B.P. Soni vs State of Madhya Pradesh

Appellant has filed this appeal against the order dated 24.02.2009 passed in writ petition No.9603/2003.

Initially the appellant filed application [OA No.1415/1995] before the State Administrative Tribunal. After abolition of the Tribunal, application was transferred before this Court and it was re- numbered.

Appellant was appointed as LDC on 14.06.1961. He was posted in the Office of Advocate General, M.P. Jabalpur. He was confirmed on the post of LDC on 21.09.1966. The appellant was promoted to the

post of UDC on 16.06.1974 and thereafter promoted to the post of Assistant.

Respondent No.2 Mr. C. Mathai (since deceased) was appointed as LDC on 13.06.1962. He was confirmed on 01.12.1966. Thereafter, promoted to the post of UDC on 15.4.1974 and confirmed on the aforesaid post on 14.11.1977. He was promoted to the post of Assistant on 7.3.1984 and thereafter, to the post of Section Officer on 10.6.1991 in the pay scale of Rs.2000-3500/-.

When Mr. C. Mathai was promoted as Section Officer, the appellant submitted representation mentioning the fact that he was senior to Mr. Mathai. He was placed at Sl.No.11 in the gradation list of Assistant showing the position as on 01.04.1992 and Mr. Mathai was placed at Sl.No.10 hence, he had a right to be promoted on the post of Section Officer in place of Mr. C Mathai. Mr. Mathai was again promoted to the post of Administrative Officer vide order dated 24.10.1994. The appellant in the application before the Tribunal prayed a relief that he be given promotion on the post of Section Officer w.e.f. 10.06.1991 and Administrative Officer w.e.f. 24.10.1994 with all other consequential benefits.

State and Mr. Mathai (since deceased) both filed returns and claim of the appellant was resisted. Respondent-State admitted the fact in the return that appellant was appointed as LDC on 14.06.1961 and Mr. Mathai was appointed as LDC on 13.6.1962. Mr. Mathai and appellant both were promoted to the post of UDC. However, Mr. Mathai was confirmed on the post of UDC w.ef. 14.11.1977 and the

appellant was not found fit for confirmation to the post of UDC. He was confirmed w.e.f. 22.12.1983. In the year 1983, the rules named as M.P. Law and Legislative Affairs Department Service (Recruitment) Rules 1983 [hereinafter in short ''the rules of 1983''] were framed and the rules were came into force w.e.f. 19.03.1983. Mr. Mathai was promoted on the post of Assistant vide order dated 28.02.1984 in accordance with the aforesaid rules and he was further promoted to the post of Section Officer. The appellant cannot claim relief at par with Mr. Mathai because he was junior to Mr. Mathai in the cadre of UDC on account of confirmation of Mr. Mathai earlier to the appellant. It is further pleaded in the return that prior to coming into force the rules of 1983, the provisions of M.P. Civil Services [General Conditions of Service] Rules 1961 [hereinafter in short ''The rules of 1961''] were applicable and the seniority of the employees was decided from the date of confirmation.

The writ Court dismissed the writ petition of the appellant on the ground that although the appellant was senior to Mr. Mathai in the cadre of LDC and he was promoted with Mr. Mathai in the cadre of UDC, however, Mr. Mathai was confirmed in the cadre of UDC w.e.f. 14.11.1977 and the appellant was confirmed as UDC on 22.12.2983 hence, Mr. Mathai was Senior to the appellant. It is further observed that the appellant did not place any material before the Court to substantiate the claim that initial appointment of the appellant on the post of UDC was in accordance with the rules and the appellant was confirmed on 22.12.1983 in accordance with the

provisions of Rules of 1983. Hence, there is merit in the case of appellant.

The appellant who appeared in person has relied on the Constitutional Bench Judgment of the apex Court in the matter of The Direct Recruit Class-II Engineering Officers Association and others Vs. State of Maharashtra and others reported in AIR 1990 SC 1607, and contended that the Department has committed illegality in promoting Mr. Mathai on the post of Assistant ignoring the claim of the appellant on the basis that Mr. Mathai, was confirmed earlier on the post of UDC in place of appellant. It is further contended by the appellant that Mr. Mathai could not be assigned higher seniority in comparison to the appellant on the ground of confirmation. There was no record produced by the Department that whether the case of the appellant was considered for confirmation along with Mr. Mathai or not and on what ground he was not found suitable for confirmation. It is further submitted by the appellant that when he was promoted to the post of UDC at that time there were no recruitment Rules applicable hence, the appellant was entitled to assign proper seniority in the cadre of UDC above Mr. Mathai in view of constitutional Bench judgment of the apex Court.

Learned counsel appearing on behalf of State has contended that the order passed by the writ Court is in accordance with law. The appellant was confirmed in the cadre of UDC after Mr. Mathai hence, he cannot claim parity with Mr. Mathai. The writ Court has rightly rejected the claim of the appellant.

Admitted facts of the case are that the appellant was Senior to Mr. Mathai in the cadre of LDC. The appellant and Mr. Mathai both were promoted to the post of UDC. The appellant was assigned higher seniority in the gradation list of UDC. However, Mr. Mathai was confirmed on 14.11.1977 as per return of the State and he was placed in the seniority list of UDC at Sl.No.16 published in the year 1982. Appellant was not found fit for confirmation and he was confirmed w.e.f. 22.12.2983 on the post of UDC. It is an admitted fact that when the appellant and Mr. Mathai were promoted to the post of UDC there were no recruitment rules in the Department. The Recruitment Rules were framed in the year 1983 and they came into effect on 19.03.1983 hence, it cannot be said that the promotion of the appellant to the post of UDC was not in accordance with rules. The case of the State/respondent is that Mr. Mathai was confirmed on the post of UDC w.e.f. 14.11.1977 and the appellant was confirmed on the post of UDC w.e.f. 22.12.1983 [i.e. after six years] hence, he was placed above the appellant in the cadre of UDC, therefore, he was granted promotions earlier to the appellant.

Respondent-State has contended that at the relevant time the rules of 1961 were applicable and in accordance with the aforesaid rules, the appellant was not confirmed in the cadre of UDC earlier to Mr. Mathai hence, he cannot claim parity with Mr. Mathai in regard to seniority in the cadre of UDC.

We would like to examine the aforesaid contentions of the State. Rule 3 of the Rules of 1961 prescribes as under:-

"3. Scope of application.-The rule shall apply to every person who holds a post or is a member of a service in the State, except :-, (a) persons whose appointment and conditions of employment are regulated ,by the ,special provisions of any law for the time being in force; (b) persons in respect of whose appointment and conditions of service special provisions have been made, or may be made hereafter'' by agreement; (c) persons,appointed to the Madhya Pradesh Judicial Service: '' Provided that in respect of any matter riotcovered, by the special provisions relating to them, their services or their posts, these rules shall apply to the persons mentioned , . ''in clauses (a), (b) and (c) above."

Rule 7 of the Rules of 1961 prescribes as under:-

"7. Methods of Recruitment.-Candidates shall be selected for appointment to a service or post by one or more of the following methods as may be prescribed,namely.:- (i) direct recruitment; (ii) promotion; (iii) transfer of person or persons already employed in another service or post. Provided that commission shall be consulted before a person is appointed to a service or post if such consultation is necessary under Article 320 of the Constitution read with the Madhya Pradesh Public Service Commission (Limitation of Functions) Regulations, 1957."

Rule 9 prescribes of the Rules of 1961 reads as under:-

"9. Trial for suitability of officiating Government Servants.-. (1) A person already in permanent government seryice appointed to another service or post by direct recruitment,

promotion or transfer shall ordinarily be'' appointed in an officiating"capacity for the period of two years to as certain his suitability. for the service or post; .

Provided that the Government may declare that any previous officiation in such a service or post may be counted towards the period of trial to such extent as may be specified in the particulars case:

Provided further that if the Government servant is appointed to a ''post to which direct recruitment is also made in accordance with the recruitment rules governing appointments to such post then the period of officiation shall be equal to the period of probation prescribed for a person'' .appointed by direct recruitment to the said post under the rules.

(2) The appointing authority may for sufficient reasons extend the period of officiation by further period not exceeding one year : ? Provided that if the Government servant is appointed to a post to which 4irect recruitment is also made in accordance with the Recruitment rules governing appointments to such posts and the rules provide for extension of the period of probation then the period by which the period of officiation may be further extended shall be equal to the period by which the period of probation , is extendable for a person appointed by direct recruitment to the said post under the rules.

(3) If during or at the end of the period of officiation or extended period of officiation, the government servants is found unsuitable for the service or post to which he has been appointed he shall be reverted to his former substantive service or post.

Note.-The failure to pass prescribed departmental examination, if any,within such period as may be allowed for the purpose may be constl1iedas failure to show fitness for the service or post in which the Government Servant is officiating.

(4) If at the end of the period of the trial the officiating Government servant is considered suitable for the service or post to which he,has been appointed he shall, if there is a permanent post available,be confirmed in the service or 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 officiating Government Servant would have been confirmed but for the non- availability of t~e permanent post and that as soon as a permanent post becomes available he will be confirmed.

(5) An officiating Government servant who has neither been confirmed, nor a certificate'' has been issued in his favour under sub-rule (4) nor reverted to his former substantive service or post under sub-rule(3) shall notwithstanding any thing contained in sub-rule (2), be deemed to have been continued in officiating capacity till further orders and during such period he shall at any time be liable to be reverted to his substantive service or post."

In accordance with Rule 9 of Rules 1961, an officiating Government servant who has neither been confirmed nor a certificate has been issued in his favour be deemed to have been continued in officiating capacity till further orders.

Appellant was not confirmed on the post of UDC along with Mr. Mathai. He was working in the officiating capacity. He was confirmed on the post of UDC on 22.12.1983 whereas, Mr. Mathai was confirmed on 14.11.1977. The appellant did not challenge his non- confirmation before the Court in the year 1977 or in the year 1978. He filed the application before the Tribunal in the year 1995.

The appellant appeared in person and argued that he is eligible to get seniority on the post of UDC even though he was not confirmed in view of the judgment of the apex Court in the case of The Direct Recruit Class-II Engineering Officers Association and others AIR 1990 SC 1607 (Supra). In the aforesaid judgment, the apex Court has upheld the earlier judgment passed in the case of S.B. Patwardhan vs. State of Maharashtra AIR 1977 SC 2051. In the aforesaid case virus of recruitment rules which prescribes seniority from the date of confirmation was challenged.

In the present case, the appellant did not challenge the virus of the Madhya Pradesh Civil Services (General Conditions of Services) Rules,1961. Rule 9 of the Rules of 1961 which prescribes that "an employee would be eligible to get seniority from the date of his confirmation." The confirmation is necessary". Hence the appellant could not get benefit of the decision of the Constitution Bench of the apex Court.

In view of the aforesaid facts , in our opinion. There is no merit in this appeal. Consequently it is hereby dismissed. No order as to costs.