* HIGH COURT OF DELHI: NEW DELHI
+ Writ Petition (Civil) No. 3450/1998
Judgment reserved on: July 20, 2009
% Judgment delivered on: August18, 2009
Union of India & Ors. ..... Petitioners
Through: Ms. Jyoti Singh and Mr. Ankur
Chhibber, Advocates
Versus
Tarseem Lal Verma ..... Respondent
Through: Respondent in person.
Coram:
HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers may Yes
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
A.K. PATHAK, J.
1. The Petitioner has filed this writ petition praying therein that the order dated 3rd October, 1997 passed by Principal Bench of Central Administrative Tribunal at New Delhi (for short hereinafter referred to as "Tribunal") in O.A. No. 1211/1991 be quashed.
W.P. (C) No. 3450/1998 Page 1 of 22
2. Briefly stated facts of this case are that the Respondent was appointed as Photographic Officer (Group B Gazetted Non- Ministerial post) in the Armed Forces Headquarters in the pay scale of Rs. 650-1200/-, pursuant to the recommendation made by the Union Public Services Commission (UPSC). Since respondent was having fifteen years experience in the field UPSC recommended five advance increments, at the time of appointment. Respondent was a schedule tribe candidate and was appointed against the reserved post. Respondent joined on 16th July, 1986.
3. Terms and conditions of appointment, as contained in the Office Memorandum dated 11th July, 1986 show that the Respondent was put on probation for a period of two years from the date of his appointment. It was further mentioned in the appointment order that the probation was extendable at the discretion of the competent authority; that failure to complete the period of probation to the satisfaction of the competent authority will render Respondent liable to be discharged from the service.
W.P. (C) No. 3450/1998 Page 2 of 22
4. Respondent was not confirmed after completion of probation period of two years. Instead, vide order dated 31st October, 1989 Petitioner extended the period of probation of the Respondent upto to 15th July, 1990.
5. Aggrieved by the aforesaid order Respondent filed an original application bearing O.A. No. 371/90 before the Tribunal praying therein that the order dated 31st October, 1989 whereby his probation period was extended upto to 15th July, 1990 be quashed and his services be declared as permanent on the post of Photographic Officer with effect from 15 th July, 1988. Respondent alleged that after expiry of two years from the date of his appointment he must be declared deemed to have been confirmed on the post of Photographic Officer more so, when his period of probation was not extended within the period of two years from the date of his appointment and was extended only after lapse of 550 days from the date of completion of period of probation.
6. As per the Petitioner D.P.C. met on 18th October, 1989 and assessed the work of respondent on the basis of his Annual Confidential Report Dossier. D.P.C. found work of Respondent W.P. (C) No. 3450/1998 Page 3 of 22 unsatisfactory and recommended for extension of period of probation. Consequently probation period of respondent was extended.
7. Vide order dated 16th July, 1990, Tribunal disposed of the O.A. No. 371/1990. Tribunal held that in absence of any stipulation in the relevant recruitment rules that the maximum period of probation was only two years Respondent will not be deemed to have been confirmed on expiry of two years probation period. Tribunal directed the Petitioner to dispose of the representation of the Respondent against the adverse remarks for the year 1986 and thereafter to convene a review D.P.C. to consider the suitability of the Respondent. It appears that Respondent filed a review petition but the same was also dismissed by the Tribunal.
8. Respondent filed a Special Leave Petition (Civil) No. 10609/1996 before the Supreme Court against the order dated 24th February, 1993 passed in R.A. No 174/92 in O.A. No. 371/90 and the same was dismissed vide order dated 10 th February, 1997. Plea taken by the Respondent that on expiry of probation period of two years he was deemed confirmed, was W.P. (C) No. 3450/1998 Page 4 of 22 rejected. Relevant portion of the aforesaid order is reproduced hereunder for the sake of ready reference:-
"The Petitioner tried to place reliance on the Armed Forces Headquarters Civil Services Rules, 1968 and in particular Rule 13(3) which provides that the total period of probation can be extended not beyond one year. According to him, therefore, when one year beyond the period of two years expired he became automatically confirmed in the job. But these rules do not apply to him because he is governed by the 1982 rules which we have referred to earlier. Reference was also made by the petitioner to an Office Memorandum dated 7th October, 1970 but since the 1982 rules clearly superseded the earlier rules any instruction issued on the basis of the earlier rules can have no application. That is why the Tribunal in paragraph 12 of the impugned order states that there was no stipulation in the relevant recruitment rules fixing the maximum period of probation at two years. It further notices that the petitioner was allowed to continue in service even after the expiry of the probation period of two years to enable him to show improvement. That being so, we do not see any infirmity in the order of the Tribunal. That is being the only point urged before us, we see no merit in this petition and dismiss the same."
9. Respondent had also filed an original application being O.A. No. 1621/90 challenging adverse remarks in his Annual Confidential Reports for the period 16th July, 1986 to 31st December, 1986 and 1st January, 1987 to 31st December, 1987. Respondent alleged that adverse remarks were given due W.P. (C) No. 3450/1998 Page 5 of 22 to the complaint made by him against D.D. (G) and were tainted with malafide. However, this O.A. was dismissed by the Tribunal vide order dated 26th April, 1991. While dismissing the O.A., Tribunal in paragraph 14 of the order observed as under :-
"It would be seen from our above discussion that the remarks are far from being entirely baseless and we notice aspects finding support in the applicant's own pleadings which support them. Presuming for the sake of argument that DD(G) nursed prejudice against the applicant as in representation against the remarks of 1986 a mention of it figures, but none figures in the representation against the remarks for 1987. There is no mention in these representations of any prejudice on the part of the Director, the reviewing authority. These representations were decided in the Ministry. There is no allegation of prejudice even in the O.A. against any concerned functionary in the Ministry. So far as orders not being furnished with reasons is concerned, as stated above that is not an illegality to render the decision on the representation against the adverse remarks and the adverse remarks void."
10. Consequent to dismissal of this O.A. the adverse remarks in the Annual Confidential Reports of the respondent stands against him.
11. Respondent again filed an original application being O.A. No. 1211/1991 praying therein that the Petitioner be directed to confirm the Respondent in service from the date he had W.P. (C) No. 3450/1998 Page 6 of 22 completed the stipulated period of probation of two years. During the pendency of this O.A., D.P.C. was held on 16th March, 1992 and scrutinized the Annual Confidential Reports of Respondent and found him unfit for confirmation in the order. Thus, Petitioner decided to discharge Respondent from the service and issued notice dated 5th May, 1993, stating therein that he shall stand discharged from service with effect from the date of expiry of period of one month from the date on which notice was served on, or, as the case may be, tendered to him. Notice dated 5th May,1993 is reproduced herein under :-
"In pursuance of Rule 5(1) of the CCS (Temporary Service) Rules, 1965 read with para 2 (i) of Government of India, Ministry of Defence Memorandum No. A/14295/CAO/R-I dated 11th July, 1986, I, Abraham Prathipati, Additional Secretary, hereby give notice to Shri Tarseem Lal Verma, Photographic Officer, AFFPD, on probation, that he shall stands discharged from service with effect from the date of expiry of period of one month from the date on which this notice is served on, or, as the case may be, tendered to him."
12. On receipt of this notice Respondent filed miscellaneous petition being No. 1492/1993 in the pending O.A. No. 1211/1991 seeking leave to amend the O.A. by incorporating the prayer regarding quashing of the notice of discharge dated 5 th May, 1993 W.P. (C) No. 3450/1998 Page 7 of 22 issued by the Petitioner. Subsequently, vide order dated 3rd October, 1997 Tribunal allowed O.A. No. 1211/1991 and quashed the discharge notice dated 5th May, 1993 and ordered for reinstatement of Respondent forthwith along with full back wages. Tribunal also awarded cost of Rs. 5,000/- to the Respondent. This very order has been impugned by the Petitioner in this writ petition.
13. Tribunal held that even though services of Respondent were put on probation, the appointment was substantive in nature as such, simpliciter order of discharge was not in accordance with the rules. It was not desirable that an employee should be kept for more than the double the normal period under any circumstances, on probation. Respondent had continued to work almost for six years. In absence of any communication of any such specific order of extension, the continuance of the probation for almost six years cannot be said to be in accordance with any known principles or rules. Accordingly, order of discharge was liable to be quashed. Tribunal held that grounds of malafide alleged by the Respondent were not specifically denied by the Petitioner, therefore, it can be safely said that order of discharge W.P. (C) No. 3450/1998 Page 8 of 22 was issued with malafide intentions. By placing reliance on Ajit Singh versus State of Punjab reported in 1983(2) SLR 1 Tribunal held that grant of increments to the Respondent every year indicated that his performance was satisfactory. For the above reasons Tribunal quashed the notice of discharge and ordered reinstatement of the Respondent.
14. Pursuant to the order dated 3rd October, 1997 Petitioner reinstated the Respondent on the post of Photographic Officer vide order dated 15th October, 1997. Order of reinstatement reads as under :-
"The Honourable Tribunal in its judgment dated 03 Oct 97 has ordered the re-instatement of Shri Tarseem Lal Verma, Photographic Officer, forthwith on receipt of a copy of the judgment apart from ordering other reliefs mentioned in the judgment. Shri Tarseem Lal Verma was discharged from service vide Order No. A/73311/88/R/CAO/P-2 dated 07 June, 1993.
2. Shri Tarseem Lal Verma reported to this office on 10 Oct 97 (FN) with a copy of the aforesaid judgment requesting re-instatement. The official copy of the judgment was also received on the same day. The matter was accordingly submitted to the competent authority.
3. The competent authority has approved the re- instatement of Shri Taseem Lal Verma in service with effect from 10 Oct 97 in pursuance to the aforesaid directions of the Hon'ble Tribunal, W.P. (C) No. 3450/1998 Page 9 of 22 subject to outcome of resort to legal remedies available to the Government as may be advised.
4. Shri Tarseem Lal Verma is accordingly re- instated in service with effect from 10 Oct 97 in the grade of Photographic Officer and is posted to AFFPD. H e is required to be taken on strength of FFPD from the same date and charge assumption report be forwarded accordingly."
15. Bare reading of aforesaid order shows that while reinstating the Respondent, Petitioner reserved its right to challenge the order dated 3rd October, 1997 of the Tribunal. Thus it cannot be said that Petitioner is estopped from filing the present writ petition after having reinstated the Respondent.
16. We have heard learned counsel for the Petitioner and the Respondent who appeared in person. Petitioner's counsel has vehemently contended that performance of the Respondent was not satisfactory and this fact has been recorded in his Annual Confidential Reports. Respondent had challenged adverse remarks in his Annual Confidential Reports for the period (16.07.1986 to 31.12.1986 and 01.01.1987 to 31.12.1987) by filing O.A. No. 1621/1990 but the same was dismissed. Even Annual Confidential Reports of the respondent for the subsequent period were adverse. DPC adjudged the performance of Respondent on the basis of Annual Confidential Reports and W.P. (C) No. 3450/1998 Page 10 of 22 did not find him fit for confirmation. Accordingly a decision was taken by the Petitioner not to confirm Respondent on the post of Photographic Officer. Learned counsel has further contended that Respondent cannot be deemed confirmed merely because he continued to serve for a period of six years. Admittedly, no order of confirmation was passed by the Petitioner and no maximum period of probation was provided in the rules thus, Respondent continued to be a probationer. Tribunal also failed to take note that the plea of Respondent regarding his deemed confirmation was already rejected by the Supreme Court. According to her Tribunal erroneously ordered for reinstatement of the Respondent.
17. As against this, Respondent has contended that he was appointed on the post of Photographic Officer and was put on probation only for a period of two years. After completion of probation period of two years he would be deemed to have been confirmed. More so when his probation period was not extended immediately. Probation period cannot be stretched for a long period of six years. Accordingly, his service could not have been discharged simpliciter. By issuing notice of discharge Petitioner W.P. (C) No. 3450/1998 Page 11 of 22 had violated Article 311 of the Constitution. He has further contended that various high dignitaries and officers had issued appreciation letters in his favour, which shows that his work was very good. On the one hand, appreciation letters were issued by various high officials, on the other, next superior officer of the Respondent gave adverse entry in his Annual Confidential Reports. According to him this fact itself reveals that adverse entry in the Annual Confidential Reports were incorrect. He further contended that adverse remarks in the assessment report for the period 16th July, 1986 to 15th July, 1988 were expunged by the Competent Authority vide order dated 26th September, 1989 but this fact was ignored by the D.P.C. In nutshell his argument is that notice of discharge is bad in the eyes of law and same has been rightly quashed by the Tribunal.
18. We have considered the rival contentions of both parties. However, we do not find any force in the contention of Respondent that after expiry of probation period of two years he was deemed confirmed. In fact this issue is now no more res integra in view of the order dated 10th February, 1997 passed by the Supreme Court in Special Leave Petition (Civil) No. W.P. (C) No. 3450/1998 Page 12 of 22 10609/1996, which we have noted in the earlier paras. After the period of probation of the Respondent was extended upto 15th July, 1990, he had approached Tribunal by filing O.A. No. 371/1990 praying therein that the order, whereby his probation was extended, be quashed and he be deemed confirmed on the post of Photographic Officer with effect from 15 th July, 1988. However, this plea was rejected by the Tribunal. Respondent took the matter up to the Supreme Court without any success. Supreme Court held that Respondent was not deemed confirmed after expiry of probation period of two years. Supreme Court further observed that the Respondent was allowed to continue in service even after the expiry of probation period to enable him to show improvement. Thus, we are of the view that Respondent cannot be allowed to re-agitate the same issue again and again in subsequent legal proceedings.
19. Even otherwise, law on this point is well settled. The mere stipulation of a specific period of probation by itself cannot lead to the inference that upon its expiry, the employee would be deemed confirmed. The condition or stipulation has to be more categorical about intention to treat the employee as a confirmed W.P. (C) No. 3450/1998 Page 13 of 22 employee on expiry of period of probation. The employee would remain on probation even after expiry of probation period until and unless an order of confirmation is passed. Merely because probationer continued to work on the post even after expiry of probation period by itself would not be sufficient to infer that such an employee had been confirmed. A probationer would continue to remain on probation even after the expiry of probation period unless a maximum probation period is prescribed in the rules.
20. In State of Punjab Vs. Dharam Singh reported in AIR 1968 SC 1210 Supreme Court has held as under:-
"This Court has consistently held that when a first appointment of promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation, he should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules. In such a case, an express order of confirmation is necessary to give the employee a substantive right to the post, and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation it is not possible to hold that he should be deemed to have been confirmed. This view was taken in Sukhbans Singh v. The State of Punjab1963 (1) SCR 416, G.S. Ramaswamy v. The Inspector-General of Police, Mysore State, W.P. (C) No. 3450/1998 Page 14 of 22 Bangalore [1964] 6 S.C.R. 278, The Accountant General, Madhya Pradesh, Gwalior v. Beni Prasad Bhatnagar [C.A. No. 548 of 1962 decided on January 23, 1964.], D.A. Lyall v. The Chief Conservator of Forests, U.P. and others [C.A. No. 259 of 1963 decided on February 24, 1965.] and State of U.P. v. Akbar 1963 (3) SCR 821. The reason for this conclusion is that where on the completion of the specified period of probation the employee is allowed to continue in the post without an order of confirmation, the only possible view to take in the absence of anything to the contrary in the original order of appointment or promotion or the service rules, is that the initial period of probation has been extended by necessary implication."
21. In this case no maximum period of probation has been provided under the Rules. Accordingly it cannot be inferred that Respondent was confirmed after an extended period of probation. Accordingly, we are of the opinion that Tribunal has taken an erroneous view that the continuance of probation of the Respondent for six years was not in accordance with any norm, principle or rules and that the order of discharge passed due to non completion of probation period was liable to be quashed.
22. We also do not find any force in the contentions of Respondent that his performance was good and no adverse entry in his Annual Confidential Report was there, after the competent W.P. (C) No. 3450/1998 Page 15 of 22 authority expunged adverse remarks in his assessment report for the period 19th July, 1986 to 15th July, 1988 which was informed to him by Deputy Director, Ministry of Defence vide letter dated 26th September, 1989. We have perused this letter and find that adverse remarks in the assessment report were expunged. However, fact remains that the adverse entries in his Confidential Report remained as it is. Respondent had himself challenged the adverse entries in his Annual Confidential Reports for the period 16th July, 1986 to 31st December, 1986 and 1st January, 1987 to 31st December, 1987 by filing O.A. No. 1621/1990 which was dismissed by the Tribunal vide order dated 26 th April, 1991. Meaning thereby adverse remarks in the Annual Confidential Reports for this period remained as it is.
23. D.P.C. took into consideration the Annual Confidential Reports of the Respondent for the period 1986 onwards and did not find his work and performance to be satisfactory. Decision of the Petitioner is based on the recommendation of the D.P.C. and cannot be faulted.
24. Respondent has filed voluminous record of appreciation/commendation letters. However, on the scrutiny of W.P. (C) No. 3450/1998 Page 16 of 22 the same, we find that most of these letters do not pertain to the relevant period i.e. 16th July, 1986 to 5th May, 1993. Only nine such letters pertain to this period. These letters did not form part of Annual Confidential Reports Dossier of the Respondent. It appears that during this period Respondent had done photographic jobs in some departments and the letters of appreciation had been issued by individual officers working in the said Department. These letters have neither been issued by Government or Secretary or Head of Department of the Respondent. Office Memorandum no. 51/5/72Ests. (A) issued by Government of India, Department of Personnel deals with guidelines as to the issuing authority of such appreciation/commendation letters and the manner in which the same have to be considered in the matter of promotion of a Government servant. The said Office Memorandum is reproduced as under :-
1. Government policy in general discourages granting letter of appreciation or note of commendation to its employees and placing it in the Confidential Report Dossier. Appreciation of work should more appropriately be recorded in Annual Confidential Reports rather than in letters of appreciation which do not give complete W.P. (C) No. 3450/1998 Page 17 of 22 perspective of the Government servant's good and bad points.
2. Letters of appreciation issued in the following cases by the authorities specified therein, may, however, be kept in the Confidential Report Dossier of the Government servants concerned:-
(a) Issued by the Government or a Secretary or Head of Department in respect of any outstanding work done.
(b) Issued by special Bodies or Commissions or Committees, etc. or excerpts of their reports expressing appreciation for a Government servant by name.
(c) From individual non-officials or from individual officials (other than a Secretary/Head of Department) if confined to expressing appreciation for services rendered far beyond the normal call of duty: provided the Secretary or the Head of the Department so directs.
3. The mere fact that a stray letter of appreciation goes into the Confidential Report does not give the officer undue advantage in the matter of promotion which is governed more by consideration of general and consistently high performance than occasional flashes of good work.
25. Para 2 (C) of the aforesaid Office Memorandum shows that appreciation/commendation letters issued by the individual officials, if confined to expressing appreciation for services rendered far beyond the normal call of duty, can be taken in Annual Confidential Reports Dossier of a Government servant if W.P. (C) No. 3450/1998 Page 18 of 22 Secretary or the Head of Department so directs. In this case neither the Secretary nor the Head of Department of the Respondent had directed for keeping these appreciation letters in the Annual Confidential Reports Dossier of the Respondent. Besides this, para 3 of the Office Memorandum demonstrates that such stray letters would not give undue advantage to an officer in the matter of promotion. Accordingly, there was no occasion for the D.P.C. to consider such letters while assessing the performance of the Respondent.
26. We are of the view that D.P.C. has rightly adjudged the performance of the Respondent on the basis of his Annual Confidential Report and other material placed before it. After scrutinizing the material available before it, D.P.C. recommended that performance of the Respondent was not good and his probation period was not liable to be confirmed. In our view Tribunal had committed an error by ignoring this fact and substituting its finding that the work of Respondent was satisfactory merely on the ground that the Petitioner had granted annual increments to the Respondent during his probation period. We are also of the view that Tribunal was not right in W.P. (C) No. 3450/1998 Page 19 of 22 placing reliance on Ajit Singh's case (supra) as the facts involved in the said case were not akin to the facts involved in this case. In this case Annual Confidential Reports of the Respondent were available before the D.P.C. while adjudging performance of the Respondent and considering whether his period of probation was liable to be confirmed or not. It appears that in Ajit Singh's case (Supra) Annual Confidential Reports of the concerned employee were not in question. In these circumstances, the Supreme Court held that performance of the officer was to be inferred as satisfactory as increments had been given to him year after year. Ajit Singh's case is distinguishable on facts.
27. We are of the view that Tribunal or this court cannot substitute its view over and above the view taken by the D.P.C. unless it is shown that such a view was perverse or heavily clouded with malafides. We do not find any such material having been placed before the Tribunal by the Respondent. It appears that Tribunal was swayed away by the noting dated 22 nd February, 1989 of K.D.Sinha, Director (MS), which has been quoted in the impugned order, to arrive at the conclusion that the decision of Petitioner discharging him from service was W.P. (C) No. 3450/1998 Page 20 of 22 passed for malafide reasons. This solitary note, in our view is not sufficient, to wash away the adverse remarks in Annual Confidential Reports.
28. In the light of above discussion we are of the view that decision of the Petitioner to discharge the services of the Respondent by giving him one month's notice cannot be faulted with. In our view the Tribunal has taken an erroneous view by quashing the notice of discharge dated 5 th May, 1993. Accordingly, we uphold the notice of discharge dated 5th May, 1993 and quash the judgment dated 3rd October, 1997 passed by the Tribunal in O.A. No. 1211/1991.
29. After his reinstatement in the service pursuant to the order passed by the Tribunal, Respondent had been working with the Petitioner all along this period. Accordingly, we are of the view that whatever monetary benefits Respondent has received be not recovered from him.
W.P. (C) No. 3450/1998 Page 21 of 22
30. Writ petition is disposed of in above terms.
A.K. PATHAK, J MADAN B. LOKUR, J August18, 2009 ga W.P. (C) No. 3450/1998 Page 22 of 22