Case: R.Venkata Ramudu &amp; Anr Etc Vs. State Of A.P.Tr.Sec

RULES on hand though the Note to Rule 8 provide for the extension of probation, in those cases where the Executive Engineers do not pass the Account test, there is nothing in the SPECIAL RULES which provides for the extension of probation of the Assistant Executive Engineers who pass the Account test within the period of probation, but their performance otherwise is not to the satisfaction of the appointing authority. It is in these circumstances the power under Rule 17(a)(ii) or Rule 31 could be invoked. In cases of such extension of the probation, Rule 16(h) would be applicable and the requirement of fixation of the altered date of the commencement of probation arises.40. In view of the declaration contained in the Note appended to Rule 8 of the SPECIAL RULES, there is neither any need nor occasion much less the authority in law for the exercise of power either under Rules 17(a)(ii) or 17(b) or 16(e) or 31 of the GENERAL RULES in the context of Venkata Ramudu. By a statutory declaration the period of probation stands extended until the Assistant Executive Engineer passes the prescribed test. There is no other material on record to indicate that the performance of Venkata Ramudu during the period of probation is otherwise not to the satisfaction of the appointing authority and, therefore, the power either under Rule 17(a)(ii) or 31 was invoked to the probation of Venkata Ramudu.41. The only other consideration which weighted with the Tribunal is that by not altering the date of commencement of the probation of Venkata Ramudu, as required under Rule 16(h), he would gain an unfair advantage of seniority over his colleagues who joined the service alongwith him and successfully passed the Account test within the stipulated period of probation without taking benefit of the extension of probation. "47. A further consideration which persuaded is the fact that the employees who have scrupulously passed the departmental tests within two years from the date of joining and who failed to do so cannot constitute the same class. They have to necessarily belong to different classes since the persons who passed the tests earned their right for declaration of probation as per rules while those who failed to do so constitute an entirely different class since their probation can never be declared except by relaxing the rules themselves. In their case it is not a right earned by them but on gratis. Being un-equals in the eye of law, they cannot be treated equally." [12*] [12* For reaching such a conclusion, the Tribunal relied upon three earlier judgments of this Court reported in K. Haridas v. High Court of Kerala & Others, 2003(1) S.C.T. 724 : (2000) 9 SCC 717 , State of M.P. v. Ramkinkar Gupta & Others, 2000(2) S.C.T. 21 : (2000) 10 SCC 77and S.P. Badrinath v. Govt. of A.P. & Others, 2003(4) S.C.T. 378 : (2003) 8 SCC 1. Each one of the abovementioned cases turned on the construction of specific rules dealing with the seniority of the members of different services of different States. They do not lay down any general proposition that a probationer who does not pass the prescribed test during the period of probation should automatically be placed in the seniority below his colleagues recruited alongwith him who cleared the prescribed departmental test during the period of probation.]42. SPECIAL RULES are silent with regard to the principles governing seniority, GENERAL RULES 33 deals with it. Rule 33, insofar as it is relevant, reads as under: "Rule 33. Seniority - (a) The seniority of a person in a service, class, category or grade, shall unless he had been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade." It can be seen from the above, the seniority of a person shall be determined by the date of his first appointment to such service. The date of appointment is different from the date of commencement of probation. Both under GENERAL RULES 16(a) and SPECIAL RULES 6(2), the commencement of probation is from the date on which a person appointed joins the duty. Therefore, appointment precedes the commencement of probation. Rule 33 does not make any reference to either the commencement or declaration of probation. Therefore, the conclusion of the Tribunal, (confirmed by the High Court) that those persons who pass the Account test within the prescribed period of probation constitute a different class than those who pass the Account test after securing the benefit of extended period of probation and such later class shall not gain advantage by way of seniority over the class mentioned earlier is without any basis in the text of the Rules. If the Rule making authority desired to make such a distinction it should have done so expressly. It is a different matter whether such a classification would stand the test of Article 14. We do not propose to examine the same in this case.43. In the context of the service such as the one to which R. Venkata Ramudu belongs, what is more relevant is the technical qualification of the employee and the experience gained in utilizing such technical qualification for the service of the State than the knowledge of Accounts, a subject which is of incidental significance. Because knowledge of accounts is relevant only for the discharge of administrative responsibilities to be shouldered by the engineers. Their essential duty is to provide skills of technical knowledge to the State. That is why the Rules prescribe an experience of 5 years as an Assistant Executive Engineer for being promoted to the next higher category of Deputy Executive Engineer. An Assistant Executive Engineer even if he passes the Account test within the prescribed period of probation (2 years) will not be considered for promotion till he completes 5 years of service. Therefore, we are unable to agree with the logic employed by the Tribunal and confirmed by the High Court in this regard.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]26. It can be seen from the above note that (i) it expressly prohibits the probationer from being discharged for failure to pass the Account test, and (ii) it stipulates that the probation shall be extended until the probationer passes the test. Such extension is mandated only in those cases where the probationer does not pass the relevant test. The note does not prevent the probationer from being discharged at the end of the period of probation if his performance is otherwise unsatisfactory.27. It is agreed on all hands that the said Note is a legislative device and part of the Rule 8(c). Therefore, it carries the same degree of efficacy as the Rule itself. While Rule 8(c) obligates a probationer to pass the Account Test within the period of probation, the consequences of not passing the test are provided in the Note.28. Hence, the 1st part of the 4th conclusion of the Tribunal that the Note "cannot take away the effect of the Rule itself" is an inaccurate statement in law.Whether failure to pass the prescribed tests is one of the grounds under Rule 17(a)(ii) for either terminating the probation or extending it, is required to be examined. In our view, it is not. Because the aspect of the matter is dealt under Rule 16(e) and (f) and Rule 17(b).35. The existence of specific provisions in Rule 16(e) and f (i) obviously would not permit a construction that the power under Rule 17(a)(ii) to take within its sweep the power to deal with the cases of the probationers who fail to pass in the prescribed tests. Neither Rules 16(e) and (f) or 17(a) and (b) contain aclause providing for overriding effect to them over the special Rule 8 of SPECIAL RULES.36. Rule 18 [9*]of the GENERAL RULES deals with the conclusion of probation. Rule 18(a) stipulates that at the end of the prescribed period of probation or the extended period of probation, the appointing authority shall determine whether the probationer satisfactorily completed his probation and make a declaration of the satisfactory completion of probation, if the appointing authority is satisfied in that regard. The Rule stipulates that such a declaration is to be made at the end of the period of probation or the extended period of probation. [9* See F/N 8.]37. Rule 16(h) contains a stipulation which is in the nature of an exception to the stipulation contained in Rule 16(a) [10*]. While 16(a) declares that a direct recruit shall commence his probation "from the date of his joining the duty or from such other date as may be specified by the appointing authority", Rule 16(h) [11*]stipulates that a probationer who does not pass the prescribed test "shall be deemed to have commenced the probation with effect from the date to be fixed by the Government". It creates a fiction by which the date of commencement of probation is altered from the actual date of commencement. [10* Rule 16(a)Commencement of probation for direct recruitsA person appointed in accordance with the rules, otherwise than under Rule 10, by direct recruitment shall commence his probation from the date of his joining the duty or from such other date as may be specified by the appointing authority : Provided that a person having been appointed temporarily under Rule 10 to a post in any service, class or category or having been so appointed otherwise than in accordance with the rules governing appointment to such post, subsequently appointed to the same post, in the same service or class or category, in the same unit of appointment, in accordance with the rules, shall commence his probation from the date of such subsequent appointment or from such earlier date as the appointing authority may determine, subject to the condition that his commencement of probation from an earlier date shall not adversely affect any person who has been appointed earlier or simultaneously, to the same service, class or category in the same unit.] [11* Rule 16(h)Change of date of commencement of probationNotwithstanding anything contained in the special rules or(a) and (b) of Rule 33, a probationer who does not pass the prescribed tests or acquire the prescribed special qualifications within the period of probation or within the extended period of probation under Rule 17 and whose probation is further extended by the Government by an order under Rule 31, till the date of his passing such tests or acquiring such qualifications, shall be deemed to have commenced the probation with effect from the date to be fixed by the Government, which would be anterior to a date to his passing such tests or acquiring such special qualifications, so, however, that his passing such tests or acquiring such special qualifications, so, however, that the interval between the two dates shall be equivalent to the prescribed period of probation, whether on duty or otherwise and seniority of such probationer shall be determined with reference to the date so fixed : Provided that nothing in thisshall apply in the cases of persons appointed to the class, category or grade in a service prior to the 9th March, 1981 and whose seniority in the said class, category or grade was fixed under(b) of Rule 33, prior to the said date.]38. However, the occasion for the exercise of power to fix an altered date of commencement of probation under Rule 16(h) arises in two contingencies: (i) a probationer does not pass the prescribed test within the prescribed period of probation, and (ii) a probationer does not pass the prescribed test within the extended period, either under Rule 17 or Rule 31, of probation.39. Having regard to the scheme of Rules 16(h) and 17, which authorise the extension of the period of probation only by a period not exceeding one year, cases of the probationers, whose period of probation is extended beyond a period of one year, are obviously not within the sweep of Rule 16(h). No doubt that Rule 31 enables the Government to extend the period of probation even beyond one year in contradistinction of the stipulation contained in Rule 17 for extension of period of probation by one year. But in the cases of probationers whose probation is extended automatically by a declaration under law, such as the case on hand, the question of extending the probation by resorting to the powers under Rule 31 does not arise. Therefore, the authority conferred under Rule 16(h) to fix an altered date of commencement of probation of those probationers who do not pass the prescribed test within the prescribed period of probation must be understood having regard to the later part of the rule dealing with the extension of probation. Theclause occurring in the opening part of Rule 16(h) must be understood as only enabling the fixation of an altered date of commencement of probation in the cases of those probationers governed by SPECIAL RULES, where the SPECIAL RULES do not provide for the extension of period of probation, either by a definite or indefinite period. In the context of the SPECIAL RULES on hand though the Note to Rule 8 provide for the extension of probation, in those cases where the Executive Engineers do not pass the Account test, there is nothing in the SPECIAL RULES which provides for the extension of probation of the Assistant Executive Engineers who pass the Account test within the period of probation, but their performance otherwise is not to the satisfaction of the appointing authority. It is in these circumstances the power under Rule 17(a)(ii) or Rule 31 could be invoked. In cases of such extension of the probation, Rule 16(h) would be applicable and the requirement of fixation of the altered date of the commencement of probation arises.40. In view of the declaration contained in the Note appended to Rule 8 of the SPECIAL RULES, there is neither any need nor occasion much less the authority in law for the exercise of power either under Rules 17(a)(ii) or 17(b) or 16(e) or 31 of the GENERAL RULES in the context of Venkata Ramudu. By a statutory declaration the period of probation stands extended until the Assistant Executive Engineer passes the prescribed test. There is no other material on record to indicate that the performance of Venkata Ramudu during the period of probation is otherwise not to the satisfaction of the appointing authority and, therefore, the power either under Rule 17(a)(ii) or 31 was invoked to the probation of Venkata Ramudu.41. The only other consideration which weighted with the Tribunal is that by not altering the date of commencement of the probation of Venkata Ramudu, as required under Rule 16(h), he would gain an unfair advantage of seniority over his colleagues who joined the service alongwith him and successfully passed the Account test within the stipulated period of probation without taking benefit of the extension of probation. "47. A further consideration which persuaded is the fact that the employees who have scrupulously passed the departmental tests within two years from the date of joining and who failed to do so cannot constitute the same class. They have to necessarily belong to different classes since the persons who passed the tests earned their right for declaration of probation as per rules while those who failed to do so constitute an entirely different class since their probation can never be declared except by relaxing the rules themselves. In their case it is not a right earned by them but on gratis. Beingin the eye of law, they cannot be treated equally." [12*] [12* For reaching such a conclusion, the Tribunal relied upon three earlier judgments of this Court reported in K. Haridas v. High Court of Kerala & Others, 2003(1) S.C.T. 724 : (2000) 9 SCC 717  , State of M.P. v. Ramkinkar Gupta & Others, 2000(2) S.C.T. 21 : (2000) 10 SCC 77and S.P. Badrinath v. Govt. of A.P. & Others, 2003(4) S.C.T. 378 : (2003) 8 SCC 1.   Each one of the abovementioned cases turned on the construction of specific rules dealing with the seniority of the members of different services of different States. They do not lay down any general proposition that a probationer who does not pass the prescribed test during the period of probation should automatically be placed in the seniority below his colleagues recruited alongwith him who cleared the prescribed departmental test during the period of probation.]42. SPECIAL RULES are silent with regard to the principles governing seniority, GENERAL RULES 33 deals with it. Rule 33, insofar as it is relevant, reads as under: "Rule 33. Seniority(a) The seniority of a person in a service, class, category or grade, shall unless he had been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade." It can be seen from the above, the seniority of a person shall be determined by the date of his first appointment to such service. The date of appointment is different from the date of commencement of probation. Both under GENERAL RULES 16(a) and SPECIAL RULES 6(2), the commencement of probation is from the date on which a person appointed joins the duty. Therefore, appointment precedes the commencement of probation. Rule 33 does not make any reference to either the commencement or declaration of probation. Therefore, the conclusion of the Tribunal, (confirmed by the High Court) that those persons who pass the Account test within the prescribed period of probation constitute a different class than those who pass the Account test after securing the benefit of extended period of probation and such later class shall not gain advantage by way of seniority over the class mentioned earlier is without any basis in the text of the Rules. If the Rule making authority desired to make such a distinction it should have done so expressly. It is a different matter whether such a classification would stand the test of Article 14. We do not propose to examine the same in this case.43. In the context of the service such as the one to which R. Venkata Ramudu belongs, what is more relevant is the technical qualification of the employee and the experience gained in utilizing such technical qualification for the service of the State than the knowledge of Accounts, a subject which is of incidental significance. Because knowledge of accounts is relevant only for the discharge of administrative responsibilities to be shouldered by the engineers. Their essential duty is to provide skills of technical knowledge to the State. That is why the Rules prescribe an experience of 5 years as an Assistant Executive Engineer for being promoted to the next higher category of Deputy Executive Engineer. An Assistant Executive Engineer even if he passes the Account test within the prescribed period of probation (2 years) will not be considered for promotion till he completes 5 years of service. Therefore, we are unable to agree with the logic employed by the Tribunal and confirmed by the High Court in this regard.