- (1.)A Division Bench vide order dated 25.3.2009 passed in W.A. No. 1267/2007 (State of M.P. and another v. Prakash Chandra Jangre and others) held that seniority of a probationer would be counted from the date when he passes the requisite examination. Thereafter another Division Bench of this Court vide common order dated 17.12.2009 passed in W.A. No. 510/2009 (Suresh Kumar v. The State of M.P. and others) and W.A. No. 511/2009 (Sandeep Kumar Mawkin v. The State of M.P. and others) held that even though a probationer may not have completed his probation period successfully yet he would be senior to the persons who have been selected/appointed in the subsequent selection process. A Division Bench of this Court vide order dated 22.9.2011 prima facie found that there is conflict in the views taken by aforesaid two Division Benches and referred the matter to this Full Bench as to which of the two views taken by the aforesaid two Division Benches is correct. Since, the same question has been referred in all these writ appeals, therefore, they were heard together. Shri R.D. Jain, learned Advocate General submitted that in the order dated 17.12.2009 passed by the Division Bench in W.A. No. 510/2009 and 511/2009, the earlier order dated 25.3.2009 passed in W.P. No. 1267/2007 has not been considered. It is also submitted that seniority of a probationer has to be reckoned from the date of passing of the prescribed test. While inviting the attention of this Court to Rules 8 (2), 8 (3) as well as 8(7) of the Civil Services (General Conditions of Services) Rules, 1961 (hereinafter referred to as 'the 1961 Rules') it has been urged that a probationer who has neither been confirmed nor a certificate has been issued in his favour under sub-rule (6) nor is discharged from service under sub-rule (4), shall be deemed to be appointed as temporary servant from the date of expiry of probation and his conditions of services shall be governed by the M.P. Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960. In support of his submissions, learned Advocate General has placed reliance on the decisions of the Supreme Court in M.P. Chandoria v. State of M.P. and others, 1996 73 FLR 1699, State of M.P. v. Ramkinkar Gupta and others, 2000 10 SCC 77, and Om Prakash Srivastava v. State of M.P. and another, 2005 105 FLR 773.
(2.)On the other hand, Mr. Ravish Agrawal, learned Senior Counsel submitted that Rule 12 of the 1961 Rules has to be read in conjunction with Rule 12 of the M.P. Civil Services (Executive) Classification, Recruitment and Conditions of Services Rules, 1975 in order to ascertain the legislative intent. It is further submitted that the provision of rule 12 (1) (f) and rule 12 (1) (a) of the 1961 Rules have to be read harmoniously and Rule 12(1) (f) has to be read subject to rule 12 (1) (a) of the 1961 Rules. It is also submitted that if an employee who has satisfactorily completed the period of probation and has passed the requisite departmental examination on completion of a period of three years, shall be deemed to be confirmed, however, in case where the passing of the departmental examination is a condition precedent for confirmation and the employee has not passed the departmental examination, in such a case the employee would not be deemed to confirmed and would be governed by Rule 8 (7) of the 1961 Rules. In support of his submissions, learned senior Counsel has placed reliance on the decision of the Supreme Court in Rajindra Singh Chauhan and others v. State of Haryana and others, 2006 108 FLR 1.
(3.)We have considered the submissions made on both the sides. In the facts of the cases in hand and in view of the submissions made by learned Counsel for the parties the following two issues arise for consideration, namely, (i) 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, (ii) the interpretation of rule 12 (i) (a) and rule 12 (1) (f) of the 1961 Rules. Before adverting to the first issue it is apposite to notice rule 8 of the 1961 Rules which deals with the probation and relevant extract of rule 12(1) of the 1961 Rules which deals with seniority. The aforesaid provisions read as under:
8. Probation.--(1) A person appointed to a service or post by direct recruitment shall ordinarily be placed on probation for such period as may be prescribed.

(2) The appointing authority may, for sufficient reasons, extend the period of probation by a further period not exceeding one year.

(3) A probationer shall undergo such training and pass such departmental examination during the period of his probation as maybe prescribed.

(4) The services of a probationer may be terminated during the period of probation if in the opinion of the appointing authority he is not likely to shape into a suitable Government servant.

(5) The services of a probationer who has not passed 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.

(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 a permanent post becomes available he will be confirmed.

(7) A probationer, who has neither been confirmed, nor a certificate issued in his favour under sub-rule (6) nor discharged from service under sub-rule (4), shall be deemed to have been appointed as a temporary Government servant with effect from the date of expiry of probation and his conditions of service shall be governed by the Madhya Pradesh Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960.

xxx xxx xxx

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,--

(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 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 person 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 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.