whether the persons selected in subsequent selection processes, who had cleared the departmental examination within the stipulated period, should rank senior to the Appellant and similarly situated persons.

Civil Appeal No. 2601 of 2020 @ SLP(Civil)No.14036 of 2019 etc. etc.
Warad Murti Mishra vs. State of Madhya Pradesh and anr.
1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2601 OF 2020
(Arising out of Special Leave Petition (Civil)No. 14036 of 2019)
WARAD MURTI MISHRA …Appellant
Versus
STATE OF MADHYA PRADESH AND ANR. …Respondents
WITH
CIVIL APPEAL NO.2602 OF 2020
(Arising out of Special Leave Petition (Civil)No. 13973 of 2019)
WITH
CIVIL APPEAL NO.2603 OF 2020
(Arising out of Special Leave Petition (Civil)No. 14134 of 2019)
WITH
CIVIL APPEAL NO.2604 OF 2020
(Arising out of Special Leave Petition (Civil)No. 14083 of 2019)
WITH
Civil Appeal No. 2601 of 2020 @ SLP(Civil)No.14036 of 2019 etc. etc.
Warad Murti Mishra vs. State of Madhya Pradesh and anr.
2
CIVIL APPEAL NO.2605 OF 2020
(Arising out of Special Leave Petition (Civil)No. 22167 of 2019)
WITH
CIVIL APPEAL NO.2606 OF 2020
(Arising out of Special Leave Petition (Civil)No. 26080 of 2019)
J U D G M E N T
Uday Umesh Lalit, J.
1. Leave granted.
2. These Appeals arise out of the final judgment and order dated
30.05.2019 passed by the High Court of Madhya Pradesh, Principal Seat at
Jabalpur in Writ Petition No. 1712 of 2018 and other connected matters.
For facility, the facts in the lead matter viz. Civil Appeal arising out of
Special Leave Petition (Civil)No. 14036 of 2019 are set out in detail
hereinafter.
3. The Appellant in the lead matter joined the service as Deputy
Collector on 01.07.1996 after being selected by the Madhya Pradesh
Public Service Commission. The Appellant was initially put on probation
for two years and was required to clear a departmental examination within
that period. In terms of the concerned Rules, the probation period can be
Civil Appeal No. 2601 of 2020 @ SLP(Civil)No.14036 of 2019 etc. etc.
Warad Murti Mishra vs. State of Madhya Pradesh and anr.
3
extended for one year but the departmental examination must be cleared
during the extended period. The Appellant could, however, clear the
examination on 28.01.2001 that is more than three years after the initial
appointment.
Consequently, the status of the Appellant and similarly situated
persons, who could not clear the examination even within the extended
period of probation, is the matter in issue, raising the question whether the
persons selected in subsequent selection processes, who had cleared the
departmental examination within the stipulated period, should rank senior
to the Appellant and similarly situated persons.
4. The Madhya Pradesh Civil Services (General Conditions of
Service) Rules, 1961 (hereinafter referred to as ‘1961 Rules’) apply to
every person holding a post or who is a member of a service in the State,
except certain categories in Rule 3. Rule 8 deals with ‘Probation’, Rule
12 deals with ‘Seniority’, Rule 12(1) deals with ‘Seniority of Direct
Recruits and Promotees’, Rule 12 (2) deals with ‘Seniority of
Transferees’, Rule 12 (3) deals with ‘Seniority in special types of cases’
and Rule 12(4) deals with ‘Seniority of Ad hoc employees’. Since we are
concerned in the present matter with seniority of Direct Recruits and
Promotees, Rules 8 and 12(1) are set out hereunder:-
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
4
“8. Probation.- (1) A person appointed to a
service or post by direct recruitment shall
ordinarily be placed on probation for such
period as may be prescribed.
(2) The appointing authority may, for sufficient
reasons, extend the period of probation by a
further period not exceeding one year.
(3) A probationer shall undergo such training
and pass such departmental examination during
the period of his probation as may be prescribed.
(4) The services of a probationer may be
terminated during the period of probation if in
the opinion of the appointing authority he is not
likely to shape into a suitable Government
servant.
(5) The services of a probationer who has not
passed the departmental examination or who is
found unsuitable for the service or post may be
terminated at the end of the period of his
probation.
(6) On the successful completion of probation
and passing of the prescribed departmental
examination, if any, the probationer shall, if
there is a permanent post available, be
confirmed in the service or post to which he has
been appointed, either a certificate shall be
issued in his favour by the appointing authority
to the effect that the probationer would have
been confirmed but for the non-availability of
the permanent post and that as soon as a
permanent post becomes available he will be
confirmed.
(7) A probationer, who has neither been
confirmed, nor a certificate issued in his favour
under sub-rule (6), nor discharged from service
under sub-rule (4), shall be deemed to have been
appointed as a temporary Government servant
with effect from the date of expiry of probation
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
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and his conditions of service shall be governed
by the Madhya Pradesh Government Servants
(Temporary and Quasi-Permanent Service)
Rules, 1960.
… … …
12. Seniority.- The seniority of the members of
a service or a distinct branch or group of posts of
that service shall be determined in accordance
with the following principles, viz.-
(1) Seniority of Direct Recruits and
Promotees.- (a) The seniority of persons
directly appointed to a post according to
rules shall be determined on the basis of the
order of merit in which they are
recommended for appointment irrespective
of the date of joining. Persons appointed as a
result of an earlier selection shall be senior to
those appointed as a result of a subsequent
selection.
(b) Where promotions are made on the basis
of selection by a Departmental Promotion
Committee, the seniority of such promotees
shall be in the order in which they are
recommended for such promotion by the
committee.
(c) Where promotions are made on the basis
of seniority subject to rejection of the unfit,
the seniority of persons considered fit for
promotion at the same time shall be the same
as the relative seniority in the lower grade
from which they are promoted. Where
however a person is considered as unfit for
promotion and is superseded by a junior,
such person shall not, if subsequently found
suitable and promoted, take seniority in the
Higher grade over the junior persons who
had superseded him.
(d) The seniority of a person whose case was
deferred by the Departmental Promotion
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
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Committee for lack of Annual Character
Rolls or for any other reasons but
subsequently found fit to be promoted from
the date on which his junior was promoted,
shall be counted from the date of promotion
of his immediate junior in the select list or
from the date on which he is found fit to be
promoted by the Departmental Promotion
Committee.
(e) The relative seniority between direct
recruits and promotees shall be determined
according to the date of issue of
appointment/promotion order:
Provided that if a person is appointed/
promoted on the basis of roster earlier than
his senior, seniority of such person shall be
determined according to the merit/select/ fit
list prepared by the appropriate authority.
(f) If the period of probation of any direct
recruit or the testing period of any promotee
is extended, the appointing authority shall
determine whether he should be assigned the
same seniority as would have been assigned
to him if he had completed the normal period
of probation testing period successfully, or
whether he should be assigned a lower
seniority.
(g) If orders of direct recruitment and
promotion are issued on the same date,
promotee persons enblock shall be treated as
senior to the direct recruitees.”
The Madhya Pradesh State Administrative Service (Classification,
Recruitment and Conditions of Service) Rules, 1975 (hereinafter referred
to as ‘1975 Rules’) apply to every member of the service, without
prejudice to the generality of the provisions contained in 1961 Rules.
Civil Appeal No. 2601 of 2020 @ SLP(Civil)No.14036 of 2019 etc. etc.
Warad Murti Mishra vs. State of Madhya Pradesh and anr.
7
Rule 13 deals with ‘Probation’, while Rule 23 deals with ‘Seniority’. Said
Rules read as under:-
“13. Probation.- (1) Every person directly
recruited to the service shall be appointed on
probation for a period of two years.
(2) The appointing authority may, for
sufficient reasons, extend the period of probation
by a further period not exceeding one year.
(3) The probationer shall undergo the
prescribed training and pass the prescribed
departmental examination by the higher standard
during the period of his probation.
(4) The services of the probationer may be
terminated during the period of probation, if in
the opinion of the appointing authority, he is not
likely to shape into a suitable government
servant.
(5) The services of a probationer who does not
pass the prescribed departmental examinations
or who is found unsuitable for the service may
also be terminated at the end of the period of
probation.
(6) On successful completion of probation and
the passing of the prescribed departmental
examinations, the probationer shall be confirmed
in the service provided permanent vacancies
exist for him otherwise a certificate shall be
issued in his favour by the appointing authority
to the effect that the probationer would have
been confirmed but for the non-availability of
the permanent post and as soon as permanent
post become available he will be confirmed.
The probationer shall not draw any increments
until he is confirmed. On confirmation his pay
will be fixed with reference to the total length of
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
8
service. If the probationary period is extended,
government will decide at the time of
confirmation whether arrears of increment shall
be paid or not. Such arrears shall ordinarily be
paid when the extension of the probationary
period is due to no fault of the probationer.
(7) A probationer who has neither been
confirmed, nor a certificate issued in his favour
under sub-rule (6) above nor discharged from
service under sub-rules (4) and (5) above, shall
be deemed to have been appointed as a
temporary government servant with effect from
the date of expiry of probation and his
conditions of service shall be governed by the
Madhya Pradesh (Temporary and QuasiPermanent Service) Rules, 1960.
23. Seniority.- The seniority of persons
appointed to the service shall be regulated in
accordance with the provisions of rule 12 of the
Madhya Pradesh Civil Service (General
Conditions of Service) Rules, 1961.”
Since Rule 8(7) of 1961 Rules and Rule 13 (7) of 1975 Rules
expressly refer to Madhya Pradesh Government Servants (Temporary and
Quasi-Permanent Service) Rules, 1960 (hereinafter referred to as ‘1960
Rules’), Rules 2 and 3 of 1960 Rules are set out as under:-
“2. In these Rules, unless there is anything
repugnant in the subject or context –
(a) “Allocated Government servant” means a
person allotted or deemed to be allotted for
service in the State of Madhya Pradesh under
the provisions of section 115 of the State Reorganisation Act, 1956;
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
9
(b) “Quasi-Permanent Service” means temporary
service commenced from such date as may
be specified in that behalf in the declaration
issued under rule 3 or from the date from
which the Government servant concerned is
deemed to be in quasi-permanent service
under rule 3A and consisting of period of
duty and leave (other than extraordinary
leave) after that date;
(c) “Specified post” means a particular post, or
the particular grade or posts within a cadre,
in respect of which a Government servant is
declared to be in quasi-permanent service
under rule 3 or deemed to be in quasipermanent service under rule 3A.
(d) “Temporary service” means officiating or
substantive service in a temporary post, and
officiating service in a permanent post, under
State Government and also includes the
period of leave with allowance taken while
on temporary service and complete years of
approved war-service, which have been
counted for fixation of pay and seniority.
3. A Government servant shall be deemed to be
in quasi-permanent service.-
(i) If he has been in temporary service in the
same service or post continuously for
more than three years; and
(ii) If the appointing authority being satisfied
as to his suitability in respect of age,
qualifications, work and character for
employment in a quasi-permanent
capacity, has issued a declaration to that
effect, in accordance with such
instructions as the Governor may issue
from time to time.
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
10
Explanation.- In computing continuous
temporary service for the purposes of this
rule and period of break in service during
a vacation shall be counted as a period of
actual service where, upon reemployment immediately after the
vacation, the Government servant has
been allowed to draw his pay and
allowances in respect of such period.”
5. It may be mentioned that while issuing the Seniority List dated
08.08.2001, the Appellant and similarly situated persons were declared as
confirmed/permanent on the date when they had cleared the examination,
which incidentally was later than the date of confirmation of the officers in
the subsequent selection. The relevant order also dealt with cases of
certain officials who had not cleared the departmental examination in the
initial period of two years, but had cleared the concerned examination
within the extended period.
Thus, the order dealt with three kinds of officials (a) those who
had cleared the examination in the initial period of probation of two years;
(b) those who had cleared the examination within the extended period of
one year of probation; and (c) those who had cleared the examination after
the expiry of extended period of probation.
(i) The second category of persons was dealt with as under:-
“All the abovenamed officers by not passing all
the departmental examinations within the
prescribed period of 2 years, have passed the
same in the extended period i.e. within 3 years.
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
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Therefore, their seniority in State Administrative
Service shall remain as it as per the seniority of
the Select List of M.P. Public Service
Commission. Abovenamed officers have passed
the departmental examination during the
extended probation period, therefore, the arrears
of increment in pay as per Rule 13 (6) of the
M.P. State Administrative Service (Executive)
(Classification, Recruitment & Conditions of
Service) Rules, 1975, shall not be paid to these
officers. The benefit of notional date of
permanency of these officers shall be available
only for the seniority. The benefit of notional
date of regularization shall not be available for
revision of pay.”
ii) After setting out the names of candidates who had cleared
the departmental examination after the expiry of extended period of
probation, the order stated:-
“Abovenamed officers have passed departmental
examination after the expiry of probation period
of 2 years and extended period of 1 year i.e.
after 3 years. Therefore, by not maintaining the
seniority of aforementioned officers in
permanent cadre of the State Administrative
Service as it is as per the Select List of M.P.
Public Service Commission, and by lowering
their seniority as per Rule 12(1)(f) of the M.P.
Civil Service (General Conditions of Service)
Rules, 1961, same shall be revised in reference
to the date of passing the departmental
examination.”
6. In a challenge raised by the concerned candidates, the Division
Bench of the High Court considered the matter vide its judgment and
order dated 17.12.2009 in Writ Appeal No. 510 of 2009 and all other
Civil Appeal No. 2601 of 2020 @ SLP(Civil)No.14036 of 2019 etc. etc.
Warad Murti Mishra vs. State of Madhya Pradesh and anr.
12
connected matters (Suresh Kumar vs. The State of M.P. and others).
The submission advanced in support of the challenge was noted as
under:-
“3. … … as they could not complete the
probation period successfully and the same had
to be extended, the State Government might
have a right under Rule 12(1)(f) of Civil
Services (General Condition of Services) Rules,
1961 (hereinafter referred to as “Rules of 1961”)
to fix the seniority but the State Government
could not place the petitioners below the
candidates who were selected in subsequent
selections held in 1995, 1996 and/or 1997. It is
also contended that as the State Government
itself had extended the period of probation, each
of the petitioner was certainly entitled to the
increments which they had successfully earned
while discharging their duties as probationers.”
After going into Rule 12 of 1961 Rules, the Division Bench
concluded:-
“8. From perusal of Rule 12 of Rules of 1961, it
would clearly appear that seniority of a person
will have to be determined in order of merit in
which he is recommended for appointment
irrespective of date of joining. Persons
appointed as a result of an earlier selection shall
be senior to those appointed as a result of
subsequent selection. A perusal of Rule 12 (1)
(a) of Rules of 1961 would make it clear that if
refers to inter se seniority of the persons which
is based upon the order of merit in which they
are recommended by the concerned Selection
Board. It would also be clear from Rule 12 (1)
(a) that a person appointed in the earlier
selection process shall be senior to those
appointed as a result of a subsequent selection.
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
13
From the language it would clearly appear that if
a person is appointed in the earlier year then he
would always be senior to a person appointed in
the latter year. However, Rule 12 (1) (a) of
Rules of 1961 would be subject to certain
disciplinary actions, which can be taken and the
seniority of such person may be adversely
affected. In any case, if there are no adverse
reports nor there is any disciplinary action the
seniority is to be maintained vertically and
horizontally. The horizontally seniority is to be
maintained in order of the merits in which they
are recommended for their appointment while
the vertical seniority is to be maintained in order
of selection of the year by holding that the
person who was appointed as a result of an
earlier selection shall be senior to those
appointed as a result of a subsequent selection.
… … …
10. At this stage, it would be necessary to
observe that a person who is directly appointed
in order of merit in which they are
recommended for appointment they have their
inter se seniority, their seniority cannot be
compared with any person who has been
appointed in a subsequent selection process.
The authority only has a right to fix the seniority
of such probationer who could not complete his
probation period successfully within his own
cadre or within the person who had been
selected in the same selection process. If the
arguments of learned Advocate General is
accepted, the same is likely to create an
administrative anarchy because in a given case a
person may complete the probation period
successfully within one year and the other may
not complete the same within two years and in
between if another selection process takes place
and the other person of the subsequent selection
process completes the probation in less than one
year and is confirmed then he is likely to
become senior to the person who still had some
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
14
valid period of probation. It is also to be seen
that there is always a distinction between
appointment and confirmation. Once Public
Service Commission or the appointing authority
undertakes the process for selection then for that
class this is the end of matter. After such
selection the persons would be appointed on
probation or permanently. In case persons are
appointed on probation then they would be
required to complete the period of probation
successfully and on completion of the period
they would not be reappointed or reselected but
they would be confirmed on the post. If there is
a marked and sharp distinction between
selection, appointment and confirmation then
such distinctions could not be kept in oblivion
by the State Government and the petitioners
could not be awarded seniority below the
persons who had been selected/appointed under
the subsequent selection process.”
7. State of Madhya Pradesh, being aggrieved, challenged the
correctness of the decision of the Division Bench by filing Special Leave
Petition (Civil) No. 13888 of 2010 (State of Madhya Pradesh vs.
Sandeep Kumar Mawkin) which was dismissed by this Court on
13.09.2010. Review Petition (Civil) No.1034 of 2011 arising therefrom
was also dismissed by this Court on 13.04.2011.
8. Thereafter, in view of the divergence of views expressed by two
Division Benches of the High Court, the matter was referred to the Full
Bench of the High Court in Writ Appeal No. 607 of 2011 (Dr. Masood
Akhtar vs. R.K. Tripathi) and other connected matters, which were
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
15
dealt with by the Full Bench vide its order dated 17.02.2012. After
considering Rules 8 and 12 of 1961 Rules, it was observed:-
“6…. …At the end of the extended period of
probation, when no further extension of period
of probation is permissible, the status of the
probationer in the eye of law will be that of a
deemed confirmed employee where he has
passed the departmental examination is the
condition precedent for confirmation either in
the rules or in the order of appointment. The
view finds support from the decision in High
Court of M.P. through Registrar and others vs.
Satya Narayan Jhavar (2001) 7 SCC 161
Rajindra Singh Chauhan (2005) 13 SCC 179.
Moreover, taking the other view i.e. an
employee does not get status of confirmed
employee on successful completion of period of
probation and on passing the departmental
examination would bring in operation rule 8(7)
of the 1961 Rules which would confer the status
of a temporary employee on the probationer. We
are not inclined to adopt the aforesaid
interpretation since the same is contrary to rule 8
(7) of the 1961 Rules which prescribes the
maximum period of probation. Besides that, by
such an interpretation, the confirming authority
can destroy the service career of a probationer
merely by indecision in the matter of
confirmation of such an employee. However,
where the probationer at the end of extend of
period of probation has not been able to pass the
departmental examination and that passing of
the departmental examination is mandatory for
confirmation, and confirmation has neither been
granted nor refused the probationer will be
deemed to have been refused confirmation at the
end of maximum permissible period of
probation, because even if the confirming
authority would have actually considered the
cast of probationer for confirmation, it would
have no option except to refuse confirmation on
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
16
the ground that the probationer has not passed
the departmental examination. The case of such
a probationer would be covered by Rule 8(7)
quoted above and he will be deemed to have
been appointed as a temporary government
servant with effect from the date of expiry of
probation and his condition of service shall be
covered by the 1960 Rules.”
The Full Bench went on to observe:-
“8. In our opinion, allowing such probationer to
retain original seniority would have to be
confined to cases where such extension of
probation is not due to any fault or short coming
on part of the employee concerned. For
example, where the employee could not appear
at the departmental examination on account of
illness or such other cause beyond the control of
the employee or where some departmental
inquiry was pending in which the employee is
ultimately exonerated. The above contingencies
are only illustrative and no exhaustive.
9. However, where the extension of probation is
made due to any short coming of the employee,
like not being able to pass the departmental
examination or not performing well during the
initial period of probation, his seniority would
have to be pushed down and in that case also the
question would arise as to the extent of
assignment of lower seniority to such an
employee. Again, decision in this regard cannot
be left to whim and caprice of appointing
authority but the same has to be based on
rational and reasonable criterial.
… … …
11. … Rule 12(1)(a) of the 1961 Rules inter alia
provides that persons appointed as a result of
earlier selection shall be senior to those
appointed as a result of subsequent selection
whereas Rule 12(1)(f) confers discretion on the
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
17
appointing authority to assign the same seniority
or to assign lower seniority to a probationer
whose probation or testing period is extended.
In the light of aforesaid well settled rule of
statutory interpretation the discretion conferred
on the appointing authority to assign lower
seniority to an employee under Rule 12(1)(f) of
the 1961 Rules has to be confined to the extent
that despite assigning lower seniority such a
probationer shall always rank senior to those
who appointed/promoted as a result of
subsequent selection/promotion. In other words
the power to assign a lower seniority to a
probationer has to be interpreted as stated supra
so as to given full effect to provision of Rule 12
(1)(a) of the Rules which provides that persons
appointed as a result of an earlier selection shall
be senior to those who appointed as a result of
subsequent selection/promotion. In view of the
proceeding analysis, our conclusions are as
under:-
i) A probationer who has passed the
departmental examination prescribed
either in he rules or in the order of
appointment at the end of extended
period of probation shall be deemed to
be a confirmed employee and shall be
assigned seniority accordingly.
ii) A probationer who has not been able to
pass the departmental examination
prescribed either in the rules or in the
order of appointment at the end of
extended period of probation shall be
deemed to be temporary employee under
Rule 8 (7) of the 1961 Rules.
iii)Under Rule 12(1)(f) an employee would
be allowed to retain original seniority
where extension of period of probation
is not due to any fault of shortcoming of
the employee. However, where
extension of period of probation is on
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
18
account of fault or shortcoming on the
part of the employee, in such a case the
probationer has to be assigned seniority
from the date if that date can be
ascertained i.e. the date on which he
clears the departmental examination or
where such date cannot be ascertained,
the date on which he is considered
suitable for confirmation.
iv)The discretion to confer lower seniority
to a probationer under Rule 12(1)(f) is
confined to the extent that despite
assigning lower seniority, such
probationer shall always ranks senior to
those who are appointed in subsequent
selection.”
9. State of Madhya Pradesh challenged the decision of the Full Bench
by filing Special Leave Petition (Civil) No. 20288 of 2012 (State of M.P.
and ors. vs. Masood Akhtar and ors.) and other connected matters, which
were dismissed by this Court on 01.09.2017. Review Petition (Civil) No.
2663 of 2018 arising therefrom was dismissed by this Court on
18.09.2018.
10. Subsequently, Writ Petitions were filed by the Appellant and
similarly situated persons seeking direction to grant them seniority from
the initial date of appointment in their respective batches in view of the
provisions contained in Rule 12 (1)(a) and (f) of 1961 Rules, though they
had not passed the departmental examination either within the initial
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
19
period of probation of two years or within the extended period of probation
of one year.
11. The Division Bench in its judgment, which is presently under
appeal, considered the decision of the Full Bench and observed:-
“14. In this regard, on perusal of the provision of
the Rules of 1961, Rules of 1960 and Rules of
1975, the aforesaid interpretation do not appear
to be as per the provisions of the Rules.”
After referring to the concerned Rules, the Division Bench
observed:-
“17. Rule 7 of the Rules of 1961 specifies
methods of recruitment and Rule 8 deals with a
probation which has been referred by the Full
Bench in the judgment of Prakash Chandra
Jangre1
 (Supra). As per Sub-Rule (1) of Rule 8,
it is clear that a person appointed to a service or
post by direct recruitment shall be placed on
probation for such a period as prescribed and for
the sufficient reasons the said period of
probation may be extended further for a period
not exceeding one year. Meaning thereby under
Rule 8, period of probation of two years has not
been specified but in Rule 13 (1) of the Rules of
1975 in specific, the period of two years
probation has been specified. As per Sub-Rule
(3), the probationer shall undergo such training
and pass departmental examination “during the
period of his probation” or as may be prescribed.
Meaning thereby, passing of departmental
examination either in the Rules of 1977 or in the
Rules of 1999 and also as per Rule 13 (3) of the
Rules of 1975 is necessary for confirmation.
Sub-Rules (4) and (5) of Rule 8 of Rules of 1961
1 (2012) 1 MPJR 375
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
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are similar to Sub-Rules (4) and (5) of Rule 13
of Rules of 1975. As per Sub-Rule (6), on
successful completion of a probation after
passing the departmental examination, the order
of confirmation be issued on availability of a
permanent post by the appointing authority
otherwise a certificate for confirmation on
availability of the permanent post shall be issued
by such authority acknowledging the said fact.
Rule 13 (6) of Rules of 1975, by which the
services of the petitioners are governed, confers
more power to the authorities to regulate their
services. As per Sub-Rule (6) of Rule 8 of the
Rules of 1961, there is a distinction with Rule 13
(6) of the Rules of 1975. Sub-Rule (7) of Rule 8
ibid indicates that if a probationer has not been
confirmed under sub-rule (6) nor discharged
under sub-rule (4) then he would be deemed to
be a temporary government servant but Rules of
1975 makes it clear that in case either in SubRule (4) or in Sub-Rule (5) if confirmation order
has not been issued, in both the cases he would
be deemed to be the temporary government
servant and his service conditions shall be
governed by Rules of 1960.
18. In view of the foregoing facts, it is
apparent that the Full Bench has only considered
the Rule 8 of the Rules of 1961, although it
ought to have considered Rule 13 of the Rules of
1975 and if there is any inconsistency, the
departmental rules would govern the field as per
Rule 3 of the Rules of 1961 as well of the Rules
of 1975.”
Finally, the Division Bench referred certain questions to be
considered by a larger bench as under:-
“21. In view of the foregoing discussion and
looking to the language of the Rules of 1960,
the Rules of 1961, the Rules of 1975 and also
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
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the directions issued by the Full Bench, the
direction No.2 relates to Rule 8(7) of the Rules
of 1961 but in fact Rule 13 (7) of the Rules of
1975 would govern the issue. It is further seen
that after becoming a temporary government
servant, how their seniority be decided, it has
not been discussed although Rules 3, 3A, 4, 5,
6, 7 of the Rules of 1960 deals the issue. In
case the above Rules of 1960 is made
applicable, the direction No. 4 do not subsist.
Similarly, the Court while interpreting Rule 12
(1)(a) and Rule 12 (1)(f) issued the direction
that the probationers shall be assigned the
lower seniority but they shall remain rank
senior to those who have been subsequently
selected. Rule 12 (1)(a) do not apply to the
“probationers” but it applies to the “members
of the service”. It is to further observe here
that Rule 12 (1)(f) deals a situation for grant of
seniority on passing the departmental
examination within the period of probation or
within the extended period of probation. It do
not apply to a case where the probationer has
not passed the departmental examination even
after elapse of the extended period of
probation. In such circumstances, the
judgment of the Full Bench appears to be
contrary to the provisions of the rules framed
under proviso to Article 309 of the Constitution
of India, which requires reconsideration. In
view of the foregoing discussion, the following
questions arise for consideration :-
1) The judgment of the Full Bench
dealing the issue 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
service of the petitioners or the
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
22
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.
2) 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.
3) 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 the 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.
22. In view of the foregoing observation, we
deem it appropriate to refer the judgment of the
Full Bench to the Larger Bench to answer the
aforesaid issues.
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23
23. Registrar (Judicial) is requested to place the
matter before Hon’ble Chief Justice to do the
needful and to take appropriate steps in this
regard in view of the foregoing observations.”
12. In these appeals, the rival submissions were recorded by this Court
in the Order dated 11.07.2019, whereafter the matters were posted for
hearing. The relevant portion of the Order was:-
“According to Mr. Shrivastava, the controversy
in question had reached this Court in 2009 when
the special leave petitions and the review
petitions were dismissed affirming the view
taken by the Division Bench in Writ Appeal
No.510 of 2009 and other connected matters.
Thereafter, on a reference made by the Division
Bench, the Full Bench of the High Court had an
occasion to consider the matter. The judgment of
the Full Bench rendered in Writ Appeal No.607
of 2011 and connected matters was challenged
before this Court in SLP (C) No.20288 of 2012
and other connected matters. The special leave
petitions were dismissed by this Court on 1st
September, 2017 and review petitions arising
therefrom were also dismissed by this Court.
The submission of Mr. Shrivastava is that the
matters having been settled, the Division Bench
ought not to have referred the matter for further
consideration by a larger Bench.
Mr. Rahul Kaushik, learned counsel appearing
for the State relied upon the decisions of this
Court reported in M.P. Chandoria vs. State of
M.P. & Ors. [(1996) 11 SCC 173]; State of M.P.
vs. Ramkinkar Gupta & Ors. [(2000) 10 SCC
77]; and Om Prakash Shrivastava vs. State of
M.P. & Anr. [(2005) 11 SCC 488] to submit that
the passing of the departmental examination
would be a relevant criteria to determine the
seniority and if in the intervening period a
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
24
subsequent batch had been appointed, the person
from the previous batch would not retain his
seniority as against the subsequent batch. In his
submission, the Division Bench was, therefore,
justified in making the reference to a larger
Bench.
Mr. P.S. Patwalia, learned senior counsel
appearing for some of the private respondents on
caveat, invited our attention to the interplay
between Rule 8(7) and Rule 12 of the Madhya
Pradesh Civil Services (General Conditions of
Service) Rules, 1961. According to the learned
counsel, by virtue of Rule 8(7), the status of
such a Government servant would be
“temporary Government servant” and he would
cease to be part of the regular service and,
therefore, Rule 12 would be completely
inapplicable.”
13. We heard Mr. Ravindra Shrivastava, learned Senior Advocate for
the Appellants, Mr. Rahul Kaushik, learned Advocate for the State and Mr.
P.S. Patwalia, learned Senior Advocate and Mr. Puneet Jain, learned
Advocate for the private Respondents. The parties also filed their written
submissions.
A. In his written submission, Mr. Shrivastava, learned Senior
Advocate for the Appellants submitted:-
“…the question of determination of seniority of
those direct recruits who were unable to pass the
departmental examination and consequently
their confirmation was delayed is no longer res
integra, having been decided twice by the High
Court. …
… … …
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25
…it would be travesty of justice to allow the
concluded issue to be reopened once again after
dismissal of SLP and review in two rounds of
litigation in this Hon’ble Court. … …”
It was further submitted:-
“…in the event, the impugned order is upheld
which has directed reference to a larger bench,
the High Court would be required to re-consider
the legal issues on merits involving
interpretation of law and the rules. It is
submitted with respect and humility, that this
Hon’ble Court is not called upon to examine the
interpretation of the law and the rules and the
principle of seniority applicable in the instant
case as the High Court in seisin of the
substantive matter, except perhaps for a limited
purpose of ascertaining for itself prima facie that
on earlier occasions same very rule and the
dispute of seniority based on the same
contentions has been considered.”
B. On the other hand, it was submitted by Mr. Kaushik,
learned Advocate:-
“10. Thus to sum up, if the probationers do not
clear the departmental examination within the
period two years plus extended period of one
year as provided under rule 13 (1), 13(2) &
13(3) of Madhya Pradesh State Administrative
Services Rules, 1975 and Rule 8(1)(2)(3) of the
Madhya Pradesh Civil Service Rules, 1961 and
are not terminated as provided under rule 13(5)
of Madhya Pradesh State Administrative
Services Rules, 1975 and 8(5) of the Madhya
Pradesh Civil Service Rules, 1961, they would
be deemed to be temporary government servant
with effect from date of expiry of probation and
their condition of service are governed by
Madhya Pradesh Government Servants
(Temporary and Quasi-Permanent Services)
Rules, 1960 as per Rule 13(7) of the Madhya
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
26
Pradesh State Administrative Services Rules,
1975 and Rule 8(7) of Madhya Pradesh Civil
Services Rules, 1961.
11. Thus, there would be a situation that a
person who clears the departmental examination
within normal period of probation and a person
who does not clear the departmental
examination within a period of two years plus
one year and is a temporary government servant
after the period of expiry of his probation and
does not clear the departmental examination for
a period of ten years and would come after ten
years to claim seniority with his batch. Such a
situation is not provided under the Rules and
would lead to total chaos and would be very
discouraging the persons who clear the
departmental examination within the period of
probation as provided under the Rules.
12. It is further submitted that the purpose of
departmental examination is to make the officers
competent for performing their duties in the
quasi-judicial capacity. That is why after the
selection of an officer, during the probation
period, an officer is supposed to pass
examination broadly of the following subjects:-
i. Criminal Procedure Code
ii. Civil Procedure Code
iii. Administrative Revenue Law and
Procedure
iv. Madhya Pradesh Panchayati Raj
Adhiniyam
v. Accounts
vi. Hindi
If an officer is not able to pass the examination
with the higher grade, he/she is not allowed to
work as Sub-Divisional Magistrate and Subdivisional Officer Revenue, as he cannot pass
any judicial/quasi-judicial order. The officer
who does not pass the examination, works only
as Deputy Collector and is given charge of
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
27
SDM/SDO Revenue only after he or she passes
the examination. Since the above departmental
examination procedure is very significant with
regard to the discharge of official duty, officers
who do not pass examination within the
probation period plus extended period, cannot be
equalled with the officers who pass the
examination within the abovesaid time limit.
That is why the confirmation of an officer
depends on the passing of the examination. The
moment he passes the examination, he is
confirmed by the department and is given the
seniority from that date. If, seniority of an
officer, is not affected by the delayed passing of
the examination, the significance and the very
basis of keeping the examination procedure,
would be defeated.”
C. It was submitted on behalf of the private Respondents as
under:-
“(vi) The consequences of not clearing the
departmental examination “within the probation
period” has been prescribed in Rule 13(7). It
would entail:-
(1) The probationer shall be, from the date
of expiry of his probation i.e., upon
completion of 3 years of probation,
deemed to have been appointed as a
Temporary Government Servant. The
provision is in mandatory language due
to the use of the word “shall” and
creates a “deeming fiction” by which a
such person is “appointed” as a
Temporary Government Servant.
Note:- Since Rule 13(7) creates a
“Deeming fiction” and therefore one is
required to treat an imaginary state of
affairs as real. It must also be
imagined in real the consequences and
incidents which inevitably flow from it.
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28
[See – M. Venugopal v. Divisional
Manager, LIC, Machilipatnam & Anr.
(1994) 2 SCC 323 (para 11).
(2) The Rule also provide that conditions
of such government servant would be
“…governed by the Madhya Pradesh
(Temporary and Quasi-Permanent
Service) Rules, 1960…”. Thus, the
probationer, upon unsuccessful
completion of the probation period
ceases to be part of the 1975 Rules and
is now to be governed by a separate set
of rules applicable to Temporary
Government Servants.
(vii) Due to the “Deeming Fiction” created by
13(7), after expiry of 3 years, the probationer
Ceases to be a probationer and becomes a
“Temporary Government Servant”. He would
then cease to be a member of the State
Administrative Service due to the application of
Rule 13(7) (or rule 8(7) of the 1961 Rules)
which have remained the same and have not
undergone any amendment. In M.P. Chandoria
vs. State of Madhya Pradesh (1996) 11 SCC
173 it was therefore specifically held as under:-
“… …If however, the period of
probation of any direct recruit is
extended…. Date of passing of the
test.”
14. While considering 1961 Rules vis-à-vis the status and rights of a
probationer, in M.P. Chandoria vs. State of Madhya Pradesh and
others2
, this Court had stated:-
“4. … …The probationer has to undergo such
training and pass such departmental examination
during the period of his probation as may be
prescribed. Sub-rules (4) and (5) are not relevant
2 (1996) 11 SCC 173
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
29
and are omitted. Sub-rule (6) of Rule 8 is
relevant for the purpose of the case which
envisages that on successful completion of
probation and passing the prescribed
departmental examination, if any, the
probationer shall, if there is a permanent post
available, be confirmed in the service or post to
which he has been appointed. Otherwise a
certificate shall be issued in his favour by the
appointing authority to the effect that the
probationer would have been confirmed but for
the non-availability of the permanent post. As
soon as a permanent post becomes available, he
will be confirmed. Under sub-rule (7), a
probationer, who has neither been confirmed nor
a certificate issued in his favour under sub-rule
(6), nor is he discharged from service under subrule (4), he shall be deemed to have been
appointed as a temporary government servant
w.e.f. the date of expiry of probation and his
conditions of service shall be governed by the
Madhya Pradesh Government Servants
(Temporary and Quasi-Permanent Service)
Rules, 1960.
5. Under Rule 12, the seniority of the members
of the service of a district branch or group of
posts of that service, shall be determined in
accordance with the principles laid down
therein. Sub-clause (i) of clause (a) envisages
that the seniority of a directly recruited
government servant appointed on probation shall
count during his probation from the date of his
appointment; the proviso is not relevant. Subclause (ii) envisages that the same order of inter
se seniority of direct recruits is maintained by
confirmation of the normal period of probation.
If, however, the period of probation of any direct
recruit is extended, the appointing authority
should determine the date from which the
candidate should be assigned seniority. Until the
probation period is completed and he is
confirmed in the post, he does not become a
member of the service on successful completion
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
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of the probation and passing of the prescribed
tests or conditions precedent to declaration of
completion of the probation period. So, mere
passage of time of one year does not entitle a
probationer to be a member of the service. He
remains to be on temporary service. On
completion of probation period, the appointing
authority should confirm him in a pending post
available or grant him a quasi-permanent status.
As soon as the post is available, he should be
confirmed. In view of the admitted position that
he did not pass the test, the appointing authority
considered that his seniority would be counted
w.e.f. the date of his passing the test. Rule 12(a)
(ii) clearly empowers the appointing authority to
assign, in these circumstances, the seniority in
lower level than the one assigned by the Public
Service Commission. We do not find any
illegality committed by the authorities in giving
seniority from the date of his passing the test.”
15. To similar effect are the observations of this Court in State of
M.P. vs. Ramkinkar Gupta and others3
:-
“7. It is quite evident that Respondent 1, who
had neither been confirmed, nor had certificate
been issued in his favour under sub-rule (6), nor
was he discharged from service under sub-rule
(4) would fall within the category of those
officers referred to in sub-rule (7) of Rule 8. In
other words, he was to be deemed to be a
temporary government servant with effect from
the date of expiry of probation.
… … …
9. According to sub-clause (ii) of clause (a) of
Rule 12 in a case like the present where a person
had been allowed to continue in service after the
period of probation had been completed and he
is confirmed subsequently, it is for the
3 (2000)10 SCC 77
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
31
appointing authority to decide as to from what
date he should be assigned seniority. In the
present case the decision of the State
Government was that he should be assigned
seniority w.e.f. 19-1-1984. The aforesaid rules
have been considered by this Court in the case
of M.P. Chandoria v. State of M.P.3
 The
principle laid down by this Court in Chandoria
case3
 was that if a person does not pass the test
then the appointing authority is empowered to
assign seniority in a lower level than the one
which was assigned by the Public Service
Commission. That being so the decision to
assign seniority to Respondent 1 w.e.f. 19-1-
1984 is in accordance with rules.”
16. The principles were reiterated by this Court in Om Prakash
Shrivastava vs. State of M.P. and another4
as under:-
“10. A bare reading of sub-clause (ii) of clause
(a) of Rule 12 makes the position clear that the
appointing authority has to decide as to from
what date the direct recruit is to be assigned. It
has to be decided whether seniority as assigned
to him if he had been confirmed on the expiry of
the normal period of probation or whether he
should be assigned a lower seniority. The
original probation period is two years.
Therefore, a combined reading of Rules 8, 12
and Rule 13 of the Executive Rules makes the
position clear that seniority can be assigned by
taking the relevant date to be the date of expiry
of normal period of probation. In the case of
Ram Rao Bhosley, it was 8-5-1992. So far as the
appellant is concerned, the appointing authority
has been given power to determine the date from
which the candidate should be assigned seniority
if the period of probation of any direct recruit is
extended depending on the date of his passing
the departmental examination. As was noted in
M.P. Chandoria case3
 until the probation period
4 (2005) 11 SCC 488
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
32
is completed, and he is confirmed in the post,
the employee does not become a member of the
service on successful completion of the
probation and passing of the prescribed tests or
conditions precedent to declaration of
completion of the probation period. Mere
completion of one year period does not entitle
the person to be a member of the service. He
continues to be in temporary service on the
completion of probation period. The appointing
authority is to confirm him in a pending post
available or grant him a quasi-permanent status.
Unless he passes departmental examination,
there is no question of completion of probation
and for all practical purposes the employee
continues to be in temporary service.
11. Reiterating the principles in M.P. Chandoria
case3
 it was held in Ramkinkar Gupta case4
 that
if a person does not pass the test then the
appointing authority is empowered to assign
seniority in a lower level than one which has
been assigned by the Public Service
Commission. A person who has neither been
confirmed, nor had a certificate in his favour in
terms of sub-rule (6), nor discharged from
service under sub-rule (4) would fall within the
category of those officers referred to in sub-rule
(7) of Rule 8 of the Rules. In other words, he is
to be deemed to be a temporary government
servant with effect from the date of expiry of
probation. The position is different in case of an
officer, who passes the departmental
examination within an extended period of
probation.”
17. It is submitted by the learned counsel for the Appellants that the
issue stands concluded in their favour by the decisions of the Division
Bench and the Full Bench of the High Court, as stated hereinabove, while
it is submitted by the State and the private Respondents that the seniority
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
33
issue ought to be determined in the light of the aforementioned decisions
of this Court.
It is true that the decisions of the Division Bench and the Full
Bench were challenged and not only the Special Leave Petitions but the
Review Petitions were also dismissed. But as observed by the Division
Bench in the instant case, the effect of Rule 13 of 1975 Rules was not
considered on the earlier occasions. Since the Division Bench has now
made a reference to a larger bench, we do not propose to enter into the
matter and decide the controversy but leave it to the High Court to
consider and decide all the issues.
18. It was, however, submitted by the learned counsel for the
Appellants that going by the settled parameters of “re-consideration” laid
down in Pradip Chandra Parija and others vs. Pramod Chandra
Patnaik and others5
and in Sakshi vs. Union of India and others6
, no
reference could and ought to have been made unless the earlier decisions
were so “palpably wrong” or so “very incorrect” that reference was called
for and in any case, the reference ought to have been to a bench of equal
strength (three Judges) in keeping with the law laid down by this Court in
5 (2002) 1 SCC 1
6 (2004) 5 SCC 518
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Warad Murti Mishra vs. State of Madhya Pradesh and anr.
34
Central Board of Dawoodi Bohra Community and another vs. State of
Maharashtra and another7
.
19. 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 of the
Full Bench on the earlier occasion requires reconsideration. The bench
may consider the effect of non-consideration of Rule 13 of 1975 Rules on
the earlier occasion as well as the impact of the decisions of this Court
quoted hereinabove on the controversy in question. The matters shall be
considered purely on merits and without being influenced by the dismissal
of Special Leave Petitions by this Court on the earlier occasions or
dismissal of the Review Petitions. We have not and shall not be taken to
have expressed any view touching the merits of the matters.
20. The Appeals stand disposed of in aforestated terms. No costs.
….…..………………….J.
[Uday Umesh Lalit]
….…..………………….J.
[Indu Malhotra]
New Delhi;
June 15, 2020.
7 (2005) 2 SCC 673 – paras 5 and 12