THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION Nos. 14794 & 19191 OF 2000 COMMON ORDER: These two Writ Petitions can be dealt with together as they raised substantially identical questions of law. Writ Petition No. 14794 of 2000 has been instituted by six individuals. Writ Petition No. 19191 of 2000 has been instituted by one single individual. The writ petitioners were recruited as Clerks- cum-Cashiers in Rayalaseema Grameena Bank, which, upon merger, pursuant to a policy decision, is now re-christened as Andhra Pragati Grameena Bank. The Rayalaseema Grameena Bank framed Rayalaseema Grameena Bank (Staff) Service Regulations, 1980 (for short, ‘the Regulations’), in exercise of the power available under Section 30 of the Regional Rural Banks Act, 1976. Every employee, who has been appointed to a post in the bank, was required to be put on probation, in terms of Regulation l8. Accordingly, the petitioners were also placed on probation, but however, for variety of reasons, including for the reason that they have availed extraordinary leave during the period of probation, their probation has been extended. As a result of this extension of their probation, they were relegated to the lesser ranks in the seniority list than their own original batch mates. That gives rise to these present Writ Petitions. Therefore, the question that requires to be answered is, as per Regulation 13(3) of the Regulations, whether extension of probation of an employee can legitimately result in relegation of rank in seniority amongst peers. The expression “duty” has been defined in Regulation 2(d) which included service as a probationer, the period during which an officer or employee is on joining time, the period spent on casual leave duly authorized by a competent authority and period spent on training after appointment. Therefore, if an employee is availing a different kind of leave of absence from duty other than casual leave, such tenure during which he availed leave will not form part of the expression “duty”. Regulation 8, which dealt with the issue of probation, also contemplated provision for extension of the period of probation. In terms of Regulation 9, upon such satisfactory completion of the probation only, the service of an officer or employee shall be confirmed. Regulation 13, which dealt with the issue relating to fixation of seniority, has direct bearing upon the controversy at issue and hence, it is appropriate to quote the same: “ 13. Seniority: (1)(a) Seniority of an officer or employee of the Bank in a grade or scale shall be reckoned with reference to the date of his appointment in that grade or scale. (b) Where there are two or more officers of the same length of service in that grade or scale, their inter se seniority shall be reckoned with reference to their seniority in the immediately preceding grade or scale or the previous cadre to which they belong in the Bank’s service. (c) Where there are two or more officers of the same length of service of such grade or scale or such previous cadre their seniority shall be determined with reference to their seniority in the immediately preceding grade or scale or cadre: as the case may be. 1. Provided that the inter-se seniority of the Field Officers or Accountants, vis-à-vis the Branch Managers, who were in the service of the Bank on the date on which the revised pay scale notified by the Ministry of Finance Department of Economic Affairs, Banking Division Letter No. 2-17/79-RRB, dated the 29th April 1980 are adopted by the Bank, (i.e. 10th July 1980) may be so reckoned that all the Field Officers or Accountants rank junior to the then existing Branch Managers.” 2. The inter se seniority of officers or employees directly recruited in a batch to any grade or scale shall be reckoned with reference to the rank allotted to them at the time of such recruitment. 3. In the case of an officer or employee whose probation has been extended, his seniority shall be reckoned just below all the officers or employees, if any, recruited or promoted in the same batch along with him.” From Regulation 13, it emerges that an employee can reckon his seniority from the date he was appointed to a particular grade or scale of pay. If more number of persons are appointed to a particular grade, they carry their inter se seniority position even in the next higher grade. If more than one candidate is recruited directly, their seniority is reckoned based upon the rank allotted to them at the time of their selection. However, Regulation 13(3) makes this position very clear that in case of an employee whose probation has been extended, his seniority shall be reckoned just below the officers or employees, if any, recruited or promoted in the same batch along with him. In other words, extension of probation disentitles him to seek protection of his inter se seniority position vis-à-vis those along with whom he is recruited or promoted, as the case may be. Sri Sanjeev Reddy, learned counsel appearing for the writ petitioner in Writ Petition No. 19191 of 2000 would contend that the respondent bank has mis-construed the scope of the expression “probation” and consequently, relegated the seniority of the petitioner improperly. According to the learned counsel, Sri Sanjeev Reddy, who had referred quite copiously lexicographic definition of the word “probation” in very highly commended words, an employee is kept on probation by his watchful employer for purpose of testing the efficiency, capacity, conduct or character only. If such an employee has availed leave of absence, it is not open to the employer to reckon him to have fallen down in the standards of either efficiency or capacity or conduct or character. There are several varieties of leaves that are provided for under the very same Regulations, Regulation 40 in specific. Therefore, proceeds the argument, availing of leave by an employee while he was on probation need not necessarily reflect lack or shortage of efficiency, capacity, conduct or character on his part. Hence, the question of extension of probation of such a person would not arise. All due to non-application of mind on the part of the bank, this illegal extension of probation has been resorted to and hence, the entire action of the respondents smacks of arbitrary exercise of power and illegality. Regulation 40 specifies the various kinds of leaves that may be granted to an officer or an employee and they include 1) casual leave; 2) privilege leave; 3) sick leave; 4) extraordinary leave and 5) maternity leave. Since all the writ petitioners in these two cases are male members, we are not so much concerned with the maternity leave component. As was already noticed, from the definition of the expression “duty” set out in Regulation 2(d), the period during which an officer or an employee is on casual leave, authorized by the competent authority, is counted as duty only. Therefore, we can omit the said tenure of casual leave availed from reckoning in this case. As per Regulation 47, every officer or employee shall be eligible for privilege leave, computed at one day for every 11 days of service on duty. Similarly, as per Regulation 50, every officer or employee shall be eligible for 20 days of sick leave for each completed year of service and such leave can be accumulated up to 180 days and it can be availed only on production of medical certificate by a medical practitioner. Dealing with extraordinary leave, Regulation 52 sets out that extraordinary leave may be granted to an officer or an employee when no ordinary leave is due to him and when, having regard to his length of service, sick leave is not considered justified by the competent authority. Regulation 52(3) makes this clear that no pay and allowances are admissible during the period of extraordinary leave and the period spent on such leave shall not count for increments. In other words, Regulation 52(3) makes it clear that the extraordinary leave availed by an officer or employee of the bank will not be reckoned towards duty. The writ petitioner in Writ Petition No. 19191 of 2000 was stated to have been granted and availed 64 days of extraordinary leave during the probation and hence, the period of his probation has been extended by the corresponding length of period of leave availed by him. By virtue of Regulation 13(3) of the Regulations, he was relegated to the bottom place of all his colleagues, who earned promotion simultaneously along with him. Right at this stage, it will be appropriate to notice that when this writ petitioner submitted a representation on 23.10.1996, objecting to relegation of his rank in the seniority list to the bottom place, the respondent bank, through its communication bearing No. 176/C/0788/STF/97, dated 10.04.1997, has categorically drawn his attention to the fact of his availing 64 days extraordinary leave which resulted in extension of his probation and as a consequence thereof, he has been pushed down in the seniority list and hence, his request for restoration of his seniority is rejected. Long thereafter, this Writ Petition came to be instituted on 08.10.2000, without directly putting in issue the correctness or otherwise of the seniority list or the aforementioned rejection order of his request for restoration of his seniority. Every employee, who earns a promotion or upon his direct recruitment, for the first time to a service, is kept on probation. During the probation period, the performance of the duties and responsibilities as well as the manner of such performance is viewed by the employer. The employer avails the period of probation for watching the traits of the employee concerned apart from looking for his efficiency matching with the requirements of the office to which he was appointed or promoted. Incidentally, his conduct and character and his behaviour both with his subordinates and superiors is all viewed carefully. There are other facets of an employee, which render him quite useful for an organization, apart from his efficient discharge of duties and responsibilities. The manner in which the officer or employee conducts at the work place and carries the dignity of his office along with him, are no doubt traits of the personality. They are also being watched for. While one can be highly efficient in discharging functions, but if he were to be quarrelsome with the rest of the employees or subordinates at the work place, possibly, such a candidate can be marked as not otherwise suitable for confirmation. Work place must be such that the conducive nature of it should be preserved by conscious efforts to be made by everyone concerned. Equally, the conduct and character of the employee also needs to be put in scanner during the period of probation. The manner in which he interacts with his colleagues both superiors and subordinates and more importantly, with employees of the other gender are also components which weigh heavily in the final assessment of the employer about the usefulness and suitability of the probationer. More importantly, in an organization like a bank, where there is a direct interface with the customer public, the qualities of head and heart of every employee go a long way in promoting the interests of the organization and building a decent reputation for itself that it is essentially a service center but not merely a commercial organization with an eye fixed on the profit it earns. Therefore, every employer was required to have the facility of assessing the employee concerned for the whole of the probationary period. If an employee was away for a greater part of the probation period, however justified he might be in availing such leave of absence, his probation can legitimately be extended. Extension of probation can also lead to a situation of relegation in the inter se seniority position. Two sets of employees, who are similarly situated can be distinguished as one who renders faithful and useful service to the organization without any let or interruption and the other even for reasons beyond his control, avails leave of absence for considerable length of period, while being a probationer. The earlier set of employees are bound to be confirmed first against substantive or permanent posts available in the category, in comparison to such of those employees whose probation has been extended. Though confirmation in service can sometimes prove to be an illusive factor, in the sense that substantive or permanent posts or vacancies might become available for confirmation of employees long years later on and not necessarily by the end of completion of tenure of probation, history is full of such instances where officers are confirmed in posts which are two or three ranks below the one which is held by them, at the time of passing of such confirmation orders. Therefore, confirmation per se in service may not have any direct link to fixation of seniority in that service. But however, it is the Regulation which is framed by the competent authority regulating the seniority that must hold the key in that regard. As was noticed supra, it is Regulation 13(3) which dealt with that issue. In the absence of any challenge to its validity, one has to necessarily test the action of the respondent bank on the basis of that Regulation 13(3) is attracted. The suggestion made by Sri Sanjeev Reddy, learned counsel that the word “shall” appearing in Regulation 13(3) must be understood as merely directory but not mandatory in its context and component, does not appear to be sound. Regulation 13(3) is couched in a language which is free from doubt or ambiguity. It has a specific purpose to achieve. It is this: to relegate a person whose probation has been extended to a lesser position in the seniority list. Therefore, the principles of interpretation, which dealt with the various circumstances and situations where the expression “shall” need not necessarily reflect the mandatory nature of the will, are not attracted in the instant case. I, therefore, regret my inability to concede to the proposition propounded by Sri Sanjeev Reddy that the extension of probation need not necessarily result in relegation in seniority of an individual. I do not see any merit in these two Writ Petitions and hence, I dismiss both the Writ Petitions, but however, without costs. ---------------------------------- (NOOTY RAMAMOHANA RAO, J) 3rd March 2011 ksld