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IN THE HIGH COURT OF M ADHYA PRADESH

AT GWALIOR

BEFORE

HON'BLE SHRI JUSTICE ANAND PATHAK

&

HON'BLE SHRI JUSTICE ANIL VERMA

WRIT APPEAL NO. 279 of 2026

DR. GULAB SINGH JATAV

Vs.

STATE OF MADHYA PRADESH & ORS.

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APPEARANCE:

Shri L.C. Patne -Advocate (through video conferencing) and Shri

Prateek Kulshreshtha – Advocate for the appellant.

Shri Vivek Khedkar – Senior Advocate with Shri Sohit Mishra –

Government Advocate for the respondents/State.

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JUDGMENT

{Delivered on 18

th

the Day of February, 2026}

Per: Justice Anand Pathak

1.The present appeal under Section 2 (1) of the Madhya Pradesh

Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005

is preferred by the appellant/petitioner being crestfallen by the order

dated 10-12-2025 passed by learned Single Judge in Writ Petition

No.23740 of 2022 whereby the writ petition filed by appellant

(hereinafter referred to as “the petitioner”) has been dismissed.

2.Precisely stated facts of the case are that in response to a special

drive initiated by Higher Education Department, Government of

Madhya Pradesh for filling up backlog posts of Assistant Professor,

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applications were invited vide advertisement dated 10-07-2003

(Annexure P/2 of writ petition) and appellant/petitioner appeared in

the examination. Clause 7 of the Advertisement provided that

candidates are required to ensure that they possess necessary

educational qualification. As per relevant rules, educational

qualification was at the relevant point of time passing of National

Eligibility Test (NET) or Madhya Pradesh State Level Eligibility

Test (SLET) or Ph.D. holder.

3.However, a corrigendum to the advertisement was issued on 02-10-

2003 (Annexure P/3) prescribing the necessary educational

qualification for appointment on the post stipulating

NET/SLET/Ph.D. holder. However, it was stipulated that the

candidate who was not having such qualification as referred above

then their appointments would be subject to acquisition of

qualification within two years otherwise their appointments had to

be terminated. It was further stipulated that this special relaxation

was given by General Administration Department (GAD) only as

one time relaxation.

4.Petitioner successfully participated in the recruitment process and

was appointed on the post of Assistant Professor vide order dated

14-06-2004 (Annexure P/7). He submitted his joining on 12-07-

2004. Subsequently, appointment order was amended vide order

dated 27-12-2004 by incorporating the condition of acquisition of

NET/SLET/Ph.D. within two years. In other words, petitioner had to

acquire the qualification till end of year 2006 at best as latest period

for acquisition of qualification.

5.It further appears that Higher Education Department vide order

dated 09-06-2006 extended the time to acquire qualification by two

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years. However, it was clear that petitioner's appointment on the

post of Assistant Professor was on probation for a period of two

years and during the period of two years, he was required to obtain

qualification of NET/SLET/Ph.D. This process continued and later

on, vide order dated 27-09-2017 (Annexure P/12), said period was

extended upto year 2017.

6.During this period, petitioner did not acquire qualification of

NET/SLET/Ph.D. and ultimately awarded Ph.D. vide notification

dated 24-07-2017. Accordingly, vide order dated 28-01-2019

(Annexure P/1) petitioner got confirmation in service w.e.f. 28-04-

2017 that is the day after he acquired qualification. This is the bone

of contention.

7.Petitioner preferred writ petition but suffered. Therefore, petitioner

is before this Court. Grievance of petitioner is that his appointment

was on probation for a period of two years, therefore, he ought to

have been confirmed in service on completion of two years i.e. on

14-06-2006. Therefore, according to him, acquisition of Ph.D.

qualification was not condition precedent for his confirmation in

service.

8.According to him, condition for acquiring Ph.D. qualification was

not incorporated in his order of appointment but it is subsequently

incorporated vide order dated 27-12-2004. Therefore, it is not

binding on him. Once petitioner is appointed against the post, he is

entitled to draw increments.

9.It is the grievance of petitioner that because of delay in confirmation

of service, petitioner is deprived from the benefit of increments as

well as seniority for very long period of time. Petitioner refers rule

12(1) (f) of M.P. Civil Services (General Conditions of Services)

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Rules, 1961 (hereinafter referred to as “the Rules of 1961”),

Fundamental Rule 22-C & 24 and Rule 8 of Madhya Pradesh

Educational Service (Collegiate Branch) Recruitment Rules, 1990 to

bring home the analogy that he is entitled to get seniority as well as

increments after completion of two years of his probation. He tried

to distinguish Full Bench judgment of this Court in the case of

Manoj Kumar Purohit Vs. State of M.P. & others 2016 (1)

MPLJ 449. He placed reliance over the judgment passed in the case

of Arun Parmar Vs. State of M.P. and others, 2021(2) MPLJ 500

whereby rule 12 of Rules of 1961 is interpreted. He also relied upon

the Apex Court's judgments in the case of Dr. G. Sadasivan Nair

Vs. Cochin University of Science and Technology and others,

(2022) 4 SCC 404, S. Sumanyan and others Vs. Limi Niri and

others, (2010) 6 SCC 791 and G.P. Doval and others Vs. Chief

Secretary, Government of U.P. and others, (1984) 4 SCC 329.

10.Per contra, learned counsel for the respondents opposed the prayer

and submits that as per the terms of appointment, petitioner was

required to acquire qualification within a period of two years. In fact

petitioner was liable for removal because of condition precedent

that if desired qualification is not acquired then petitioner could

have been removed from the job because his appointment was

dependent on the qualification. He was required to attain the

qualification within two years. He supported the impugned order

and prayed for dismissal of this appeal.

11.Heard learned counsel for the parties and perused the documents

appended thereto.

12.This is a case where petitioner preferred the writ petition seeking

following reliefs:

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“1. That, the order impugned dated 28.01.2019 contained in

Annexure — P/1 confirming the services w.e.f. 29.4.2017

may kindly be quashed with a further direction to the

respondents to correct the date of confirmation w.e.f.

9.7.2006 as the petitioner has completed two years probation

period and the same be corrected within stipulated time

period with a further direction to the respondents to extend

all the consequential benefits to the petitioner including

periodical increments etc. with a further to pay difference of

arrears of salary alongwith interest @18% p.a., in the

interest of justice.

2. That, any other relief which is suitable in the facts and

circumstances of the case in favour of the petitioner

including the costs throughout may be granted.”

13.From the relief it appears that primarily petition was against

denial of confirmation and increments after completion of two

years' probation period because he was confirmed w.e.f. 28-04-

2017. According to him, he deserved to be confirmed in 2006

itself.

14.Main contention of petitioner is that he will lose seniority as

similarly situated employees have been confirmed after

completion of two years. So far as entitlement of petitioner is

concerned; from the documents it is clear that appointment of

petitioner was contingent to the acquisition of qualification. Lest

termination was the only way out. In other words, if qualification

would not have been acquired by the petitioner then as per terms

of appointment he was required to be removed.

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15.So far as condition of appointment is concerned, condition of

acquisition of qualification was provided in the advertisement

itself and thereafter appointment order also incorporated such

condition. Therefore, it is not a case where no such prescription

of qualification was provided. Petitioner accepted the

advertisement to enter into fray and remained successful.

Petitioner even accepted appointment order (and subsequent

modification also) and rightly so.

16.After appointment it was the duty of the petitioner to have

acquired necessary qualification but petitioner took 13 long years

to attain such qualification whereas his job was to impart teaching

(education) to the students. Therefore, a person who was to be

removed, got continued in the employment because of extension

of period for acquisition of qualification from time to time.

Therefore, petitioner cannot be permitted to receive premium for

his own failure. He was expected to attain qualification within

two years but failed.

17.Full Bench of this Court in the the case of Manoj Kumar

Purohit (supra) has formulated questions in similar facts and

circumstances of the case. Questions framed in para 2 of the said

judgment were as under:

“(A)Whether an employee is entitled to increment from

the initial date of appointment or only from the date of

passing of Hindi Typing Test, because of such condition

specified in his letter of appointment? Further, is it open to

the Appointing Authority to provide such a condition in the

letter of appointment?

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(a) When the Recruitment Rules expressly prescribe

condition of passing Hindi Typing Test?

(b) When the Recruitment Rules are silent but the letter of

appointment contains such stipulation about passing of

Hindi Typing Test?

(c) When the Recruitment Rules provide that preference

would be given to candidates who have passed Hindi

Typing Test and the letter of appointment contains such

stipulation?

(d) When the appointment is made under the Policy of

Compassionate Appointment or Regularization specifying

passing of Hindi Typing Test as essential and also the letter

of appointment provides for that condition for entitlement

of increment.

(B)When the appointment is made under the Policy of

either Compassionate Appointment or Regularization and

the Policy expressly provides that passing of Hindi Typing

Test is essential, absence of such condition in the letter of

appointment would make any difference.

(C)Whether decisions in the cases of State of M.P. v.

Onkarlal, 2011 (3) MPLJ 404 and State of M.P. vs.

Ku.Ramani Bai Bhagat, 2013 (1) MPHT 96 lay down

correct proposition of law?”

18.After due discussion, the Full Bench held in para 11 of Manoj

Kumar Purohit (supra) in the following manner:

“(a) Question No.(A)(a):

Indisputably, when the Recruitment Rules stipulate that the

candidate in order to be eligible for appointment to the post

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of Lower Division Clerk, should have passed Hindi Typing

Test, then the appointee would be entitled to the grant of

benefit of increment only after passing the Hindi Typing

Test. In such cases, the initial appointment itself will be a

conditional appointment.

(b) Questions No.(A)(b) and (c):

We may now examine another situation, namely, whether in

the absence of any prescription in the Rules with regard to

Hindi Typing Test or where such Rules provide for

preference to the candidates who have passed Hindi Typing

Test, is it permissible for the State to prescribe such a

qualification in the letter of appointment as per the

qualification prescribed in the public notice inviting

application?

The expression “conditions of service” means all

those conditions which regulate the holding of a post by a

person right from the time of his appointment till his

retirement and even beyond retirement in the matters like

pension. [See: I.N.Subba Reddy v. Andhra University, AIR

1976 SC 2049 and Lilliy Kurian vs. Sr. Lewine, AIR 1979

SC 52]. Thus, passing of Hindi Typing Test after joining the

service becomes a condition of service, be it for

regularisation or grant of increment. It is well established

that a new service condition may be brought into effect by

an executive instructions and such condition would remain

in force as long as it is not repealed either expressly or by

necessary implication by another executive order or a Rule

made under proviso to Article 309 of the Constitution or by

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a statute. A specific stipulation of passing the Hindi Typing

Test can always be prescribed in the absence of any specific

bar in the Rules. [See: Sitaram Jivyabhai Gavali vs.

Ramjibhai Potiyabhai Mahala and others, AIR 1987 SC

1293]. Similar view has been taken by the Supreme Court in

the case of Punjab National Bank and another vs. Astamija

Dash, (2008) 14 SCC 370. The Supreme Court in the case

of State of Rajasthan and others vs. Rajendra K. Verma,

(2004) 13 SCC 706 has held that an employee would be

entitled for regularization of his services from the date

when he passes the test as stipulated in the order of State

Government. Therefore, in cases where the Rules are

silent about passing of Hindi Typing Test or provide that

preference will be given to candidate who passed Hindi

Typing Test but the letter of appointment contains such a

stipulation, then the employee would be entitled to

increment only after passing Hindi Typing Test and not

from the initial date of appointment.”

19.So far as FR 24 (regarding increment) and FR 9 (substantive pay)

are concerned, they are explained in para 17 of the judgment of

Manoj Kumar Purohit (supra) as under:

“17. Even if contention of the petitioners that provisions of

Fundamental Rules apply to their cases, is accepted, even

then, same is of no assistance to the petitioners as under

Fundamental Rule 24, an increment shall ordinarily be

drawn as a matter of course unless it is withheld.

Fundamental rule 24 reads as under:-

“F.R.24. An increment shall ordinarily be drawn as a

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matter of course unless it is withheld.”

The expression “ordinarily” used in Fundamental

Rule 24 intrinsically recognizes, that there can be deviation

which can be justified by reasons. The expression

‘ordinarily’ does not promote a cast iron rule, and it is

flexible and is never used in a case where there are no

exceptions. The exceptions implied by expression need not

be limited to those specially provided for by law. [See:

Union of India vs. Majji Jangamayya (1997) 1 SCC 607

and Mohan Baitha vs. State of Bihar (2001) 4 SCC 350].

Thus, even under Fundamental Rule 24 itself an increment

can be withheld, by imposing a condition with regard to

entitlement of the same, by an executive order in the

absence of any express prohibition in the Rules. Similarly,

the contention of the petitioners that Rules cannot be

amended by an order issued by the State Government also

does not deserve acceptance as the issue involved in this

case is not of amendment of Rules by an executive order.

In this regard reference may be made to Fundamental Rules

9(28) and 9(31)(a) , which read as under:-

“9(28). “Substantive pay” means the pay inclusive of

special pay sanctioned in lieu of higher time-scale of

pay, other than special pay, personal pay or emoluments

classed as pay under Rule 9(21)(a)(iii) to which a

Government servant is entitled on account of a post to

which he has been appointed substantively or by reason

of his substantive position in a cadre.

9(31)(a). “Time-scale pay” means which, subject to any

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condition prescribed in these rules, rises by periodical

increments from a minimum to a maximum. It includes

the class of pay hitherto known as progressive.”

A conjoint reading of Fundamental Rule 9(31)(a)

and Fundamental Rule 9(28) would make it clear that

mere appointment in time scale of pay does not entail in

automatic rise in pay necessarily adding periodical

increment unless a person become entitled to draw

substantive pay. The non-compliance of condition of

passing Hindi Tying Test makes the appointment

temporary and not substantive. Therefore, such temporary

employee is not entitled to draw increment as per

Fundamental Rule 22(b). Thus, the contention that benefit

of increment cannot be denied to an employee who is

appointed on time scale of pay also cannot be accepted.”

20.Not only this, learned Writ Court after considering the judgment of

Apex Court in the case of M.P. Chandoria Vs. State of M.P. and

others, (1996) 11 SCC 173 interpreted rule 8 and 12 of the Rules of

1961. Rule 8 provides for Probation and rule 12 provides for

Seniority and rule 8 itself stipulates that a Probationer has to pass

such Departmental Examination as prescribed. While interpreting

rule 8, the Apex Court in the case M.P. Chandoria (supra) held as

under:

“4. …......................Rule 8 prescribes probation. Rule 8 (1)

envisages that a person appointed to a service or post by

direct recruitment shall ordinarily be placed on probation

for such period as may be prescribed. The appointing

authority may, for sufficient reasons, extend the period of

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probation by a further period not exceeding one year. The

probationer has to undergo such training and pass such

departmental examination during the period of his

probation as may be prescribed. Sub-rules (4) and (5) are

not relevant and are omitted. Sub-rule (6) of Rule 8 is

relevant for the purpose of the case which envisages that on

successful completion of probation and passing the

prescribed departmental examination, if any, the

probationer shall, if there is a permanent post available, be

confirmed in the service or post to which he has been

appointed. Otherwise a certificate shall be issued in his

favour by the appointing authority to the effect that the

probationer would have been confirmed but for the non-

availability of the permanent post. As soon as a permanent

post becomes available, he will be confirmed. Under sub-

rule (7), a probationer, who has neither been confirmed nor

a certificate issued in his favour under sub-rule (6), nor is

he discharged from service under sub-rule (4), he shall be

deemed to have been appointed as a temporary

Government service w.e f. the date of expiry of probation

and his conditions of service shall be governed by the

Madhya Pradesh Government Servants (Temporary and

Quasi-Permanent Service) Rules, 1960.”

21.So far as Seniority is concerned, petitioner nowhere sought the

relief of Seniority in specific term. He sought increment from the

date of completion of probationary period of two years (since 2006)

treating completion of probation as automatic.

22.Cleverly appellant/petitioner tried to incorporate question of

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Seniority at appellate stage but even if issue is seen from this

vantage point, even then it is clear that when petitioner was

confirmed w.e.f. 28-04-2017 and was held to be entitled for

increments after acquisition of qualification then his seniority may

also be computed accordingly.

23.So far as other candidates are concerned, petitioner is seeking

negative parity and that aspect has already been taken care of by

learned Writ Court, directing the respondents to ensure that all other

candidates are getting increments and benefits after acquisition of

qualification only, not before that. Since it was a special drive for

filling up Backlog vacancies, therefore, the Relaxation was given

but it cannot be construed as mechanism to dehors the law settled

by Full Bench of this Court in the case of Manoj Kumar Purohit

(supra). All Assistant Professors etc. would only be entitled to get

benefit of completion of Probation and grant of increments after the

date of acquisition of qualification and not before. If any anomaly

and aberration exists, then it does not entitle the petitioner to claim

benefit on the basis of discrimination. Respondents shall have to

take care in this regard and ensure that no Assistant Professor gets

undue benefit from an early date. They all will get benefit from date

of acquisition of qualification.

24.In cumulative analysis, no case for interference is made out.

Learned Writ Court in its judgment from para 10 to 19 has rightly

analyzed the facts situation and decided accordingly, hence

affirmed. Respondents are already directed to take care of the

employees who are granted undue benefits. Therefore, no grievance

of petitioner left to be adjudicated.

25.Appeal sans merits and is hereby dismissed.

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26.Copy be sent to Principal Secretary, Higher Education &

Commissioner, Higher Education, Govt. of Madhya Pradesh for

information/compliance.

(ANAND PATHAK) (ANIL VERMA)

Anil* JUDGE JUDGE