2021 Supreme(Online)(MP) 2746

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THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH, AT JABALPUR (FULL BENCH) WP-1539-2018 Arun Parmar ….…….. Petitioner Vs.

State of Madhya Pradesh and others ……… Respondents WITH WP-1541-2018 Vivek Shrotriya ….…….. Petitioner Vs.

Chief Secretary Government of MP and others …… Respondents ***** WP-1712-2018 Warad Murti Mishra .…….. Petitioner Vs.

Chief Secretary Government of MP and others …… Respondents ***** WP-2644-2018 Smt. Manisha Sentiya .…….. Petitioner Vs.

State of Madhya Pradesh and others …… Respondents ***** WP-3706-2018 Smt. Bharati Ogrey .…….. Petitioner Vs.

State of Madhya Pradesh and others …… Respondents ***** WP-3716-2018 Rajesh Ogrey .…….. Petitioner Vs.

State of Madhya Pradesh and others …… Respondents ***** WP-16735-2018 Vinay Nigam ….…….. Petitioner Vs.

State of Madhya Pradesh and others ……… Respondents ***** [2]

------------------------------------------------------------------------------------ Coram: Hon’ble Mr. Justice Mohammad Rafiq, Chief Justice Hon’ble Mr. Justice Rajeev Kumar Dubey, Judge Hon’ble Mr. Justice Vijay Kumar Shukla, Judge ------------------------------------------------------------------------------------ Presence: Mr. Naman Nagrath, Senior Advocate assisted by Mr. Anvesh Shrivastava and Mr. Jubin Prasad, Advocates for the petitioners in WP-2644-2018, WP-3706-2018 & WP-3716-2018.

Mr. Anshuman Singh, Advocate for the petitioner in WP-1541-

2018. Mr. Manoj Kumar Sharma, Advocate for the petitioners in WP- 1539-2018, WP-1712-2018 & WP-16735-2018.

Mr. Pushpendra Yadav, Additional Advocate General for the respondents-State.

Mr. Abhishek Arjaria, Advocate for the intervenor- Dr. Kedar Singh in WP-1539-2018.

------------------------------------------------------------------------------------ Whether approved for reporting: Yes ------------------------------------------------------------------------------------ Law Laid Down: Division Bench of this Court vide order dated 30.05.2019 passed in bat ch of W.P. No.1539/2018 has doubted the correctness of Full Bench decision in State of M.P. vs. Prakash Chandra Jangre (in fact, said judgment was delivered in lead case being Masood Akhtar (Dr.) vs. R.K. Tripathi in 2012 (I) MPJR (FB) 375 and was affirmed on dismissal of SLP and Review Petitions reported as State of M.P. vs. Masood Akhtar, 2017 SCC OnLine SC 1972 and State of M.P. vs. Masood Akhtar, 2018 SCC OnLine SC 3568). Doubt is primarily on the ground that Full Bench had failed to consider Rule 13 of the Madhya Pradesh State Administrative Service Classification, Recruitment and Conditions of Service Rules, 1975 inasmuch as that the Madhya Pradesh Civil Services (General Conditions of Service) Rules, 1961 would not apply as according to its Rule 12(1)(a), the Rules of 1961 apply to the “members of the service” only. The Bench has referred the matter to Larger Bench. The order dated 30.05.2019 has been assailed in Special Leave to Appeal (C) No.14036/2019 (Warad Murti Mishra vs. State of M.P. & [3]

another) on the ground that Full Bench decision in Masood Akhtar (Dr.) having attained finality, reference to the Larger Bench was incompetent. The Supreme Court in its judgment reported as (2020) 7 SCC 509 held that: Whether the reference was justified or not will certainly be considered by the bench answering the reference. We, however, accept the latter submission and direct that the matters shall first be placed before a bench of three Judges, which may consider whether the decision [Prakash Chandra Jangre (supra)] of the Full Bench on the earlier occasion requires reconsideration.

In view of the said fact, the PRIMARY QUESTION before the Full Bench is:

Whether or not, the reference made by the Division Bench is legally justified? ANSWER: Since we agree with the ultimate conclusion arrived at by the Full Bench in Masood Akhtar (Dr.) (supra) despite giving additional reasons for our view, we are not persuaded to hold that the Full Bench has not correctly answered the reference.

We therefore see no justification to further refer this matter to a Larger Bench consisting of five Judges.

Question No.1: ANSWER: The judgment of the Full Bench dealing the issues of probation is relying upon the Rule 8 of the Rules of 1961 although in the light of Rule 3 which deals the applicability either in the Rules of 1961 or in the Rules of 1975 on having special provision, the Rules of 1961 would not apply and in the present case, the services of the petitioners or the intervenors are governed by the Rules of 1975 and Rule 13 deals the issue of probation, however, the judgment of the Full Bench requires reconsideration in the said context ? A comparison of Rule 8(7) of the Rules of 1961 with Rule 13(7) of the Rules of 1975 would clearly show that there is, in fact, no difference between those two sub-rules. Therefore, in our considered view, the opinion expressed by the Division Bench while making reference in para-21 of its order that in view of the above fact, Rule 13(7) of the Rules of 1975 would govern the issue and not the Rule 8(7) of the Rules of 1961 and so, the conclusion arrived at by the Full Bench in para 11(iv) of its judgment in Masood Akhtar (Dr.) (supra) may not subsist, does not sound convincing.

Therefore, even while observing that the Full Bench in Masood Akhtar (Dr.) (supra) ought to have considered the Rule 13 of the Rules of 1975, we are inclined to hold that its non- consideration does not in any manner affect the correctness of the conclusion arrived at by the Full Bench. And now when we have considered and interpreted the Rule 13 of the Rules of 1975 we have also arrived at the same conclusion as the Full Bench has recorded in Masood Akhtar (Dr.) (supra) on harmonious interpretation of [4]

Rule 12(1)(a) and 12(1)(f) of the Rules of 1961. When we compare Rule 3 of the Rules of 1961 with the Rule 3 of Rules of 1975, in regard to applicability of the Rules of 1961 and/or Rules of 1975, the Rules of 1975 would govern the conditions of service of the members of the Madhya Pradesh State Administrative Services but without prejudice to the generality of the Rules of 1961. What therefore can be deduced from this is that the Rules of 1961 shall continue to apply except insofar as special provisions have been made in the Rules of 1975.

Question No.2: ANSWER: Rule 12 and Rule 12(1)(a) apply to the “members of the service” and it do not deal with the seniority of the probationers, who have not qualified the departmental examination within the period of probation or within the extended period of probation, which shall not be more than one year, however, the interpretation made in Paragraph No.4 of the direction applying those rules is justified ? Full Bench in Masood Akhtar (Dr.) (supra) has, while making a conjoint reading of the Rule 12(1)(a) and 12(1)(f) of the Rules of 1961 has placed harmonious interpretation so as to reconcile them, which would be evident from the conclusion arrived at by the Bench in para 11 of its judgment.

Additional Question in the light of observation in Warad Murti Mishra (supra):

ANSWER: Whether it was permissible for the Full Bench in Masood Akhtar (Dr.) (supra), despite the Supreme Court consistently holding in above referred to three judgments that direct recruits not having qualified the departmental examination even within the extended period of service could not be treated as member of service and therefore cannot claim seniority of that period? On comparison of the unamended Rule 12 of the Rules of 1961 on interpretation of which the ratio of the three judgments of the Supreme Court in M.P. Chandoria (supra); Ramkinkar Gupta (supra) and Om Prakash Shrivastava (supra) is founded, with the newly inserted Rules 12(1)(a) and (f) of the Rules of 1961 by way of substitution, which have been interpreted by the Full Bench in Masood Akhtar (Dr.) (supra), insofar as the question of seniority is concerned, it is clear that amended Rule 12 has taken away the very basis of the aforementioned three judgments of the Supreme Court and, therefore, ratio of those judgments cannot be applied to [5]

the present case. The rule making authority has now in the amended Rule 12 categorically provided that the persons appointed as a result of an earlier selection shall always rank senior to those appointed as a result of subsequent selection, thus manifesting a different intention than the one expressed in unamended Rule 12 of the Rules of 1961.

Question No.3: ANSWER: As per direction No.2 of the judgment of the Full Bench in the case of Prakash Chandra Jangre (supra), it is held that if the probationer has not qualified the departmental examination within the period of probation or within the extended period of probation, he shall be deemed to be a temporary government servant and shall be governed by the Rules of 1960 but without dealing the issue of seniority, how they will achieve, as specified in Rules 3, 3A, 4, 5, 6, 7, the direction issued in Clause 4 of the said judgment, is not contrary to the spirit of the Rules of 1960.

The view taken by the Division Bench that once the probationer has not cleared the prescribed departmental examination even within the extended period of probation, he would be deemed to be a temporary Government servant governed by the Rules of 1960 and therefore the conclusion arrived at in para 11(iv) of the Full Bench is not correct, also cannot be supported because the Rules of 1960 (Madhya Pradesh Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960) do not, in any case, provide for the manner in which the seniority of the persons recruited under the Rules of 1975 would be regulated.

List of Cases Referred: (1989) 3 SCC 211 (Buxa Dooars Tea Co. Vs. State of WB) (1992) 3 SCC 293 (Lilasons Breweries vs. State of MP) (1996) 11 SCC 173 Chandoria vs. State of M.P. & others (2000) 10 SCC 77 (State of M.P. vs. Ramkinkar Gupta) (2005) 11 SCC 488 (Om Prakash Shrivastava vs. State of MP) (2015) 8 SCC 399 (Agricultural Income Tax Officer and another vs. Goodricke Group Limited) (2017) 13 SCC 836 (State of MP vs.

Kedi Great Galeon Ltd)

Further Held:

It is a trite that a judgment for the purpose of precedent can be relied upon for the proposition of law that it actually decided and not for what can be logically deduced from it, for

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Further Held:

It is a trite that a judgment for the purpose of precedent can be relied upon for the proposition of law that it actually decided and not for what can be logically deduced from it, for

difference of a minor fact would make a lot of change in the precedential value of the judgment.

Referred: House of Lords judgment reported as [1901] A.C. 495 titled Quinn v. Leathem (16 of

21) [CW- 13989/2009].

A statute must be read as a whole and one provision of the Act should be construed with reference to the other provisions in the same Act so as to make a consistent enactment of the whole statute. Such a construction has the merit of avoiding any inconsistency or repugnancy either within a section or between a section and other parts of the statute. It is the duty of the courts to avoid “a head on clash” between the two sections of the same Act and whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonise.

Reliance placed upon: AIR 1954 SC 202 (Raj Krushna Bose vs. Binod Kanungo and others), AIR 1962 SC 1543 (Madanlal Fakirchand Dudhediya vs.

Shree Changdeo Sugar Mills Ltd.) (2002) 2 SCC 95 (British Airways vs.

Union of India Significant Paras: 15 to 31 Heard on : 15.03.2021