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PETITIONER: M.P. CHANDORIA

       Vs.

RESPONDENT: STATE OF M.P. & ORS.

DATE OF JUDGMENT:       29/03/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (5)   378        1996 SCALE  (4)163

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard the learned counsel on both sides.      The appellant  was appointed as a direct recruit to the M.P. State  Civil Service  [Deputy Collector]  on January  7 1967 and  jointed the  service on  February 15, 1967. He was put on  probation w.e.f.  the said  date. He  had passed the prescribed  test  on  June  27.  1972.  The  Government  had confirmed his  appointment on  regular basis  on  march  13, 1973. The  appellant has  sought his confirmation w.e.f. his date of  joining the  duty,  viz.,  February  15,  1967  and claimed seniority  from that  date.  The  Tribunal  has  not granted the  relief in  O.A. No.521  of 1988  by order dated December 17, 1992. Thus this appeal by special leave.      The learned  counsel for  the appellant  has  contended that since  he has been appointed w.e.f. the date of joining of duty,  his seniority  should be reckoned from the date of his starting  discharging duty  of the  post, viz., February 15, 1967.  As he has not been discharged from service due to his failure to pass the test, though he passed his test at a later, he  must be  deemed to have been confirmed w.e.f. the date of  his joining  the duty.  Therefore, the seniority is required to be confirmed from that date. We find no force in the contention.  Indisputably, the  appellant is governed by the Madhya  Pradesh Civil  services [General  Conditions  of Service] Rules,  1961 [for short, the ’Rules’]. Clause 2 [9] defines ’service’ to mean a service of group of posts in connection with  the affairs  of the  State other  than  the Indian Administrative Service and the Indian Police Service organized as  such by  the Government. Rule 4 classifies the post with  which we  are not  concerned. Rule  8  prescribes probation. Rule 8 [1] envisages that a person appointed to a service or  post by  direct recruitment  shall ordinarily be placed on  probation for  such period  as may be prescribed. The appointing authority may, for sufficient reasons, extend the period  of probation  by a  further period not exceeding

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one year.  The probationer  has to undergo such training and pass such  departmental examination during the period of his probation as  may be  prescribed. Sub-rules  (4) and (5) are not relevant  and are  omitted. Sub-rule  (6) of  Rule 8  is relevant for the purpose of the case which envisages that on successful  completion   of  probation   and   passing   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. As  soon as  a permanent  post  becomes available, he  will be  confirmed.  Under  sub-rule  (7),  a probationer,  who   has  neither   been  confirmed   nor   a certificate issued  in his favour under sub-rule [6], nor is he discharged  from service  under sub-rule [4], he shall be deemed to  have been  appointed as  a  temporary  Government service w.e  f. the  date of  expiry of  probation  and  his conditions of  service  shall  be  governed  by  the  Madhya Pradesh Government  Servants [Temporary  and Quasi-Permanent Service] Rules, 1960.      Under Rule  12, the  seniority of  the members  of  the service of  a district  branch or  group of  posts  of  that service,  shall   be  determined   in  accordance  with  the principles laid  down therein.  Sub-clause [i] of Clause [a] envisages  that   the  seniority  of  a  directly  recruited Government servant appointed on probation shall count during his probation  from the date of his appointment; the proviso is not  relevant. Sub-clause  [A] envisages  that  the  same under of inter se seniority of direct recruits maintained by confirmation of the normal period of probation. If, however, the period  of probation  of any direct recruit is extended, the appointing  authority should  determine  the  date  from which the  candidate should be assigned seniority. Until the probation is  declared and  he was confirmed in the post, he does  not   became  a   member  of  the  service  successful completion of the probation and pass of the prescribed tests or conditions  precedent to  declare the probation. So, mere passage of  time of  one year does not entitle a probationer to be  a  member  of  the  service.  He  remains  to  be  on temporarily  service.   On  declaration  of  probation,  the appointing  authority  should  confirm  in  a  pending  post available or to grant quasi-permanent status. As soon as the post is  available. he  should be  confirmed. In view of the admitted position  that  he  did  not  pass  the  test,  the appointing authority  considered that his seniority would be counted w.e.f. the date of his passing the test. Rule 12 [a] (ii) clearly empowers the appointing authority to assign, in these circumstances,  the seniority  in lower level than the one assigned  by the  Public Service  Commission. We  do not find any  illegality committed  by the authorities in giving seniority from the date of his passing the test.      The appeal is accordingly dismissed. No costs.