WP/1539/18 & linked matters

[1]

THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH,

AT JABALPUR

(FULL BENCH)

WP-1539-2018

Arun Parmar ….…….. Petitioner

Vs.

State of Madhya Pradesh and others ……… Respondents

WITH

WP-1541-2018

Vivek Shrotriya ….…….. Petitioner

Vs.

Chief Secretary Government of MP and others …… Respondents

*****

WP-1712-2018

Warad Murti Mishra .…….. Petitioner

Vs.

Chief Secretary Government of MP and others …… Respondents

*****

WP-2644-2018

Smt. Manisha Sentiya .…….. Petitioner

Vs.

State of Madhya Pradesh and others …… Respondents

*****

WP-3706-2018

Smt. Bharati Ogrey .…….. Petitioner

Vs.

State of Madhya Pradesh and others …… Respondents

*****

WP-3716-2018

Rajesh Ogrey .…….. Petitioner

Vs.

State of Madhya Pradesh and others …… Respondents

*****

WP-16735-2018

Vinay Nigam ….…….. Petitioner

Vs.

State of Madhya Pradesh and others ……… Respondents

*****

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Coram:

Hon’ble Mr. Justice Mohammad Rafiq, Chief Justice

Hon’ble Mr. Justice Rajeev Kumar Dubey, Judge

Hon’ble Mr. Justice Vijay Kumar Shukla, Judge

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Presence:

Mr. Naman Nagrath, Senior Advocate assisted by Mr. Anvesh

Shrivastava and Mr. Jubin Prasad, Advocates for the petitioners in

WP-2644-2018, WP-3706-2018 & WP-3716-2018.

Mr. Anshuman Singh, Advocate for the petitioner in WP-1541-

2018.

Mr. Manoj Kumar Sharma, Advocate for the petitioners in WP-

1539-2018, WP-1712-2018 & WP-16735-2018.

Mr. Pushpendra Yadav, Additional Advocate General for the

respondents-State.

Mr. Abhishek Arjaria, Advocate for the intervenor- Dr. Kedar

Singh in WP-1539-2018.

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Whether approved for reporting: Yes

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Law Laid Down:

Division Bench of this Court vide order dated 30.05.2019 passed in bat ch of W.P.

No.1539/2018 has doubted the correctness of Full Bench decision in State of M.P.

vs. Prakash Chandra Jangre (in fact, said judgment was delivered in lead case

being Masood Akhtar (Dr.) vs. R.K. Tripathi in 2012 (I) MPJR (FB) 375 and

was affirmed on dismissal of SLP and Review Petitions reported as State of M.P.

vs. Masood Akhtar, 2017 SCC OnLine SC 1972 and State of M.P. vs. Masood

Akhtar, 2018 SCC OnLine SC 3568). Doubt is primarily on the ground that Full

Bench had failed to consider Rule 13 of the Madhya Pradesh State Administrative

Service Classification, Recruitment and Conditions of Service Rules, 1975

inasmuch as that the Madhya Pradesh Civil Services (General Conditions of

Service) Rules, 1961 would not apply as according to its Rule 12(1)(a), the Rules

of 1961 apply to the “members of the service” only. The Bench has referred the

matter to Larger Bench. The order dated 30.05.2019 has been assailed in Special

Leave to Appeal (C) No.14036/2019 (Warad Murti Mishra vs. State of M.P. &

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another) on the ground that Full Bench decision in Masood Akhtar (Dr.) having

attained finality, reference to the Larger Bench was incompetent. The Supreme

Court in its judgment reported as (2020) 7 SCC 509 held that: 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 [Prakash Chandra Jangre (supra)] of the Full Bench on the

earlier occasion requires reconsideration.

In view of the said fact, the

PRIMARY QUESTION

before the Full Bench is:

Whether or not, the reference made by

the Division Bench is legally justified?

ANSWER:

Since we agree with the ultimate

conclusion arrived at by the Full

Bench in Masood Akhtar (Dr.)

(supra) despite giving additional

reasons for our view, we are not

persuaded to hold that the Full Bench

has not correctly answered the

reference. We therefore see no

justification to further refer this matter

to a Larger Bench consisting of five

Judges.

Question No.1: ANSWER:

The judgment of the Full Bench

dealing the issues 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 services 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

?

A comparison of Rule 8(7) of the Rules

of 1961 with Rule 13(7) of the Rules of

1975 would clearly show that there is, in

fact, no difference between those two

sub-rules. Therefore, in our considered

view, the opinion expressed by the

Division Bench while making reference

in para-21 of its order that in view of the

above fact, Rule 13(7) of the Rules of

1975 would govern the issue and not the

Rule 8(7) of the Rules of 1961 and so,

the conclusion arrived at by the Full

Bench in para 11(iv) of its judgment in

Masood Akhtar (Dr.) (supra) may not

subsist, does not sound convincing.

Therefore, even while observing that the

Full Bench in Masood Akhtar (Dr.)

(supra) ought to have considered the

Rule 13 of the Rules of 1975, we are

inclined to hold that its non-

consideration does not in any manner

affect the correctness of the conclusion

arrived at by the Full Bench. And now

when we have considered and

interpreted the Rule 13 of the Rules of

1975 we have also arrived at the same

conclusion as the Full Bench has

recorded in Masood Akhtar (Dr.)

(supra) on harmonious interpretation of

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Rule 12(1)(a) and 12(1)(f) of the Rules

of 1961. When we compare Rule 3 of

the Rules of 1961 with the Rule 3 of

Rules of 1975, in regard to applicability

of the Rules of 1961 and/or Rules of

1975, the Rules of 1975 would govern

the conditions of service of the members

of the Madhya Pradesh State

Administrative Services but without

prejudice to the generality of the Rules

of 1961. What therefore can be deduced

from this is that the Rules of 1961 shall

continue to apply except insofar as

special provisions have been made in the

Rules of 1975.

Question No.2: ANSWER:

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

?

Full Bench in Masood Akhtar (Dr.)

(supra) has, while making a conjoint

reading of the Rule 12(1)(a) and

12(1)(f) of the Rules of 1961 has placed

harmonious interpretation so as to

reconcile them, which would be evident

from the conclusion arrived at by the

Bench in para 11 of its judgment.

Additional Question in the light of

observation in Warad Murti Mishra

(supra):

ANSWER:

Whether it was permissible for the

Full Bench in Masood Akhtar (Dr.)

(supra), despite the Supreme Court

consistently holding in above

referred to three judgments that

direct recruits not having qualified

the departmental examination even

within the extended period of

service could not be treated as

member of service and therefore

cannot claim seniority of that

period?

On comparison of the unamended Rule

12 of the Rules of 1961 on

interpretation of which the ratio of the

three judgments of the Supreme Court

in M.P. Chandoria (supra); Ramkinkar

Gupta (supra) and Om Prakash

Shrivastava (supra) is founded, with

the newly inserted Rules 12(1)(a) and

(f) of the Rules of 1961 by way of

substitution, which have been

interpreted by the Full Bench in

Masood Akhtar (Dr.) (supra), insofar

as the question of seniority is

concerned, it is clear that amended Rule

12 has taken away the very basis of the

aforementioned three judgments of the

Supreme Court and, therefore, ratio of

those judgments cannot be applied to

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the present case. The rule making

authority has now in the amended Rule

12 categorically provided that the

persons appointed as a result of an

earlier selection shall always rank

senior to those appointed as a result of

subsequent selection, thus manifesting

a different intention than the one

expressed in unamended Rule 12 of the

Rules of 1961.

Question No.3: ANSWER:

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 be 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.

The view taken by the Division Bench

that once the probationer has not

cleared the prescribed departmental

examination even within the extended

period of probation, he would be

deemed to be a temporary Government

servant governed by the Rules of 1960

and therefore the conclusion arrived at

in para 11(iv) of the Full Bench is not

correct, also cannot be supported

because the Rules of 1960 (Madhya

Pradesh Government Servants

(Temporary and Quasi-Permanent

Service) Rules, 1960) do not, in any

case, provide for the manner in which

the seniority of the persons recruited

under the Rules of 1975 would be

regulated.

List of Cases Referred:

(1989) 3 SCC 211 (Buxa Dooars Tea

Co. Vs. State of WB)

(1992) 3 SCC 293 (Lilasons Breweries

vs. State of MP)

(1996) 11 SCC 173 Chandoria vs. State

of M.P. & others

(2000) 10 SCC 77 (State of M.P. vs.

Ramkinkar Gupta)

(2005) 11 SCC 488 (Om Prakash

Shrivastava vs. State of MP)

(2015) 8 SCC 399 (Agricultural Income

Tax Officer and another vs. Goodricke

Group Limited)

(2017) 13 SCC 836 (State of MP vs.

Kedi Great Galeon Ltd)

Further Held: It is a trite that a judgment for the

purpose of precedent can be relied

upon for the proposition of law that it

actually decided and not for what can

be logically deduced from it, for

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difference of a minor fact would make

a lot of change in the precedential

value of the judgment.

Referred:

House of Lords judgment reported as

[1901] A.C. 495 titled Quinn v.

Leathem (16 of 21) [CW-

13989/2009].

A statute must be read as a whole and

one provision of the Act should be

construed with reference to the other

provisions in the same Act so as to

make a consistent enactment of the

whole statute. Such a construction has

the merit of avoiding any

inconsistency or repugnancy either

within a section or between a section

and other parts of the statute. It is the

duty of the courts to avoid “a head on

clash” between the two sections of the

same Act and whenever it is possible

to do so, to construe provisions which

appear to conflict so that they

harmonise.

Reliance placed upon:

AIR 1954 SC 202 (Raj Krushna Bose

vs. Binod Kanungo and others),

AIR 1962 SC 1543 (Madanlal

Fakirchand Dudhediya vs. Shree

Changdeo Sugar Mills Ltd.)

(2002) 2 SCC 95 (British Airways vs.

Union of India

Significant Paras: 15 to 31

Heard on : 15.03.2021

O R D E R

(Passed on this ___day of April, 2021)

Per: Mohammad Rafiq, Chief Justice

These matters have been laid before the Larger Bench upon a

reference made by the Division Bench of this Court, doubting

correctness of the earlier decision of the Full Bench, consisting of

three Judges, in Masood Akhtar (Dr.) vs. R.K. Tripathi reported in

2012 (I) MPJR (FB) 375 : 2012 SCC OnLine MP 11024. (Though

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the Division Bench in the reference order has mentioned Prakash

Chandra Jangre (State of Madhya Pradesh and another vs. Prakash

Chandra Jangre) as the main case, but the lead judgment of the Full

Bench was delivered in Masood Akhtar (supra).) It may be noted at

the outset that the aforementioned decision of Full Bench was

challenged by the State of Madhya Pradesh by filing Special Leave

Petition (Civil) No.20288/2012 (State of M.P. vs. Masood Akhtar)

and other connected matters, which were dismissed by the Supreme

Court vide order dated 01.09.2017 (2017 SCC OnLine SC 1972).

Thereafter, Review Petition (Civil) No.2663/2018, (State of M.P. vs.

Masood Akhtar) arising therefrom was also dismissed by the Supreme

Court vide order dated 18.09.2019 (2018 SCC OnLine SC 3568).

Referring to the aforesaid decision of the Full Bench of this Court in

Masood Akhtar (Dr.) (supra), the Division Bench of this Court by

order under reference dated 30.05.2019, doubting correctness of the

same, made the reference by the following order:

“22. In view of the foregoing observations, 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 the Chief Justice to do the needful and to take appropriate

steps in this regard in view of the foregoing observations.”

2. The writ petitioners before this Court, challenging the aforesaid

order dated 30.05.2019 passed by the Division Bench making

reference to the Full Bench, filed Special Leave to Appeal (C)

No.14036/2019 (Warad Murti Mishra vs. State of M.P. & another)

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and connected matters. The Supreme Court by detailed order dated

11.07.2019 initially stayed the operation of the aforequoted paras-22

& 23 of the order passed by the Division Bench and issued notices.

Thereafter, the Supreme Court after granting leave finally decided all

the appeals vide judgment dated 15.06.2020, reported in (2020) 7

SCC 509. Apart from merits of the case, it was also argued before the

Supreme Court that since reference to the Full Bench in Masood

Akhtar (Dr.) (supra) was made on account of divergent views

expressed by two Division Benches of this Court, with the dismissal

of SLP as well as review petition arising therefrom, by the Supreme

Court, the Full Bench judgment in Masood Akhtar (Dr.) (supra)

having attained finality, the Division Bench was bound to follow the

decision of the Full Bench and, therefore, reference to the Larger

Bench was incompetent. Reliance was placed on the judgments of the

Supreme Court in Pradi Chandra Parija vs. Pramod Chandra

Patnaik reported in (2002) 1 SCC 1 and Sakshi vs. Union of India

reported in (2004) 5 SCC 518 to argue that 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 made to a Bench of

equal strength (three Judges) keeping in view the law laid down by the

Supreme Court in Central Board of Dawoodi Bohra Community vs.

State of Maharashtra reported in (2005) 2 SCC 673. It was also

argued that the Full Bench in Masood Akhtar (Dr.) (supra) failed to

consider binding decision of the Supreme Court in M.P. Chandoria

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vs. State of M.P. & others reported in (1996) 11 SCC 173, State of

Madhya Pradesh vs. Ramkinkar Gupta reported in (2000) 10 SCC

77 and Om Prakash Shrivastava vs. State of M.P. reported in (2005)

11 SCC 488. The Supreme Court disposed of the appeals with the

following observations as contained in Paras-22 & 24 of the report,

which reads as under:

“22. It is true that the decisions of the Division Bench and the

Full Bench [Prakash Chandra Jangre (supra)] were challenged

and not only the Special Leave Petitions (State of M.P. vs. Sandeep

Kumar Mawkin, 2010 SCC Online SC 86) but the Review Petitions

were also dismissed. But as observed by the Division Bench (Ward

Murti Mishra vs. State of M.P., WP No.1712/2018, order dated

30.05.2019 [MP]) in the instant case, the effect of Rule 13 of 1975

Rules was not considered on the earlier occasions. Since the

Division Bench (Ward Murti Mishra vs. State of M.P., WP

No.1712/2018, order dated 30.05.2019 [MP]) 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.

**** **** ****

24. 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 [Prakash Chandra Jangre (supra)] 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.”

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3. In view of above, the question that is required to be considered

at the outset is whether or not, the reference made by the Division

Bench is legally justified? If eventually we are persuaded to hold that

the conclusion arrived at by the Full Bench in Masood Akhtar (Dr.)

(supra) was not legally correct, because it failed to specifically

consider the effect of Rule 13 of Madhya Pradesh State

Administrative Service Classification, Recruitment and Conditions of

Service Rules, 1975 (of short the “Rules of 1975”) and also failed to

consider above referred to three decisions of the Supreme Court,

would the question of referring the matter to a Larger Bench

consisting of five Judges arise.

4. In order to appreciate the controversy, it has to be examined

first of all as to what was the precise question on which reference was

made to the Full Bench in Masood Akhtar (Dr.) (supra) and how has

the same been answered. The Division Bench of this Court vide order

dated 25.03.2009, passed in Writ Appeal No.1267/2007 (State of M.P.

and another vs. Prakash Chandra Jangre and others) held that the

seniority of a probationer would be counted from the date he passes

the requisite departmental examination. Another Division Bench of

this Court vide order dated 17.12.2009 passed in Writ Appeal

No.510/2009 (Suresh Kumar vs. State of M.P. & others) and other

connected matters held that even though a probationer may not have

completed his probation period successfully, yet he would be senior to

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the persons, who have been selected/appointed in the subsequent

selection process. In view of such conflicting opinions, the Division

Bench of this Court vide order dated 22.09.2011 passed in Writ

Appeal No.607/2011 (Dr. Masood Akhtar vs. R.K. Tripathi) and other

connected matters, referred the matter to the Full Bench. The Full

Bench while considering the reference as to which of the two views

taken by the aforesaid Division Benches is correct, framed two

questions, namely:- (i) what are the parameters on which the

discretion conferred on appointing authority under Rule 12(1)(f) to

assign lower seniority to probationer who has either not satisfactorily

completed the period of probation or has not passed the departmental

examination, has to be exercised and (ii) what is the interpretation of

Rule 12(1)(a) and Rule 12(1)(f) of the Rules of 1961. It was this

reference which was answered by the Full Bench on consideration of

Rules 8, 12(1)(a) and 12(1)(f) of the Madhya Pradesh Civil Services

(General Conditions of Service) Rules, 1961 (for short “the Rules of

1961”) in Paras-5 to 12 of its order in Masood Akhtar (Dr.) (supra),

in the following terms:

“5. From the conjoint reading of the aforesaid rules it is clear

that every person appointed to a service or post is initially placed

on probation for the prescribed period. The probation can be

extended for sufficient reasons by the appointing authority for a

further period not exceeding one year. The extension of period of

probation may be made, inter alia due to the following reasons:

(I) a probationer fails to pass the departmental examination

where passing of such examination is a condition precedent for

confirmation.

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(II) although the probationer clears the departmental

examination but his performance is not satisfactory during period

of probation.

(III) non-availabilily of a permanent post for the purposes of

confirmation.

(IV) non-consideration of case for confirmation of a probationer

by the confirming authority.

Except in cases where an order of termination of service of

a probationer is passed either during the initial period of probation

or at the end of the extended period of probation, there may be two

kinds of cases:

(I) where the confirming authority has passed an order

expressly extending the period of probation.

(II) where the confirming authority has not passed any order

either extending the period of probation or of confirming services

of the probationer.

6. In the second contingency mentioned above, i.e. where the

confirming authority has not been able to apply its mind or to take

a decision on the question whether to confirm or not to confirm the

probationer at the end of initial period of probation and whether or

not the probationer has cleared the departmental examination, the

scheme of the Rule 8 quoted above suggests that the probation

period shall be deemed to have been extended by one year, which

is the maximum permissible period of extension. 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 and where passing of such

departmental examination is the condition precedent for

confirmation either in the rules or in the order of appointment. This

view finds support from the decisions in High Court of M.P.

through Registrar and others v. Satya Narayan Jhavar (2001) 7

SCC 161 and Rajindra Singh Chouhan (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

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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(2) 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 extended 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 case of

probationer for confirmation, it would have no option except to

refuse confirmation on the ground that the probationer had 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.

7. Now we may advert to rule 12(1)(f) of the 1961 Rules. The

aforesaid rule confers discretion on the appointing authority in case

of a probationer who has not successfully completed the period of

probation or has not passed the examination either to assign him

the same seniority which would have been assigned to him, if he

had completed the normal period of probation successfully or to

assign him lower seniority. The aforesaid statutory discretion has

to be exercised on a rational and reasonable criteria and cannot be

permitted to be exercised either arbitrarily or capriciously which is

anathema, to the rule of law envisaged in Article 14 of the

constitution. [See: BEML Employees House Building Cooperative

Society Ltd. v. State of Karnataka and others, (2005) 9 SCC 248]

8. In our opinion, allowing such probationer to retain original

seniority would have to be confined to cases where such extension

of probation is not due to any fault or shortcoming on part of the

employee concerned. For example, where the employee could not

appear at the departmental examination on account of illness or

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such other cause beyond the control of the employee or where

some departmental inquiry was pending in which the employee is

ultimately exonerated. The above contingencies are only

illustrative and not exhaustive.

9. However, where the extension of probation is made due to

any shortcoming of the employee, like not being able to pass the

departmental examination or not performing well during the initial

period of probation, his seniority would have to be pushed down

and in that case also the question would arise as to the extent of

assignment of lower seniority to such an employee. Again decision

in this regard cannot be left to whim and caprice of appointing

authority but the same has to be based on rational and reasonable

criteria.

10. In our considered opinion, in such an event, such a

probationer would have to be assigned a seniority calculated from

the date on which he actually overcomes the shortcomings, if that

date can be ascertained. For example the date on which he passes

the departmental examination and if such date cannot be

ascertained, then from the date on which he is considered and

found fit to be confirmed.

11. Now we may advert to the second issue, namely,

interpretation of rule 12(1)(a) and (f) of the 1961 Rules. It is well

settled rule of statutory interpretation that subsections of a section

must be read as parts of an integral whole and as being

interdependent; an attempt should be made in construing them to

reconcile them if it is reasonably possible to do so, and to avoid

repugnancy. The rule of construction is well settled that when there

are in an enactment two provisions which cannot be reconciled

with each other, they should be so interpreted that, if possible,

effect should be given to both. [See: British Airways v. Union of

India, (2002) 2 SCC 95] Rule 12(1)(a) of the 1961 Rules inter alia,

provides that persons appointed as a result of earlier selection shall

be senior to those appointed as a result of subsequent selection

whereas rule 12 (1)(f) confers discretion on the appointing

authority to assign the same seniority or to assign lower seniority

to a probationer whose probation or testing period is extended. In

the light of aforesaid well settled rule of statutory interpretation the

discretion conferred on the appointing authority to assign lower

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seniority to an employee under rule 12(1)(f) of the 1961 Rules has

to be confined to the extent that despite assigning lower seniority

such a probationer shall always rank senior to those who

appointed/promoted as a result of subsequent selection/promotion.

In other words the power to assign a lower seniority to a

probationer has to be interpreted as stated supra so as to give full

effect to provision of rule 12(1)(a) of the Rules which provides that

persons appointed as a result of an earlier selection shall be senior

to those who appointed as a result of subsequent

selection/promotion. In view of the preceding analysis, our

conclusions are as under:

(i) A probationer who has passed the departmental

examination prescribed either in the rules or in the order of

appointment at the end of extended period of probation shall be

deemed to be a confirmed employee and shall be assigned seniority

accordingly,

(ii) A probationer who has not been able to pass the

departmental examination prescribed, either in the rules or in the

order of appointment at the end of extended period of probation

shall be deemed to be temporary employee under Rule 8(7) of the

1961 Rules

(iii) Under rule 12(1)(f) an employee would be allowed to retain

original seniority where extension of period of probation is not due

to any fault or shortcoming of the employee. However, where

extension of period of probation is on account of fault or

shortcoming on the part of the employee, in such a case the

probationer has to be assigned seniority from the date if that date

can be ascertained i.e. the date on which he clears the departmental

examination or where such date cannot be ascertained, the date on

which he is considered suitable for confirmation.

(iv) The discretion to confer lower seniority to a probationer under

rule 12(1)(f) is confined to the extent that despite assigning lower

seniority, such probationer shall always rank senior to those who

are appointed in subsequent selection.

12. Accordingly, we answer the question referred to us by

holding that the order dated 25.3.2009 passed in W.A. No.

1267/2007 and the order dated 17.12.2009 of the Division Bench

in W.A. No. 510/2009 and W.A.. No. 511/2009 lay down the

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correct proposition of law only to the extent they are consistent

with the conclusions arrived at by us, which have been referred to

in preceding paragraph.”

5. When similar writ petitions later came up before the Division

Bench of this Court in the present matters, correctness of the

aforementioned Full Bench decision was doubted, primarily on the

premise that it failed to consider Rule 13 of the Rules of 1975

inasmuch that the Rules of 1961 would not apply as according to its

Rule 12(1)(a) the Rules of 1961 apply to the “members of the service”

only. As would be evident from Para-21 of the aforesaid order dated

30.05.2019, the reference was made on following three questions,

which reads as under:

“21. In view of the foregoing discussion and looking to the

language of the Rules of 1960, the Rules of 1961, the Rules of

1975 an also the directions issued by the Full Bench, the direction

No.2 related to Rule 8(7) of the Rules of 1961 but infact Rule

13(7) of the Rules of 1975 would govern the issue. It is further

seen that after becoming a temporary government servant, how

their seniority be decided, it has not been discussed although Rules

3, 3A, 4, 5, 6, 7 of the Rules of 1960 deals the issue. In case the

above Rules of 1960 is made applicable, the direction No.4 do not

subsist. Similarly, the Court while interpreting Rule 12(1)(a) and

Rule 12(1)(f) issued the direction that the probationers shall be

assigned the lower seniority but they shall remain rank senior to

those who have been subsequently selected. Rule 12(1)(a) do not

apply to the “probationers” but it applies to the “members of

service”. It is to further observe here that Rule 12(1)(f) deals a

situation for grant of seniority on passing the departmental

examination within the period of probation or within the extended

period of probation. It do not apply to a case where the probationer

has not passed the departmental examination even after elapse of

the extended period of probation. In such circumstances, the

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judgment of the Full Bench appears to be contrary to the

provisions of the rules framed under proviso to Article 309 of the

Constitution of India, which requires reconsideration. In view of

the foregoing discussion, the following question arise for

consideration:-

(1) The judgment of the Full Bench dealing the issues 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 services 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

be 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.”

6. We have heard Mr. Naman Nagrath, learned Senior Counsel,

Mr. Anshuman Singh and Mr. Manoj Kumar Sharma, learned counsel

for the petitioners, Mr. Pushpendra Yadav, learned Additional

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Advocate General for the respondents-State and Mr. Abhishek Arjaria,

learned counsel for the intervenor- Dr. Kedar Singh.

7. Mr. Naman Nagrath, learned Senior Counsel appearing for the

petitioners in WP-2644-2018, WP-3706-2018 & WP-3716-2018

submitted that in view of law laid down by the Supreme Court in

Pradip Chandra Parija (supra) and Sakshi (supra), no reference

could and ought to have been made by the Division Bench unless a

categorical finding was recorded that the earlier decision was so

“palpably wrong” or so “very incorrect” that reference was called for.

The Division Bench was wrong in observing that the earlier Full

Bench in Prakash Chandra Jangre (supra) [i.e. Masood Akhtar (Dr.)

(supra)] did not consider the applicability of the Rules of 1975. It

further failed to consider that the purpose of departmental

examination is confirmation and not the appointment. There is

basically no difference between what is prescribed in the Rules of

1961 and in the Rules of 1975, with respect to promotion and

seniority. Learned Senior Counsel drew attention of the Court towards

the provisions contained in Rule 8 with respect to “probation” of the

Rules of 1961 and corresponding Rule 13 about “probation” in the

Rules of 1975 and argued that these two provisions are in pari materia

with each other. There is striking similarity between Rule 8(6) of the

Rules of 1961 and Rule 13(6) of the Rules of 1975 in so far as the

issue of probation and confirmation is concerned. The only difference

between two sub-rules is with regard to entitlement of increment,

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which is not at all relevant for the issue at hand. It is submitted that

there is also striking similarity between Rule 8(7) of the Rules of 1961

and Rule 13(7) of the Rules of 1975. Moreover, there is also similarity

between what is prescribed in Rule 12 of the Rules of 1961 and in

Rule 23 of the Rules of 1975, which both provide that seniority of

persons appointed to the service shall be regulated in accordance with

the provisions of Rule 12 of the Rules of 1961. Since there is

practically no difference between Rule 13 of the Rules of 1975 and

Rule 8 of the Rules of 1961 in so far as issue regarding grant of

seniority is concerned, no consequences would follow on account of

non-consideration of Rule 13 of the Rules of 1975. The Division

Bench erred in holding that the Rules of 1961 would not apply in the

present case as the petitioners are not “members of service”. The

Division Bench failed to consider that in the order of confirmation of

the petitioners, the respondents have categorically mentioned that the

seniority of the petitioners would be determined according to Rule

12(1)(f) of the Rules of 1961. The Division Bench in so observing lost

sight of the fact that after completing maximum permissible period of

probation of three years, the petitioners would be deemed to be

temporary government servants as per Rule 13(7) of the Rules of

1975. But even while being temporary government servant, they

continue to be entitled and eligible to appear in the departmental

examination and pass the same. Upon clearing the examination as a

temporary government servant, they would still be entitled to be

confirmed in service. It is not in dispute that petitioners have passed

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the examination and were then confirmed. Soon upon confirmation,

they also become members of service under the Rules of 1975. In

view of Rule 12(1)(a) read with Rule 12(1)(f) of the Rules of 1961,

they are liable to be placed at the bottom of seniority with their batch

but in any case they are entitled to be placed above the subsequent

batch.

8. Mr. Naman Nagrath, learned Senior Counsel argued that the

Division Bench was not justified in making reference to the Larger

Bench by observing that the Madhya Pradesh Government Servants

(Temporary and Quasi-Permanent Service) Rules, 1960 (for short the

“Rules of 1960”) have not be considered by the earlier Full Bench

which deals with the seniority. According to him, this conclusion of

the Division Bench is based on misreading of Rules of 1960 which are

absolutely silent about the seniority of the officers. As per Rules 2(b)

and 2(d) of the Rules of 1960, the petitioners fall under temporary

service, which includes “officiating and substantive service in a

temporary post”. Their officiating period has to be counted for

determination of their seniority as it is followed by confirmation.

Reliance in this regard has been placed on the judgments of the

Supreme Court in Direct Recruit Class II Engineering Officer’s

Association vs. State of Maharashtra reported in (1990) 2 SCC 715

and L. Chandrakishore Singh vs. State of Manipur and others

reported in (1999) 8 SCC 287. Even in the case of probationer, which

is an officiating appointment followed by confirmation, the period so

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[21]

spent cannot be ignored for the purpose of seniority unless a contrary

rule is there. Reliance in support of this argument is placed on the

judgment of Supreme Court G.P. Doval and others vs. Chief

Secretary, Government of U.P. and others reported in (1984) 4 SCC

329. It is further argued that the only provision which gives discretion

to the State Government to fix the seniority of an officer who has not

been able to clear the departmental examination within the extended

period of probation upto three years and has qualified such

examination thereafter, is Rule 12(1)(f), which is however subject to

the provision contained in Rule 12(1)(a) of the Rules of 1961. Apart

from this, there is no other rule empowering the State Government to

re-fix the seniority.

9. Mr. Manoj Kumar Sharma and Mr. Anshuman Singh, learned

counsel appearing for the petitioners in WP-1541-2018, WP-1539-

2018, WP-1712-2018 & WP-16735-2018 mostly adopted the

arguments advanced by Mr. Naman Nagrath, learned Senior Counsel.

Further, in addition to that, Mr. Anshuman Singh submitted that ratio

of judgments of Supreme Court in the cases of M.P. Chandoria

(supra), Ramkinkar Gupta (supra) and Om Prakash Shrivastava

(supra) would not be applicable to the present matters as these

judgments were rendered upon consideration of un-amended Rule 12

of the Rules of 1961, which did not contain any restriction or ceiling

to the extent upto which seniority of officers clearing departmental

examination after the extended period of probation, could be curtailed.

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The rule making authority while incorporating Rule 12(1)(a) in the

Rules of 1961 consciously restricted the power of the State

Government to assign lower seniority to an officer who passes

departmental examination after the extended period of probation. This

power however is limited to lowering down in the same batch and

does not extend to lowering down of seniority below the officers who

have been appointed in subsequent selections. Mr. Anshuman Singh,

learned counsel argued that the aforementioned three judgments of the

Supreme Court were passed placing reliance on the judgments

reported in (2009) 13 SCC 165, (State of HP vs. Narain Singh) and

(2017) 1 SCC 283, (Cheviti Venkanna Yadav vs. State of Telangana).

It is however trite that amendment in law can have the effect of taking

away the foundation of a judgment. Rule 12(1)(a) of the Rules of

1961 after amendment consciously uses the word “selection” for the

purpose of determining inter-se seniority between batches and does

not use the word “confirmation”. It mandates that persons appointed

as a result of an “earlier selection” shall be senior to persons

appointed as a result of a “subsequent selection”. Therefore those

three judgments would not be applicable now. Reference to selection

by the Public Service Commission at the time of initial recruitment is

made for the purpose of inter-batch seniority. For this purpose, the

date of confirmation is irrelevant and what is material is the date of

selection. It is only within the same batch that seniority may be

changed and a person may be assigned lower seniority if he fails to

pass the departmental examination within the period of probation. The

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Full Bench in Masood Akhtar (Dr.) (supra) has therefore correctly

interpreted Rule 12(1)(a) read with Rule 12(1)(f) of the Rules of 1961

by giving purposive interpretation and holding that petitioner cannot

be made junior to the subsequent batch even if he did not pass the

departmental examination within three years of probation and at

worst, he could be placed at the bottom of the same batch in which he

was selected. The State of Madhya Pradesh has therefore been rightly

having the practice of allowing the officers to retain the same seniority

which they got in the order of merit in which their names were

recommended for appointment, even if they qualify the departmental

examination after the extended period of probation, but in any case,

they cannot be placed below the officers who have been selected in

subsequent selection.

10. Mr. Pushpendra Yadav, learned Additional Advocate General

for the respondents-State contended that generally three situations

emerge: (I) the persons who have cleared the examination within the

initial period of probation of two years; (II) the persons who have

cleared the examination within the extended period of one year and

(III) the person who have cleared the examination after the expiry of

extended period of probation. The earlier Full Bench in the case of

Masood Akhtar (Dr.) (supra) had dealt with the above Situation-(I)

and in that context considered Rules 8 and 12 of the Rules of 1961

and drawn the conclusion that the discretion to confer lower seniority

to a probationer under Rule 12(1)(f) is confined to the extent that

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despite assigning lower seniority such probationers shall always rank

senior to those who are appointed in subsequent selection. But the

aforesaid conclusion is valid only for the persons who have cleared

the examination within the extended period of 1 years of probation.

The Full Bench has passed the order for determining the seniority of

the probationer who has cleared the departmental examinations within

extended period of probation. It is further submitted that before

passing of the aforesaid Full Bench decision, the issue of seniority of

persons, who have cleared the departmental examination after the

expiry of extended period of probation, was not under consideration,

therefore, the said Full Bench decision cannot be applied to persons

who fall under the above Situation-(III).

11. Learned Additional Advocate General submitted that the

directions of the Full Bench have to be understood in the context in

which the matter was referred to it for consideration, i.e. the

conflicting opinions given by the two Division Benches of this Court,

wherein both the Division Benches dealt with the situation where

probationers cleared the examination during the extended period of

one year of probation and the Full Bench answered accordingly. But

the present case is related with the persons who have not cleared the

examination even in the extended period of probation and despite that

they are claiming seniority over the persons of subsequent batch, who

have cleared the examination in normal period or extended period of

probation. The cases of persons who have not cleared the examination

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even within the extended period of probation would be governed by

Rule 13(7) of the Rules of 1975 and Rule 8(7) of the Rules of 1961,

wherein a probationer who has neither been confirmed nor a

certificate issued in his favour nor discharged from the service, shall

be deemed to have been appointed as a temporary government servant

w.e.f. the date of expiry of probation as per the Rules of 1960.

However, after being appointed as temporary servant under the Rules

of 1960, he is not governed by Rule 12 of the Rules of 1961 as the

same deals with seniority of member of service and probationer. It is

further contended that there could be a situation where a person who

cleared the departmental examination within normal period of

probation and person who does not clear the departmental

examination within a period of two years plus one year and is a

temporary government servant after the period of expiry of probation

and does not clear the department examination for the period of ten

years and would come after ten years to claim seniority with his batch.

Such a situation is not envisaged under the Rules as the same would

lead to total chaos and the state of utter confusion and would be very

discouraging for the persons who clear the department examination

within the period of probation as provided under the Rules. Learned

Additional Advocate General therefore submitted that by virtue of

Rule 13(7) of the Rules of 1975 and Rule 8(7) of the Rules of 1961,

the status of government servant who has not cleared the examination

even within the extended period of probation would be that of a

temporary government servant. He would from then onwards cease to

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be part of the regular service and, therefore, Rule 12 of the Rules of

1961 would be completely inapplicable to him.

12. Mr. Abhishek Arjaria, learned counsel for the intervenor- Dr.

Kedar Singh in WP-1539-2018, submitted that the Full Bench in

Masood Akhtar (Dr.) (supra) considered only two questions, which

would be evident from Para-4 of the judgment itself i.e. (i) the

discretion conferred on appointing authority under Rule 12(1)(f) to

assign lower seniority to “probationer” who has either not

successfully completed the period of probation or has not passed the

department examination and (ii) interpretation of Rule 12 of the Rules

of 1961. The Full Bench held that the persons, who were not able to

qualify the departmental examination within the extended period of

one year, would be covered by Rule 8(7) of the Rules of 1961 and

therefore would be deemed to have been appointed as temporary

servant w.e.f. the date of expiry of probation and their condition of

service shall be then governed by the Rules of 1960. The questions

framed by the Full Bench were answered in Paras-10 and 11 of the

order. Even the conclusion No.(iv) in Para-11 arrived at by the Full

Bench talks about “probationer” and not about the “temporary

government servant”. A bare reading of the entire judgment of the Full

Bench thus makes it clear that the issue related to probationer, who

has cleared the departmental examination within the extended period

of time, has been considered and answered. As regards applicability of

the Rules of 1960, Mr. Abhishek Arjaria, learned counsel argued that a

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bare reading of provisions contained in Rule 8(7) of the Rules of 1961

and also in Rule 13(7) of the Rules of 1975, would make it clear that

the government servant who has failed to clear the departmental

examination in accordance with Rule 8(7) within the extended period

of one year, would cease to be a government servant and the Rules of

1961 would cease to apply to him. On such cessation by virtue of law,

Rules of 1960 will come into the effect and such an employee will be

treated in the temporary service. He further urged that Rule 1(2)

speaks about the applicability of the Rules and clearly stated that the

Rules of 1960 would be applicable to all the persons who are holding

a civil post under the State Government. A temporary employee

cannot claim a post in a particular batch or seniority above any

person, who is in regular employment of the State within the same

service. Rule 7 of the Rules of 1960 specifically mentions that any

person who is in quasi permanent service will be eligible for

permanent appointment only on the occurrence of the vacancy in the

specified post. Thus it is very clear that no post can be held or a lien

be created for such temporary employee. Sub-rule (2) of Rule 7 of the

Rules of 1961 also specifies the procedure about the quasi permanent

servant, who had cleared the examination and became eligible for a

permanent employment, according to which a merit list be prepared of

all such quasi permanent servants and then they will be placed for

permanent appointment in accordance with the vacancies arising in

the department.

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13. It is submitted that from interpretation of Rule 7 of Rules of

1960, it is very clear that a quasi permanent employee would be

entitled for a fresh appointment in the service only from the date when

he overcomes all the shortcoming i.e. from the date of clearing the

departmental examination. It is also to be noted that once any selected

candidate is declared as temporary employee, then although the

applicability of Rules of 1961 would come to an end but his fresh

appointment in accordance with Rule 7 of the Rules of 1960 cannot be

related back to his earlier appointment or probation period. It is urged

that Rule 11(1) of the Rules of 1960 specifically talks about benefits

available to a temporary/quasi permanent servant on being appointed

to a permanent post and the rule making authority has deliberately

excluded the benefit of seniority to such an employee. At the

transition stage (i.e. when the quasi permanent employee clears the

departmental examination), he would be given a fresh appointment on

the vacant post available at that time by preparing a seniority list

amongst all quasi permanent servants.

14. We have given our anxious consideration to the rival

submissions with regard to the earlier decision of the Full Bench in

Masood Akhtar (Dr.) (supra) and also the Division Bench order dated

30.05.2019 making reference to the Larger Bench.

15. The order of reference is founded on the conclusion arrived at

by the Division Bench in para-21 of its order that once a probationer,

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by virtue of Rule 13(7) of the Rules of 1975, has neither been

confirmed nor a certificate issued in his favour nor discharged from

the services under Sub-Rules (4) and (5) of Rule 13 of the Rules of

1975, would be deemed to have been appointed as a temporary

Government servant on expiry of a period of probation. His service

conditions would then be governed by the Rules of 1960, therefore,

the conclusion arrived at by the Full Bench in Masood Akhtar (Dr.)

(supra) in para 11(iv) of its judgment that by virtue of Rule 12(1)(f) of

the Rules of 1961, that such probationer shall always rank senior to

those, who are appointed in subsequent selection, cannot be justified.

In order to fully appreciate the conclusion so arrived at and three

questions so framed in para-21 of the reference order, we deem it

appropriate to compare the relevant provisions of the Rules of 1961

and the Rules of 1975, which read as under:-

Rules of 1961 Rules of 1975

8. Probation. - 13. 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.

(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.

(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 examination during

the period of his probation as

may be prescribed.

(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 a probationer

may be terminated during the

period of probation if in the

(4) The services of the probationer

may be terminated during the

period of probation, if in the

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opinion of the appointing

authority he is not likely to shape

into a suitable Government

servant.

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 the

departmental examination or who

is found unsuitable for the

service or post may be

terminated at the end of the

period of his probation.

(5) The services of a probationer who

does not pass the prescribed

departmental examinations or who

is found unsuitable for the service

may also be terminated at the end

of the period of 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,

either 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 permanent

post becomes available he will be

confirmed.

(6) On the 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 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

probationary 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), 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.

(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.

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*** ** ** ***

12. Seniority. –

23. Seniority. –

The seniority of the members of

a service or a distinct branch or

group of posts of that service

shall be determined in

accordance with the following

principles, viz –

The seniority of persons appointed

to the service shall be regulated in

accordance with the provisions of

Rule 12 of the Madhya Pradesh

Civil Services (General

Conditions of Service) Rules,

1961.

(1) Seniority of Direct Recruits

and Promotees.-

(a) The seniority of persons directly

appointed to a post according to

rules shall be determined on the

basis of the order of merit in

which they are recommended for

appointment irrespective of the

date of joining. Persons

appointed as a result of an earlier

selection shall be senior to those

appointed as a result of a

subsequent selection.

(b) Where promotions are made on

the basis of selection by a

Departmental Promotion

Committee, the seniority of such

promotees shall be in the order in

which they are recommended for

such promotion by the

committee.

(c) Where promotions are made on

the basis of seniority subject to

rejection of the unfit, the

seniority of persons considered

fit for promotion at the same

time shall be the same as the

relative seniority in the lower

grade from which they are

promoted. Where however a

person is considered as unfit for

promotion and is superseded by a

junior, such persons shall not, if

subsequently found suitable and

promoted, take seniority in the

higher grade over the junior

persons who had superseded him.

(d) The seniority of a person whose

case was deferred by the

Departmental Promotion

Committee for lack of Annual

Character Rolls or for any other

reasons but subsequently found

fit to be promoted from the date

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on which his junior was

promoted, shall be counted from

the date of promotion of his

immediate junior in the select list

or from the date on which he is

found fit to be promoted by the

Departmental Promotion

Committee.

(e) The relative seniority between

direct recruits and promotees

shall be determined according to

the date of issue of

appointment/promotion order :

Provided that if a person

is appointed/promoted on the

basis of roster earlier than his

senior, seniority of such person

shall be determined according to

the merit/select/fit list prepared

by the appropriate authority.

(f) If the period of probation of any

direct recruit or the testing period

of any promotee is extended, the

appointing authority shall

determine whether he should be

assigned the same seniority as

would have been assigned to him

if he had completed the normal

period of probation testing period

successfully, or whether he

should be assigned a lower

seniority.

(g) If orders of direct recruitment

and promotion are issued on the

same date, promotee persons

enblock shall be treated as senior

to the direct recruitees.

A comparison of Rule 8(7) of the Rules of 1961 with Rule

13(7) of the Rules of 1975 would clearly show that there is, in fact, no

difference between those two sub-rules, as both provide that if a

probationer has neither been confirmed, nor has he been issued a

certificate under sub-rule (6) of those Rules, he 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 then

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would be governed by the Rules of 1960. Therefore, in our considered

view, the opinion expressed by the Division Bench while making

reference in para-21 of its order that in view of the above fact, Rule

13(7) of the Rules of 1975 would govern the issue and not the Rule

8(7) of the Rules of 1961 and so, the conclusion arrived at by the Full

Bench in para 11(iv) of its judgment in Masood Akhtar (Dr.) (supra)

may not subsist, does not sound convincing. Still further, the Sub-

Rules (1) to (6) of Rule 8 of the 1961 Rules and Sub-Rule (1) to (6) of

Rule 13 of the Rules of 1975 show a striking similarity between them

except with a minor addition in Sub-Rule (6) of Rule 13 of the 1975

Rules which provides that the probationer shall not draw any

increments until he is confirmed and that on confirmation, his pay

would be fixed with reference to the total length of service and if the

probation period is extended, the Government will decide at the time

of confirmation whether arrears of increment shall be paid or not. But

this additional part of Sub-Rule (6) of Rule 13 of the Rules of 1975

does not have any bearing on the question with which we are

concerned in the present set of cases. However, the view taken by the

Division Bench that once the probationer has not cleared the

prescribed departmental examination even within the extended period

of probation, he would be deemed to be a temporary Government

servant governed by the Rules of 1960 and therefore the conclusion

arrived at in para 11(iv) of the Full Bench is not correct, also cannot

be supported because the Rules of 1960 do not, in any case, provide

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for the manner in which the seniority of the persons recruited under

the Rules of 1975 would be regulated.

16. In view of the above, we have to now examine the first question

formulated by the Division Bench in the order of reference, whether

the judgment of the Full Bench in Prakash Chandra Jangre (supra)

[i.e. Masood Akhtar (Dr.) (supra)] requires reconsideration because it

is based on interpretation of Rule 8 of the Rules of 1961 although in

the light of Rule 3 of the Rules of 1961, which deals with its

applicability or the Rules of 1975, the Rules of 1961 would not apply

and that in the present case, the services of the petitioners/the

intervenors are governed by the Rules of 1975 and since Rule 13 of

the Rules of 1975 deals with the issue of probation and therefore, Rule

8 of the Rules of 1961 could not be applied. The question No.(1) does

not appear to be clearly worded but what perhaps the learned Division

Bench intended to convey was that since Rule 3 of the Rules of 1961

provides that these Rules apply to every person who holds a post or is

a “member of a service” and the petitioners or the intervenors having

not qualified the departmental examination even during the extended

period of probation, would not become “member of service”,

therefore, Rules of 1961 would not apply to them. In question No.(1)

the learned Division Bench appears to have alluded itself to the idea

that that Rule 13 of the Rules of 1975 would apply to a probationer

and not the Rule 8 of the Rules of 1961 whereas on comparison of

these two Rules, we have seen that both the set of the Rules are

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exactly identically worded in regard to all their sub-rules, except for a

minor and insignificant difference. We shall, however, now examine

the question No.(1), in whatever way it has been formulated, by

splitting it into two parts.

17. Insofar as the applicability of the Rules of 1961 is concerned,

its Rule 3 does not stricto sensu provide that it shall only apply to a

member of service but it rather begins by providing that “The rule

shall apply to every person who holds a post or is a member of a

service in the State”. The Rule 3 of the 1961 Rules reads, thus:-

“3. Scope of application. – The rule shall apply to every

person who holds a post or is a member of a service in the State,

except –

(a) person whose appointment and conditions of

employment are regulated by the special provisions of any

law for the time being in force;

(b) persons in respect of whose appointment and

conditions of service special provisions have been made, or

may be made hereinafter by agreement;

(c) persons appointed to the Madhya Pradesh Judicial

Service:

Provided that in respect of any matter not covered by the

special provisions relating to them, their services or their posts,

these rules shall apply to the persons mentioned in clauses (a), (b)

and (c) above.”

From a perusal of Rule 3 (supra) it would be evident that this

Rule shall apply not only to a member of service in the State but also

to every person who holds a post. Use of ‘or’ here is disjunctive. But

applicability of the rule excluded, as it has carved out an exception,

qua those (a) whose appointment and conditions of service are

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regulated by the special provisions of any law for the time being in

force; (b) in respect of whose appointment and conditions of service

special provisions have been made and (c) who are appointed to the

Madhya Pradesh Judicial Service. But when we compare the Rules of

1961 with the Rules of 1975 in regard to their applicability, the Rule 3

of the Rules of 1975 provides as under:-

“3. Scope and Application. - Without prejudice to the

generality of the provisions contained in the Madhya Pradesh Civil

Services (General Conditions of Service) Rules, 1961, these rules

shall apply to every member of the service”.

In other words, the Rules of 1975 would govern the conditions

of service of the members of the Madhya Pradesh State

Administrative Services but without prejudice to the generality of the

Rules of 1961. What therefore can be deduced from this is that the

Rules of 1961 shall continue to apply except insofar as special

provisions have been made in the Rules of 1975. Therefore, it

continues to be applicable to those who hold a post.

18. Let us now therefore come to the second part of the question

No.(1) according to which, the case of the probationer should have

been considered in the light of Rule 13 of the Rules of 1975 and not

Rule 8 of the Rules of 1961. At the cost of repetition, it may be stated

that not only there is no material difference between these two

provisions under different set of Rules but they both deal with the case

of the probationer in the same way except Sub-Rule (1) of Rule 8 of

the Rules of 1961 by providing that a direct recruit shall ordinarily be

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placed on probation for such period as may be prescribed but Sub-

Rule (1) of Rule 13 of the Rules of 1975 by specifically providing that

a direct recruit shall be appointed on probation for a period of two

years. In other words, while Rule 8(1) of the Rules has provided that a

direct recruit shall ordinarily be placed on probation as may be

prescribed, the Sub-Rule (1) of Rule 13 of the Rules of 1975 has

specifically provided probation period of two years. It is this Rule,

which would prevail so far as the initial period of probation is

concerned. Thereafter, the Sub-Rule (2) of Rule 8 of the Rules of 1961

has provided that the appointing authority may for sufficient reasons,

extend the period of probation by a further period not exceeding one

year but when we compare this with Sub-Rule (2) of Rule 13 of the

Rules of 1975 it is exactly identically worded. The Sub-Rule (3) in

both the set of Rules provides that the probationer shall undergo the

prescribed training and shall pass departmental examination during

the period of probation. Rule 8(4) of the Rules of 1961 as well as Rule

13(4) of the Rules of 1975, both the set of Rules, have given the

discretion to the appointing authority or the Government to terminate

the services of a probationer during the period of probation if in its

opinion he is not likely to shape into a suitable Government servant.

Sub-Rule (5) of both the set of Rules again thereafter provide that

services of a probationer (i) who has not passed the departmental

examination or (ii) who is found unsuitable for the service or post,

may be terminated at the end of the period of his probation. We are

dealing with a case of those who were probationers but were not been

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able to pass the departmental examination even during the extended

period of probation, yet the appointing authority/Government, despite

having the specific power under Sub-Rule (5) of Rule 8 of the Rules

of 1961 and/or under Sub-Rule (5) of Rule 13 of the Rules of 1975 to

terminate their services, consciously decided not to do so and has

allowed them to continue in service, which is where the Sub-Rule (7)

of both the set of Rules would come into play thereby subjecting the

conditions of service of the directly recruited employees falling in this

category of Rules of 1960. All this while they continue to be eligible

and are entitled to appear in departmental examination and on clearing

such examination, are entitled to be confirmed.

19. In our considered opinion, it would have been ideal if the Full

Bench while answering the reference in Masood Akhtar (Dr.) (supra)

had also specifically examined Rule 13 of the Rules of 1975 but the

mere fact that the Full Bench only considered Rule 8 of the Rules of

1961 and not Rule 13 of the Rules of 1975, would not make any

difference insofar as the interpretation of the Rule that we have made

and further so far as the question of seniority of such Government

servants, who are at that stage considered as temporary Government

servant, is concerned, even while observing that the Full Bench in

Masood Akhtar (Dr.) (supra) ought to have considered the Rule 13 of

the Rules of 1975, we are inclined to hold that its non-consideration

does not in any manner affect the correctness of the conclusion arrived

at by the Full Bench. And now when we have considered and

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interpreted the Rule 13 of the Rules of 1975 we have also arrived at

the same conclusion as the Full Bench has recorded in Masood

Akhtar (Dr.) (supra) on harmonious interpretation of Rule 12(1)(a)

and 12(1)(f) of the Rules of 1961. In any case, non-consideration of

Rule 13 of the Rules of 1975 would not make any material difference

also for an additional reason which is that Rule 23 in the Rules of

1975 itself specifically provides that “the seniority of persons

appointed to the service shall be regulated in accordance with the

provisions of Rule 12 of the Madhya Pradesh Civil Services (General

Conditions of Service) Rules, 1961”.

20. Adverting now to the question No.(2) formulated in the order

under reference as to whether Rule 12, and Rule 12(1)(a) in specific,

would apply to the “members of the service” and it does 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, and therefore, the conclusion recorded

in para 11(iv) of the direction is justified. It appears that in

paraphrasing this question, the Division Bench was guided by the

ratio of the three Supreme Court judgments in M.P. Chandoria

(supra), Ramkinkar Gupta (supra) and Om Prakash Shrivastava

(supra), which have been relied upon even before us by the learned

Additional Advocate General and the learned counsel for the

intervenors.

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21. The Supreme Court in M.P. Chandoria (supra), the earliest of

the three judgments rendered on 29

th

March, 1996, while dealing with

the case of direct recruit, who failed to qualify the prescribed test even

within the extended period of probation but confirmed only after he

passed the test, while dealing with Rule 12 of the Rules of 1961

existing at that point of time, concluded that his seniority shall be

reckoned from the date of passing the prescribed test and not from the

date of joining the services. Again interpreting the Rule 12 of the

Rules of 1961, this very view also reiterated by the Supreme Court in

Ramkinkar Gupta (supra) delivered on 17

th

September, 1999 relying

upon M.P. Chandoria (supra). On interpretation of the very same

Rule 12 of the Rules of 1961 and relying upon its earlier two

decisions in M.P. Chandoria (supra) and Ramkinkar Gupta (supra),

the same view was again expressed by the Supreme Court in Om

Prakash Shrivastava (supra) in its judgment dated 19

th

April, 2005.

But what is significant to notice here is that the view taken by the Full

Bench in Masood Akhtar (Dr.) (supra) is based on interpretation of

unamended Rule 12 of the Rules of 1961, which was amended by way

of substitution vide Notification dated 2

nd

April, 1998. This

amendment has taken away the very basis of these three judgments.

This has made all the difference in regard to placement of the direct

recruits, who inspite of having failed to qualify the prescribed

test/departmental examination within the extended period of probation

i.e. three years and appointing authority/Government having decided

not to terminate their services, despite having power to do so under

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Sub-Rule (5) of Rule 8 of Rules of 1961 read with Sub-Rule (5) of

Rule 13 of the Rules of 1975, as now in the amended Rule 12 of the

Rules of 1961, upon their passing the examination even at the later

stage, in view of amended Rule 12(1)(a) of the said Rules that now the

seniority of persons directly appointed to a post, according to the

rules, shall be determined on the basis of the order of merit in which

they are recommended for appointment irrespective of the date of

joining and that the persons appointed as a result of an earlier

selection shall be senior to those appointed as a result of a subsequent

selection with Rule 12(1)(f) of the said Rules providing that if the

period of probation of any direct recruit or the testing period of any

promotee is extended, the appointing authority shall determine

whether he should be assigned the same seniority as would have been

assigned to him if he had completed the normal period of probation

testing period successfully, or whether he should be assigned a lower

seniority.

22. The Full Bench in Masood Akhtar (Dr.) (supra) has, while

making a conjoint reading of the Rule 12(1)(a) and 12(1)(f) of the

Rules of 1961 has placed harmonious interpretation so as to reconcile

them, which would be evident from the conclusion arrived at by the

Bench in para 11 of its judgment, as reproduced above in para 4 of

this judgment. But the question that has also to be additionally

answered in the light of the observation of the Supreme Court in

Warad Murti Mishra (supra) is: as to whether it was permissible for

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the Full Bench in Masood Akhtar (Dr.) (supra), despite the Supreme

Court consistently holding in above referred to three judgments that

direct recruits not having qualified the departmental examination even

within the extended period of service, could not be treated as member

of service and therefore cannot claim seniority of that period?

23. In order to appreciate this question, we need to compare the

unamended Rule 12 of the Rules of 1961 on interpretation of which

the ratio of the aforementioned three judgments of the Supreme Court

in M.P. Chandoria (supra); Ramkinkar Gupta (supra) and Om

Prakash Shrivastava (supra) is founded, with the newly inserted

Rules 12(1)(a) and (f) of the Rules of 1961 by way of substitution,

which have been interpreted by the Full Bench in Masood Akhtar

(Dr.) (supra), insofar as the question of seniority is concerned. The

unamended and the amended Rule 12 of the Rules of 1961 insofar as

they are relevant for the purposes of deciding the present matter, read

as under:-

Unamended Rule 12 of the

Rules of 1961

Amended Rule 12 of the Rules

of 1961

(substituted by No.4, dated 2-4-1998)

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. -

12. Seniority. –

The seniority of the members of a

service or a distinct branch or

group of posts of that service shall

be determined in accordance with

the following principles, viz –

(a) Direct recruits: (1) Seniority of Direct Recruits and

Promotees.-

(i) The seniority of a directly

recruited Government servant

appointed on probation, shall

count during his probation from

the date of appointment, viz.:

(a) The seniority of persons directly

appointed to a post according to

rules shall be determined on the

basis of the order of merit in

which they are recommended for

appointment irrespective of the

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date of joining. Persons appointed

as a result of an earlier selection

shall be senior to those appointed

as a result of a subsequent

selection.

*** ****

(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.

(f) If the period of probation of any

direct recruit or the testing period

of any promotee is extended, the

appointing authority shall

determine whether he should be

assigned the same seniority as

would have been assigned to him

if he had completed the normal

period of probation testing period

successfully, or whether he should

be assigned a lower seniority.

24. It would be evident from the comparative reading of the

unamended Rule 12 with the amended Rule 12 of the Rules of 1961

that while in the old Rule 12 of the Rules of 1961, there is no

provision which would restrict the powers of the appointing authority/

Government by providing that the persons appointed as a result of an

earlier selection shall always rank senior to those appointed in a

subsequent selection. In the new Rule 12 of the Rules of 1961

however it is specifically provided, which would be evident from Rule

12(1)(a), by stipulating that “persons appointed as a result of an

earlier selection shall be senior to those appointed as a result of a

subsequent selection”. It would be therefore evident from the above

that the amendment in Rule 12 has taken away the very basis of the

aforementioned three judgments of the Supreme Court in M.P.

Chandoria (supra), Ramkinkar Gupta (supra) and Om Prakash

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Shrivastava (supra) and, therefore, ratio of those judgments cannot be

applied to the present case. The rule making authority has now in the

amended Rule 12 categorically provided that the persons appointed as

a result of an earlier selection shall always rank senior to those

appointed as a result of subsequent selection, thus manifesting a

different intention than the one expressed in unamended Rule 12.

Reference in this connection may be made to the judgment of the

Supreme Court in Agricultural Income Tax Officer and another vs.

Goodricke Group Limited and another reported in (2015) 8 SCC

399. Reliance in that case was placed on an earlier judgment of the

Supreme Court in Buxa Dooars Tea Co. Ltd. Vs. State of W.B.

reported in (1989) 3 SCC 211, wherein two charging provision,

namely, Section 4-B of the West Bengal Rural Employment and

Production Act, 1976 and Section 78-C of the West Bengal Primary

Education Act, 1973, levying cess on production of tea, were struck

down as unconstitutional on the ground that the basis of levy was not

covered under the legislative competence of the State Legislature

under Schedule VII List II Entry 49 and that the said levy encroached

upon the legislative field covered under Schedule VII List I Entry 84

and further contravened Article 301 and was not saved by Article

304(b) of the Constitution of India. However, subsequently by an

amendment the defect was cured by changing the basis of the charging

provision (that is, by levying cess on the yield or income from a given

unit of land) and brining the levy within the legislative competence of

the State Legislature. The two cesses by the said amendment were

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imposed retrospectively from 1981 and 1984 respectively. However,

when the judgment of the Supreme Court in Buxa Dooars Tea Co.

Ltd. (supra) was relied in the aforesaid case of Agricultural Income

Tax Officer and another (supra), it was held as under:

“12. In our view, the purport of these two sections is clear.

Whatever may have been the subject-matter of Buxa Dooars Tea

Co. Ltd. (supra), that is the subject-matter of the two Acts as

originally enacted, will now, notwithstanding the interim order or

the final judgment in Buxa Dooars Tea Co. Ltd. (supra) be deemed

to have been validly levied, collected and paid as rural

employment cess and education cess under the Amended Act.

13. This being the case, it is clear that Section 4-B and Section

78-C have changed the basis of the law as it existed when Buxa

Dooars Tea Co. Ltd. (supra) was decided and consequently, the

judgment and interim order passed in Buxa Dooars Tea Co. Ltd.

(supra) will cease to have any effect. Also, what would have been

payable under the Act as unamended, is now payable only under

the 1989 Amendment Act which has come into force with

retrospective effect.”

25. Reference can also be made to another judgment of the

Supreme Court on the similar subject in State of Madhya Pradesh

and another vs. Kedi Great Galeon Limited and another reported in

(2017) 13 SCC 836. In the aforesaid case, in the writ petition before

this Court, argument was made that in view of judgment of the

Supreme Court in M/s. Lilasons Breweries (Pvt.) Ltd. and another vs.

State of Madhya Pradesh and others reported in (1992) 3 SCC 293,

Rule 4 (41) of the M.P. Distillery Rules, 1995 was declared as non est

and void as Rule 22 of old M.P. Brewery Rules, 1970 has already been

declared ultra vires by the Supreme Court, it would be unnecessary to

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seek similar relief of striking down its successor Rule 4(41). Even

though no specific prayer was made in the writ petition to that effect,

but the High Court upholding the aforesaid argument struck down

Rule 4(41) of the M.P. Distillery Rules, 1995. Apart from other

grounds, the Supreme Court set aside the judgment of the High Court

also on the premise that subsequent amendment made in Section 28 of

the M.P. Excise Act, 1915 had the effect of changing the very basis of

the earlier judgment. It would be useful to extract following

observations of the Supreme Court from Para-43 of the report:

“43. The judgment in Banerjee Chandra Banerjee vs. State of

M.P., reported in (1970) 2 SCC 467 was delivered on 19.08.1970.

there has been amendment in Section 28 by Madhya Pradesh Act 6

of 1995 by which provision, specific provision requiring the

license to lift for sale, the minimum quantity of country spirit or

Indian-made liquor, fixed for his shop and to pay the penalty at the

prescribed rate on the quantity of liquor short lifted, has been

brought in the statute book. The scheme of the M.P. Excise Act,

1915 having been amended by the aforesaid 1995 Act, the very

basis of Banerjee (supra) is knocked down and cannot be relied on

in view of changed statutory scheme…..”

26. It is a trite that a judgment for the purpose of precedent can be

relied upon for the proposition of law that it actually decided and not

for what can be logically deduced from it, for difference of a minor

fact would make a lot of change in the precedential value of the

judgment. The House of Lords in their celebrated decision reported as

[1901] A.C. 495 titled Quinn v. Leathem aptly observed: (16 of 21)

“every judgment must be read as applicable to the particular facts

proved, or assument to be proved, since generality of the expressions

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which may be found there are not intended to be expositions of the

whole law, but governed and qualified by the particulars facts of the

case in which such expressions are to be found. The other is that a

case is only an authority for what it actually decides. I entirely deny

that it can be quoted for a proposition that any seem to follow

logically from it…. ”.

27. It is settled position of law that while interpreting a statute

different parts of a section of the rule have to be harmoniously

construed so as to give effect to the purpose of the legislation and the

intention of the legislature. Even the Full Bench in its judgment in

Masood Akhtar (Dr.) (supra) while relying upon the judgment of the

Supreme Court in British Airways vs. Union of India, (2002) 2 SCC

95 has observed that sub-sections of a section must be read as parts of

an integral whole and as being interdependent and an attempt should

be made in construing them to reconcile them if it is reasonably

possible to do so and to avoid repugnancy. As held by the Supreme

Court in Raj Krushna Bose vs. Binod Kanungo and others, AIR

1954 SC 202, a statute must be read as a whole and one provision of

the Act should be construed with reference to the other provisions in

the same Act so as to make a consistent enactment of the whole

statute. Such a construction has the merit of avoiding any

inconsistency or repugnancy either within a section or between a

section and other parts of the statute. It is the duty of the courts to

avoid “a head on clash” between the two sections of the same Act and

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whenever it is possible to do so, to construe provisions which appear

to conflict so that they harmonise. The Supreme Court in Madanlal

Fakirchand Dudhediya vs. Shree Changdeo Sugar Mills Ltd., AIR

1962 SC 1543 has held that the rule of construction is well settled that

when there are in an enactment two provisions, which cannot be

reconciled with each other, they would be so interpreted that if

possible the effect should be given to both. This is what is known as

“rule of harmonious construction”.

28. Unlike the old Rule 12 of the Rules of 1961, the new Rule 12 of

the Rules of 1961 governs the discretion of the appointing

authority/Government, restricting its power to assign the lower

seniority to those who qualify the departmental examination some

time after expiry of the period of probation and gives power to it to

lower down the seniority of such an employee falling in this category

but with a rider that he shall be assigned the bottom seniority with his

own batch but in any case shall be placed above the direct recruits

from the subsequent batch. The employee, who is directly recruited

with reference to Rule 8(1) of the Rules of 1961 or Rule 13(1) of the

Rules of 1975 but is unable to qualify the departmental examination

even within the extended period of probation of three years and yet

not discharged from service by the appointing authority at the end of

the period of probation despite it having power to do so under Rule

8(5) of the Rules of 1961 and Rule 13(5) of the Rules of 1975, his

service conditions, as per the mandate of Rule 8(7) of the Rules of

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1961 or Rule 13(7) of the Rules of 1975 would then be governed by

the Rules of 1960. However, this situation would continue only for the

interregnum period till he qualifies the departmental examination. It

must, therefore, be construed that the person falling in this category as

per Rule 8(1) of the Rules of 1961 continues to be “a person

appointed to a service or post by direct recruitment” or Rule 13(1) of

the Rules of 1975, as “every person directly recruited to the service”

as the Government, despite having power under Rule 8(5) of the Rules

of 1961 or Rule 13(5) of the Rules of 1975, to terminate his services

upon his failure to pass the departmental examination even within the

extended period of probation, having taken a conscious decision to

retain him in service. Obviously, his recruitment was made against a

post and he continues to occupy that post even after expiry of

extended period of probation. He is eventually confirmed when he

passes the departmental examination. Since he continues to work on

the same post on which he was initially appointed and continuing to

draw pay against such post, there would not arise any question of his

needing to retain any lien. Argument to that effect raised on behalf of

the Intervener does not have any force and is rejected. He shall

continue to be entitled to appear in departmental examination even

thereafter and upon passing the same, shall be confirmed in service. If

and when he would qualify such examination and is confirmed, he

would become a member of service with reference to his original

appointment and in that case, would be continued in service and

consequently, would be assigned the seniority below his batchmates,

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who have already earlier qualified the departmental examination. This

is because once such an employee has passed the departmental

examination, he would then cease to be subject to the Rules of 1960

and would be governed from that stage onward by the Rules of 1961

and/or Rules of 1975, as the case may be. Even otherwise, there is no

provision in anywhere in the Rules of 1960 with regard to fixation and

regulation of seniority of the employees falling in this category.

29. We are in taking that view fortified from the ratio of the

Constitution Bench judgment of the Supreme Court in Direct Recruit

Class II Engineering Officer’s Association (supra) wherein, in para-

13, it was held as under:-

“13.…......the period of continuous officiation by a government

servant, after his appointment by following the rules applicable for

substantive appointments, has to be taken into account for

determining his seniority; and seniority cannot be determined on

the sole 'test of confirmation, for, confirmation is one of the

inglorious uncertainties of government service depending neither

on efficiency of the incumbent nor on the availability of

substantive vacancies...........”

Thereafter, the Supreme Court, in the same very para, further

held that:-

“........The principle for deciding inter se seniority has to conform

to the principles of equality spelt out by Articles 14 and 16 of the

Constitution of India. If an appointment is made by way of stopgap

arrangement, without considering the claims of all the eligible

available persons and without following the rules of appointment,

the experience on such appointment cannot be equated with the

experience of a regular appointee, because of the qualitative

difference in the appointment.....”

After holding so, the Supreme Court further held that:-

“.........But if the appointment is made after considering the claims

of all eligible candidates and the appointee continues in the post

uninterruptedly till the regularisation of his service in accordance

with the rules made for regular substantive appointments, there is

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no reason to exclude the officiating service for purpose of

seniority..........”

30. The Supreme Court in L. Chandrakishore Singh (supra) in

para 15 has held as under:-

“It is now well settled that even in cases of probation or officiating

appointments which are followed by a confirmation unless a

contrary rule is shown, the service rendered as officiating

appointment or on probation cannot be ignored for reckoning the

length of continuous officiating service for determining the place

in the seniority list.......”

31. In view of the above discussion, we are inclined to agree with

the view expressed by the Full Bench in Masood Akhtar (Dr.) (supra)

although we have recorded our own additional reasons in support of

such conclusion. Since we agree with the ultimate conclusion arrived

at by the Full Bench in Masood Akhtar (Dr.) (supra) despite giving

additional reasons for our view, we are not persuaded to hold that the

Full Bench has not correctly answered the reference. We therefore see

no justification to further refer this matter to a Larger Bench

consisting of five Judges.

Referred questions having thus been answered, let the writ

petitions be now listed before the Division Bench for hearing on

merits as per Roster.

(Mohammad Rafiq) (Rajeev Kumar Dubey) (Vijay Kumar Shukla)

Chief Justice Judge Judge

s@if,

S/