2016 Supreme(SC) 825

SUPREME COURT OF INDIA
J. CHELAMESWAR, ABHAY MANOHAR SAPRE, JJ.
R. Venkata Ramudu & Another etc. – Appellants
Versus
State of A.P. & Others – Respondents
Civil Appeal Nos. 9856-9860 & 9861 of 2016 (Arising out of SLP (Civil) Nos. 6906-6910 & 29832 of 2009)
Decided On : 27-09-2016

IMPORTANT POINTS
In case of conflict between GENERAL RULES and any SPECIAL RULES, the SPECIAL RULES prevail over the GENERAL RULES.
Failure to pass the prescribed tests cannot be a ground under Rule 17(a)(ii) for either terminating the probation or extending it.
In absence of non obstante clause Rules 16(e) and (f) or 17(a) and (b) do not having overriding effect over Rule 8 of SPECIAL RULES.
Rule 16(h) is attracted in two conditions: (i) Probationer does not pass prescribed tests within period of probation, or (ii) probationer does not pass prescribed tests within period of probation extended under Rule 17 or Rule 31.
In absence of any material showing unsatisfactory performance of appellant, Rule 17(a)(ii) or 31 cannot be invoked.
There is a difference between date of appointment and date of commencement of probation. Seniority is determined by the date of first appointment and not date of commencement of probation.

Headnote:(a) Andhra Pradesh State & Subordinate Service Rules 1996 (GENERAL RULES) – Rule 1(d) – Conflict between GENERAL RULES and any special Rules applicable to any particular service – Special Rules prevail over the GENERAL RULES. (Para 22)

       (b) Andhra Pradesh Engineering Service Rules, 1967 (SPECIAL RULES) – Rule 8(c), Note – Expressly prohibiting discharge of a probationer for failing to pass Account test – Stipulating extension of period of probation in such an event – Passing Account Test made obligatory by Rule 8(c) – Consequences of not passing the test are provided in the Note. (Para 26, 27)

       (c) Andhra Pradesh State & Subordinate Service Rules 1996 (GENERAL RULES) – Rule 16 – Rule 16(e) obligating a probationer to pass prescribed tests within period of probation – Rule 16(f)(i) prescribing consequences of not passing the tests – Empowering appointing authority to discharge a probationer for not passing the tests unless period of probation is extended – Rule 17(b). (Para 32)

       (d) Andhra Pradesh State & Subordinate Service Rules 1996 (GENERAL RULES) – Rule 17(a)(ii) – Stipulating extension of probation period or termination of probation and discharge of the probationer – Matter of extension or termination of probation is dealt with under Rule 16(e) and (f) and Rule 17(b) – Hence failure to pass the prescribed tests cannot be a ground under Rule 17(a)(ii) for either terminating the probation or extending it – In absence of non obstante clause Rules 16(e) and (f) or 17(a) and (b) not having overriding effect over Rule 8 of SPECIAL RULES. (Para 33, 34, 35)

       (e) Andhra Pradesh State & Subordinate Service Rules 1996 (GENERAL RULES) – Rule 16 – Commencement of probation – a Stipulation in Rule 16(h) is in the nature of an exception to the stipulation in Rule 16(a) – Under 16(a) probation of a direct recruit commencees “from the date of his joining the duty or from such other date as may be specified by the appointing authority” – On the other hand under Rule 16(h) in the event of failure to pass prescribed tests probation shall commence from a date fixed by the Government – It creates a fiction by which the date of commencement of probation is altered from the actual date of commencement. (Para 37)

       (f) Andhra Pradesh State & Subordinate Service Rules 1996 (GENERAL RULES) – Rule 16(h) – Attracted in two conditions – Probationer not passing prescribed tests within period of probation – Or, probationer not passing prescribed tests within period of probation extended under Rule 17 or Rule 31. (Para 38)

       (g) Andhra Pradesh State & Subordinate Service Rules 1996 (GENERAL RULES) – Rule 16(h) – Owing to non obstante clause in Rule 16(h) it enables fixation of an altered date of commencement of probation in case of probationers governed by SPECIAL RULES where these rules do not provide for extension of period of probation – Instantly Rule 8 not providing for extension of probation on ground of unsatisfactory performance – In such circumstances power under Rule 17(a)(ii) or Rule 31 of General Rules could be invoked – Rule 16(h) applies in cases of extension u/r 17 or 31. (Para 39)

       (h) Andhra Pradesh Engineering Service Rules, 1967 (SPECIAL RULES) – Rule 8, Note – Period of probation stands extended till the Assistant Executive Engineer passes the prescribed test – In such a case Rules 17(a)(ii) or 17(b) or 16(e) or 31 of the GENERAL RULES do not apply – Instantly, in absence of any material showing unsatisfactory performance of appellant, invocation of Rule 17(a)(ii) or 31 was impermissible. (Para 40)

       (i) Andhra Pradesh State & Subordinate Service Rules 1996 (GENERAL RULES) – Rule 33 – Seniority – Determined by the date of first appointment and not date of commencement of probation – Distinction – Appointment precedes the commencement of probation. (Para 42)

       (2000) 9 SCC 717; (2000) 10 SCC 77; (2003) 8 SCC 1 – Distinguished

       Facts of the case:

       The first appellant R. Venkata Ramudu was temporarily appointed, by order dated 23.3.1992, as an Assistant Executive Engineer by direct recruitment. Recruitment was by a process of selection conducted by the then Andhra Pradesh Public Service Commission. He was allotted to Irrigation Department.

       Admittedly, R. Venkata Ramudu passed the Account test on 20.1.1997.

       Subsequently, by a memo dated 20th January, 2007 the Government purported to (i) extend the period of probation, and (ii) fix the revised dates of commencement of probation in respect of 210 Assistant Executive Engineers, including the appellant, specified in the annexure to the said proceedings.

       Aggrieved by the communication dated 20.1.2007 R. Venkata Ramudu (and others) initially approached the A.P. State Administrative Tribunal by praying that the said proceedings be declared as illegal and arbitrary and for further directions to consider the case of R. Venkata Ramadu for promotion to the post of Deputy Executive Engineer by taking into account his initial date of appointment etc.

       The Administrative Tribunal by a common order dismissed all the original applications. Aggrieved by the same, the unsuccessful applicants including R. Venkata Ramwhich were also dismissed.

       Finding of the Court:

       The judgment under appeal cannot be sustained.

       Result: Appeal allowed.