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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S).  9856-9860 OF 2016 (Arising out of SLP (Civil) No(s). 6906-6910 of 2009)

R.VENKATA RAMUDU & ANOTHER ETC.  … Appellants

                               VERSUS

STATE OF A.P. & OTHERS         …   Respondents

WITH

CIVIL APPEAL NO. 9861 OF 2016 (Arising out of SLP (Civil) No. 29832 of 2009)

O R D E R

1. Leave granted.

2. These  two  appeals  arise  out  of  a  common  judgment  dated

18.12.2008 of the High Court of Judicature of Andhra Pradesh at

Hyderabad  (as  it  then  was)  in  writ  petition  nos.  16807,  16801,

23093, 23404, 23101 and 17219 of 2008.

3. These two appeals arise out of Writ Petition (C) No. 16807 of

2008 and Writ Petition (Civil) No. 17219 of 2008 respectively.

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4. It  is  agreed  that  the  facts  w.r.t.  all  the  three  appellants

involved in these two appeals are similar.  We therefore, take the

facts  of  appeal  arising  out  of  SLP(C)  No.  6906-6910 of  2009 as

representative facts.   

5. The  first  appellant  R.  Venkata  Ramudu  of  the

above-mentioned appeal, 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.   

6. The post  of  Assistant  Executive  Engineer is  the category VI

post of the service constituted under Rule 1 of the Andhra Pradesh

Engineering Service Rules, 1967 (hereafter “SPECIAL RULES”) made

under the proviso to Article 309 of the Constitution of India.  The

Rules  provide  for  various  aspects  of  the  service  including  the

constitution,  recruitment  and  other  matters  incidental  thereto.

Direct recruitment is one of the modes of recruitment for the said

post.      

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7. Rule 6(2) of the SPECIAL RULES stipulates that  “every person

appointed … as Assistant Executive Engineer by direct recruitment shall, from

the date on which he joins duty, be on probation for a total period of two years

on duty within a continuous period of three years”.  Rule 8(c) stipulates

that “an Assistant Executive Engineer appointed by direct recruitment shall,

within the period of his probation, pass the Account Test for P.W.D. Officers

and Subordinates”.

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

20.1.1997.   

9. By  proceedings  dated  17.7.2003  of  the  Engineer-in-Chief,

Irrigation and CAD (Commander  Area Development)  Department,

Hyderabad,  the  following  was  communicated  to  R.  Venkata

Ramudu:-

“Sri  R.  Venkata  Ramudu,  A.E.E.(D.B.3.6.64)  Zone-IV  was  selected  by  the A.P.P.S.C.  during  1992 and  allotted  to  this  Department.   Accordingly  he  was appointed as Assistant Executive Engineer in this office proceedings 1st cited and joined duty on 18.04.1992 FN.

Under rule 16(a) of A.P. State and sub-ordinate Service Rules, 1996, Sri R. Venkata Ramudu, Asstt. Exec. Engineer (DOB: 03.06.1964) Zone-IV is hereby placed on probation with effect from 18.04.1992 FN for a period of two years within the continuous period of three years.

He should pass the Account test for P.W.D. Officers and Subordinates and language test in Telugu within a probation period for the purpose of satisfactory declaration of probation.

He is informed that his placement of probation is subject to the condition that  his  services  are  liable  to  be  terminated  any  time  before  declaration  of probation under General Rules with one month notice or pay in lieu thereof.

Sd/- L. Banda Reddy,

                 Engineer-in-Chief,(Admn)”   

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The substance of the proceedings is that more than a decade after

R.  Venkata  Ramudu  joined  the  service  (on  19.4.1992),  the

Engineer-in-Chief purported to have placed R. Venkata Ramudu on

probation with retrospective effect from 18.4.1992FN! for a period of

two  years  within  the  continuous  period  of  three  years.

Interestingly,  the  communication  further  commands  R.  Venkata

Ramudu to pass two tests.  (i) Account test for PWD Officers and

Subordinates and (ii) language test in Telugu within the probation

period  for  the  purpose  of  satisfactory  declaration  of  probation!

Admittedly,  the  question  of  R.  Venkata  Ramudu  passing  the

language test in Telugu did not arise in view of the relevant rules1.

Admittedly by the date of the said communication (17.7.2003), R.

Venkata Ramudu had already passed the Account test for the PWD

officers, some six years prior to the communication!

10. The said communication is purportedly made in exercise of the

power under Rule 16(h) of the Andhra Pradesh State & Subordinate

Service Rules 1996 (hereinafter referred to as “GENERAL RULES”).

1     The requirement of passing a test in Telugu is a stipulation contained only in the GENERAL RULES (Rule 13) but Rule 14 clarifies that such requirement does not apply to the class of probationers specified therein.        Rule 14 (a)  Language Test – exemption :- (a)  A person who has passed the SSC or its equivalent examination or any other higher examination with Telugu as the medium of instruction and examination or with Telugu as one of the subjects, shall be exempted from passing the 2nd class language test in Telugu.

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11. Subsequently, by a memo dated 20th January, 2007 issued by

the Government of Andhra Pradesh purportedly in exercise of the

power under Rule 16(a) of the GENERAL RULES, 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 specified in the annexure to the said

proceedings.   

12. The relevant portion of  the proceedings dated 20th January,

2007 reads as follows:-

“In the circumstances reported by the Engineer-in-Chief, Irrigation and CAD Department,  Hyderabad in  the  Letters  cited  and after careful  consideration  of  the  matter,  Government  hereby  extend the probation and  fix the revised date of  commencement of probation in  respect  of  210  Assistant  Executive  Engineers,  as indicated in the Annexure enclosed (zone-Wise), in terms of Rule 16(h) of A.P. State and Subordinate Service Rules, 1996 read with Rule 6 of A.P. Departmental Test Rules, 1965.

2. The Engineer-in-Chief  (AW),  Irrigation & CAD Department, Hyderabad is requested to take necessary further action, as per rules in force in the manner.”

13. R. Venkata Ramudu and the two other appellants before us

are among the said 210 Assistant Executive Engineers.  According

to the annexure to the said proceeding, R. Venkata Ramudu was

shown to have passed the Account test on 20.1.1997. However, he

was shown to have completed probation on 27.7.2000.

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Annexure (to Govt. Memo No. 8477/Ser.1.2/2006-9, Dated 20-1-2007)

STATEMENT OF ASSISTANT ENGINEERS WHO PASSED ACCOUNTS TEST FOR PWD OFFICERS AND SUBORDINATES BELATEDLY

S.NO .  

NAME OF  THE  A.E.E.

DATE OF  BIRTH

ACTUAL DATE OF  COMMENCEMENT  OF PROBATION

DATE OF PASSING OF ACCOUNT  TEST FOR PWD  OFFICERS &  SUBORDINATES  PASSED

DATE OF  COMPLETION  OF PROBATION WITH  REFERENCE TO RULE 6 OF A.P., DEPT. L. TEST  RULE 1965 I.E.  LAST  THURSDAY

REVISED DATE  OF  COMMENCEMEN T OF PROBATION AS PER RULE  16(H) OF A.P.S. & S.S. RULES

* * **** ***** ****** ****** ****** * * *

****** * * *

23 R.  VENKATA  RAMUDU

30.06.19 64

18.04.1992 20.01.1997 27.07.2000 A N

27.07.1998 A N

* * **** ***** ****** ****** ****** * * *

****** * * *

14. It may be noted that Rule 16(h) does not provide for altering

the date of successful completion of the probation. It only provides

for  alteration  of  the  date  of  commencement  of  probation.   The

Andhra Pradesh Departmental Test Rules, 1965 relied upon for the

fixing  up of  a  different  date  for  completion of  probation are  not

placed before us.

15. Aggrieved by the communication dated 20.1.2007 referred to

supra (which in turn relied upon the proceedings dated 17.7.2003

of the Engineer-in-Chief), R. Venkata Ramudu (and others) initially

approached the A.P. State Administrative Tribunal by praying2 that

2“Hence in the interest of justice it is prayed that this Hon'ble Tribunal may be pleased to call for the records relating to impugned Memo No.8477/Ser.1.2/2006-9 dated 20.1.2007 and quash the same in so far as applicants are concerned by declaring the action of the respondents as illegal, bad and arbitrary and further direct the respondents to consider the case of the applicants for promotion to the post of Deputy Executive Engineer by taking into account their initial date of appointment with all consequential benefits and to pass such other order or orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.”

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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.

16. The Administrative Tribunal by a common order (in a number

of  connected  applications)  dated  28.7.2008  dismissed  all  the

original  applications.   Aggrieved  by  the  same,  the  unsuccessful

applicants  including  R.  Venkata  Ramudu unsuccessfully  carried

the  matter  in a batch of  writ  petitions to  the High Court  which

culminated in the judgment under appeal.

17. The Administrative Tribunal framed an issue at para 20:

“20. The facts of the case lead us to decide a single issue which is as follows:

Whether the applicants who were all Assistant Executive Engineers belonging to the A.P. Engineering Services are entitled to retain the date of commencement of services originally assigned to them by virtue of Note under Rule 8 of the Special Rules.”

and after discussing the pleadings and rival contentions before it at  

para 34 of its order recorded certain conclusions:  

“34.  The sum and substance of the above discussion leads us to the following conclusions :

1) All the applicants were appointed by way of direct recruitment and therefore, they commence their probation from the date of joining upon first appointment initially by the mandate of Rule 6 of the Special Rules.

2) Rule 16(h) of the General Rules over rides the provisions of the Special Rules.   Further note under Rule 8 of the Special Rules

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cannot be read in isolation in the absence of any provision with  regard  to  the  declaration  of  probation  in  the  Special Rules.

3) The said note under Rule 8 of the Special Rules has to be read in consonance with the rules pertaining to the declaration of probation in the General Rules.

4) The Note under Rule 8 cannot take away the effect of the rule itself and further it has to yield the mandatory overriding pro- visions of Rule 16(h) of the General Rules.

5) There is no need for the appointment order to specifically re- quire the appointees to pass the tests in accordance with the special  and general  rules.   The moment  an appointment is made  by  way  of  direct  recruitment,  the  mandate  of  rule  6 would require the appointees to pass the required tests as laid down in the General as well as in the special rules within the stipulated periods.

6) The Government not only invoked their powers under Rule 31 of the General Rules but also exercised the powers under Rule 16 (h) thereof.   The inter se seniority among the direct re- cruits which has to be fixed in accordance with the rule 33(a) & (b) of General Rules has to yield to the overriding clause in Rule 16(h).”

and  eventually  dismissed  the  O.As,  the  operative  portion  of  the

order reads as under:

“48. In view of the above circumstances, the issue framed must  be  answered  against  the  applicants  in  terms  of  the conclusion already stated above.   Therefore, it is held that the impugned  proceedings  together  with  all  such  consequential orders are perfectly valid and legal and the same were issued in accordance with the Special Rules read with General Rules.   As a result, the O.As., are liable to be dismissed.   Accordingly, all the O.As, are dismissed.    VMAs are allowed.”

18. The High Court took note of the conclusions recorded by the

Administrative  Tribunal  and did not  find any reason to  interfere

with the order  of  the Tribunal.   In other words,  the High Court

endorsed both the logic and conclusions recorded by the Tribunal.

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19. The reason assigned by the High Court for such conclusion are

to be seen at para 11 of the judgment under appeal:

“11.    Obviously  as  rightly  contended  by  learned  Government Pleader the petitioners have passed the departmental test beyond the  prescribed  period  of  probation,  though  they  are  directly recruited  through  A.P.P.S.C.  as  Assistant  Executive  Engineers. Since  the  petitioners  themselves  did  not  qualify  or  pass  the departmental test within period of probation and the provision in Note to Rule 8(c) only saves them against discharge from service and the Special  Rules  are silent  on the  method of  extension of probation, in view of Rule 16(h) which operates qua to any other provisions  either  in  general  rules  or  special  rules  the  Tribunal rightly  came  to  the  conclusion  that  normal  principle  of determination of seniority based on ranking has no application in cases where the employees does not pass the prescribed test within the probation.   In the instant case the Government vide impugned proceedings extended the period of probation of the petitioners in the first instance and thereafter fixed the date of commencement of probation as mandated by Rule 16(h) of the Rules.   Admittedly, the  power  to  extend the  period  of  probation  is  vested  with  the Government and therefore the Government issued the impugned proceedings fixing the revised date of commencement of probation in respect of the petitioners having extended their probation vide first  part  of  the impugned order.     The Government thereupon invoked Rule 16(h) of the Rules revising the date of commencement of probation.   In view of clear and categorical expression of Rule 16(h) that notwithstanding anything contained in Special Rules or Sub-Rules (a) and (b) of Rule 33 of General Rules, Rule 16(h) will over  ride  any provisions under  the  Special  Rules,  including  the Note under Rule 8 thereof insofar as the date of commencement of periods  of  probation  of  the  individuals  who  do  not  pass  the departmental  tests  within  the  period  of  probation  or  extended period of probation are concerned.

20. Before  we  examine  the  correctness  of  the  judgment  under

appeal,  we  deem  it  appropriate  to  examine  the  scheme  of  the

RULES relevant to the context of the case.   

21. The erstwhile  State  of  Andhra Pradesh initially  made Rules

known as Andhra Pradesh State and Subordinate Rules, 1962 in

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exercise of the power conferred by the proviso to Article 309.  The

said  rules  contain  various  stipulations  regarding  the  various

aspects of employment under the State, the details of which may

not be necessary for  the present purpose.   The said Rules were

superseded by the GENERAL RULES (1996 Rules referred to supra).

22. Under  Rule  1(d)  of  GENERAL  RULES,  it  is  stipulated  as

follows:-

“1(d) Relation to Special  Rules:-  If any provisions in these rules  are  repugnant  to  the  provisions  in  the  special  rules applicable  to any particular service in regard to any specific matter,  the latter  shall,  in respect  of  such service and such specific matter, prevail over the provisions in these rules.”

In substance, providing that in the event of  conflict between the

GENERAL  RULES  and  any  special  Rules  applicable  to  any

particular  service,  the  special  Rules  prevail  over  the  GENERAL

RULES.   The  expression  “Special  Rules”  is  defined  under  Rule

2(31)3.  It is not in dispute that the Andhra Pradesh Engineering

Service Rules, 1967 are Special Rules within the meaning of Rule 2

(31) of the GENERAL RULES.  

23. We shall  now examine the  SPECIAL RULES relevant in  the 3    Rule 2 (31) Special Rules  - “Special Rules” mean the rules applicable to each service or

class or category of a service, which include ad-hoc rules applicable to temporary posts in a service, or class or category, which are not covered by the special rules.

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context.   

24. Rule  64 of  the SPECIAL RULES prescribes both the date  of

commencement of probation and the period of probation of persons

appointed as Assistant Engineers by direct recruitment.  

25. Rule  8(c)5 stipulates  that  an  Assistant  Executive  Engineer

shall within the period of his probation pass the “Account test for

PWD officers and subordinates”.

A Note appended to Rule 8 stipulates as follows:-

“Any such Assistant Executive Engineer on probation shall not be discharged for failure to pass the above test within the period of his  probation,  but  his  probation  shall  be  extended and  his increment stopped till he passes the test.”

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

4   Rule 6 – Probation – (1)  ………….. xxxxx …………………xxxxx………………..xxxxx   (2)  Every person appointed as Deputy Executive Engineer or Asst. Executive Engineer by direct recruitment shall, from the date on which he joins duty, be on probation for a total period of two years on duty within a continuous period of three years.

5    Rule 8(c) An Assistant Executive Engineer appointed by direct recruitment shall, within the period of his probation, pass the Account Test for P.W.D. Officers and Subordinates.

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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.    

29. We now examine the second part of the Conclusion No. 4 that

the note appended to Rule 8 has to “yield to the mandatory overriding

proviso  of  Rule  16(h)” of  the GENERAL RULES.   To determine the

correctness of the said conclusion, an examination of the relevant

GENERAL RULES is required.

30. Rule 16 of the GENERAL RULES deals with various aspects of

the  probation  of  direct  recruits,  such  as  the  commencement  of

probation  (16(a)),  period  of  probation  (16(c)),  passing  of  tests  or

acquiring  qualifications  prescribed  either  in  the  GENERAL  or

SPECIAL RULES (16(e)).

31. Any person appointed to public services is normally kept on

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probation for some period.  The period of probation is fixed by law

for any service.  Rule 16(c) stipulates different periods of probation

for different classes of people appointed through different modes of

employment.  The relevant clauses of Rule 16 read as under:

“(c)  Period of Probation – Unless otherwise stated in the special rules or in these rules, the period of probation shall be as follows:

(i)    Every person appointed  by direct recruitment to any post shall, from the date on which he commences his probation be on probation for a period of two years on duty within a continuous period of three years;

(ii)   Every person appointed to any post either by promotion or by transfer (not by transfer on tenure) shall, from the date on which he commences his probation, be on probation for a period of one year on duty within a continuous period of two years.”

(e)  Tests  to  be  passed  during  probation:-  A  person  who  has commenced  his  probation  in  a  service,  class  or  category  shall, within the period of probation, if so required in the special rules or these rules, pass such tests or acquire such qualifications as may be prescribed in these rules or in the special rules applicable to such service, class or category.

(f) (i) If within the period of probation a candidate fails to pass such tests or acquire such qualifications as may be prescribed in these rules  or  in  the special  rules,  the  appointing  authority  shall,  by order,  discharge  him  from  the  service  unless  the  period  of probation is  extended under  the  sub-rule  (b)  of  Rule  17 and if within such extended period also, the candidate fails to pass such tests  or  acquire  such  special  qualifications,  the  appointing authority shall discharge him from service.”

32. While Rule 16(e) obligates a probationer to pass the prescribed

tests  within  the  period  of  probation,  Rule  16(f)(i)  prescribes  the

consequences  of  the  failure  to  pass  the  prescribed  tests.    It

mandates  “the  appointing  authority  shall  by  order  discharge” the

probationer from service “unless the period of probation is extended under

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sub-rule  (b)6 of  Rule  17”.    Rule  17(b)  specifically  authorises  the

appointing  authority  (for  short  “AA”)  to  extend  the  period  of

probation by not more than one year of a probationer who fails to

pass  the  prescribed  test  only  for  the  purpose  of  enabling  the

probationer to pass the test.

33. Rule  17(a)(ii)7 stipulates  that  the  AA may either  extend the

period of probation or terminate the probation and discharge the

probationer.   Obviously such a decision is required to be taken by

the  AA  at  the  end  of  the  prescribed  period  of  probation  of  a

probationer8.  The considerations relevant for the exercise of such

power are also indicated in Rule 17(a)(ii).

6      Rule 17. Suspension, termination or extension of probation-   xxx xxxx xxx xxx   (b) In the case of any probationer failing to pass the tests or acquire the prescribed qualifications, the appointing authority may extend his probation to enable him to pass the prescribed tests or acquire special qualifications., as the case may be.  Such extension by the appointing authority shall not exceed one year, whether on duty or otherwise in such service, class or category.  

7  Rule 17(a)(ii). The appointing authority may, at any time, before or after the expiry of the prescribed period of probation either extend by not more than on year, whether on duty or otherwise,  the period of  probation of  a probationer,  in case the probation has not  been extended under sub-rule (b) of this rule or terminate his probation and discharge him from service after giving him one month’s notice or one month’s pay in lieu of such notice, on account  of  unsatisfactory  performance  or  progress  during  training  or  unsatisfactory performance of  duties or unsatisfactory conduct or for  any other sufficient reason to be recorded in writing.

8     Rule 18. Declaration of probation :- (a) At the end of prescribed or extended period of probation, as the case may  be,  the  appointing  authority  shall  consider  whether  the  probationer  should  be  considered  to  have satisfactorily completed his period of probation and after taking a decision in this regard, he shall issue an order declaring the probationer to have satisfactorily completed his probation.

(b) (i) The decision whether the probationer has satisfactorily completed his probation or whether his probation should be extended, shall be taken soon after the expiry of the prescribed period of probation.  If any lapses are noticed during the period of probation by the appointing authority or a higher authority, such lapses  should  be  communicated  to  the  probationer,  as  soon  as  such  lapse  is  noticed,  so  as  to  enable  the probationer to rectify such lapses.  A decision whether a probationer could be considered to have satisfactorily completed his probation or his probation should be extended or discharged or suspended shall be taken within a period of 8 weeks after the expiry of the prescribed period of probation.”

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“……on account of unsatisfactory performance or progress during training or unsatisfactory performance of duties or unsatisfactory conduct  or  for  any  other  sufficient  reason  to  be  recorded  in writing.”

34. 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 a non-obstante

clause providing for overriding effect to them over the special Rule 8

of SPECIAL RULES.

36. Rule 189 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

9   See  F/N 8.

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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.   

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

10   Rule 16(a) – Commencement of probation for direct recruits – A 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 probation -  Notwithstanding anything contained in the special rules or sub-rules (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 this sub-rule shall 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 sub-rule (b) of Rule 33, prior to the said date.

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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.     

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

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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.

The non-obstante clause 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

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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.

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“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

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

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, (2000) 9 SCC 717, State of M.P. v. Ramkinkar Gupta & Others, (2000) 10  SCC 77 and S.P. Badrinath v. Govt. of A.P. & Others, (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.

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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.

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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.  

44. For the abovementioned reasons, the judgment under appeal

cannot be sustained and the same is accordingly set aside. As a

consequence, the OAs filed by R. Venkata Ramudu and others are

required to be allowed, as prayed for.  Ordered accordingly.

…..…..................................J.                                              (J. CHELAMESWAR)

……....................................J.    (ABHAY MANOHAR SAPRE)

New Delhi September 27, 2016

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