VIRENDRA KUMAR SHAH Vs. C P CHAUDHARY

JUDGEMENT

(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.

(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).