G. R. Nirala v. Versns

shri M.M. Kharvar, Sub-Engineer, O/o. Chief Electrical Inspector Near FaWara ChoiAi* Bairon Bazar> Raipur (c.G.) . WRIT PETmoN UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA

1. Particulars of the petitioner : As p§r cause title, contd...2, ^•^;i'-^^^l 'i-K^. .^ i ^•ok HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 4041 of 2003 Petitioner G. R. Nirala Respondents Versns State of Chliattisgarh & othera Post for order on S^Iay, 2006. Sd/- Satish K. Agnihotri Judge f^'-k'^e^'i^-^^S HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 4041 of 2003 Petitioner G. R. Nirala Respondeuts State of Chhattisgarh & others Versus Shri PrafuB. Bharat, Advocate for the petitioner. Shri Ajay Dwivedi, Panel lawyer for the Respondents No. l and 2. None for tbe Respondents No. 3 aud 4. ORDER ( &^Iay2006) This order ofthe Ctoiirt was passed by Justice SaUsh K. Agnihotri. The present petition iiapugns the order dated 1.10.2003 (Annexure P/15) whereby the respondent No.4 Shri M. M. Kharver has beeu proinoted to the post of Assistant Eugineer. The grievance of the petitioner is that the respondent No.4, who te inuch junior to fhe petitioner has been granted benefit of the proinotion, ignoring rightfiil claiiu of the petitioner by ttie respondents No. 1 to 3, without assigning proper place to the petitioner ia the Ust of seiuority. The brief undisputed facts, necessaiy for consideration of the, petition are that fhe petitioner was working on fhe post of Surveyor on ad hoc basis w.e.f. 29.3.1985. Vide order dated 15.7.1991 (Aunexure P/1) the petitioner was appointed on officiatmg basis along with other persons, wherein name of the petitioner was placed at serial No. 1 and name ofrespondent No.4 was placed at serial No.3. The petitioaer has ffled gradation list (Annexure P/2), showing the position as on

1.4.1995, ia which fhe naine of the petitioner was placed at serial No.8 and the name ofthe respondent No.4 was placed at serial No. 10. r'- ":'"'•'^'•Wi- ^"^'•^^.^sNag'^'i^e 2 The particulars of the petitioner and fhe respondent No.4, inentioned in the gradation list were as under: Nanie Shri G. R. Nirala Shri M.M.Kharvar Qualification. Date iuitial appointaient 29,3.1985 Diploma Date coitfinnation Date appointment in cadre 5,8.1991 Diplonia

4.4.1985

22.7.1991 Siace fhe petitioner could not pass the departmental examiuation wifhin the sdpulated period, ia fhe gradation Ust for fhe year 1996 (Aanexure P/3) the nacae ofthe petitioner was placed at serial No. 45 and in fhe gradation list for fhe year 1998 (Aiinexurc P/4) at serial No. 49. In both fhese gradation Usts the name of the respondent No.4 was placed at serial No. 6. Shri PrafiiU Bharat, leanied counsel appearing for the petitioner submits fhat the appointment of the petitioner along wifh respondent No.4 was with a condition that the officers have to pass the departraental exaininatiori on completion of probation period of three yeara ia accordance with the provisions of fhe Mahdya Pradesh Electaical (for short Inspectorate (Departmental Examination) Rules, 'the Rules 1997'). It was further contended fhat 1987 prescribed period of fhree years for passing the examination was extended by sub rule (3) of Rule 2 of the Rules 1987 by order (Annexure P/6). Hence, the petitioner be granted seniority froin the "date of initial appointment i.e. 15.7.1991 in accordance with rule 5 (l) (a) oftheRules 1987.

5. Smt Anjn Ahuja, leamed coiuisel appearing for the respoudents No. 1 and 2 subinitted that the petitioner has failed to pass the necessary departruental examination wifhin the prescribed period ofthree years. The petitioner was never granted auy extension of tim.e under sub- ^~..........y ^ '< rule (3) of Rule 2 of the Rules, 1987 to pass departmental examination. Hence fhe date of coDfirmation of the petitioner on the post of Suweyor w.e.f. 1.4.1997 by order dated 2.9.1997 (Annexure R/2) was legal aad vaUd. The order (Annexure P/6) is not the order granting extension of prescribed period but it provides for relaxatioa in case offhe appUcabilily ofthe provisions ofRiile 5 (l) and (2) ofthe Rules, 1987.

6. Despite service of the notice on the respondents No. 3 and 4, none appeared nor any represeatation was made on their behalf. igjp 7. After haviug heard leamcd coiinsel the petitioner and for the respondents No. 1 and 2 and having perused the records appended to flie petition and retura filed by the respoudents No. 1 aad 2, it is evident fhat fhe order (Aunexure P/6) did not provide for extension of the prescnbed period of passiug departmental examiaation under sub-rule (3) of the Rule 2 of fhe Rules, 1987. The said order grauts relaxation for the appUcability of the provisions of the Rule 5 (1) and (2) of the Rules,1987, which provides fliat a ;oveminent servant, if faUs to pass the prescribed departineatal examination wittun the piescribed period or the extended period, shaU not be coufirmed on his post and/or considered for prom.otion to a higher post. Sub rule (2) of the Rule 5 of fhe Rules 1987 piovkles for reinoval fnoia service in case of appoiataient by direct recruitiaent or reversion to fhe previous post, in. case of appointinent by pnomotion. By order (Annexure P/6) the respondent No.3, in exercise of the powers under Rule 7 of fhe Rules 1987, has relaxed fhe appUcability of the provsions of sub rule (l) and (2) of the Rule 5 of fhe Rules,

1987. The relaxation granted by the Respondent No.3 under Rule 7 is only to thc extent that the petitioner would not be reiuoved froia service on failure to pass fhe prescribed departniental examination wifhin the prescribed period or extended period. Sub-mle (3) of fhe Rule 2, Rule 5 and Rule 7 of ttie Rules 1987 are quoted herein below;- "2. Departniental Examiuations: The State Govemnient or the appoiuting authority, as the (3) caae uiay be, inay iu special cases, for reasons to be recorded in writing extend the period prescribed iu sub-rule (1) or (2) by not inore fhan two years and the concemed officer / employee shaU pass the departnieutal examination within the extended period. "S. Consequences ofnot passiaa fhe examuiation : (1) A goveminent servant who has not passed fhe prescribed departniental examinatioa wifhia fhe prescnbed period or the period extended, shaU not be eatitled for :- (a) Confu'niation iu his preseBt post, or (b) Proniotiou to a h^,her post, (2) A govenunent servant who has been appointed after coming into force of these rules aad who fails to pass the departmental exaiaiaation withiu fhe prescribed period includiug any extension thereof shall be Uable to be :- removed froin servicc if he was appouited by direct (i) recruitiuent, or (ii) reverted to his previous post if he was appointed by proinotion, (3) The Goveminent servants who have not passed the examination wifhui fhe prescribed period and for whom the period has been extended luider sub-rule (3) of rule 2, shatl not be entifled for they pass the uicreuients during the extended period iintil examination. Provided that on passing the departcaeiitel examinations the pay of the GtovemTnent seryant shaU be fixed at such stage which he would have reached if the increinents were not stopped with effect from the date, next to the coiupletion of the exaxaination." ^.iS assi "7. The State Govemment may relax any of the provisioas of these rules for proper and adequate reasons." —

9. Keepiag in view the fact, fhat the petitioner could not pass the prescribed departmental examinatiou wittun the prescribed penod i.e. three years and extended period, if auy, of two years and as such the graat ofconfinuationw.e.f. l.4.1997 seeins to be correct. Accordingly the placement of fhe petitiouer in the subsequent seniority list on the basis of date of confiraaation, below the respondent No.4 is perfecfly valid aud subsequent promotion to fhe post of Assistant Engmeer (Electrical Safety) by impugned order dated 1.10.2003 (Anuexure P/15) is atso legal aud valid. The particiilars of fhe petitfoner and fhe respondent No.4, inentioned in the subsequent gradation list, which are as below, support the above conclusion :- Name Shri G. R. Nirala SIm M.M.Khmvar Qualifi.cati.on Date itutial appotatiaent 20,3.1985 Diploma Date appointment in cadre 5.8.1991 Date confirmation

1.4.1997 Diploina

4.4.1985

22.7.1991 l.1.1995 The Supreme Coiut in the case ofOm Prakash Shrivastava Vs. State of M.P. 85 another { (2005) 11 SCC 488$, while consMermg the Rule 12 (a) ofthe M.P. Civil Services (Genei-al Conditions of Services) Rules, 1961 with regard to fhe assigning fhe seniorily, in paragraphs 10 and 11 observed as under:- "10. xxxxx As was noted in M.P. Chandoria case until fhe probation period is coinpleted, and he is con&nned ia fhe post, the eniployee does not becoiae a ineinber of the service on successfal coinpletion of the probation and passiag of the prescribed tests or coaditions precedent to declaration of coinpletion of fhe probation period. Mere completion of one year period does aot entitle the person to be a nieinber of the service. He continues to be in teinporaiy service on tihie coinpletion of probation period. The appoiating authority is to coiifirm him in a pendmg post available or grant him a quasi- pennanent status. Unless he passes departmental examination, there 6 is no question of conipletioa of probation aud for aU practical piirposes fhe eniployee continues to be in teinporaiy service xxxxx. 11. Reiteratuig fhe principles ia M.P. Chandoria case it was held in Rauikuikar Gupta case that if a person does not pass the test then the appoiating aufhority is eiapowered to assign seniority in a lower level fhaa oue which has been assigned by the Public Semce Coininission, A person who has neifher been confirmed, nor had a certificate in. his favour in terms of sub-rule (6), nor discharged from service under sub-rule (4) would fatl within the categoiy of those In ofher officers rcfenied to in sub-rule (7) of Riile 8 of fhe Rules. words, he is to be deemed to be a temporaiy govenunent servant with effect froia the date of expiiy of probation. The position is different in case ofan officer, who passes the departiaental examiaation within aa extended period ofprobation. The Supreme Court in the case of Mohand Lal and others Vs. State of H.P. throu^i its Secretary, Excise & Taxatioa Department, GovernmetEt Secretariat, Shimla-2 & others { (1997) 4 SCC 416} in para 4 observed as under:- "4. xxxxx This Court iu Ishwari Kumar V. State of H.P. had held fhat such of fhe caadidates who passed fhe exaininations within two years and were confirmed after passiag fhe departmental tests, would get seiiiority froia fhe respective dates of fheir joinmg the post and fhe date of passiag fhe departmiental test relates back to fhe date of the appouituient. But those who passed the examinatioa after fhe said two years would get seiiiorily Irom. ftie date ofpassing aad would lauk juxiior to those who passed the exaiiunation within two yeare xxxxxx. The case of Jagdish Kumar 8s others Vs. State of H.P. & others (2005 AIR SCW 6431) relied on by teamed counsel for fhe petitioner is not applicable to the facts of the present case, as in fhe present case fhere was cle.ar opportunily to pass fhe departmental exanunation ivithiri fhe prescribed period, aad fhe petitioner has failed to pass fhe prescribed departmeiital examination wifhia. the prescribed period of three years and thereaflter eveu if it is presunied fliat the^petitioner ^".•y^s'i / / / / B' ,^''^isR'3SI^S »W 7 was granted two years extended period, the petitioner could not pass the departmental examiaation withia the exteuded period also. The ratio laid dowu by the Supreiae Court in the case of Jagdlsh Kumar & others (supraj is not appUcable to fhe facts ofthe present case.

13. For fhe reasons stetted above, it is held that the fixation ofname ofthe petitioner in the seniority list is correct and proper. The promotion to the post of Assistant Engineer (EIectrical Safety), on the basis of fhe seniority ofthe respondent No.4 is also proper and valid. Accoi-dingly, this petition fails and is dismissed. In ffae facts of the case, no oixler as to costs. ^y :i.ir i Satish K. Agnihotri Judge ^sG'sSS. • IB81