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PETITIONER: MOHAN LAL & ORS.

       Vs.

RESPONDENT: STATE OF HIMACHAL PRADESH THROUGHITS SECRETARY, EXCISE AND T

DATE OF JUDGMENT:       17/03/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.  We have  heard learned  counsel on both sides.      This appeal,  by special leave arises from the order of the H.P.  Administrative Tribunal,  made on October 28, 1996 in O.A. No. 788/95.      The determination  of inter-se  seniority of the direct recruits is  the only  question in this case. The appellants and  the   respondents  came   to  be   selected  by  direct recruitment against  vacancies in  the  permanent  posts  of Excise and  Taxation  Inspectors  in  the  H.P.  Excise  and Taxation Department (Inspectorate staff, Class III) Service. The question relates to the interpretation of Rule 11 of the (Seniority) Service Rules read with Rule 4 (Examination ) of the Rules.  It is:  whether examination  has  to  be  passed within two  years from the date of appointment and joins the duty,  indisputably  under  Rule  11(3)  of  the  Rules,  on confirmation on  the  Expiry  of  probation,  the  seniority relates back to the date of appointment. The situation where a candidate  does not  pass the examination within two years but within  the extended  period of four years is dealt with under proviso to sub rule (3) of Rule 11 which reads thus:      "11(3) On  the  completion  of  the      period of  probation a  person  and      passing the  prescribed examination      the appointment authority may      (a) if  his  work  and  conduct  is      found satisfactory.      (i) confirm  such person  from  the      date   of    his   appointment   if      appointed   against   a   permanent      vacancy; or      (ii) confirm  such person  from the      date from which a permanent vacancy      occurs;  if   appointed  against  a      temporary vacancy ; or      (iii) declare that he has completed      his probation vacancy; or      (b) if  his work or conduct has not      been, in  its opinion, satisfactory

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    and in  the case  of non-passing of      prescribed             departmental      examination.      (i)  dispense with his services, if      appointed by  direct appointment or      if appointed  otherwise revert  him      to his  former post, or deal within      such other  manner as the terms and      conditions    of    his    previous      appointment; permit; or      (ii) extend his period of probation      and thereafter, pass such orders as      it could  have passed on the expiry      of the  first period  of probation.      This  shall   also  apply   mutatis      mutandis   to    the   departmental      examinations;      Provided that  the total  period of      probation and  the time allowed for      passing      the       departmental      examinations, including  extension,      if  any   shall  not   exceed  four      years."      It appears  that series  of orders came to be passed by the administrative  Tribunal and  one arising  therefrom was decided by  this court.  In the first round of litigation in which one  Sud was the applicant, the Tribunal had held that the seniority  would be  coferred on those who passed within two years from the date of joining the service and those who passed subsequently  would rank juniors to them. In the case of Mohan lal & Ors., in the second set of litigation, it was held that  those who passed the test within two years, would get seniority  from the  date of  joining the post and those who passed  within the  extended period of four years, would rank inter-se  seniority from the date of the passing of the test. In  case of  those who  did not  pass the examinations within the  extended period  of four years, it would be open to the state Government to have their services terminated or to take  such action  as would  be open  to them.  The first litigation had  reached this  Court. This  Court in  Ishwari Kumar &  Ors. vs.  state of H.P. [CA No. 4258/92] decided on March 24,  1994 had  held that  such of  the candidates  who passed the  examinations within two years and were confirmed after passing  the departmental  tests, would  get seniority from the  respective dates of their joining the post and the date of  passing the  departmental test  relates back to the date  of   the  appointment.   But  those   who  passed  the examination after  the said  two years,  would get seniority from the  date of passing and would rank junior to those who passed the examination within two years. In this appeal, the third set  of litigation,  the question  arises; whether the third set  of litigation,  the question arises ; whether the period of  passing the  test within two years by taking four chances is mandatory or not? In that behalf, it is necessary to read Rule 11 of the Rules which reads as under:      "11.(1) Persons  appointed  to  the      service shall  remain on  probation      for a period of two years.      Provided that-      (a) the incumbents shall within two      years of  the appointment, pass the      departmental           examinations      prescribed by  the Government  from      time to time and;      (b) the  Government may  exempt  in

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    exceptional cases  any person  from      passing    any    or    all    such      departmental examinations.      Provided further that -      (a)   any    period,   after   such      appointment, spent on deputation on      a  corresponding   or  higher  post      shall count  towards the  period of      probation.      (b)  any   period  of   officiating      appointment to the Service shall be      reckoned   as   period   spent   on      probation, but  no person  who  has      officiated shall,  on completion of      the prescribed period of probation,      be entitled  to be confirmed unless      he is appointed against a permanent      post/vacancy.      (2)  If,  in  the  opinion  of  the      appointing authority,  the work  or      conduct  of  a  person  during  the      period   of    probation   is   not      satisfactory  or     conduct  of  a      person   during   the   period   of      probation is not satisfactory or he      fails  to   pass   the   proscribed      departmental examination within two      years of his appointment, it may-      (a) if  such person is recruited by      direct appointment,  dispense  with      his services and      (b) if such person is recruited      otherwise-      (i) revert  him to his former post;      or      (ii) deal  with him  in such  other      manner as  the terms and conditions      of the previous appointment permit.      (3) on the completion of the period      of probation  a person  and passing      the  prescribed   examination   the      appointment authority may-      (a) if  his  work  and  conduct  is      found satisfactory-      (i) confirm  such person  from  the      date   of    his   appointment   if      appointed   against   a   permanent      vacancy; or      (ii) confirm  such person  from the      date from which a permanent vacancy      occurs;  if   appointed  against  a      temporary vacancy; or      (iii) declare that he has completed      his probation satisfactory if there      is no permanent vacancy; or      (b) if  his work or conduct has not      been, in  its opinion, satisfactory      and in  the case  of non passing of      prescribed departmental examination      (i) dispense  with his services, if      appointed by  direct appointment or      if appointed  otherwise revert  him      to his  former post, or deal within      such other  manner as the terms and      conditions    of    his    previous

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    appointment; permit; or      (ii) extend his period of probation      and thereafter, pass such orders as      it could  have passed on the expiry      of the  first period  of probation.      This  shall   also  apply   mutatis      mutandis   to    the   departmental      examinations;      Provided that  the total  period of      probation and  the time allowed for      passing      the       departmental      examinations, including  extension,      if  any   shall  not   exceed  four      years."      A reading  of this  Rule would  clearly indicate that a person appointed  to a service shall remain on probation for a period of two years. The appointment letters issued to the parties indicate  the conditions.  One  of  the  conditions, namely condition No.(vi) envisaged as under:      (iv) He  shall  have  to  pass  the      departmental examination in respect      of  both   the  Excise  &  Taxation      within two years of his joining the      duty failing which his services are      liable to termination."      Therefore, it  specifies that  a candidate appointed to the post  on probation  shall have  to pass the departmental examination in  respect of  both  the  Excise  and  Taxation within two years of his joining the duty.      Rule 4  of  the  Rules  provide  as      under:      "4. Conduct of Examinations:      (i)  The  Departmental  Examination      for   the   Excise   and   Taxation      Inspectors  of   the   Excise   and      Taxation    Department,    Himachal      Pradesh shall  be held twice a year      about the  third week  of the April      and first  week of  November, or on      such other dates as are notified by      the     Excise     and     Taxation      Commissioner.  The  dates  and  the      place of  the examination  will  be      notified   before   hand   in   the      himachal Pradesh Rajpatra.      (ii) The deputy Excise and Taxation      Commissioner,  (  North  and  South      Zones) shall  forward to Excise and      Taxation   Commissioner,   Himachal      Pradesh  before  15th  January  and      15th August,  each year  or  within      one month  after the publication of      the results of the last examination      whichever is later the names of the      officers who  intend to sit for the      examination   together   with   the      subjects in  which they  wish to be      examined.      (iii)  The   examination  will   be      conducted by  the HP  Institute  of      Public Administration,  Fair Lawns,      Shimla."      A  reading   of  this   rule  relating  to  conduct  of examination would  indicate that  the Government  shall hold the examinations  twice a year between 3rd week of April and

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1st week of November, or on such other dates as are notified by the Excise and Taxation. Commissioner. The examination so conducted by  the Institute of Public Administration, Shimla shall be  in the manner prescribed in paragraph (ii) of Rule 4 of  the Rules. It is, therefore, clear that the Government is required to conduct the examinations twice a year and the candidates are  required to pass the examinations within two years from  the date  of joining  the post on probation. The Rule does  not give  four chances  to every  candidate. They shall pass the departmental examination within two years. On successful completion  of probation and declaration thereof, his seniority would relate back to the date of appointment.      We are not concerned with the action to be taken by the Government for  such of those candidates who did not pas the examinations within  the  prescribed  two  years  period  or extended period  of four  years of  the  probation.  We  are concerned with a case of two sets of persons, i.e. those who passed the  examinations within two years and another set of officers who  sat for  the examination  within two years but passed the  examination beyond two years. It is a case where the respondents  themselves sought  for the relief in the OA that their  seniority would be reckoned themselves made that their seniority  should be  declared from  the date of their passing the  examination and  in the light of the conditions of service  and operation  of the  Rule , we hold that their seniority will  be reckoned  from the  date of their passing the examination.      The proforma  respondents sought  to contend  that they are governed  by the  Rules operating  in the years 1963 and 1964 and  that these  Rules have  no application to them. We need not  express any opinion on that . We are informed that the matter  is pending  in the Tribunal. It would be for the Tribunal to consider their claims in accordance with law.      The appeal is accordingly allowed. No costs