1. Challenge against reversion and seniority list — Judicial Officer failed test within two-year probation but passed during extended probation. (Para 1 )
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2000 Supreme(SC) 694
SUPREME COURT OF INDIA
V.N.Khare : Y.K.Sabharwal
K.Haridas
Versus
High Court Of Kerala
Case No. : 2008 of 1997
Date of Decision : 4/4/00
A probationer is not protected from supersession by a junior if the mandatory examination is passed during an extended period of probation rather than within the standard probation period specified in the service rules.
Headnote:(A) Criminal Judicial Service Rules - Rule 12 - State Service Rules - Rule 28(a) - Probation and Seniority - Protection against supersession - A probationer in a class or category shall not be superseded for promotion to a higher class by a junior if the vacancy arises within the period specified for completion of probation and the probationer has passed the prescribed tests within that period (Paras 4 and 5).
(B) Extended Probation - Effect on seniority - Passing the required examination during an extended period of probation does not entitle the employee to the benefits of the proviso protecting a probationer from being superseded by a junior, as the protection is contingent upon passing the test within the standard probationary period specified in the rules (Para 5).
Facts of the case:
An officer was appointed as a Judicial Magistrate, Second Class, and later temporarily promoted to First Class. The applicable service rules required probationers to pass an examination within a two-year period. Having failed the examination in December 1984, the officer's probation was extended and he was subsequently reverted to the lower post. Although the officer passed the examination during the extended probation period, he was assigned seniority below juniors who had successfully passed the examination during the initial panel preparation. The officer challenged this reversion and the resulting seniority list.
Findings of Court:
The court found that the standard period of probation was two years, which could be extended by another year. The protection against supersession by a junior under the service rules is only available if the probationer passes the prescribed tests within the standard probation period. Since the officer passed the examination during the extended period and not within the initial two years, the protection against supersession was not attracted.
Issues: Whether a probationer who passes the mandatory examination during an extended period of probation is entitled to seniority over juniors who passed the examination within the original probation period.
Ratio Decidendi: The court ruled that the proviso protecting a probationer from being superseded by a junior applies only if the tests are passed within the specified probation period. Passing the required examination during an extended probation period does not entitle the employee to the seniority benefits provided for those who complete probation within the standard timeframe.
Result: Appeal dismissed.
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2. Appellant contended seniority should be fixed under Rule 28(a) of Kerala State Service Rules having passed examination within three-year probation period. (Para 2 )
3. First proviso to Rule 28(a) not attracted as appellant failed examination within initial two-year probation period under Rule 12, Judicial Service Rules. (Para 5 )
4. A probationer who fails prescribed test within initial probation period cannot claim benefit of first proviso to Rule 28(a) against supersession by junior. (Para 5 )
5. Appeal dismissed as without merit. No order as to costs. (Para 6 )
6. When does a probationer qualify for protection against supersession under Rule 28(a) first proviso of Kerala State Service Rules?
Only if he passes the prescribed test within the probation period specified in Special Rules; extended probation period does not attract proviso. (Para 5 )
7. What is the probation period under Rule 12 of the Criminal Judicial Service Rules?
Two years on duty within a continuous period of three years for direct recruits or transferees, extendable by another year. (Para 2 , 3 )
(1) APPELLANT herein was recruited as Judicial Magistrate, lind Class and joined the said post on 4.12.1981. On 30th May, 1983 he was temporarily promoted to the post of Magistrate, 1st Class. Rule 12 of Criminal Judicial Service Rules (hereinafter referred to as Judicial Service Rules) provides that every person appointed to the service either by direct recruitment or by transfer would be placed on probation for a total period of two years on duty within a continuous period of 3 years and if appointed according to terms of appointment such officers like the appellant were required to pass an examination during the period of probation. In the test held in December, 1984 the appellant was unsuccessful. As a result of the examination, a panel of successful officers was prepared for promotion to the post of Magistrate, 1st Class. The officers on the said panel were junior to the appellant. Since the appellant could not pass the examination his period of probation was extended from 9.5.84 to 9.5.85. By an order dated 30th March, 1985 the appellant was reverted to the post of Judicial Magistrate, lind Class. Subsequently, the petitioner passed the examination and the result was declared on 20th May, 1985. Thus the appellant passed the examination during the extended period probation. After the appellant passed the examination he was shown as junior to respondent nos. 4 to 22 who were promoted on the basis of panel prepared in December, 1984. It is at this stage the petitioner filed a petition under Article 226 of the Constitution challenging his reversion and seniority list. The said writ petition was dismissed and the writ appeal filed against the judgment of the Single Judge, was also dismissed. It is in this way the appellant is in appeal before us.
(2) LEARNED Counsel for the appellant urged that the appellant having passed the examination within the probation period of three years, his seniority could not have been assigned below to respondents 4 to 22 and his fixation of seniority is contrary to Rule 28(a) of Kerala State Service Rules (hereinafter referred to as State Service Rules). No doubt the argument is attractive. Rule 12 of Judicial Service Rules runs as under:
"12. Probation (1) every person appointed to any category shall, from the date on which he joins duty, be on probation, if he is recruited direct or by transfer for a total period of two years on duty within a continuous period of three years and if appointed by promotion, fora total period of one year on duty within a continuous period of two years. (2) The authority competent to extend the period of probation and to declare the satisfactory completion of the period of probation shall be the High Court."
(3) A plain reading of Rule 12 shows that the period of probation is for two years which can be extended by another year and this is also the stand of High Court in the counter affidavit filed in this Court.
(4) RELEVANT portion of Rule 28(a) of State Service Rules reads as under:
"28. (a) Promotion. (I) No member of a service or class of a service shall be eligible for promotion from the category in which he was appointed to the service unless he has satisfactorily completed his probation in that category Provided that a probationer in a class, category or grade shall not be superseded for promotion to a higher class, category or grade by his junior, if the vacancy in the higher class, category or grade arises within the period specified in the Special Rules for completion of probation in the class, category or grade in which he is probationer and if he has passed the test or tests prescribed for successful completion of probation and is otherwise eligible and suitable for such promotion: but his promotion shall be subject to the condition that he satisfactorily completes the probation in the class, category or grade from which he was promoted within the period prescribed therefore, and for this purpose the period of service put i
