Holding

The appointing authority may assign seniority based on the expiry of the normal probation period, and the fixation of seniority as done was lawful, rendering the appellant's claim untenable.

Summary

Om Prakash Shrivastava was appointed on probation on 1‑May‑1989 and passed the departmental examination on 22‑July‑1992 after his probation had been extended, leading to his confirmation on 23‑July‑1992. Another probationer, Ram Rao Bhosley, appointed on 7‑May‑1990, passed his examination on 29‑January‑1993 within his extended probation and was given a notional confirmation date of 8‑May‑1992, placing him senior to Shrivastava. Shrivastava challenged this seniority fixation as unlawful. The Central Administrative Tribunal and the Madhya Pradesh High Court rejected his claim, relying on the Madhya Pradesh Civil Services Rules. The Supreme Court upheld those decisions, holding that under Rules 8 and 12 of the 1963 Rules and Rule 13 of the 1975 Executive Rules, the appointing authority may assign seniority based on the expiry of the normal probation period, and a probationer who has not passed the departmental exam remains a temporary servant. Consequently, the appellant's seniority claim was untenable and the appeals were dismissed.

Issues considered

Whether seniority of a directly recruited probationer whose probation is extended and who passes the departmental examination after the original probation period can be fixed by the appointing authority based on the expiry date of the normal probation period.
Whether the fixation of a notional confirmation date for seniority purposes, as done in the appellant's case, is contrary to the Madhya Pradesh Civil Services Rules.

Subjects

seniorityprobationdepartmental examinationtemporary government servantservice lawMadhya Pradesh civil servicesconfirmationappointment

Judgment

-- OM PRAKASH SHRIV ASTAV A A
v.
STATE OF M.P. AND ANR.

APRIL 19, 2005

[ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] B

Service Law-Seniority-Madhya Pradesh Civil Services (General
Conditions of Service) Rules, 1963-Rules 8 and 12-Madhya Pradesh Civil
Services (Executive) Classification, Recruitment and Conditions of Services C
Rules, 1975-Rule 13-Appe//ant-probationer passed the prescribed
departmental examination only after his extended period of probation was
over-He was confirmed with reference to the date of his passing-A
subsequently appointed probationer, who passed the departmental examination
within extended period of his probation was placed senior than Appellant by
flXation of his notional date of confirmation on the day his original period of D
probation was over, though he had passed the examination later in point of
time than Appellant-Held: Such ftxation of seniority not contrary to law as
alleged by appellant-Comes within purview of Rules 8 and 12 of the MP.
General Rules and Rule 13 of the MP. Executive Rules.

Appellant, appointed on probation on 1-5-1989, succeeded in the E
pre~cribed departmental examination on 22-7-1992 only after his extended
probation period was over on 1-5-1992. The date of his confirmation was
accordingly taken to be 23-7-1992. Anotl\er probationer though passed the
departmental examination on 29-1-1993 after his initial appointment on 7-5-
1990, was placed above the appellant in the. seniority list by fixation of his F
notional date of confirmation on the day his original period of probation was
over, i.e. 8-5-1992. He had passed the examination within extended period of
his probation which was to end on 7-5-1993. According to the appellan~ such
fixation of seniority was contrary to law. CAT did not accept the plea. High
Court affirmed the order passed by CAT holding that the appellant's claim
of seniority vis-a-vis the other probationer was untenable. Hence the present G
appeals.

Dismissing the appeals, the Court

HELD : 1.1. CAT and High Court were justified in rejecting the
679 fl
680 SUPREME COURT REPORTS [20051 3 S.C.R.

A appellant's claim. (686-BJ

1.2. A combined reading of Rules 8 and 12 of the M.P. General Rules
and 13 of the l\'.l.P. Executive Rules makes the position clear that seniority
can be assigned by taking the relevant date to be the date of expiry of normal
period of probation. In the case of 'R', it was 8-5-1992. So far as the appellant
B is concerned, the appointing authority has been given power to determine the
date from which the candidate should be assigned seniority if the period of
probation of any direct recruit is extended depending on the date of his passing
the departmental examination. Until the probation period is completed, and
he is confirmed in the post, the employee does not become a member of the
C service on successful completion of the probation and passing of the prescribed
tests or conditions precedent to declaration of completion of the probation
period. Mere completion of one year period does not entitle the person to be
a member of the service. He continues to be in temporary service on
completion of probation period. The appointing authority is to confirm him
in a pending post available or grant him a quasi-permanent status. Unless he
D passes departmental examination, there is no question of completion of
probation and for all practical purposes the employee continues to be in
temporary service. (685-D-G]

1.3. A person who has neither been confirmed, nor had a certificate in
his favour in terms of sub-rule (6), nor discharged from service under sub-
E rule (4) would fall within.the category of those officers referred to in sub-
rule (7) of Rule 8 of the M.P. General Rules. He is to be deemed to be a
temporary government servant with effect from the date of expiry of
probation. The position is different in case of an officer, who passes the
departmental examination within extended period of probation.
F (685-H; 686-AI
MP. Chandoria v. State of MP. and Ors., (1996] 11 SCC 173 and State
of MP. v. Ramkinkar Gupta and Ors., (2000] 10 SCC 77, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2698-2699
of 2005.
G
From the Judgment and Order dated 22.9.2003/28.11.2003 of the
Madhya Pradesh High Court at Jabalpur in W.P. No. 3877/2000 in
R.Application No. 3399 of 2003.

Vivek Tankha, Dr. Hursh Pathak, A.S. Raizada and Rajesh with him
H for the Appellant.
OM PRAKASH SHRIVASTA VA v. STATE OF M.P. [PASA YAT, J.] 681

B.S. Banthia and Ms. Musharraf Choudhary for the Respondents. .t
The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Leave granted.

Appellant calls in question legality of the judgment rendered by a E
Division Bench of the Madhya Pradesh High Court at Jabalpur affirming the
order passed by Central Administrative Tribunal (in short 'CAT') holding
that the appellant's claim of seniority vis-a-vis that of one Ram Rao Bhosley
was untenable.

-- Factual position is undisputed and relates to appellant's seniority vis-a-
vis others. Though grievance was made in the Original Application before the
CAT and the High Court that his seniority was affected by placing juniors
above him, no such junior was impleaded either before CAT or the High
C

Court and in the present appeal. By way of illustration, it has been pointed
out that the aforesaid Ram Rao Bhosley was one such instance. It was DI
appellant's stand that when he passed the departmental examination, the
Government should have decided the date from which he was to be confirmed.
As no such decision has been taken and no order has been passed his placement
in the Gradation list is without any rational basis.

Appellant was appointed on 1.5.1989 on probation and original probation E
period ended on 1.5.1991. There was extension of the period of probation by
one year which ended on 1.5.1992. Even during the extended period of
proba~ion the appellant did not succeed in the departmental examination and
only on 22. 7 .1992 he passed the departmental examination. The date of
confirmation was accordingly taken to be 23. 7.1992. The appellant made a
grievance that those persons who had passed the departmental examination F
within the extended period of one year were placed higher in the seniority list
of 2002 by fixing their notional date of confirmation on the day the original
period of probation was over. According to the appellant such fixation of
seniority was contrary to law. The CAT did not accept the plea by placing
reliance on judgment of this Court in MP. Chandoria v. State of MP. and G
Ors., [1996] 11 SCC 173 and State of MP. v. Ramkinkar Gupta and Ors.,
(2000] I 0 SCC 77. The CAT held that these decisions did not support the
stand taken by the appellant and, in fact, substantiated State's case that only
from the date an employee passes the departmental examination (if it is after
probation period), the confirmation takes places.
H
·,
682 SUPREME COURT REPORTS [2005] 3 S.C.R.

A In support of the appeal, Mr. Vivek Tankha, leamed senior counsel
submitted that the view taken by the CAT and the High Court was not correct
in view of what has been stated by this Court in M.P. Chandoria and
Ramkinkar Gupta cases (supra). With reference t0 the factual details of Ram
Rao Bhosley, it was submitted that though he passed the departmental
IB examination on 29.1.1993 after his initial appointment on 7.5.1990, he was
placed senior to the appellant in the Gradation list. This was submitted to be
not justified both in fact and in law.

Learned counsel for the respondent-State on the other hand supported
the judgment of CAT and the High Court.
c We shall first take note of the factual details so far as the appellant and
Ram Rao Bhosley, though he is not a party to test acceptability of appellant's
stand.
Name of the officer Om Prakash Ram Rao Bhosley
Shrivastava

Date of appointment 01.05.1989 07.05.1990

Date of completion of 01.05.1991 07.05.1992
2-years (original Probation ..
Period)
E
Date of completion 01.05.1992 07.05.1993
of extended period of 1
(one) - year
Date of passing the 22.07.1992 29.01.1993
departmental exams.
F
Date of confirmation 23.07.1992 08.05.1992 (Notional
Sr. No. in Gradation 360 345
List of 2002

G Rules 8 and 12 of the Madhya Pradesh Civil Services (General
Conditions of Service) Rules, 1963 (in short the 'Rules') throw considerable
light on the present controversy. They read, so far as relevant as follows :
,.a.-
"8. Probation - (1) A person appointed to a service or post by direct
recruitment shall ordinarily be placed on probation for such period as
H may be prescribed.
OM PRAKASH SHRIVASTAVA v. STATEOFM.P. [PASAYAT, J.) 683
(2) The appointing authority may, for sufficient reasons, extend the A
period of probation by a further period not exceeding one year.

* * *
(3) A probationer shall undergo such training and pass such
departmental examinations during the period of his probation as may
be prescribed. B
(4) The service of a probationer may be tenninated 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 C
examinations or who is found unsuitable for the service or post may
be tenninated 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 D
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 confinned but for the non-availability of
the permanent post and that as soon as a permanent post becomes
available he will be confirmed.
E
(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- F
Permanent Service) Rules, 1960."

"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. -
G
(a) Direct recruits: (i) The seniority of a directly recruited government
servant appointed on probation shall count during his probation from
the date of appointment, viz. :

* * *
H
684 SUPREME COURT REPORTS [2005) 3 S.C.R.

A (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
B the normal period of probation or whether he should be assigned a
lower seniority."

Rule 13 of Madhya Pradesh Civil Services (Executive) Classification,
Recruitment and Conditions of Services Ruks, 1975 (in short 'Executive
C Rules') reads as follows :

"13. Probation- (1) Every person directly recruited to the service
shall be appointed on probation for a period of two yea.rs .

. (2) The appointing authority may, for sufficient rP.asons, extend the
period of probation by a further period not exceeding one year.
D· ~-

(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 the probationer may be terminated during the ---i
E period of probation, if in the opinion of the appointing authority, he
is not likely to shape into suitable government servant.

(5) The services of a probationer who does not pass the prescribed
departmental examination or who is found unsuitable for the service
also be terminated at the end of the period of probation.
F
(6) On 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
G but for the non-availability of the permanent post and as soon as
permanent post becomes 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 increments shall
H
OM PRAKASH SHRIVASTAVAv. STATEOFM.P. [PASAYAT, J.] 685
be paid or not. Such arrears shall ordinarily be paid when the extension A
of the probationary period is due to no fault of the probationer.

(7) A probationer who has neither been confirmed, nor a cei:tificate
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 B
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."

A bare reading of sub-clause (ii) of Clause (a) of Rule 12 makes the
position clear that the appointing authority has to decide as to from what date C
the direct recruit is to be assigned. It has to be decided whether seniority as
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. The original
probation period is two years. Therefore, a combined reading of Rules 8, 12
of the Rules and 13 of Executive Rules makes the position clear that seniority D
can be assigned by taking the relevant date to be the date of expiry of normal
period of probation. In the case of Ram Rao Bhosley, it was 8.5.1992. So far
as the appellant is concerned, the appointing authority has been given power
to determine the date from which the candidate should be assigned seniority
if the period of probation of any direct recruit is extended depending on the
date of his passing the departmental examination. As was noted in MP. E
Chandoria 's case (supra), until the probation period is completed, and he is
confirmed in the post, the employee does not become a member of the
service on successful completion of the probation and passing of the prescribed
tests or conditions precedent to declaration of completion of the probation
period. Mere completion of one year period does not entitle the person to be F
a member of the service. He continues to be in temporary service on the
completion of probation period. The appointing authority is to confirm him
in a pending post available or grant him a q~asi-permanent status. Unless he
passes departmental examination, there is no question of completion of
probation and for all practical purposes the employee continues to be in
temporary service. G
Reiterating the principles in MP. Chadoria 's case (supra), it was· held
in Ramkinkar Gupta's case (supra) that if a person does not pass the test then
the appointing authority is empowered to assign seniority in a lower level
than one which has been assigned by the Public Service Commission. A
person who has neither been confirmed, nor had a certificate in his favour in H
686 SUPREME COURT REPORTS (2005) 3 S.C.R.

A tenns of sub-rule (6), nor discharged from service under sub-rule (4) would
fall within the category of those officers referred to in sub-rule (7) of Rule
8 of the Rules. In other words, he is to be deemed to be a temporary
government servant with effect from the date of expiry of probation. The
position is different in case of an officer, who passes the departmental
examination within extended period of probation.
B
In view of the principles indicated, CAT and High Court were justified
in rejecting the appellant's claim. The conclusions do not warrant any
interference.

·The appeals are dismissed with no order as to costs.
c
B.B.B. Appeals dismissed.