MASOOD AKHTAR Vs. R K TRIPATHI

JUDGEMENT

(1.) SUSHIL Harkauli, Acting Chief Justice- 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 22.09.2011 prima facie found that there is conflict in the view taken by aforesaid two Division Benches and referred the matter to his Full Bench as to which of the two view 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.

(2.) 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 to be reckoned from the date of passing of the prescribed 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 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) 11 SCC 173, State of M.P. v. Ramkinkar Gupta and Other, (2000) 10 SCC 77 and Om Prakash Shrivastava v. State of M.P. and Another, (2005) 11 SCC 488.

(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 (1) (a) and rule 12 (1).(f) of the 1961 Rules. Before adverting to the first issue it is apposite to notice rule 8 to the 1961 Rules which deals with the probation and relevant extract of rule 12