Bhimashankar Sidram Katke vs Registrar General, High Court Of ...
2004 Latest Caselaw 659 Bom

ORDER

R.M.S. Khandeparkar, J.

1. Heard Shri N.V. Vechalekar for the petitioner. Perused the records. The petitioner challenges the order of termination of services on the ground that no prior notice was issued to the petitioner and secondly that the petitioner was duly confirmed after completion of the probation period and that therefore could not have been terminated taking resort to the provisions of law contained in Rule 4(ii) of the Maharashtra Family Courts Rules, 1987, hereinafter referred to as "the said Rules". Attention is drawn to the order dated 13-1-1998 while contending that the petitioner was duly confirmed in the post in which he was appointed.

2. Bare perusal of the order dated 13-1-1998 discloses that on completion of the probationary period of two years, the petitioner was continued on the officiating basis as the marriage counselor. There was no confirmation order or letter issued in favour of the petitioner. On the contrary the order dated 13-1-1998, which was issued after completion of the probation period to two years by the petitioner, eight other marriage counsellors, read thus:-

"The Honourable the Chief Justice and the Honourable Judges are pleased to direct that the Marriage Counsellors working on the establishments of the Family Court at Bombay, Pune and Aurangabad mentioned below, be treated as having completed their probationary period of two years satisfactorily. They are continued on an officiating basis as Marriage Counsellors from the date of completion of probationary period with the benefits of continuance on an officiating basis."

Apparently, therefore, the continuation of the petitioner as the marriage counselor, on expiry of the period of probation was purely on officiating basis, and he was not confirmed in the said post. It is pertinent to note that there was no reaction by the petitioner of whatsoever nature against the said order. It is not the case of the petitioner that any time any grievance was made by him against non-confirmation of the petitioner in the said post after the expiry of the probation period. Evidently, no substantive right to the said post was ever created in favour of the petitioner.

3. The Rule 4 of the said Rules reads thus:-

"(i) The person appointed by nomination to the post of a counselor of the Family Court shall be on probation for a period of two years which may be extended by the High Court from time to time as it may deem fit. On expiry of such period he/she may be confirmed if-

(a) There is a permanent vacancy and

(b) His/her work is found satisfactory.

(ii) during the period of probation and thereafter until expressly confirmed by a written order the services of the appointee shall be terminable by one month's not ice on either side without any reason being assigned therefore or by payment of salary for the period of notice or the unexpired portion thereof."

The Sub-clause (i) of Rule 4 of the said Rules therefore clearly provides that the probation period can be extended from time to time as may deem fit by the appointing authority. It further provides that on completion of the probation period, the employee may be confirmed if there is permanent vacancy and the work of the employee is found satisfactory. The Sub-clause (ii) clearly empowers the authority to terminate the services by serving one month's notice unless the employee is already confirmed on satisfactory completion of the probation period in a permanent vacancy. In other words, in the absence of permanent vacancy and satisfactory completion of the probation period, the question of any right being created in favour of the employee vis-à-vis the post in which he/she is appointed on extension of the probation period or on officiating basis does not arise at all. It is, therefore, apparent that in order to claim right to the post consequent to completion of the probation period the employee must have a specific order confirming him/her in the post. In the absence of such order there cannot be any presumption about confirmation of the employee in the post, more particularly when the employee is continued on officiating basis. There is also no limit prescribed for continuation of an employee on probation as well as on officiating basis. Therefore, in the absence of confirmation, the Sub-clause (ii) would empower the employer to terminate the services of the employee by issuing one month's notice or on payment of one month's salary in lieu of notice. Undisputedly, the order dated 23-3-2004 the services of the petitioner were terminated by giving one month's salary in lieu of notice, as provided under Rule 4(ii) of the said Rules.

4. Once the Rules applicable to the parties clearly provide that on completion of the probation period, the services are required to be expressly confirmed in order to avail the benefits of a confirmed employee and in the absence of any such confirmation, the employee can be terminated by serving one month's notice or salary in lieu of such notice, the employee subjected to termination of his service in such manner cannot be heard to make any grievance about non-service of a notice prior to his termination of service. Merely because the petitioner continued in service for number of years even after the completion of the probation period, that would not create any right in favour of the petitioner to claim deemed confirmation in the post. Once the provisions of law clearly speak of the method of confirmation of an employee in the post in which he completes the probation period, and such method for confirmation is not followed and in addition thereto, on completion of such period, the employee is informed that he would continue in the post as on officiating basis, there cannot be anything like deemed confirmation. In the case of the petitioner there had been no confirmation in accordance with the method prescribed for the same by the said Rules, and therefore the petitioner cannot claim to have been deemed confirmed in the post in which he was appointed on officiating basis after the completion of his probation period.

5. The law on the point in issue has been well-settled by catena of decisions of the Apex Court. In fact way-back in 1958, in Parshotam Lal Dhingra v. Union of India, , it was ruled by the Apex Court that:-

"...... It is, therefore, quite clear that appointment to a permanent post in a Government service, either on probation, or on an officiating basis, is, from the very nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time. ....."

6. In the State of Punjab v. Dharam Singh, , it was held by the Apex Court that:-

"This Court has consistently held that when a first appointment or 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 or 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 is not possible to hold that he should be deemed to have been confirmed."

7. In Binoy Kumar Mukherjee v. State of Bihar and Ors., , the employee was appointed in the year 1949 in a post created for a period of five years. The appointment letter did not disclose that he was appointment temporarily. Before expiry of the period of five years and on 21-11-1951, he was temporarily promoted to the post of R.T.O. & Secretary, R.T.A. In December, 1954 the posts in the Department were made permanent vide order dated 2-12-1954. Binoy was to continue to act temporarily until orders could be passed regarding his confirmation or otherwise or until 31-5-1955, whichever date be earlier. The next order was, however, passed on 18-6-1955. It was contended that no order of his confirmation or otherwise having been passed before 31-5-1955, and that date having allowed to pass, he should be deemed to have become permanent in the post which he was holding because that the post itself had been made permanent, Rejecting the arguments, it was held that:-

"...... On the face of it, this plea has no force at all. In the letter dated December 2, 1954, the period for which he was appointed to act temporarily was indicated by referring to three different circumstances. The first was that he was to continue until order was passed regarding his confirmation. The second was that some order may be made otherwise, which obviously referred to an order discharging him from service. The third was that he could continue till May 31, 1955. Since no orders of confirmation or otherwise was passed before May 31, 1955, he could claim that he was entitled to continue temporarily up to that date. The letter did not give any authority for his continuance in service subsequent to that date. He was, however, allowed to continue without any fresh orders which were issued after an interval on June 18, 1955. During the period between May 31, 1955 and June 18, 1955, he continued to work without any letter of authority. It cannot be held that, during this period, he automatically became confirmed or permanent. From his continuance in the post without any specific orders, the only inference that can be drawn is that the Government allowed him to continue in the same capacity in which he was working upto May 31, 1955. His continuance in the same capacity could be implied when the Government took no steps to pass specific orders either confirming or discharging him upto the target date of May 31, 1955, up to which his temporary appointment had been extended. There is nothing at all in the letter dated December 2, 1954 which could justify an inference that on June 1, 1955, he was to hold the post permanently, even though no order of his confirmation was passed. ......"

8. In Pratap Singh v. Union Territory of Chandigarh and another, , while dealing with a matter under the Punjab Police Rules, it was observed that:-

"..... even after the probation of three years is over, the police officer shall not be deemed to be confirmed unless there is any rule which provides that in the absence of an order of confirmation at the end of the probation, the employee must be presumed to be confirmed. There is no such provision in the present rules In these circumstances, therefore, as held by this Court in the case of Dharam Singh, it must be held that if no express order of confirmation was passed after the appellant completed three years, it must be presumed that his probation was extended."

9. In .State of Punjab v. Baldev Singh Khosla, , the Apex Court has held that:-

"...... It would thus be seen that the outer limit of three years provided under the rules is an enabling provision to allow the probationer to continue in service without being reverted or discharged from service for failure to satisfactorily complete the period of probation, but that would not mean that the probationer, on expiry of three years period, must be deemed to have been confirmed. The rule itself envisages a positive order of confirmation. So long as the order of confirmation is not made, even after expiry of probation, the probationer may continue and remain in service, but by allowing him to remain in service it cannot be concluded that he must be deemed to have been confirmed."

10. In Chandra Prakash Shashi v. State of U.P. and Ors., reported in AIR 2000 SC 1706, it was held that where the services of a probationer are proposed to be terminated and a particular procedure is prescribed by the Regulations for that purpose, then the termination has to be brought about in that manner. If this procedure is followed and the services are terminated, thereafter it would not amount to a punitive action.

11. In High Court of M.P., through Registrar and Ors. v. Satya Narayan Jhavar, reported in AIR 2001 SC 3234, while dealing with the subject of deemed confirmation in service jurisprudence, the Apex Court has classified it in three categories. It was held that:-

"The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cased there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period of such extension is also provided beyond which it is not permissible to extend probation. The inference in such cased is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired an neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."

12. In MD. Muzaffar Alam v. State of Bihar and Ors., , it was held that where statutory rules provided period of probation for an employee and neither did it indicate that the period of probation could not be continued nor did it indicate that confirmation was automatic after the expiry of the period of probation, the contention that the employer was bund to be confirmed on expiry of the period of probation could not be acceptable.

13. In Commissioner of Police, Hubli and Anr. v. R.S. More, , considering the provisions of law which required a specific order regarding satisfactory completion of the probation period for the purpose of confirmation, it was held that:-

"...... Admittedly, the order discharging the respondent, in exercise of powers under Rule 6, has been passed after the extended period of probation was over. In our view, however, that itself would not entitle the respondent to have claimed deemed confirmation in absence of the specific order to that effect. In service jurisprudence, confirmation of service on a particular post is preceded by satisfactory performance of the incumbent unless service rules otherwise prescribe. In the instant case, Sub-rule (2) of Rule 5of the Rules provides that unless there is a specific order that the probationer has satisfactorily completed the period of probation, he shall not be entitled to be deemed to have satisfactorily completed the probation by reason of his being continued in service beyond the extended period of probation. ......"

14. It is thus clear that the law on the point in issue is well-settled and it is clearly laid down that when the statutory rules either expressly or by implication require specific order of confirmation and such rules do not provide for automatic confirmation after expiry of the period of probation, there cannot be anything like deemed confirmation. Secondly that, when an employee is a probationer or is appointed on officiating basis, he does not acquire substantive right to the post and his services can be terminated without any stigma and not as punitive action and for such termination of services, prior notice is not necessary and adherence to the procedure prescribed under the rules applicable to the parties would be sufficient.

15. As already seen above, in the said Rules, there is no provision for automatic confirmation of the employee on expiry of period of probation by such employee. On the contrary, the said Rules specifically provide that on completion of such period the same can be extended from time to time "as may deem fit" and question of confirmation could be considered only on availability of permanent vacancy and satisfactory completion of probation period. Evidently the same requires specific order of confirmation of the employee after satisfactory completion of his probation period. Admittedly, there was no such order of confirmation issued in favour of the petitioner at any time.

16. The said Rules also provide that in case of probationer and the employee appointed on officiating basis can be terminated by serving one month's notice or on payment of one month's salary in lieu of such notice. In case of the petitioner, the order dated 13-1-1998 clearly reads that he was appointed on officiating basis and the said status of the petitioner in the said post continued, without any grievance on the part of the petitioner, till the date of termination of his services. Being so, it is apparent that the services of the petitioner could have been and actually have been terminated in accordance with the procedure applicable to the parties.

17. Being so, no fault can be found with the impugned order whereby the services of the petitioner have terminated by giving one month's salary in lieu of notice in terms of Rule 4(i) of the said Rules. In such cases, the question of prior notice does not arise. Hence, there is no case for interference in the impugned order in writ jurisdiction. The petition therefore fails and is dismissed.