PETITIONER:
MOHAN LAL & ORS.
Vs.
RESPONDENT:
STATE OF HIMACHAL PRADESH THROUGHITS SECRETARY, EXCISE AND T
DATE OF JUDGMENT: 17/03/1997
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT
HEADNOTE
JUDGMENT
ORDER
Leave granted. We have heard learned counsel on both sides.
This appeal, by special leave arises from the order of the H.P. Administrative Tribunal, made on October 28, 1996 in O.A. No. 788/95.
The determination of inter-se seniority of the direct recruits is the only question in this case. The appellants and the respondents came to be selected by direct recruitment against vacancies in the permanent posts of Excise and Taxation Inspectors in the H.P. Excise and Taxation Department (Inspectorate staff, Class III) Service. The question relates to the interpretation of Rule 11 of the (Seniority) Service Rules read with Rule 4 (Examination ) of the Rules. It is: whether examination has to be passed within two years from the date of appointment and joins the duty, indisputably under Rule 11(3) of the Rules, on confirmation on the Expiry of probation, the seniority relates back to the date of appointment. The situation where a candidate does not pass the examination within two years but within the extended period of four years is dealt with under proviso to sub rule (3) of Rule 11 which reads thus:
"11(3) On the completion of the
period of probation a person and
passing the prescribed examination
the appointment authority may
(a) if his work and conduct is
found satisfactory.
(i) confirm such person from the
date of his appointment if
appointed against a permanent
vacancy; or
(ii) confirm such person from the
date from which a permanent vacancy
occurs; if appointed against a
temporary vacancy ; or
(iii) declare that he has completed
his probation vacancy; or
(b) if his work or conduct has not
been, in its opinion, satisfactory
and in the case of non-passing of
prescribed departmental
examination.
(i) dispense with his services, if
appointed by direct appointment or
if appointed otherwise revert him
to his former post, or deal within
such other manner as the terms and
conditions of his previous
appointment; permit; or
(ii) extend his period of probation
and thereafter, pass such orders as
it could have passed on the expiry
of the first period of probation.
This shall also apply mutatis
mutandis to the departmental
examinations;
Provided that the total period of
probation and the time allowed for
passing the departmental
examinations, including extension,
if any shall not exceed four
years."
It appears that series of orders came to be passed by the administrative Tribunal and one arising therefrom was decided by this court. In the first round of litigation in which one Sud was the applicant, the Tribunal had held that the seniority would be coferred on those who passed within two years from the date of joining the service and those who passed subsequently would rank juniors to them. In the case of Mohan lal & Ors., in the second set of litigation, it was held that those who passed the test within two years, would get seniority from the date of joining the post and those who passed within the extended period of four years, would rank inter-se seniority from the date of the passing of the test. In case of those who did not pass the examinations within the extended period of four years, it would be open to the state Government to have their services terminated or to take such action as would be open to them. The first litigation had reached this Court. This Court in Ishwari Kumar & Ors. vs. state of H.P. [CA No. 4258/92] decided on March 24, 1994 had held that such of the candidates who passed the examinations within two years and were confirmed after passing the departmental tests, would get seniority from the respective dates of their joining the post and the date of passing the departmental test relates back to the date of the appointment. But those who passed the examination after the said two years, would get seniority from the date of passing and would rank junior to those who passed the examination within two years. In this appeal, the third set of litigation, the question arises; whether the third set of litigation, the question arises ; whether the period of passing the test within two years by taking four chances is mandatory or not? In that behalf, it is necessary to read Rule 11 of the Rules which reads as under:
"11.(1) Persons appointed to the
service shall remain on probation
for a period of two years.
Provided that-
(a) the incumbents shall within two
years of the appointment, pass the
departmental examinations
prescribed by the Government from
time to time and;
(b) the Government may exempt in
exceptional cases any person from
passing any or all such
departmental examinations.
Provided further that -
(a) any period, after such
appointment, spent on deputation on
a corresponding or higher post
shall count towards the period of
probation.
(b) any period of officiating
appointment to the Service shall be
reckoned as period spent on
probation, but no person who has
officiated shall, on completion of
the prescribed period of probation,
be entitled to be confirmed unless
he is appointed against a permanent
post/vacancy.
(2) If, in the opinion of the
appointing authority, the work or
conduct of a person during the
period of probation is not
satisfactory or conduct of a
person during the period of
probation is not satisfactory or he
fails to pass the proscribed
departmental examination within two
years of his appointment, it may-
(a) if such person is recruited by
direct appointment, dispense with
his services and
(b) if such person is recruited
otherwise-
(i) revert him to his former post;
or
(ii) deal with him in such other
manner as the terms and conditions
of the previous appointment permit.
(3) on the completion of the period
of probation a person and passing
the prescribed examination the
appointment authority may-
(a) if his work and conduct is
found satisfactory-
(i) confirm such person from the
date of his appointment if
appointed against a permanent
vacancy; or
(ii) confirm such person from the
date from which a permanent vacancy
occurs; if appointed against a
temporary vacancy; or
(iii) declare that he has completed
his probation satisfactory if there
is no permanent vacancy; or
(b) if his work or conduct has not
been, in its opinion, satisfactory
and in the case of non passing of
prescribed departmental examination
(i) dispense with his services, if
appointed by direct appointment or
if appointed otherwise revert him
to his former post, or deal within
such other manner as the terms and
conditions of his previous
appointment; permit; or
(ii) extend his period of probation
and thereafter, pass such orders as
it could have passed on the expiry
of the first period of probation.
This shall also apply mutatis
mutandis to the departmental
examinations;
Provided that the total period of
probation and the time allowed for
passing the departmental
examinations, including extension,
if any shall not exceed four
years."
A reading of this Rule would clearly indicate that a person appointed to a service shall remain on probation for a period of two years. The appointment letters issued to the parties indicate the conditions. One of the conditions, namely condition No.(vi) envisaged as under:
(iv) He shall have to pass the
departmental examination in respect
of both the Excise & Taxation
within two years of his joining the
duty failing which his services are
liable to termination."
Therefore, it specifies that a candidate appointed to the post on probation shall have to pass the departmental examination in respect of both the Excise and Taxation within two years of his joining the duty.
Rule 4 of the Rules provide as
under:
"4. Conduct of Examinations:
(i) The Departmental Examination
for the Excise and Taxation
Inspectors of the Excise and
Taxation Department, Himachal
Pradesh shall be held twice a year
about the third week of the April
and first week of November, or on
such other dates as are notified by
the Excise and Taxation
Commissioner. The dates and the
place of the examination will be
notified before hand in the
himachal Pradesh Rajpatra.
(ii) The deputy Excise and Taxation
Commissioner, ( North and South
Zones) shall forward to Excise and
Taxation Commissioner, Himachal
Pradesh before 15th January and
15th August, each year or within
one month after the publication of
the results of the last examination
whichever is later the names of the
officers who intend to sit for the
examination together with the
subjects in which they wish to be
examined.
(iii) The examination will be
conducted by the HP Institute of
Public Administration, Fair Lawns,
Shimla."
A reading of this rule relating to conduct of examination would indicate that the Government shall hold the examinations twice a year between 3rd week of April and 1st week of November, or on such other dates as are notified by the Excise and Taxation. Commissioner. The examination so conducted by the Institute of Public Administration, Shimla shall be in the manner prescribed in paragraph (ii) of Rule 4 of the Rules. It is, therefore, clear that the Government is required to conduct the examinations twice a year and the candidates are required to pass the examinations within two years from the date of joining the post on probation. The Rule does not give four chances to every candidate. They shall pass the departmental examination within two years. On successful completion of probation and declaration thereof, his seniority would relate back to the date of appointment.
We are not concerned with the action to be taken by the Government for such of those candidates who did not pas the examinations within the prescribed two years period or extended period of four years of the probation. We are concerned with a case of two sets of persons, i.e. those who passed the examinations within two years and another set of officers who sat for the examination within two years but passed the examination beyond two years. It is a case where the respondents themselves sought for the relief in the OA that their seniority would be reckoned themselves made that their seniority should be declared from the date of their passing the examination and in the light of the conditions of service and operation of the Rule , we hold that their seniority will be reckoned from the date of their passing the examination.
The proforma respondents sought to contend that they are governed by the Rules operating in the years 1963 and 1964 and that these Rules have no application to them. We need not express any opinion on that . We are informed that the matter is pending in the Tribunal. It would be for the Tribunal to consider their claims in accordance with law.
The appeal is accordingly allowed. No costs