dated 17.02.2012. After considering Rules 8 and 12 of 1961 Rules, it was observed:- “6…. …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 is the condition precedent for confirmation either in the rules or in the order of appointment. The view finds support from the decision in High Court of M.P. through Registrar and others vs. Satya Narayan Jhavar (2001) 7 SCC 161 Rajindra Singh Chauhan (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 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 (7) 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 extend of 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 cast of probationer for confirmation, it would have no option except to refuse confirmation on the ground that the probationer has 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.” The Full Bench went on to observe:-

9. State of Madhya Pradesh challenged the decision of the Full Bench by filing Special Leave Petition (Civil) No. 2028[8] of 2012 (State of M.P. and ors. vs. Masood Akhtar and ors.) and other connected matters, which were dismissed by this Court on 01.09.2017. Review Petition (Civil) NO. 2663 of 2018 arising therefrom was dismissed by this Court on 18.09.2018.

10. Subsequently, Writ Petitions were filed by the Appellant and similarly situated persons seeking direction to grant them seniority from the initial date of appointment in their respective batches in view of the provisions contained in Rule 12 (1)(a) and (f) of 1961 Rules, though they had not passed the departmental examination either within the initial period of probation of two years or within the extended period of probation of one year.

11. The Division Bench in its judgment, which is presently under appeal, considered the decision of the Full Bench and observed:-

After referring to the concerned Rules, the Division Bench observed:-

1) The judgment of the Full Bench dealing the issue 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 service 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 the 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.

22. In view of the foregoing observation, 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 Chief Justice to do the needful and to take appropriate steps in this regard in view of the foregoing observations.”

12. In these appeals, the rival submissions were recorded by this Court in the Order dated 11.07.2019, whereafter the matters were posted for hearing. The relevant portion of the Order was:- “According to Mr. Shrivastava, the controversy in question had reached this Court in 2009 when the special leave petitions and the review petitions were dismissed affirming the view taken by the Division Bench in Writ Appeal No.510 of 2009 and other connected matters. Thereafter, on a reference made by the Division Bench, the Full Bench of the High Court had an occasion to consider the matter. The judgment of the Full Bench rendered in Writ Appeal No.607 of 2011 and connected matters was challenged before this Court in SLP (C) No.2028[8] of 2012 and other connected matters. The special leave petitions were dismissed by this Court on 1st September, 2017 and review petitions arising therefrom were also dismissed by this Court. The submission of Mr. Shrivastava is that the matters having been settled, the Division Bench ought not to have referred the matter for further consideration by a larger Bench. Mr. Rahul Kaushik, learned counsel appearing for the State relied upon the decisions of this Court reported in M.P. Chandoria vs. State of M.P. & Ors. [(1996) 11 SCC 173]; State of M.P. vs. Ramkinkar Gupta & Ors. [(2000) 10 SCC 77]; and Om Prakash Shrivastava vs. State of M.P. & Anr. [(2005) 11 SCC 488] to submit that the passing of the departmental examination would be a relevant criteria to determine the seniority and if in the intervening period a subsequent batch had been appointed, the person from the previous batch would not retain his seniority as against the subsequent batch. In his submission, the Division Bench was, therefore, justified in making the reference to a larger Bench. Mr. P.S. Patwalia, learned senior counsel appearing for some of the private respondents on caveat, invited our attention to the interplay between Rule 8(7) and Rule 12 of the Madhya Pradesh Civil Services (General Conditions of Service) Rules, 1961. According to the learned counsel, by virtue of Rule 8(7), the status of such a Government servant would be “temporary Government servant” and he would cease to be part of the regular service and, therefore, Rule 12 would be completely inapplicable.”

13. We heard Mr. Ravindra Shrivastava, learned Senior Advocate for the Appellants, Mr. Rahul Kaushik, learned Advocate for the State and Mr. P.S. Patwalia, learned Senior Advocate and Mr. Puneet Jain, learned Advocate for the private Respondents. The parties also filed their written submissions.

Advocate for the Appellants submitted:- “…the question of determination of seniority of those direct recruits who were unable to pass the departmental examination and consequently their confirmation was delayed is no longer res integra, having been decided twice by the High Court. … … … … …it would be travesty of justice to allow the concluded issue to be reopened once again after dismissal of SLP and review in two rounds of litigation in this Hon’ble Court. … …” It was further submitted:- “…in the event, the impugned order is upheld which has directed reference to a larger bench, the High Court would be required to re-consider the legal issues on merits involving interpretation of law and the rules. It is submitted with respect and humility, that this Hon’ble Court is not called upon to examine the interpretation of the law and the rules and the principle of seniority applicable in the instant case as the High Court in seisin of the substantive matter, except perhaps for a limited purpose of ascertaining for itself prima facie that on earlier occasions same very rule and the dispute of seniority based on the same contentions has been considered.”

(2) The Rule also provide that conditions of such government servant would be “…governed by the Madhya Pradesh (Temporary and Quasi-Permanent Service) Rules, 1960…”. Thus, the probationer, upon unsuccessful completion of the probation period ceases to be part of the 1975 Rules and is now to be governed by a separate set of rules applicable to Temporary Government Servants.

(vii) Due to the “Deeming Fiction” created by

13(7), after expiry of 3 years, the probationer Ceases to be a probationer and becomes a “Temporary Government Servant”. He would then cease to be a member of the State Administrative Service due to the application of Rule 13(7) (or rule 8(7) of the 1961 Rules) which have remained the same and have not undergone any amendment. In M.P. Chandoria vs. State of Madhya Pradesh (1996) 11 SCC 173 it was therefore specifically held as under:- “… …If however, the period of probation of any direct recruit is extended…. Date of passing of the test.”

14. While considering 1961 Rules vis-à-vis the status and rights of a probationer, in M.P. Chandoria vs. State of Madhya Pradesh and others[2], this Court had stated:-

15. To similar effect are the observations of this Court in State of M.P. vs. Ramkinkar Gupta and others[3]:-

16. The principles were reiterated by this Court in Om Prakash Shrivastava vs. State of M.P. and another[4] as under:- “10. A bare reading of sub-clause (ii) of clause (a) of Rule 12 makes the position clear that the appointing authority has to decide as to from what date the direct recruit is to be assigned. It has to be decided whether seniority as 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. The original probation period is two years. Therefore, a combined reading of Rules 8, 12 and Rule 13 of the Executive Rules makes the position clear that seniority can be assigned by taking the relevant date to be the date of expiry of normal period of probation. In the case of Ram Rao Bhosley, it was 8-5-1992. So far as the appellant is concerned, the appointing authority has been given power to determine the date from which the candidate should be assigned seniority if the period of probation of any direct recruit is extended depending on the date of his passing the departmental examination. As was noted in M.P. Chandoria case[3] until the probation period is completed, and he is confirmed in the post, the employee does not become a member of the service on successful completion of the probation and passing of the prescribed tests or conditions precedent to declaration of completion of the probation period. Mere completion of one year period does not entitle the person to be a member of the service. He continues to be in temporary service on the completion of probation period. The appointing authority is to confirm him in a pending post available or grant him a quasi-permanent status. Unless he passes departmental examination, there is no question of completion of probation and for all practical purposes the employee continues to be in temporary service.

11. Reiterating the principles in M.P. Chandoria case[3] it was held in Ramkinkar Gupta case[4] that if a person does not pass the test then the appointing authority is empowered to assign seniority in a lower level than one which has been assigned by the Public Service Commission. A person who has neither been confirmed, nor had a certificate in his favour in terms of sub-rule (6), nor discharged from service under sub-rule (4) would fall within the category of those officers referred to in sub-rule (7) of Rule 8 of the Rules. In other words, he is to be deemed to be a temporary government servant with effect from the date of expiry of probation. The position is different in case of an officer, who passes the departmental examination within an extended period of probation.”

17. It is submitted by the learned counsel for the Appellants that the issue stands concluded in their favour by the decisions of the Division Bench and the Full Bench of the High Court, as stated hereinabove, while it is submitted by the State and the private Respondents that the seniority issue ought to be determined in the light of the aforementioned decisions of this Court. It is true that the decisions of the Division Bench and the Full Bench were challenged and not only the Special Leave Petitions but the Review Petitions were also dismissed. But as observed by the Division Bench in the instant case, the effect of Rule 13 of 1975 Rules was not considered on the earlier occasions. Since the Division Bench 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.

18. It was, however, submitted by the learned counsel for the Appellants that going by the settled parameters of “re-consideration” laid down in Pradip Chandra Parija and others vs. Pramod Chandra Patnaik and others[5] and in Sakshi vs. Union of India and others[6], 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 to a bench of equal strength (three Judges) in keeping with the law laid down by this Court in

Central Board of Dawoodi Bohra Community and another vs. State of Maharashtra and another[7].

19. 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 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.

20. The Appeals stand disposed of in aforestated terms. No costs. ….…..………………….J. [Uday Umesh Lalit] ….…..………………….J. [Indu Malhotra] New Delhi; June 15, 2020.