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Judgment
The petitioner has filed this petition being aggrieved by the action of the respondents in as much as despite confirming him on the date on which he completed probation of two years, his seniority is not being counted from the initial date of his appointment.
Facts of the case:
The facts of the case are that the petitioner was selected through a competitive examination conducted by the M.P. Professional Examination Board on 07.10.2012 for the post of Junior Supply Officer (Class-III, Executive). He stood at serial No. 4 in the merit list. Pursuant to the selection, the order of his appointment was passed on 10.01.2013 whereby petitioner was appointed on the above mentioned post from the date of his appointment. However, his appointment was on probation for a period of two years subject to extension by the Commissioner/Director of the respondent department.
After the appointment of the petitioner, his seniority was maintained by the respondent department according to his merit position in the selection and in the order of appointment. The gradation list of the Junior Supply Officer (Class III) was prepared on 17.12.2021 showing position as on 01.04.2021. In the said list, name of the petitioner was mentioned at serial No. 50.
The petitioner was subjected to disciplinary proceedings during the currency of his probation period which culminated in the infliction of a penalty of withholding of two increments without cumulative effect vide order dated 16.11.2017. As the currency of this penalty remained up to the year 2019, the case of the petitioner for confirmation was not considered by the competent authority/committee. It is only on 09.12.2021 that the probation of the petitioner was successfully declared ended as on 23.01.2015 and he was confirmed on the said post on the recommendation of the committee constituted for scrutinising the case of the probationers working in the department. By the said order, it was also held that the petitioner will be entitled for increment from 01.07.2016. It was also observed that as the vacant post of Junior Supply Officer is not available thus, by following the procedure in terms of Rule 8(6) of the Madhya Pradesh Civil Services (General Conditions of Services) Rules, 1961 (hereinafter referred to as the 'Rules of 1961') it was declared that petitioner will be confirmed as soon as permanent post becomes available.
It is after the above order that the respondents issued gradation list of Junior Supply Officer on 08.04.2022 showing position as on 01.04.2022 wherein the position of the petitioner is changed and his name is placed at the bottom of the list.
Being aggrieved by this action, the petitioner filed representation on 26.07.2022 before the concerned authority which was decided by the respondents as per communication dated 22.09.2022 whereby in one line order it was communicated that after consideration, the representation is rejected. However, there was no reason for the rejection of the representation. The respondents did not inform the petitioner why his seniority has been changed. The petitioner again submitted a representation against the gradation list issued on 01.05.2023 showing the position as on 01.04.2023. However, the respondents without adverting to the representation of the petitioner, issued the final seniority list on 27.06.2023. Thus, the present petition is filed by the petitioner for grant of seniority at the appropriate place in the gradation list by counting his service from the date of his initial appointment and for quashing the order dated 09.12.2021 (Annexure P/3) to the extent it declares completion of date of probation from 23.01.2015 and restricts petitioner's entitlement for increment only from 01.07.2016 and also for quashing the rejection of representation vide order dated 22.09.2022 (Annexure P/6).
Submissions by learned counsel for the petitioner:
The learned counsel appearing for the petitioner while referring to Rule 8 and Rule 12(1)(f) of the Rules of 1961 submits that present is not a case where the probation period of the petitioner was extended. However, in the instant case, consideration on the question of confirmation of the services of the petitioner was postponed for the reason that there was currency of minor penalty of withholding two increments without cumulative effect and thus, only after the effect of penalty has ended, the case of the petitioner was considered. The committed after due consideration found the services of the petitioner eligible for confirmation thus, from the date of initial appointment i.e. 23.01.2013, his probation is directed to be ended on completion of two years period i.e. on 23.01.2015. Accordingly, it is declared that petitioner successfully completed his period of probation and is eligible for confirmation from the said date. He submits that it is only for want of availability of post that his confirmation was postponed. Thus, in view of sub-Rule (6) of Rule 8 of the Rules of 1961, the petitioner was confirmed from the date of his initial appointment and consequently, he has to be placed on the correct position in the gradation list including all consequential benefits including increment from the date on which the petitioner completed one year service from the date of his initial appointment. In support of his submissions, learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Apex Court passed in the case of Dr. (Capt.) Akhouri Ramesh Chandra Sinha & Ors. vs. State of Bihar & Ors., reported i n (1996) 2 SCC 20 and Shiv Kumar Sharma vs. Haryana State Electricity Board, Chandigarh & Ors., reported in 1988 (supp) SCC 669 .
Submissions by learned counsel for the respondent State:
Per contra, learned counsel for the respondents/State raises a preliminary objection regarding delay in filing the present petition. He submits that the order of successful completion of the probation period of the petitioner was passed on 09.12.2021. The instant petition has been filed on 08.05.2023. As such, there is a delay of about one year and five months in filing the present petition and as it goes, delay defeats equity. The petitioner is not entitled to any relief only on the ground of delay in filing the present petition.
Learned counsel for the respondents No. 1 to 3/State submits on the merits of the case that seniority of the petitioner has been assigned in terms of Rule 8(6) and 12(f) of the Rules of 1961 in view of the law as laid down by the Division Bench of this Court in the case of Masood Akhtar (Dr.) vs. R.K.Tripathi, 2012(1) MPJR 375 . Learned counsel submits that the Division Bench has held that, where extension of period of probation is on account of fault or shortcoming on the part of the employee, in such a case the probationer has to be assigned seniority from the date if that date can be ascertained i.e. the date on which he clears the departmental examination or where such date cannot be ascertained, the date on which he is considered suitable for confirmation. Thus, learned counsel for the State submits that the petitioner is not entitled to any relief and the petition deserves to be dismissed.
No one is present on behalf of respondent No. 4 despite service.
Consideration and Conclusions :
Heard learned counsel for the parties. Perused the case file.
On perusal of the order dated 10.01.2013 whereby the petitioner was appointed, it is clear that the appointment was from the date of joining and that too on probation for a period of two years. The petitioner joined his services on 23.01.2013. Thus, he would have completed two years' period on 22.01.2015. As reflected in the order dated 09.12.2021 (Annexure P/3), the committee found that the petitioner is suitable for confirmation, thus, it ended the period of probation with effect from 23.01.2015, which is the date on which the petitioner completed two years service from the date of his initial appointment. Clearly, there is no extension of the probation. The petitioner was declared suitable for confirmation without any extension in the period of probation. Thus, the contention as raised by the learned counsel for the respondents that it is only for the fault of the petitioner that he was not confirmed as departmental action was taken against him, is incorrect.
In fact, the respondents are confused between two completely different aspects. One is an extension of the period of probation and the other is a consideration of the suitability of the petitioner for confirmation in the service. The facts would show that the petitioner was not considered for confirmation up to the year 2021. The respondents in reply to paragraphs 5.3 to 5.4 in their return have stated that the committee was constituted with an objective to scrutinize the probation period of Junior Supply Officers from time to time and as per condition No. 5 of the constitution of committee for consideration, there should not be any effect of punishment or pendency of departmental enquiry. As the petitioner was subjected to stoppage of two annual increments without cumulative effect vide order dated 10/12.07.2017, the effect of the same remained in operation till 2019 and therefore, the case of the petitioner for successful completion of probation period was considered by the committee from time to time, however, the certificate could not be issued. The name of the petitioner was also considered by the committee on 17.01.2020 however, due to the unavailability of the ACRs for the years 2017, 2018 and 2019, consideration was not made. Thus, the next committee was constituted on 29.01.2021 whereby the name of the petitioner was considered and a recommendation for ending the period of probation of the petitioner was made. This response of the respondents in the return in itself would show that the department postponed consideration till the currency of the minor penalty of the petitioner. However, when the matter was finally considered, the committee found the petitioner suitable for confirmation from 23.01.2015 i.e. right from the date on which he completed two years of his period of probation. Thus, the suitability of the petition was neither doubted nor rejected by the committee and his probation was never extended.
It is thus clear that despite the infliction of a minor penalty, the petitioner was found suitable for confirmation and that too without any extension of the probation. Resultantly, the confirmation has to be made from the date of initial appointment as it is a settled position of law that if a probationer is confirmed at the end of the period of probation, he is entitled to claim seniority from the date of his initial appointment which is also clear from Rule 12(1)(f) which provides that, if period of probation of any direct recruit or the testing period of any promotee is extended, the appointing authority shall determine whether he should be assigned the same seniority as would have been assigned to him if he had completed the normal period of probation testing period successfully.
In the present case, the petitioner has completed probation in the initial period of two years i.e. normal period without any extension of his probation period as would be evident from the order dated 09.12.2021 (Annexure P/3). Thus, the appointing authority has no discretion to change the seniority of the petitioner.
The Hon'ble Apex Court in the case of Dr. (Capt.) Akhouri Ramesh Chandra Sinha (supra) has held in para No.3 as under :
''As a consequence of the above circular, on appointment to the post and on completion of the probation for a period of two years, the candidate would be confirmed in the cadre as Civil Assistant Surgeon in the Bihar State Medical Service. It is settled law that on completion of the satisfactory probation, his confirmation would date back to the date of his initial appointment. Admittedly, he was regularly appointed on 6-9-1966. Consequently, he was regularly appointed as Civil Assistant Surgeon w.e.f. 6-9-1966.''
Similarly, the Hon'ble Apex Court in the case of Shiv Kumar Sharma (supra) has held in para No. 5, 6 and 7 as under :
''The only point that is involved in this appeal is whether the Board was justified in confirming the appointment of the appellant in the post of Assistant Engineer, Class-II, with effect from December 1, 1969 and placing him below his juniors, namely respondents Nos. 2 and 4 to 19, in the seniority list. As has been noticed already, there is no material to show why the appellant was confirmed in the post with effect from December 1, 1969, when he had completed his probationary period of two years satisfactorily. It is submitted on behalf of the Board that as the minor penalty was imposed on the appellant by way of stoppage of his increment for one year, he was confirmed with effect from December 1, 1969 and placed below the respondents Nos. 2 and 4 to 19 in the seniority list.
We are unable to accept the above contention. The penalty was imposed on April 15, 1968 and, as a result of which, he was deprived of the monetary benefit of one increment for one year only. The penalty by way of stoppage of one increment for one year was without any future effect. In other words, the appellant's increment for one year was stopped and such stoppage of increment will have no effect whatsoever on his seniority. Accordingly, the Board acted illegally and most arbitrarily in placing the juniors of the appellant above him in the seniority list and/or confirming the appellant in the post with effect from December 1, 1969, that is, long after the date of confirmation of the said respondents Nos. 2 to 19. The question of seniority has nothing to do with the penalty that was imposed upon the appellant. It is apparent that for the same act of misconduct, the appellant has been punished twice, that is, first, by the stoppage of one increment for one year and, second, by placing him below his juniors in the seniority list. The appellant should have been confirmed on June 10, 1965 on which date he had completed two years of his probationary period. As has been stated already, the probationary period was not extended. The Board has not laid down any guideline for confirmation. There is no rule showing when an officer of the Board will be confirmed. While there is some necessity for appointing a person in government service on probation for a particular period, there may not be any need for confirmation of that officer after the completion of the probationary period. If during the period of probation a government servant is found to be unsuitable, his services may be terminated. On the other hand, if he is found to be suitable, he would be allowed to continue in service. The archaic rule of confirmation, still in force, gives a scope to the executive authorities to act arbitrarily or malafide giving rise to unnecessary litigations. It is high time that the Government and other authorities should think over the matter and relieve the government servants of becoming victims of arbitrary actions. In this connection we may refer to the decision in the case of S.B. Patwardhan & others v. State of Maharashtra & Ors. [1977] 3 SCR 775 where Chandrachud, C.J. speaking for the Court observed as follows: "Confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. A glaring instance widely known in a part of our country is of a distinguished member of the judiciary who was confirmed as a District Judge years after he was confirmed as a Judge of the High Court. It is on the record of these writ petitions that officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed. It shows that confirmation does not have to conform to any set rules and whether an employee should be confirmed or not depends on the sweet will and pleasure of the government.''
As regards the entitlement of the petitioner for increments, in view of the clear mandate of FR-24 and 26, the petitioner is entitled to claim increment from the date when he completed one year of service as the petitioner was declared confirmed on completion of two years of probation period. Thus, he is entitled to claim increments retrospectively from the date of his initial appointment, as an increment shall ordinarily be drawn as a matter of course unless it is withheld. Thus, on completion of one year of service, the petitioner will become entitled to the grant of increment.
In view of the above conclusions drawn by this Court, the petition stands allowed. The order dated 09.12.2021 (Annexure P/3) to the extent of entitlement of increment from 01.07.2016 is hereby quashed and it is held that the petitioner is entitled for grant of increment on completion of one year service from the date of his initial appointment. It is also hereby held that the petitioner is entitled to counting of his seniority from the date of his initial appointment from 23.01.2013. As a consequence, it is directed that the name of the petitioner be placed at the appropriate place in the gradation list of Junior Supply Officers which is in effect at present. The petitioner is also entitled for all consequential benefits including consideration of his name for promotion and for arrears of difference of salary.
With the aforesaid directions, the petition stands allowed and disposed of.