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CASE NO.: Appeal (civil)  2698-2699 of 2005

PETITIONER: Om Prakash Shrivastava

RESPONDENT: State of M.P. & Anr

DATE OF JUDGMENT: 19/04/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

(Arising out of SLP(C) Nos.8327-8328 of 2004)

ARIJIT PASAYAT, J.

       Leave granted.

       Appellant calls in question legality of the judgment rendered by  a Division Bench of the Madhya Pradesh High Court at Jabalpur affirming  the order passed by Central Administrative Tribunal (in short ’CAT’)  holding that the appellant’s claim of seniority vis-‘-vis that of one  Ram Rao Bhosley was untenable.  

       Factual position is undisputed and relates to appellant’s  seniority vis-‘-vis others. Though grievance was made in the Original  Application before the CAT and the High Court that his seniority was  affected by placing juniors above him, no such junior was impleaded  either before CAT or the High Court and in the present appeal. By way  of illustration, it has been pointed out that the aforesaid Ram Rao  Bhosley was one such instance. It was appellant’s stand that when he  passed the departmental examination, the Government should have decided  the date from which he was to be confirmed. As no such decision has  been taken and no order has been passed his placement in the Gradation  list is without any rational basis.  

Appellant was appointed on 1.1.1989 on probation and original  probation period ended on 1.5.1991.  There was  extension of the period  of probation by one year which ended on 1.5.1992.  Even during the  extended period of probation the appellant did not succeed in the  departmental examination and only on 22.7.1992 he passed the  departmental examination.  The date of confirmation was accordingly  taken to be 23.7.1992.  The appellant made a grievance that those  persons who had passed the departmental examination within the extended  period of one year were placed higher in the seniority list of 2002 by  fixing their notional date of confirmation on the day the original  period of probation was over.  According to the appellant such fixation  of seniority was contrary to law.  The CAT did not accept the plea by  placing reliance on judgment of this Court in M.P. Chandoria v. State  of M.P. and Ors. (1996 (11) SCC 173) and State of M.P. v. Ramkinkar  Gupta and Ors. (2000(10) SCC 77). The CAT  held that these decisions  did not support the stand taken by the appellant and, in fact,  substantiated State’s case that only from the date an employee passes  the departmental examination (if it is after probation period), the  confirmation takes places.  

       In support of the appeal, Mr. Vivek Tankha, learned senior  counsel submitted that the view taken by the CAT and the High Court was

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not correct in view of what has been stated by this Court in M.P.  Chandoria and Ramkinkar Gupta  cases (supra).  With reference to the  factual details of Ram Rao Bhosley, it was submitted that though he  passed the departmental examination on 29.1.1993 after his initial  appointment on 7.5.1990, he was placed senior to the appellant in the  Gradation list. This was submitted to be not justified both in fact and  in law.   

       Learned counsel for the respondent-State on the other hand  supported the judgment of CAT and the High Court.   

We shall first take note of the factual details so far as the  appellant and Ram Rao Bhosley, though he is not a party to test  acceptability of appellant’s stand.    

Name of the officer Om Prakash Shrivastava Ram Rao Bhosley Date of appointment 01.05.1989 07.05.1990 Date of completion of 2- years (original  Probation Period) 01.05.1991 07.05.1992 Date of completion of  extended period of  1(one) \026 year 01.05.1992 07.05.1993 Date of passing the  departmental exams. 22.07.1992 29.01.1993 Date of confirmation 23.07.1992 08.05.1992(Notional) Sr.No. in Gradation List  of 2002 360 345

       Rules 8 and 12 of the Madhya Pradesh Civil Services (General  Conditions of Service) Rules, 1963 (in short the ’Rules’) throw  considerable light on the present controversy. They read, so far as  relevant as follows:  

"8. Probation - (1) A person appointed to a 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  reasons, extend the period of probation by a further  period not exceeding one year.   *              *                 *  (3) A probationer shall undergo such training and  pass such departmental examinations during the period  of his probation as may 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 probationer who has not passed

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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 Government  Servants (Temporary and Quasi-Permanent Service)  Rules, 1960."  "12. Seniority - The seniority of the members of  service of a district branch or group of posts of  that service shall be determined in accordance with  the following principles, viz. -  (a) Direct recruits: (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 recruits 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."  

       Rule 13 of Madhya Pradesh Civil Services (Executive)  Classification, Recruitment and Conditions of Services Rules, 1975 (in  short ’Executive Rules’) reads as follows:

"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.

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(5)     The services of a 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 examinations,  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 becomes 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 probationary period is extended,  government will decide at the time of confirmation  whether arrears of increments 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."                  

       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 of the Rules and 13 of  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’s case (supra), 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.   

       Reiterating the principles in M.P. Chadoria’s case (supra), it  was held in Ramkinkar Gupta’s case (supra) that if a person does not

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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 extended period of probation.  

       In view of the principles indicated, CAT and High Court were  justified in rejecting the appellant’s claim. The conclusions do not  warrant any interference.

       The appeals are dismissed with no order as to costs.