ORDER
1. This Review Petition is filed by the Chaitanya Grameena Bank represented by its Chairman – the 1st respondent in the Writ Petition No.10500 of 1995 seeking a review of the judgment dated 11-7-1997 in the said Writ Petition.
2. The Writ Petition was filed by three Branch Managers of the Cliaitanya Grameena Bank, contending that the seniority list prepared on the basis of ranking assigned at the time of selection should be altered on the basis of joining duty in the said post. The said Writ Petition was allowed relying on the judgment of the Supreme Court in Chairman, Puri Gramya Bank v. Ananda Chandra Das, (1994) 6 SCC 301. The learned Judge while, allowing the Writ Petition directed the 1 st respondent (Review Petitioner) to prepare the seniority list in accordance with the ranking given in the seniority list (sic selection list). Aggrieved by the same, some of the respondents in the Writ Petition filed WA No.1181 of 1997. The said Writ Appeal was dismissed by a Bench consisting of Justice Syed Shall Mohammed Quadri and Justice V. Bhaskar Rao and the judgment of the learned single Judge was accordingly confirmed.
3. Since the judgment of the learned single Judge was confirmed in Writ Appeal, the respondent-Bank had no alternative but to prepare the seniority list on the basis of ranking. While preparing the seniority list accordingly, the Bank had to consider Rule 13(3) of the Cliaitanya Grameena Bank Staff Service Regulations, 1983 (for short ‘the Rules’) which says that:
“In the case of an Officer or employee whose probation has been extended, his
seniority shall be reckoned just below all the Officers or employees, if any, recruited or promoted in the same batch along with him.”
4. In the case of one of the Officers viz., M. Balaji Rao, the probation was extended as he was absent for 205 days on personal sick grounds and on extra-ordinary leave during the period of probation and consequently his probation was confirmed on 30-6-1997. Therefore, his seniority has to be reckoned from the confirmation date, even though on the basis of ranking because of merit he was higher than others. In view of the above Rule 13(3) of the Rules which was not brought to the notice of the learned single Judge, the present Review Petition was filed.
5. The learned Standing Counsel for the Review Petitioner relying on M.P. Chandoria v. State of M.P., , contended that in the case of an Officer whose probation has been extended, his seniority shall be reckoned just below all the Officers or employees recruited or promoted in the same batch along with him.
6. While the learned Counsel for the respondents contended that the judgment of the learned single Judge has been confirmed in Writ Appeal, that the judgment of the learned single Judge is no longer open for review, that the review petitioner should have sought for review of the judgment in Writ Appeal and, therefore, the review petition is not maintainable. In support of his contentions, the Counsel relied on Sree Narayana Dharmasanghom Trust v. Swami Prakasamanda, . The Counsel also relied on the judgment of the Supreme Court in Direct Recruit Class II Engg. Officer’s Association v. Slate of Maharashtra, , wherein it was held that seniority has to be counted from the date of appointment and not from the date of confirmation.
7. In reply the learned Counsel for the Review Pelitioner contended that under Order XLVII Rule 1(2) he is entitled to file a Review Petition as the appeal was filed by the other respondents and not by the Review Petitioner and hence the Review Petition is maintainable.
8. Before considering the Review Petition on merits, let us consider the preliminary objection of the Counsel for the respondents/writ petitioners that the Review Petition is not maintainable. Order XLVII Sub-Rule (2) of Rule 1 reads as follows:
“A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of, of an appeal by some applicant and the appellant, or when being respondent, he can present to the Appellate Court the case on which he applies for the review.”
9. From a reading of the above provision, it appears that a party who has not filed an appeal from an order may seek a review of the judgment although some other party has filed an appeal and the said appeal is pending in cases where the ground of such appeal is not common to the Review Petitioner and the appellant. Admittedly, the Writ Appeal was not filed by the Review Petitioner. The Writ Appeal was tiled by the respondents. From a perusal of the judgment in Writ Appeal, it appears that the ground on which the appeal was filed was that the relevant date for the purpose of determining the seniority is the date of joining and not the ranking given in the selection list. White the ground for filing the Review Petition is that Rule 13(3) of the Rules which provides for placing the Officer whose probation has been extended below the seniority of all the Officers recruited in the same batch. Therefore, the ground of review is entirely different from the ground of appeal in the Writ Appeal and hence it cannot be said that the Review Petition is not maintainable. There cannot be any dispute about the
proposition laid down by the Supreme Court in Sri Narayana Dharmasanghom Trust’s case (supra) wherein it was held that even order of Supreme Court dismissing the SLP in limine would operate as a final order between the parties and the order passed in revision by the High Court would stand merged with the appellate order of the Supreme Court and, therefore, review of the order of the High Court is not maintainable.
10. it follows from the above that Review Petition is maintainable at the instance of the Review Petitioner-1st respondent.
11. The next question for consideration is whether the Review Petitioner is justified in fixing the seniority of an Officer whose probation is extended below the seniority of all the Officers recruited in the same batch under Rule 13(3) of the Rules. At this stage, it is necessary to refer to Rule 13(2), which provides for inter-se seniority of Officers directly recruited in a batch to any grade or scale shall be reckoned with reference to the rank allotted to them at the time of such recruitment. In other words, ranking given at the time of selection process shall determine the seniority of an Officer. However, under Rule 13(3), it is open to the employer to alter the seniority on the ground that on Officer’s probation has been extended and placed him below the seniority of all those Officers recruited in the same batch. I am of the view that Rule 13(3) confers a power inconsistent with the rule of seniority. The normal principle of seniority is the length of service on the ranking obtained at the time of selection. In other words, the length of service of an employee determines his seniority in a particular grade or scale. The length of service cannot be altered on the ground that the probation of the Officer has been extended. There is no nexus between the length of the service and the extension of probation. If the probation of an Officer is extended, that means he is inefficient in
service. The fact that an Officer is inefficient does not automatically result in reduction of the length of service. He continues to work from the date of his 1st appointment though inefficiently. The inefficiency determines his fitness for further promotion, but, does not reduce the length of service. Therefore, in the case of an Officer whose probation is extended, his seniority cannot be reduced by placing him below the Officers who were recruited in the same batch. The same reasoning applies to the determination of seniority on the basis of ranking. As pointed out by the Supreme Court in Chairman, Puri Gramya Bank’s case (supra), if once the merit list on the basis of the ranking secured at the time of the selection is prepared, it cannot be altered on the ground that the probation of an Officer is extended. Extension of probation of an Officer has no relevance as the said extension cannot alter the ranking. In this context, the observations made by the Supreme Court in the Direct Recruit Class II Engg. Officer’s Association’s case (4) arc relevant, which are as under:
“Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.”
12. The Judgment is by a bench consisting of five Judges viz., Sabyasachi Mukharji, CJ., Lalit Mohan Sarma, S. Ratnavel Pandian, P.B. Sawant and K. Ramaswamy, JJ.
13. In addition, if the probation of an Officer is extended, it indicates his inefficiency in the said post. Therefore, when the case of such an inefficient Officer comes up for consideration for promotion to the next higher post, because of his unsatisfactory performance, his case will be overlooked and his juniors having better record of service will be considered for promotion. For instance, the case of the respondent-petitioner M. Balaji Rao whose probation was extended and confirmed on 30-6-1997. When his case
comes up for consideration for promotion to the next higher post along with others, his case will be overlooked and his juniors who have satisfactory service record or who have better record of service will be preferred for promotion. It is now settled in the service jurisprudence that performance of the Officers is categorised as ‘outstanding’, ‘very good’, ‘good’, ‘average’, and ‘bad’. If the promotion to the next higher post is on the basis of seniority-cum-fitness, a person whose probation is extended is undoubtedly a person not fit to be promoted and, therefore, though he is senior, he will not be considered for promotion to the next higher post. Whereas in the case of promotion on the basis of selection, his extension of probation will categorize him to lower rank than the other Officers in the same batch whose probation has not be on extended.
14. From the above, it follows that Rule 13(3) of the Rules is contrary to the reason and arbitrary. It is true in M.P. Chandoria ‘s case (supra) a Division bench of Supreme Court consisting of K, Ramaswamy and G.B. Pattanaik, JJ.) held that in the case of an Officer seniority was counted with effect from the date of his passing the test under Rule 12(a)(ii) is valid. As pointed out above, the judgment in Direct Recruit Class II Engg. Officers’ Association’s case (supra) is by a bench consisting of five Judges to which K. Ramaswamy, J is a party. However, the judgment in Direct Recruit Class II Engg. Officers’ Association’s case (supra) was not brought to the notice of the learned Judges in M.P. Chandoria’s case (supra). The principle laid down in M.P. Chandoria’s case (supra) runs counter to the judgment in Direct Recruit Class II Engg. Officers’ Association’s case (supra).
15. It follows from the above, there are no merits in the Review Petition and it is accordingly dismissed. No costs.