Holding

The note to Rule 8 of the Special Rules cannot be overridden by Rule 16(h) of the General Rules; the extension of probation and alteration of commencement dates were illegal, and seniority must be based on the original appointment date.

Summary

The petitioners were temporarily appointed as Assistant Executive Engineers by direct recruitment on 18‑April‑1992 and were placed on probation for two years within a continuous period of three years under Rule 6(2) of the Andhra Pradesh Engineering Service Rules, 1967. They were required to pass the Account test within probation under Rule 8(c); one petitioner passed the test only on 20‑Jan‑1997, well after the probation period. The Government later extended their probation and fixed revised dates of commencement of probation under Rule 16(h) of the Andhra Pradesh State & Subordinate Service Rules, 1996. The Administrative Tribunal and the High Court upheld the extension, but the Supreme Court held that the note appended to Rule 8 cannot be overridden by Rule 16(h), that the extension beyond one year was unlawful, and that seniority must be determined by the date of appointment, not by the altered probation dates. Consequently, the Tribunal’s and High Court’s orders were set aside and the petitioners’ writ petitions were allowed.

Issues considered

The note appended to Rule 8 of the Special Rules can be overridden by Rule 16(h) of the General Rules to extend probation and alter the commencement date.
Whether the Government may extend probation beyond one year and alter seniority of Assistant Executive Engineers who passed the Account test after the prescribed probation period.
Whether a distinction in seniority between probationers who pass the test within the probation period and those who pass it later is permissible under the Service Rules.

Legislation cited

Andhra Pradesh Engineering Service Rules, 1967s. Rule 6(2), s. Rule 8(c)
Andhra Pradesh State & Subordinate Service Rules, 1996s. Rule 16(a), s. Rule 16(c), s. Rule 16(e), s. Rule 16(h), s. Rule 17(a)(ii), s. Rule 17(b), s. Rule 18(a), s. Rule 33(a)

Subjects

probationextension of probationseniorityservice rulesdirect recruitmentaccount testrule interpretationadministrative lawservice law

Judgment

[2016) 5 S.C.R. 972

A R. VENKATA RAMUDU & ANOTHER ETC.

v.
STATE OF A.P & OTHERS

(Civil Appeal Nos. 9856-60of2016)
B
SEPTEMBER27,2016

[J. CHELAMESWAR AND ABHAY MANOHAR SAPRE, JJ.)

Service Law:
c Andhra Pradesh Engineering Service Rules, 1967 - rr. 1, 6, 8
-Andhra Pradesh State & Subordinate Service Rules, 1996 - r. 16
- Extension of period of probation and fixation of revised dates of
commencement of probation - Legality of - Temporary appointment
of first appellant as Assistant Executive Engineer by direct
D recruitment, on 18.4.1992 - Placed on probation with retrospective
effect from 18.4.1992 for a period of two years within the continuous
period of three years - Jn terms of r. 6(2), appellant__passed the
Account test on 20.1.1997 - However, there was no need to pass
the language test in Telugu, in view of the relevant Rules -
Subsequently, issuance of memo by the Government whereby the
E period of probation extended and revised dates of commencement
of probation fixed - Challenge to, and directions sought to consider
the appellant for promotion to the next post - Tribunal held that the
impugned proceedings were perfectly valid and legal - High Court
upheld the order - Held: Note appended to Rule 8 stipulates that it
F expressly prohibits the probationer from being discharged for failure
to pass the Account test, and it stipulates that the probation shall be
extended until the probationer passes the test - Such extension is
mandated only in those cases where the probationer does not pass
the relevant test - Note does not prevent the probationer from being
discharged at the end of the period of probation if his performance
G is otherwise unsatisfactory - Thus, Note is a legislative device and
part of the Rule 8{c) - it carries same degree of efficacy as the Rule
itself - In appellants case, in view of the declaration contained in
the Note appended to Rule 8, there was neither any need nor occasion
much less the authority in law for the exercise ofpower either under
H
972
R. VENKATA RAMUDU & ANOTHER ETC. v. STATE OF A.P & 973
OTHERS

Rules 17(a)(ii) or 17(b) or 16(e) or 31 of the General Rules - By a A
statutory declaration the period of probation stands extended until
the Assistant Executive Engineer passes the prescribed test - There
is no other material on record to indicate that the performance of
the appellant during the period of probation is otherwise not to the
satisfaction of the appointing authority - Conclusion of the Tribunal
B
that those persons who pass the Account test within the prescribed
period of probation constitute a different class than those who pass
the Account test after securing the benefit of extended period of
probation and such later class shall not gain advantage by way of
seniority over the class mentioned earlier is without any basis in
the text of the Rules - Further, the technical qualification of the c
appellant and the experience gained in utilizing such technical
qualification for the service of the State is relevant than the
knowledge of Accounts, which is of incidental significance -
Assistant Executive Engineer even if he passes the Account test within
the prescribed period of probation would not be considered for
D
promotion till he completes 5 years of service - Thus, the logic
employed by the tribunal and as upheld by the High Court cannot
be accepted - Impugned judgment cannot be sustained and is set
aside.
K. Haridas v. High Court of Kera/a & Others (2000) 9.
SCC 717; State of MP. v. Ramkinkar Gupta & Others E
(2000) 10 SCC 77; S.P. Badrinath v. Govt. of A.P. &
Others (2003) 8 SCC 1 - referred to.

Case Law Reference

(2000) 9 sec 111 referred to Para 41 F

(2000) 10 sec 11 referred to Para 41

(2003) s sec 1 referred to Para 41
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 9856- G
9860of2016
WITH
C. A. NO. 9861 OF 2016.
H
974 SUPREME COURT REPORTS [2016) 5 S.C.R.

A From the Judgment and Order dated 18.12.2008 of the High Court
of Judicature ofAndhra Pradesh at Hyderabad in Writ Petition No. 16807,
16801,23093,23404&23101 of2008.
P. P. Rao, B. Adinarayana, Sr. Advs., P. B. Suresh, Vipin Nair,
Prithu Garg, Tishampati Sen, J. R. Manohar, R. Santlman Krishnan, Aditya
B Kr., Venkateswara Rao Anumolu, Prabhakar Parnam, C. S. N. Mohan
Rao, V. N. Raghupathy, Ad vs. for the Appellants.

Krishna K. Singh, S. Udaya Kumar Sagar, K. Maruthi Rao, K.
Subba Rao, Aniruddha P. Mayee, G. Seshagiri Rao, Rajesh Babu, Sridhar
Potaraju, Guntur Prabhakar, Ms. Prerna Singh, M/s. Venkat Palwai Law
c Associates, Advs. for the Respondents.

The following order was deliwred

ORDER

D I. Leave granted.

2. These two appeals arise out of a common judgment dated
18.12.2008 of the High Court of Judicature of Andhra Pradesh at
Hyderabad (as it then was) in writ petition nos. 16807, 16801, 23093,
23404, 23101 and 17219 of2008.
E
3. These two appeals arise out of Writ Petition (C) No. 16807 of
2008 and Writ Petition (Civil) No. 17219 of2008 respectively.
4. It is agreed that the facts w.r.t. all the three appellants involved
in these two appeals are similar. We therefore, take the facts of appeal
F arising out of SLP(C) No. 6906-6910 of 2009 as representative facts.

5. The first appellant R. Venkata Ramudu of the above-mentioned
appeal, was temporarily appointed, by order dated 23.3.1992, as an
Assistant Executive Engineer by direct recruitment. Recruitment was
by a process of selection conducted by the then Andhra Pradesh Public
G Service Commission. He was allotted to Irrigation Department.
6. The post of Assistant Executive Engineer is the category VI
post of tl1e service constituted under Ru le 1 of the Andhra Pradesh
Engineering Service Rules, 1967 (hereafter "SPECIAL RULES .. ) made
under the proviso to Article 309 of the Constitution oflndia .. The Rules
H
R. VENKATA RAMUDU & ANOTHER ETC. v. STATE OF A.P & 975
OTHERS

provide for various aspects of the service including the constitution, A
recruitment and other matters incidental thereto. Direct recruitment is
one of the modes of recruitment for the said post.
7. Rule 6(2) of the SPECIAL RULES stipulates that "every person
appointed ... as Assistant Executive Engineer by direct recruitment shall,
from the date on which he joins duty, be on probation for a total period of B
two years on duty within a continuous period of three years". Rule 8( c)
stipulates that "an Assistant Executive Engineer appointed by dired
recruitment shall, within the period of his probation, pass the Account
Test for P.W.D. Officers and Subordinates".
8. Admittedly, R. Venkata Ramudu passed the Account test on c
20.1.1997.
9. By proceedings dated 17.7.2003 of the Engineer-in-Chief,
Irrigation and CAD (Commander Area Development) Department,
Hyderabad, the following was communicated to R. Venkata Ramudu:-
"Sri R. Venkata Ramudu, A.E.E.(D.8.3.6.64) Zone-IV was D
selected by the A.P.P.S.C. during 1992 and allotted to this
Department. Accordingly he was appointed as Assistant
Executive Engineer in this office proceedings I st cited and joined
duty on 18.04.1992 FN.
Under rule l 6(a) of A.P. State and sub-ordinate Service E
Rules, 1996. Sri R. Venkata Ramudu,Asstt. Exec. Engineer (DOB:
03.06.1964) Zone-JV is hereby placed on probation with effect
from 18.04.1992 FN for a period of two years within the continuous
period of three years.
He should pass the Account test for P.W.D. Officers and F
Subordinates and language test in Telugu within a probation period
for the purpose of satisfactory declaration of probation.
He is informed that his placement of probation is subject to
the condition that his services are liable to be terminated any time
before declaration of probation under General Rules with one G
month notice or pay in lieu thereof.
Sd/-
L. Banda Reddy,
Engineer-in-Chief,(Admn)"
H
976 SUPREME COURT REPORTS [2016] 5 S.C.R.

A The substance of the proceedings is that more than a decade after
R. Venkata Ramudujoined the service (on 19.4.1992), the Engineer-in-
Chief purported to have placed R. Venkata Ramudu on probation with
retrospective effect from 18.4.1992FN! for a period of two years within
the continuous period of three years. Interestingly, the communication
further commands R. Venkata Ramudu to pass two tests. (i) Account
B
test for PWD Officers and Subordinates and (ii) language test in Telugu
within the probation period for the purpose of satisfactory declaration of
probation! Admittedly, the question ofR. Venkata Ramudu passing the
language test in Tdugu did not arise in view of the relevant rules'.
Admittedly by the date of the said communication ( 17. 7.2003 ), R. Venkata
c Ramudu had already passed the Account test for the PWD officers,
some six years prior to the communication!
10. The said communication is purportedly made in exercise of the
power under Rule J 6(h) of the Andhra Pradesh State & Subordinate
Service Rules 1996 (hereinafter referred to as "GENERAL RULES").
D
11. Subsequently, by a memo dated 201h January, 2007 issued by
the Government of Andhra Pradesh purportedly in exercise of the power
under Rule 16(a) of the GENERAL RULES, the Government purported
to (i) extend the period of probation, and (ii) fix the revised dates of
commencement of probation in respect of 210 Assistant Executive
E Engineers specified in the annexure to the said proceedings.
12. The relevant portion of the proceedings dated 20th January,
2007 reads as follows:-
"In the circumstances reported by the Engineer-in-Chief, Irrigation
F and CAD Department, Hyderabad in the Letters cited and after
careful consideration of the matter, Government hereby extend
the probation and fix the revised date of commencement of
probation in respect of 210 Assistant Executive Engineers, as
indicated in the Annexure enclosed (zone-Wise), in terms of Rule
G 1
The requirement of passing a test in Telugu is a stipulation contained only in the
GENERAL RULES (Rule 13) but Rule 14 clarifies that such requirement does not
apply to the class of probationers specified therein.
Rule 14 (a) Language Test- exemption :- (a) A person who has passed the SSC or its
equivalent examination or any other higher examination with Telugu as the medium of
instruction and examination or with Telugu as one of the subjects, shall be exempted
from passing the 2"'class language test in Telugu.
H
R. VENKATA RAMUDU & ANOTHER ETC. v. STATE OF A.P & 977
OTHERS

16(h) of A.P. State and Subordinate Service Rules, 1996 read A
with Rule 6 of A.P. Departmental Test Rules, 1965.
2. The Engineer-in-Chief(AW), Irrigation & CAD Department,
Hyderabad is requested to take necessary further action, as per
rules in force in the manner."
B
13. R. Venkata Ramudu and the two other appellants before us
are among the said 210 Assistant Executive Engineers. According to
the annexure to the said proceeding, R. Venkata Ramudu was shown to
have passed the Account test on 20.1.1997. However, he was shown to
have completed probation on 27. 7.2000.
c
Anne=
(to Go\1. Me1ro No. 8477/Ser.1.212006-9, Dated20-l-2007)
STATEMENT OF ASSISTANT ENGINEERS WHO PASSED ACCOUNTS TEST FOR PWD OFFICERS
AND SUBORDINATES BELATEDLY

s NAME DATE OF f-1.CTUAL DATE OF DATE OF ~EVISED . D
OF THE BIRTH DATE OF PASSING OF ~OMPLETION PATE OF
N A.E.E. ~OMMENC- ACCOUNT TEST PF :COMME!\CE-
0 EMENTOF FORPWD PROBATION MENTOF
PROBATION OFFICERS& WITH "ROBATION
SUBORDINATES REFERENCE Lo\SPERRULE
PASSED trO RULE 6 OF 16(H)OF
fol.. P., DEPT. L. fo\..P.S. &S.S.
[TEST RULE !RULES
1965 I.E. LAST E
trHURSDAY
• •
• • •••• ••••• •••••• •••••• •••••• • •••••• •
• •
23 R 30.06. 18.04.1992 20.01.1997 27.07.2000 A 27.07.1998 A
VENKATA 1964 N N
RAMUDU
...... • • F
• • ••••• ****** •••••• •••••• •
•
•••••• •
•

14. It may be noted that Rule l 6(h) does not provide for altering
the date of successful completion of the probation. It only provides for
G
alteration of the date of commencement of probation. The Andhra
Pradesh Departmental Test Rules, 1965 relied upon for the fixing up of
a different date for completion of probation are not placed before us.
15. Aggrieved by the communication dated 20.1.2007 referred to
supra (which in turn relied upon the proceedings dated 17.7.2003 of the
H
978 ,SUPREME COURT REPORTS [2016] 5 S.C.R.

A Engineer-in-Chief), R. Venkata Ramudu (and others) initially approached
theA.P. State Administrative Tribunal by praying' thatthe said proceedings
be declared as illegal and arbitrary and for further directions to consider
the case of R. Venkata Ramadu for promotion to the post of Deputy
Executive Engineer by taking into account his initial date of appointment
etc.
B
16. The Administrative Tribunal by a common order (in a number
of connected applications) dated 28.7.2008 dismissed all the original
applications. Aggrieved by the same, the unsuccessful applicants
including R. Venkata Ramudu unsuccessfully carried the matter in a
batch of writ petitions to the High Court which culminated in the judgment
c under appeal.
17. The Administrative Tribunal framed an issue at para 20:
"20. The facts of the case lead us to decide a single issue which
is as follows:
D Whether the applicants who were all Assistant Executive
Engineers belonging to the A.P. Engineering Services are entitled
to retain the date of commencement of services originally assigned
to them by virtue of Note under Rule 8 of the Special Rules."
and after discussing the pleadings and rival contentions before it at para
E 34 of its order recorded certain conclusions:
"34. The sum and substance of the above discussion leads us to
the following conclusions :
1) All the applicants were appointed by way of direct recruitment
and therefore, they commence their probation from the date
F
of joining upon first appointment initially by the mandate of
Rule 6 of the Special Rules.
2) Rule l 6(h) of the General Rules over rides the provisions of

'· "·Hence in the interest of justice it is prayed that this Hon'ble Tribunal may be
G pleased to call for the records relating to impugned Memo No.8477/Ser.1.2/2006-9
dated 20.1.2007 and quash the same in so far as applicants are concerned by declaring
the action of the respondents as illegal, bad and arbitrary and further direct the
respondents to consider the case of the applicants for promotion to the post of Deputy
Executive Engineer by taking into account their initial date of appointment with all
consequential benefits and to pass such other order or orders as this Hon 'blc Tribunal
may deem fit and proper in the circumstances of the case.'·
H
R. VENKATA RAMUDU & ANOTHER ETC. v. STATE OF A.P & 979
OTHERS

the Special Rules. Further note under Rule 8 of the Special A
Rules cannot be read in isolation in the absence of any provision
with regard to the declaration of probation in the Special Rules.
3) The said note under Rule 8 of the Special Rules has to be read
in consonance with the rules pertaining to the declaration of
probation in the General Rules. 8
4) The Note under Rule 8 cannot take away the effect of the rule
itself and further it has to yield the mandatory overriding
provisions of Rule l 6(h) of the General Rules.
5) There is no need for the appointment order to specifically require
the appointees to pass the tests in accordance with the special c
and general rules. The moment an appointment is made by
way of direct recruitment, the mandate of rule 6 would require
the appointees to pass the required tests as laid down in the
General as well as in the special rules within the stipulated
periods. D
6) The Government not only invoked their powers under Rule 31
of the General Rules but also exercised the powers under Rule
16 (h) thereof. The inter se seniority among the direct recruits
which has to be fixed in accordance with the rule 33(a) & (b)
of General Rules has to yield to the overriding clause in Rule E
l 6(h)."
and eventually dismissed the O.As, the operative portion of the order
reads as under:
"'48. In view of the above circumstances, the issue framed must
be answered against the applicants in terms of the conclusion F
already stated above. Therefore, it is held that the impugned
proceedings together with all such consequential orders are
perfectly valid and legal and the same were issued in accordance
with the Special Rules read with General Rules. As a result, the
O.As., are liable to be dismissed. Accordingly, all the O.As, are
G
dismissed. VMAs are allowed."
18. The High Court took note of the conclusions recorded by the
Administrative Tribunal and did not find any reason to interfere with the
order of the Tribunal. In other words, the High Court endorsed both the
logic and conclusions recorded by the Tribunal.
H
980 SUPREME COURT REPORTS [2016] 5 S.C.R.

A 19. The reason assigned by the High Court for such conclusion
are to be seen at para 11 of the judgment under appeal:
"11. Obviously as rightly contended by learned Government
Pleader the petitioners have passed the departmental test beyond
the prescribed period of probation, though they are directly
B recruited through A.P.P.S.C. as Assistant Executive Engineers.
Since the petitioners themselves did not qualify or pass the
departmental test within period of probation and the provision in
Note to Rule 8(c) only saves them against discharge from service
and the Special Rules are silent on the method of extension of
probation, in view of Rule I 6(h) which operates qua to any other
c provisions either in general rules or special rules the Tribunal rightly
came to the conclusion that normal principle of determination of
seniority based on ranking has no application in cases where the
employees does not pass the prescribed test within the probation.
In the instant case the Government vide impugned proceedings
D extended the period of probation of the petitioners in the first
instance and thereafter fixed the date of commencement of
probation as mandated by Rule l 6(h) of the Rules. Admittedly,
the power to extend the period of probation is vested with the
Government and therefore the Government issued the impugned
proceedings fixing the revised date of commencement of probation
E in respect of the petitioners having extended their probation vide
first part of the impugned order. The Government thereupon
invoked Rule 16(h) of the Rules revising the date of
commencement of probation. In view of clear and categorical
expression of Rule 16(h) that notwithstanding anything contained
F in Special Rules or Sub-Rules (a) and (b) of Rule 33 of General
Rules, Rule l6(h) will over ride any provisions under the Special
Rules, including the Note under Rule 8 thereof insofar as the date
of commencement of periods of probation of the individuals who
do not pass the departmental tests within the period of probation
or extended period of probation are concerned.
G
20. Before we examine the correctness of the judgment under
appeal, we deem it appropriate tci examine the scheme of the RULES
relevant to the context of the case.
21. The erstwhile State of Andhra Pradesh initially made Rules
H known as Andhra Pradesh State and Subordinate Rules, 1962 in exercise
R. VENKATA RAMUDU & ANOTHER ETC. v. STATE OF A.P & 981
OTHERS

of the power conferred by the proviso to Article 309. The said rules A
contain various stipulations regarding the various aspects of employment
under the State, the details of which may not be necessary for the present
purpose. The said Rules were superseded by the GENERAL RULES
(1996 Rules referred to supra).
22. Under Rule l(d) of GENERAL RULES, it is stipulated as B
follows:-
"l(d) Relation to Special Rules:- If any provisions in these
rules are repugnant to the provisions in the special rules applicable
to any particular service in regard to any specific matter, the latter
shall, in respect of such service and such specific matter, prevail c
over the provisions in these rules."
Jn substance, providing that in the event of conflict between the
GENERAL RULES and any special Rules applicable to any particular
service, the special Rules prevail over the GENERAL RULES. The
expression "Special Rules" is defined under Rule 2(31 )3. It is not in
D
dispute that the Andhra Pradesh Engineering Service Rules, 1967 are
Special Rules within the meaning of Rule 2 (31) of the GENERAL
RULES.
23. We shall now examine the SPECIAL RULES relevant in the
context.
E
24. Rule 6" of the SPECIAL RULES prescribes both the date of
commencement of probation and the period of probation of persons
appointed as Assistant Engineers by direct recruitment.
25. Rule 8(cf stipulates that an Assistant Executive Engineer
shall within the period of his probation pass the "Account test for PWD
F
officers and subordinates".
3
Rule 2 (31) Special Rules - ··special Rules·· mean the rules applicable to each service
or class or category of a service, which include ad-hoc rules applicable to temporary
posts in a service, or class or category, which are not covered by the special rules.

• Rule 6- Probation -( 1) .............. X."-"-"X .............•...•••• X."-"-"X ...............•.••• x."x."-" G
(2) Every person appointed as Deputy Executive Engineer or Asst. Executive Engineer
by direct recruitment shall, from the date on which he joins duty, be on probation for a
total period of two years on duty within a continuous period of three years.

' Rule 8(c) An Assistant Executive Engineer appointed by direct recruitment shall,
within the period of his probation, pass the Account Test for P. W.D. Officers and
Subordinates. H
982 SUPREME COURT REPORTS [2016) 5 S.C.R.

A A Note appended to Rule 8 stipulates as follows:-
"Any such Assistant Executive Engineer on probation shall not
be discharged for failure to pass the above test within the period
of his probation, but his probation shall be extended and his
increment stopped till he passes the test."
B 26. It can be seen from the above note that (i) it expressly prohibits
the probationer from being discharged for failure to pass the Account
test, and (ii) it stipulates that the probation shall be extended until the
probationer passes the test. Such extension is mandated only in those
cases where the probationer does not pass the relevant test. The note
does not prevent the probationer from being discharged at the end of the
c period of probation if his performance is otherwise unsatisfactory.
27. It is agreed on all hands that the said Note is a legislative
device and part of the Rule 8(c). Therefore, it carries the same degree
of efficacy as the Rule itself. While Rule 8(c) obligates a probationer to
pass the Account Test within the period of probation, the consequences
D of not passing the test are provided in the Note.
28. Hence, the I 51 part of the 41h conclusion of the Tribunal that
the Note "cannot take away the effect of the Rule itself' is an inaccurate
statement in law.
29. We now examine the second part of the Conclusion No. 4 that
E the note appended to Rule 8 has to "yield to the mandatory overriding
proviso of Rule 16(h)" of the GENERAL RULES. To determine the
correctness of the said conclusion, an examination of the relevant
GENERAL RULES is required.
30. Rule I 6 of the GENERAL RULES deals with various aspects
F ofthe probation of direct recruits, such as the commencement of probation
(16(a)), period of probation (16(c)), passing of tests or acquiring
qualifications prescribed either in the GENERAL or SPECIAL RULES
(16(e)).
31. Any person appointed to public services is normally kept on
G probation for some period. The period of probation is fixed by law for
any service. Rule 16(c) stipulates different periods of probation for
different classes of people appointed through different modes of
employment. The relevant clauses of Rule 16 read as under:
"(c) Period of Probation- Unless otherwise stated in the special
H rules or in these rules, the period of probation shall be as follows:
R. VEN KATA RAMUDU & ANOTHER ETC. v. STATE OF A.P & 983
OTHERS

(i) Every person appointed by direct recruitment to any post A
shall, from the date on which he commences his probation be on
probation for a period of two years on duty within a continuous
period of three years;
(ii) Every person appointed to any post either by promotion or
by transfer (not by transfer on tenure) shall, from the date on B
which he commences his probation, be on probation for a period
of one year on duty within a continuous period of two years."
(e) Tests to be passed during probation:- A person who has
commenced his probation in a service, class or category shall,
within the period of probation, if so required in the special rules or c
these rules, pass such tests or acquire such qualifications as may
be prescribed in these rules or in the special rules applicable to
such service, class or category.
(t) (i) If within the period of probation a candidate fails to pass
such tests or acquire such qualifications as may be prescribed in
D
these rules or in the special rules, the appointing authority shall, by
order, discharge him from the service unless the period of probation
is extended under the sub-rule (b) of Rule 17 and if within such
extended period also, the candidate fails to pass such tests or
acquire such special qualifications, the appointing authority shall
discharge him from service." E
32. While Rule 16(e) obligates a probationer to pass the prescribed
tests within the period of probation, Rule l 6(t)(i) prescribes the
consequences of the failure to pass the prescribed tests. It mandates
"the appointing authority shal I by order discharge" the probationer from
service "unless the period of probation is extended under sub-rule (b) 6 F
of Rule 17". Rule l 7(b) specifically authorises the appointing authority
(for short "AA") to extend the period of probation by not more than one
year of a probationer who fails to pass the prescribed test only for the
purpose of enabling the probationer to pass the test.

G
' Rule 17. Suspension, termination or extension of probation-
xxx xxxx )>\."\ )00\

(b) In the case of any probationer failing to pass the tests or acquire the prescribed
qualifications. the appointing authority may extend his probation to enable him to pass
the prescribed tests or acquire special qualifications .. as the case may be. Such extension
by the appointing authority shall not exceed one year, whether on duty or otherwise in
such service, class or category. H
984 SUPREME COURT REPORTS [2016] 5 S.C.R.

A 33. Rule 17(a)(ii)7 stipulates that the AA may either extend the
period of probation or terminate the probation and discharge' the
probationer. Obviously such a decision is required to be taken by the
AA at the end of the prescribed period of probation of a probationer.
The considerations relevant for the exercise of such power are also
indicated in Rule 17(a)(ii).
B
" ...... on account ofunsatisfactory performance or progress during
training or unsatisfactory performance of duties or unsatisfactory
conduct or for any other sufficient reason to be recorded in
writing."
34. Whether failure to pass the prescribed tests is one of the
c grounds under Rule l 7(a)(ii) for either terminating the probation or
extending it, is required to be examined.
In our view, it is not. Because the aspect of the matter is dealt
under Rule 16(e) and (f) and Rule 17(b).
35. The existence of specific provisions in Rule 16(e) and f (i)
D obviously would not permit a construction that the power under Rule
I ?(a)( ii) to take within its sweep the power to deal with the cases of the
probationers who fail to pass in the prescribed tests. Neither Rules
16(e) and (f) or I ?(a) and (b) contain a non-obstante clause providing
7
Rule 17(a)(ii). The appointing authority may, at any time, before or after the expiry
E of the prescribed period of probation either extend by not more than on year, whether
on duty or otherwise, the period of probation of a probationer, in case the probation
has not been extended under sub-rule (b) of this rule or terminate his probation and
discharge him from service after giving him one month's notice or one month's pay in
lieu of such notice, on account ofunsatisfactory performance or progress during training
or unsatisfactory performance of duties or unsatisfactory conduct or for any other
sufficient reason to be recorded in writing.
F 8
Rule 18. Declaration of probation:- (a) At the end of prescribed or extended period of
probation, as the case may be, the appointing authority shall consider whether the
probationer should be considered to have satisfactorily completed his period of
probation and after taking a decision in this regard, he shall issue an order declaring the
probationer to have satisfactorily completed his probation.
(b) (i) The decision whether the probationer has satisfactorily completed his
G probation or whether his probation should be extended, shall be taken soon after the
expiry of the prescribed period of probation. If any lapses are noticed during the
period of probation by the appointing authority or a higher authority, such lapses
should be communicated to the probationer, as soon as such lapse is noticed, so as to
enable the probationer to rectify such lapses. A decision whether a probationer could
be considered to have satisfactorily completed his probation or his probation should be
extended or discharged or suspended shall be taken within a period of8 weeks after the
H expiry of the prescribed period of probation."
R. VENKATA RAMUDU & ANOTHER ETC. v. STATE OF A.P & 985
OTHERS

for overriding effect to them over the special Rule 8 of SPECIAL RULES. A
36. Rule 189 of the GENERAL RULES deals with the conclusion
of probation. Rule 18(a) stipulates that at the end of the prescribed
period of probation or the extended period of probation, the
appointing authority shall determine whether the probationer satisfactorily
completed his probation and make a declaration of the satisfactory B
completion of probation, if the appointing authority is satisfied in that
regard. The Rule stipulates that such a declaration is to be made at the
end of the period of probation or the extended period of probation.
37. Rule 16(h) contains a stipulation which is in the nature of an
exception to the stipulation contained in Rule l 6(a)1°. While 16(a) declares
that a direct recruit shall commence his probation "from the date of his C
joining the duty or from such other date as may be specified by the
appointing authority", Rule 16(h) 11 stipulates that a probationer who does
9
See FIN 8.
w Rule 16(a)-Commencement of probation for direct recruits-A person appointed
in accordance with the rules, otherwise than under Rule I0, by direct recruitment shall D
commence his probation from the date of his joining the duty or from such other date
as may be specified by the appointing authority :
Provided that a person having been appointed temporarily under Rule I 0 to a post
in any service, class or category or having been so appointed otherwise than in accordance
with the rules governing appointment to such post, subsequently appointed to the
same post, in the same service or class or category, in the same unit of appointment, in
accordance with the rules, shall commence his probation from the date of such subsequent E
appointment or from such earlier date as the appointing authority may determine,
subject to the condition that his commencement of probation from an earlier date shall
not adversely affect any person who has hcen appointed earlier or simultaneously, to
the same service. class or category in the same unit.
11 Rule 16(h) - Change of date of commencement of prob:1tion - Notwithstanding
anything contained in the special rules or sub-rules (a) and (b) of Rule 33, a probationer
who does not pass the prescribed tests or acquire the prescribed special qualifications F
within the period of probation or within the extended period of probation under Rule
17 and whose probation is further extended by the Government by an order under Rule
31, till the date of his passing such tests or acquiring such qualifications, shall be
deemed to have commenced the probation with effect from the date to be fixed by the
Government, which would be anterior to a date to his passing such tests or acquiring
such special qualifications, so. however, that his passing such tests or acquiring such
special qualifications, so, however, that the interval between the two dates shall be G
equivalent to the prescribed period of probation, whether on duty or otherwise and
seniority of such probationer shall be determined with reference to the date so fixed :
Provided that nothing in this sub-rule shall apply in the cases of persons appointed
to the class. category or grade in a service prior to the 9'' March. 1981 and whose
seniority in the said class, category or grade was fixed under sub-rule (b) of Rule 33,
prior to the said date. H
986 SUPREME COURT REPORTS [2016] 5 S.C.R.

A not pass the prescribed test "shall be deemed to have commenced the
probation with effect from the date to be fixed by the Government''. It
creates a fiction by which the date of commencement of probation is
altered from the actual date of commencement.
38. However, the occasion for the exercise of power to fix an
B altered date of commencement of probation under Rule 16(h) arises in
two contingencies: (i) a probationer does not pass the prescribed test
within the prescribed period of probation, and (ii) a probationer does not
pass the prescribed test within the extended period, either under Rule 17
or Rule 31, of probation.
39. Having regard to the scheme of Rules 16(h) and 17, which
c authorise the extension of the period of probation only by a period not
exceeding one year, cases of the probationers, whose period of probation
is extended beyond a period of one year, are obviously not within the
sweep of Rule J 6(h). No doubt that Rule 31 enables the Government to
extend the period of probation even beyond one year in contradistinction
D of the stipulation contained in Rule 17 for extension of period of probation
by one year. But in the cases of probationers whose probation is extended
automatically by a declaration under law, such as the case on hand, the
question of extending the probation by resorting to the powers under
Rule 31 does not arise. Therefore, the authority conferred under Rule
16(h) to fix an altered date of commencement of probation of those
E
probationers who do not pass the prescribed test within the prescribed
period of probation must be understood having regard to the later part of
the rule dealing with the extension of probation. The non-obstante clause
occurring in the opening part of Rule l 6(h) must be understood as only
enabling the fixation of an altered date of commencement of probation
F in the cases of those probationers governed by SPECIAL RULES, where
the SPECIAL RULES do not provide for the extension of period of
probation, either by a definite or indefinite period. In the context of the
SPECIAL RULES on hand though the Note to Rule 8 provide for the
extension of probation, in those cases where the Executive Engineers
do not pass the Account test, there is nothing in the SPECIAL RULES
G
which provides for the extension of probation of the Assistant Executive
Engineers who pass the Account test within the period of probation, but
their performance otherwise is not to the satisfaction of the appointing
authority. It is in these circumstances the power under Rule 17(a)(ii) or
Rule 3 I could be invoked. In cases of such extension of the probation,
H Rule 16(h) would be applicable and the requirement of fixation of the
R. VENKATA RAMUDU & ANOTHER ETC. v. STATE OF A.P & 987
OTHERS

altered date of the commencement of probation arises. A
40. In view of the declaration contained in the Note appended to
Rule 8 of the SPECIAL RULES, there is neither any need nor occasion
much less the authority in law for the exercise of power either under
Rules 17(a)(ii)orl7(b)or16(e)or31 oftheGENERALRULES inthe
context of Venkata Ramudu. By a statutory declaration the period of B
probation stands extended until the Assistant Executive Engineer passes
the prescribed test. There is no other material on record to indicate that
the performance ofVenkata Ramudu during the period of probation is
otherwise not to the satisfaction of the appointing authority and, therefore,
the power either under Rule 17(a)(ii) or 31 was invoked to the probation
of Venkata Ramudu.
c
41. The only other consideration which weighted with the Tribunal
is that by not altering the date of commencement of the probation of
Venkata Ramudu, as required under Rule I 6(h), he would gain an unfair
advantage of seniority over his colleagues who joined the service
alongwith him and successfully passed the Account test within the D
stipulated period of probation without taking benefit of the extension of
probation.
"4 7. A further consideration which persuaded is the fact that the
employees who have scrupulously passed the departmental tests
within two years from the date ofjoining and who failed to do so E
cannot constitute the same class. They have to necessarily belong
to different classes since the persons who passed the tests earned
their right for declaration of probation as per rules while those
who failed to do so constitute an entirely different class since
their probation can never be declared except by relaxing the rules F
themselves. In their case it is not a right earned by them but on
gratis. Being un-equals in the eye of law, they cannot be treated
equally." 1
"

12 For reaching such a conclusion, the Tribunal relied upon three earlier judgments of
this Court reported in K. Haridas v. High Court of Kerala & Others. (2000) 9 SCC
717, State of M.P. v. Ramkinkar Gupta & Others. (2000) I 0 SCC 77 and S.P. G
Badrinath v. Govt. of A.P. & Others. (2003) 8 SCC I. Each one of the abornnentioned
cases turned on the construction of specific rules dealing with the seniority of the
members of different services of different States. They do not lay down any general
proposition that a probationer who docs not pass the prescribed test during the period
of probation should automatically be placed in the seniority below his colleagues
recruited alongwith him who cleared the prescribed departmental test during the period
of probation. H
988 SUPREME COURT REPORTS [2016] 5 S.C.R.

A 42. SPECIAL RULES are silent with regard to the principles
governing seniority, GENERAL RULES 33 deals with it. Rule 33, insofar
as it is relevant, reads as under:
"Rule 33. Seniority- (a) The seniority ofa person in a service,
class, category or grade, shall unless he had been reduced to a
B lower rank as a punishment, be determined by the date of his
first appointment to such service, class, category or grade."
It can be seen from the above, the seniority of a person shall be
determined by the date of his first appointment to such service. The
date of appointment is different from the date of commencement of
c probation. Both under GENERAL RULES I 6(a) and SPECIAL RULES
6(2), the commencement of probation is from the date on which a person
appointed joins the duty. Therefore, appointment precedes the
commencement of probation. Rule 33 does not make any reference to
either the commencement or declaration of probation.

D Therefore, the conclusion of the Tribunal, (confirmed by the High
Court) that those persons who pass the Account test within the prescribed
period of probation constitute a different class than those who pass.the
Account test after securing the benefit of extended period of probation
and such later class shall not gain advantage by way of seniority over
the class mentioned earlier is without any basis in the text of the Rules.
E If the Rule making authority desired to make such a distinction it should
have done so expressly. It is a different matter whether such a
classification would stand the test of Article 14. We do not propose to
examine the same in this case.
43. In the context of the service such as the one to which R.
F Venkata Ramudu belongs, what is more relevant is the technical
qualification of the employee and the experience gained in utilizing such
technical qualification for the service of the State than the knowledge of
Accounts, a subject which is of incidental significance. Because
knowledge of accounts is relevant only for the discharge ofadministrative
G responsibilities to be shouldered by the engineers. Their essential duty is
to provide skills of technical knowledge to the State. That is why the
Rules prescribe an experience of 5 years as an Assistant Executive
Engineer for being promoted to the next higher category of Deputy
Executive Engineer. An Assistant Executive Engineer even ifhe passes
the Account test within the prescribed period of probation (2 years) will
H
R. VENKATA RAMUDU & ANOTHER ETC. v. STATE OF A.P & 989
OTHERS

not be considered for promotion till he completes 5 years of service. A
Therefore, we are unable to agree with the logic employed by the Tribunal
and confirmed by the High Court in this regard.
44. For the abovementioned reasons, the judgment under appeal
cannot be sustained and the same is accordingly set aside. As a
consequence, the OAs filed by R. Venkata Ramudu and others are B
required to be allowed, as prayed for. Ordered accordingly.
Nidhi Jain Appeals allowed.