Raju vs State Of U.P. And 4 Others
2021 Latest Caselaw 11329 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on : 07.10.2021
 
Delivered on :17.11.2021 
 
Case :- WRIT - A No. - 20566 of 2019
 
Petitioner :- Raju
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Syed Fahim Ahmed
 
Counsel for Respondent :- C.S.C.,Ashish Mishra
 

 
Hon'ble Neeraj Tiwari,J.

Heard learned counsel for the petitioner, learned standing counsel for respondent No. 1 and Ms. Pooja Agarwal, learned counsel for respondent Nos. 2 to 5.

Pleadings are exchanged between the parties. With the consent of parties, writ petition is being decided at the admission stage itself.

Learned counsel for the petitioner submitted that High Court of judicature at Allahabad has issued advertisement for recruitment of Group 'C' post in the U.P. Civil Court Staff Centralized Recruitment Scheme-2014, (Advertisement No. 1/Sub. Court/Category 'C'/Clerical Cadre/2014). He further pointed out that as per Point No. 9 of General Instruction, all the candidates, who are already in Central/State Government Service or in any Central/State Government undertaking or in any type of other organization established and governed by the Central/State Government, shall have to produce no objection certificate (N.O.C.) as and when called for. Petitioner, being fully eligible for the said post, has submitted application form and ultimately after going through the due procedure as provided in advertisement, he was appointed on the post of Junior Assistant vide appointment letter dated 09.09.2015 at District Court Maharajganj on probation.

He next submitted that prior to this joining, petitioner was working on Group 'D' post in Northern Central Railways. On 10.09.2015, he had sent his resignation to Civil Division, Mechanical Engineering, Jhansi and on 11.09.2015, submitted his joining at District Court, Maharajganj. On 31.05.2016, respondent No. 5 has issued notice to the petitioner to submit his reply as to whether prior to this department, he was working in some other department or not and whether he was allotted any PRAN or not, which was replied by the petitioner vide letter dated 13.06.2016 that earlier he was working as class IV employee in Northern Central Railway and submitted his resignation. He has also informed that he was allotted PRAN No. 110073384088 from Northern Central Railway and along with his letter, he has also annexed the photocopy of resignation letter.

He further submitted that on reply dated 13.06.2016, he was directed by the Officer concerned to inform the date of resignation and further about no objection certificate, if obtained and also as to why he has concealed the facts. The same was duly replied by the petitioner vide letter dated 21.06.2016 in which petitioner submitted that while submitting his application form, there was no requirement of no objection certificate as it is stated that candidates shall have to produce no objection certificate as and when called for. This is also stated that he has never concealed the facts and further he was willing to fill up the details of his service in police verification form, but it was never been required to fill up, therefore, he could not disclose about his first service.

It is next submitted that again, petitioner was issued letter dated 22.08.2016 with almost similar allegation which was also replied by the petitioner vide letter date 15.09.2016. After 22.08.2016, no further notices were issued to the petitioner. According to the petitioner, after completion of two year's of probation period, as per rule 19 of Uttar Pradesh State District Court Rules, 2013 (hereinafter referred to as the 'Rules, 2013'), his services were made confirmed and vide order dated 03.09.2019, he has been promoted on the post of Senior Assistant at District Court, Maharajganj.

It is further submitted that on 29.08.2019 i.e. after three years from the issuance of last notice, he has received another notice and submitted reply vide letter dated 03.10.2019. On 15.10.2019, petitioner was issued one more notice by which he was required to present acceptance of his resignation letter by the Northern Central Railway within a period of one month, failing which, his services shall automatically be terminated. It is next submitted that vide letters dated 02.11.2019 and 12.11.2019, petitioner requested respondents to give more time and also provide the entire material on the basis of which inquiry against the petitioner was proceeded. Lastly, vide letter dated 14.11.2019, service of petitioner was terminated without following the procedure as enshrined in Rules, 2013.

Facts are not disputed that in the advertisement, there was no requirement to produce no objection certificate at the time of submission of application form, neither petitioner has concealed any fact at any point of time nor he was required to disclose the status of his first service prior to his joining. It is next submitted that petitioner was also promoted vide letter dated 03.09.2019, therefore, in all eventuality, it is required on the part of respondents to follow Rule 23(5) of Rules, 2013 for holding enquiry to award major punishment. Neither any notice has been served to the petitioner nor any inquiry officer has ever been appointed. Except show cause notice, no opportunity of hearing was given to the petitioner before passing impugned order.

Lastly, it is submitted that petitioner has taken specific plea in paragraph Nos. 50 to 59 in writ petition that he has not been provided opportunity to face inquiry. It is further submitted that in paragraph No. 31 of the counter affidavit, there is no denial of the facts and only stated that by the perusal of records, it indicates that petitioner concealed the fact that at the time of joining, he was working in Railway Department. Petitioner reiterated that he has never concealed any facts and further his appointment was made permanent and given promotion, therefore, Rule 23(5) of Rules, 2013 has to be followed before awarding major punishment, therefore, order is bad and is liable to be set aside.

Ms. Pooja Agarwal, learned counsel for respondent Nos. 2 to 5 has vehemently opposed the submissions made by learned counsel for the petitioner, but could not dispute the facts as well as provisions of Rules, 2013 placed by learned counsel for the petitioner. She only submitted that petitioner has concealed the facts about his working at Railway Department prior to submission of application form as well as joining pursuant to the advertisement. Petitioner was on probation, therefore, his services can be terminated at any point of time. She also submitted that promotion on the post of Senior Assistant could not be a ground for completion of his probation as no order has been passed for completion of probation as required in Rule 19(5) of Rules, 2013. She next submitted that even in case charge-sheet has not been issued, no prejudice caused to the petitioner, therefore, order is well within the limits of law. She further submitted that opportunity of hearing was given to the petitioner and petitioner has never raised any objection that he has not been given opportunity of hearing. In support of her contention, she has placed reliance upon the judgment of Apex Court in the case of High Court of Madhya Pradesh vs. Satya Narain Jhavar, (2001) 7 SCC 161. She further submitted that similar view was taken by the Courts in the case of G.S. Ramaswamy vs. Inspector-General of Police, 1966 SC 175, State of U.P. vs. Akbar Ali Khan, AIR 1966 SC 1842, Samsher Singh vs. State of Punjab and another, (1974) 2 SCC 831, Sukhbans Singh vs. State of Punjab and others, AIR 1962 SC 1711. She further placed reliance upon the judgment of Apex Court passed in State of Punjab and others vs. Balbir Singh (2004) 11 SCC 743 and submitted that termination of petitioner is simplicitor and not punitive in nature, therefore, no inquiry is required. Lastly, she placed reliance upon the judgment of Apex Court in State of U.P. vs. Harendra Arora and Another (2001) 6 SCC 392 and submitted that it is required on the part of petitioner to show that prejudice is caused to him. She also submitted that similar view was taken by the Apex Court in Om Prakash Mann vs. Director of Education (Basic) and other (2006) 7 SCC 558.

Learned counsel for the petitioner in his rejoinder arguments submitted that submissions made by learned counsel for respondents is self contradictory as on one hand, Rule 19(2) of Rules, 2013 provides two years as period of probation and Rule 19(5) of Rules, 2013 says that for completion of probation, specific order is required and contrary to that Schedule-B of Rule 3(3) & 4 provides that for promotion on the post of Senior Assistant from Junior Assistant, minimum five years of substantive and satisfactory service in the said scale is required. Further, Rule 19(3) of Rules, 2013 provides maximum period of extension of probation which cannot be more than the period specified in Rule 19(1) & (2) of Rules, 2013. As per Rule 19(1) & (2) of Rules, 2013, period of probation is two years and as per Rule 19(3) of Rules, 2013, it can be extended maximum for two years. Therefore, once petitioner has completed the service of four years, his probation cannot be extended beyond that. Here, petitioner is promoted on the post of Senior Assistant, his service would be deemed to be substantive and satisfactory and his probation is to be deemed completed. In support of his contention, he has placed reliance upon the judgment of Apex Court in the case of State of Punjab v. Dharam Singh, AIR 1968 Supreme Court 1210 which says that if service rules fix a certain period of time beyond which the probationary period cannot be extended and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer. In fact, he would be treated to be confirmed on the post by implication.

I have considered rival submissions made by learned counsel for the parties, perused the records, judgments as well as Rules, 2013.

Certain facts of the case are undisputed. As per terms of advertisement, there is no requirement of annexing "No Objection Certificate" alongwith application form and further no opportunity was given to the petitioner at any point of time to disclose as to whether he was working on any other post at the time of submission of application form or at the time of joining. Further, as and when notices were issued to the petitioner, he has duly replied the same without concealment of any fact, therefore, it cannot be said that he has concealed any fact at any point of time.

Service of petitioner is governed by the provisions of Rules, 2013 and Rule 19 provides for probation. Rule 19 of Rules, 2013 is quoted below:-

"19. Probation-

(1) All appointments to the Service by direct recruitment shall be on probation for the period of two years.

(2) All appointments by promotion shall be on probation basis for a period of two years.

(3) The period of probation for reasons to be recorded in writing, may be extended by the appointing authority by such period not exceeding the period of probation specified in sub-rule (1) or (2).

(4) At the end of period of probation or the extended period of probation the appointing authority shall consider the suitability of the person so appointed or promoted to hold the post to which he was appointed or promoted, and-

(i) if it decides that he is suitable to hold the post to which he was appointed or promoted and has passed the examinations or tests, if any, required to be passed during the period of probation it shall, as soon as possible, issue an order declaring him to have satisfactorily completed the period of probation and such an order shall have effect from the date of expiry of the period of probation, including extended period, if any, as the case may be.

(ii) if the appointing authority considers that the person is not suitable to hold the post to which he was appointed or promoted, as the case may be, he shall by order-

(a) If he is a promotee, revert him to the post which he held prior to his promotion.

(b) If he is a probationer, discharge him from service;

(5) A person shall not be considered to have satisfactorily completed the period of probation unless a specific order to that effect is passed. Any delay in passing such an order shall not entitle the person to be deemed to have satisfactorily completed the period of probation."

Further, Schedule-B, Rule 3(3) & (4) of Rules, 2013 deals with the procedure and requirement for recruitment and promotion and for promotion on the post of Senior Assistant from Junior Assistant, minimum five years of substantive and satisfactory service in the earlier scale is required. Relevant part of Schedule-B is quoted below:-

Sl. No.

Category Posts

Method of Recruitment

Qualification etc.

4-

Senior Assistant (Munsarim, Civil Judge (SD & JD, Addl. Civil Judge (SD & JD) /Munsarim-cum-Reader/Readers of these Courts & JSCC & Addl. JSCC /Deputy; Nazir/Record Keeper(Cr.)/Suits Clerk/Decree writer/Clerk to CMM, CJM, JM Courts/Librarian/Head Copyist (Civil & Criminal), etc.,

Protocal Officer., Category "C") & Amin Grade-I Category "C") 5200-20,200

Grade pay 2800

By Promotion from Junior Assistant amongst Clerical Cadre of pay scale of Rs. 5200-20,200 Grade Pay 2000 On the basic of seniority-cum- merit with minimum Five years of substantive and satisfactory service in the said scale

For Librarian the qualification would be preferably bachelor in Library Science.

From the perusal of Rule 19 of Rules, 2013, it is apparently clear that appointment shall be made on probation for a period of two years and further in the light of Rule 19(3) of Rules, 2013, probation may be extended not exceeding the period of probation specified in sub-rule 1 & 2 of Rule 19 of Rules, 2013 i.e. two years. In the present case, probation of petitioner has never been extended and he has completed five years of service crossing the bars of Rule 19(1) & (3). Rule 19(5) provides that a person shall not be considered to have satisfactorily completed the period of probation unless a specific order to that effect is passed. Any delay in passing such an order shall not entitle the person to be deemed to have satisfactorily completed the period of probation. No doubt, in present case, no specific order has been passed, but Schedule-B clearly provides that promotion on the post of Senior Assistant shall be made only after completion of five years substantive and satisfactory service in the earlier scale meaning thereby his service was found satisfactory as he was promoted on the post of Senior Assistant. Considering this fact, respondents also have never extended his probation, therefore, under such facts of the case, probation of petitioner is deemed to be treated complete for the reason that in case service of petitioner was not satisfactory, he should never been promoted on the post of Senior Assistant.

Apex Court in the matter of State of Punjab Vs. Dharam Singh (Supra) has clearly held that once the time of probation is prescribed and employee is allowed to continue on the said post after completion of maximum period of probation without an express order of confirmation, he shall be treated confirm by implication. Paragraph No. 5 of the said judgment is quoted below:-

"5. In the present case, Rule 6(3) forbids extension of the period of probation beyond three years. Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication."

I have also gone through the judgments relied upon by learned counsel for respondents in the matter of High Court of Madhya Pradesh (Supra) where it was not the case that petitioner was promoted and thereafter termination was made. In G.S. Ramaswamy (Supra), State of U.P. vs. Akbar Ali Khan(Supra), Samsher Singh(Supra) and Sukhbans Singh(Supra) Court has also taken similar view in the light of different facts, therefore, these judgments would not come into the rescue of respondents.

So far as case of State of Punjab and others vs. Balbir Singh (Supra) is concerned, it says about determination of suitability of an employee for a particular job, such termination would be termination simplicitor and not punitive in nature. In the present case, undoubtedly, service of petitioner was found satisfactory and considering his suitability, he was promoted on the post of Senior Assistant, therefore, this judgment also could not help respondents. So far as judgments of State of U.P. vs. Harendra Arora(Supra) & Om Prakash Mann (supra) are concerned, facts are entirely different and there is prejudice against the petitioner as he was not given opportunity before Inquiry Officer to show that at no point of time, he has never concealed any fact. Learned counsel for respondents could not demonstrate this fact that at any point of time, in advertisement or at any stage of joining, appointment or in continuation of service, he was given opportunity to disclose about his previous service, therefore, these judgments also would not applicable in the case of respondents. The very submission made by learned counsel for respondents, that petitioner was on probation, therefore, his service can be terminated, cannot be accepted in the light of Rule 3(3) & 4 of Rules, 2013 alongwith Schedule-B for promotion as well as law laid down by the Apex Court in the matter of State of Punjab(Supra), therefore, the contention raised by learned counsel for respondents is having no force.

Therefore, under such facts of the case as well as provisions of Rules, 2013 and law laid down by the Apex Court, probation of petitioner shall be treated to be complete and his service cannot be terminated on the ground that he was on probation.

Petitioner has taken specific plea that no Inquiry Officer has been appointed except the show cause notice, no opportunity of hearing was given to him before passing order which was also not denied in the counter affidavit. In the present case, petitioner was appointed on the post of Junior Assistant on probation and thereafter he has been promoted on the post of Senior Assistant and in the light of discussions made here-in-above, his service is to be treated confirmed, therefore, petitioner cannot be terminated from service without following the procedure prescribed in Rule 23(5) of Rules, 2013.

Therefore, under such circumstances as well as provisions of Rules, 2013 and law laid down by the Apex Court, order of termination dated 14.11.2019 passed by respondent No. 3 is bad and is hereby set aside. Respondent No. 3- District Judge, Maharajganj is directed to reinstate the petitioner in service forthwith alongwith all consequential benefits.

Accordingly, writ petition is allowed.

No order as to costs.

Order Date :- 17.11.2021

Sartaj