Hon'ble NAOLEKAR, J. - (1.) MR. C.P. Choudhary (respondent) filed writ petition NO. 763/1980 against the Rajasthan Financial Corporation& Others wherein he prayed for quashing of order dated 28.9.1979 whereby he was confirmed on the post of Assistant Manager with effect from 1.4.1978 and the period prior to that was deemed to be extension of the probation period. Facts in brief of his case are that the post of Assistant Law Officer, redesignated as Assistant manager (Law) was advertised by the respondent Corporation in 1975. Respondent C.P. Choudhary applied for the same and after an interview he was selected along with other candidates and was appointed as Assistant Law Officer vide order dated 20.2.1976 on probation for one year. he joined duties as Assistant Law Officer on 6.3.1976. No order of confirmation nor extension of period of probation was issued after completion of one years' probation period, however, vide impugned order dated 28.9.1979 he was confirmed along with others as Assistant manager with effect from 1.4.1978. Respondent Choudhary made representation on 15.11.1979. On 14.3.1990 seniority list of Assistant Managers prepared on the basis of date of confirmation was issued. Case of the respondent (Choudhary) is that after completion of probation period of one year, his case was not considered at all for extension and for the first time his case was considered on 28.9.1979 and he was confirmed with effect from 1.4.1978 which deemed extension of probation period upto that date. His contention is that probation period could not have been extended beyond prescribed period of one year without any cogent reason as he successfully completed probation period.
(2.) CASE of Virendra Kumar Shah in his writ petition No. 1893/86, in brief is that pursuant to regular selection held by the respondent Corporation, appellant/petitioner was selected and placed at serial No. 1 in select list. Respondent CP Choudhary was placed at No. 2 in the reserved list. Appellant/petitioner was appointed as Assistant Law Officer (redesignated as Assistant manager (law)) on probation for one year. He joined service on 26.5.1975. On 6.12.1976 a resolution was passed in the Board Meeting of the respondent Corporation on the basis of opinion expressed by the managing Director for extending probation period of appellant/petitioner and GS Yadav upto 31.12.1976. In the Board's meeting of 14.3.1977 appellant/petitioner's probation period was further extended upto 30.6.1977. Vide order dated 28.9.1979 appellant/petitioner, respondent C.P.Choudhary and GS Yadav were confirmed with effect from 1.4.1978 extending their probation period upto that date. Appellant/petitioner impugned the said order dated 28.9.1979, challenged the orders of confirmation of various other respondents who have been confirmed prior to his date of confirmation. He challenged various seniority lists dated 14.3.1980, 12.9.1980, 5.12.1981, 3.5.1983, and 27.3.1984 of Assistant Manager and Deputy Manger. Some other orders dated 7.11.1978, 28.3.1079, 29.10.1979, 27.10.1979, 24.11.1980, 30.12.1982, 30.6.1983, 3.10.1983 and 3.4.1984 whereby persons shown senior to him, have been promoted on the post of Deputy Manger and/or Manager. The appellant/petitioner has claimed benefit of proviso(iii) of Reg. 19 of the Rajasthan Financial Corporation (Staff) Regulations, 1958 (hereinafter to be referred as `the Regulations'). The appellant/petitioner vide amendment dated 16.4.1993 has challenged the constitutional validity of Reg.19 whereby seniority is adjudged form the date of confirmation of an officer and not from the date of initial appointment. Learned single judge partly allowed writ petition no. 763/1980 C.P. Choudhary vs. RFC & Others , quashing the order dated 28.9.1979 so far it related to confirmation of C.P. Choudhary with effect from 1.4.1978, and declared that C.P. Choudhary shall stand confirmed as Assistant Manager with effect from 6.3.1977 on competition of one year probation period. The respondent Corporation was directed to assign seniority of Choudhary as Assistant manager treating his date of confirmation as 6.3.1977 and then to consider his case for promotion to the post of Deputy Manager with all consequential benefits in accordance with rules, regulations and orders governing promotion to the post of Deputy Manager, if Choudhary was found fit to be promoted. It has also been held that on 5.3.1977 probation period of Virendra Kumar Shah, (appellant/petitioner) was extended, therefore, he cannot claim seniority on the basis of proviso (iii) to Reg. 19 of the Regulations. Aggrieved by the said order Virendra Kumar shah Filed Special Appeal No. 518/93. Virendra Kumar shah has filed separate Writ Petition No. 1893/86. The counsel for appellant/petitioner submits that on successful completion of probation period and on confirmation, he is entitled to be assigned seniority, on true construction of Regulation 19 with proviso (iii), irrespective of the date of confirmation, as per his position in the select list. It is further urged that Choudhary could not have been assigned confirmation and seniority, on assumed successful completion of probation period of one year simple because his case for extension of probation period was not considered immediately after one year, and that there was nothing on record against the appellant/petitioner to extend period of probation before confirmation. Submission of the counsel for appellant/petitioner is based on Regulations 14 and 19 of the Regulations which governs service conditions of the parties. Regulation 14 of the Regulations reads thus:- ``14 Period of Probation:- An employee recruited to the Corporation's service shall be required to be on probation for a period which shall not be less than six month in case of employees of classes `B' and `C' and not less than one year in case class ``A'' employees and may be extended upto 2 years or more, if considered necessary. Under Regulation 14 of the Regulations an employee recruited in class `A' Post of the respondent Corporation is required to undergo probation period of not less than one year which may be extended upto two years or more if considered necessary. Thus under the Regulation, there is no fixed maximum period of probation. The probation period is subject to extension upto two years or more if considered necessary. There is no provision that with expiry of period of one year the probationer shall be confirmed on the post neither there is a maximum period provided under the Regulation whereby on expiry of the period the employee gets confirmation automatically. Rule of confirmation on successful completion of the probation period is now well settled which is that after expiry of the probation period the probationer does not automatically get confirmation unless the rule so provides or the maximum period of probation is prescribed under the rules, which is so held by apex Court in G.S. Ramaswamy vs. Inspector- General of Police, Mysore (1); State of Uttar Pradesh vs. Akbar Ali Khan (2); State of Maharashtra vs. Veerappa R. Saboji & another) (3); Dhanjibhai Ramjibhai vs. State of Gujarat (4); M.P. Chandoria vs. State of M.P. & others; (5) and Tarsem Lal Verma vs. U.O.I & Others (6) In the present case admittedly appellant/petitioner's case was considered for extension of his probation period vide orders dated 6.12.1976 and 14.3.1977 upto 30.6.1977. When employee's case is considered and it is found by the employer that it would be necessary for regular recruitment of the employee in service that his period of probation is to b extended, the employer is well within his rights to extend the period. Court is not called upon to look into the proprietary of the reasons for extension of the period of probation unless it is demonstrated that the reasons for extension of probation period are perverse so as to say that no reasonable person could reach to that conclusion or that the reason for which the probation period is extended is on account of malice on the part of the officer who has extended the period or the extraneous factors are taken into consideration for the extension. For the responded Corporation, consideration of the case of probationers for extension of period of probation is essential and necessary as under Regulation 19 seniority is to be counted from the date of confirmation and not from the date of initial appointment. Under Regulation 19 when seniority is dependent on date of confirmation of an employee in the service, it is incumbent on the authorities to consider the case of its employee before or at the time or immediately after expiry of the period of probation and to take a decision whether the period is to be extended or take a decision whether the period is to be extended or not and if the authority decides to extend the period of probation it should give reasons for such extension. The authority however, is not bound to communicate the reasons to the employee, but if challenge is made to extension, the authority is required to satisfy the court with reason for such extension. The respondent Corporation cannot take up the plea that under Regulation 14 it is within its rights to extend the probation period upto two years or more. Regulation 14 gives authority to put the class `A' employee, on probation for not less than one year and may extended the period upto two years or more, if considered necessary. The words ``if considered necessary'' clearly denotes that initial probation period could be extended only after taking into consideration the service record of the employee and all other such matters, relevant for ascertaining the performance of the employee. The act of extension of the probation period of an employee has to be based on reasons and not merely because the Regulation permits, that the period of probation can be extended. In the present case the learned single judge has rightly reached to the conclusion that there was nothing on record to show that the period of probation of respondent C.P. Choudhary has been extended after consideration of his service record or other relevant matters. So far as appellant/petitioner is concerned, his case was taken into consideration on two occasions i.e. vide orders dated 6.12.1976 and 14.3.1977 and his probation period was extended upto 30.6.1977. However, when the order dated 28.9.1979 confirming him with effect from 1.4.1978 was issued, the respondent Corporation has not come up with the case as to how and why his probation period has been extended from 30.6.1977 to 1.4.1978. In the matter of appellant/petitioner also the principle adopted by the learned single Judge in the matter of respondent C.P. Choudhary shall apply. C.P. Choudhary has been granted relief on the ground that extension of his probation period after one year was not shown by the respondent Corporation to be based on some justiciable reason. Similarly extension of period of probation without consideration of relevant material at relevant time from 1.7.1977 to 1.4.1978 of the appellant/petitioner is not based on any reason and thus is illegal.
(3.) THE submission of counsel for appellant/petitioner Mr. Singh is that under proviso (iii) to Regulation 19,the appellant/petitioner shall be entitled to the assignment of seniority over the persons who have been appointed to the post as a result of the one and the same examination and/or interview in accordance with their placement in merit/select list. Admittedly appellant/petitioner was at no. 1 in the select list and n that basis he claims seniority over all the persons who have been appointed as a result of one and the same examination and/or interview. Regulation 19 reads as under:- 19. Seniority:- An employee confirmed in the corporation service shall rank for seniority in his grade according to his date of confirmation in the grade, and employee on probation according to the length of his probation service. Provided (i) That among persons appointed to a class of posts during the same year by promotion and by direct recruitment, persons appointed by promotion shall be senior to those appointed by direct recruitment. (ii) That the persons selected and appointed as a result of selection, which is not subject to review and revision, shall rank senior to the persons who are selected and appointed as a result of subsequent selection. Seniority interse of persons selected on the basis of seniority-cum-merit and on the basis of merit in the same selection shall be the same as in the next below grade. (iii) That the seniority interse of the persons appointed to particular class of posts as a result of one and the same examination and/or interview except those who do not joint the services when vacancies are offered to them, shall follow the order in which they have been placed in the list. It is the general rule of interpretation that for interpreting a section/rule, the entire rule is to be read as a whole and has to be given effect to so as to avoid any inconsistency or repugnance and endeavor of court should be to avoid ``a head-on clash'' between the principal section and its provisos, whenever it is possible to be so to construe a provision which appears to conflict, so that they harmonize. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is on the enactment, and ordinarily, a proviso is not interpreted as stating a general rule. But Provisos are often added not as exceptions or qualifications to the main enactment but as saving clauses in which cases they will not be construed as controlled by the section. THE saving clauses are seldom used to construe Acts. THEse clauses are introduced into Acts which repeal others, to safeguard rights which, but for the savings, would be lost. THE effect of an excepting or a qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso is to except or qualify something enacted in the substantive clause, which but for the proviso would be within that clause. It may ordinarily be presumed in construing a proviso that it was intended that the enacting part of the section would have included the subject- matter of the proviso. But the question is one of interpretation of the proviso, and there is no rule that the proviso must always be restricted to the ambit of the main enactment. Occasionally in a statute a proviso is unrelated to the subject-matter of the preceding section, or contains matters extraneous to that section, and it may have then to be interpreted as a substantive provision, dealing independently with the matter specified therein and no as qualifying the main or the preceding section. (Reliance is placed on Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs. Subhash Chandra Yograj Sinha (AIR (7); Kedarnath Jute manufacturing Co. Ltd. vs. THE Commercial Tax Officer & Others (8); Ishverlal Thakorelal Almaula vs. Motibhai Nagjibhai (9). On the aforesaid guidelines laid by apex Court if the proviso (iii) is to be construed it has to be read with the main Regulation which says that an employee confirmed in the corporation service shall rank for seniority in his grade according to his date of confirmation in the grade. Therefore, for the purposes of seniority, confirmation is the tough stone. If the proviso is read independently and not as qualifying the main Regulation, then it shall read, that although the person is confirmed on a latter date, he shall be placed above in the seniority list to the persons who have been confirmed on prior date, because of his merit rank in the select list, prepared of the same examination and interview. If the proviso is to be applied independently, the employee who stood above in merit/select list has to be taken senior to the person who is shown below in the merit list, although the employee shown below in the merit list is confirmed prior to the employee who has been shown above in the merit list. If the Regulation is to be given effect to on the basis of proviso alone then the main Regulation shall become nugatory whereunder the confirmation is the criteria for seniority. On harmonious confirmation if the criteria for seniority. On harmonious construction of Regulation 19 it has to be interpreted in the manner, that in case the employees who have bene selected as a result of one and the same examination and/or interview and are confirmed on the same date, the employee whose name appeared in the merit/select list at the top shall be considered as senior to an employee who stands after him. This interpretation to Regulation 19 can only save main part of the Regulation 19 as well as the provisos. If both has to stand together, this is the only possible interpretation which can achieve the result. Regulation 19 has to be construed in this manner so as to save it to become a useless lumber or dead letter. Third limb of argument of the counsel for appellant/petitioner is that Regulation whereby the date of confirmation is taken to be date for ascertaining the seniority of an employee is ultra vires and is against the provisions of the Constitution of India. The petitioner has relied upon various decisions of apex Court. We may briefly refer to them to the extent they are relevant for our purpose. Main portion of Regulation 19 clearly states that it is the date of confirmation which will determine the seniority of an employee. In S.B. Patwardhan & Another vs. State of Maharashtra & Others (10), three judges bench of the Supreme Court considered similar contention wherein it was contended that although the direct recruits are appointed on probation as Deputy Engineers enter Class II cadre from the very day of their appointment, the persons promoted as officiating Deputy Engineers do not belong to Class II Cadre until they are confirmed as Deputy Engineers. The apex court held that there is no intelligible ground for differentiating the promotes and direct recruits. The valuable right of seniority to depend upon mere accident of confirmation is not justiciable under Articles 14 and 16 of the Constitution and it is impermissible. In Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra & Others (11), while considering the question of interse seniority between direct recruits and promotees, the constitution bench of Supreme Court has held that where appointment is made in accordance with the rules, seniority is to be counted from the date of such appointment and not from the date of confirmation, but where the initial appointment is not made following the procedure laid down by rules but the appointee is continued in the post uninterruptedly till regularisation of his service in accordance with rules, the officiation in such post can be taken into account for considering the seniority. Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. Seniority cannot be determined on the sole test of confirmation, for, conformation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. Thus the apex court has taken a view that seniority cannot be ascertained merely on the basis of confirmation. In Devadutta & Others vs. State of M.P. & Others (12), the Supreme Court has held that seniority of existing inspectors cannot be fixed from the date of confirmation because ignoring service from date of appointment till confirmation will be against the principles laid down in Direct Recruit Class II Engineering Officers' Association case. In Dr.(Capt.) Akhouri Ramesh Chandra Sinha & Others vs. State of Bihar & Other (13), it is said by the apex court that on satisfactory completion of probation, confirmation dates back to the initial appointment. ;