Smt. Archana Dayal vs Union Of India (Uoi) And Ors.
2005 Latest Caselaw 678 Del

JUDGMENT

Vikramajit Sen, J.

1. In this Petition it has been prayed that the Order dated 4.4.2005 whereby the Petitioner's services have been terminated should be quashed and the Respondents should be directed to immediately confirm the Petitioner in service. The Husband of the Petitioner, Dr. D.B. Dyal, joined the service of Respondent No.2, namely, National Board of Examinations, in September, 2001 as the Controller of Examinations. In February, 2002 the Petitioner was appointed as Assistant Controller of Examinations by Memorandum dated 4.2.2002 which stated, inter alia, that the said post was temporary but likely to continue; and that the Petitioner would be on probation for a period of two years from the date of appointment which may be extended at the discretion of the competent authority. It has been asseverated by the Petitioner that she had addressed a letter to the erstwhile President on 5.2.2004, bringing it to his notice that she had completed two years of probation and that her 'posting' should be confirmed. Receipt of this letter has been vehemently denied by the Respondents, on whose behalf learned Additional Solicitor General, Mr. P.P. Malhotra, has appeared and has produced Dak Register. Mr. Malhotra has contended that although this letter bears the handwriting of the erstwhile President, it has been manufactured for the purposes of the Petitioner. It is his submission that the Petitioner has not been confirmed and, therefore, the Writ Petition deserves to be dismissed. Mr. Madan Bhatia, learned Senior Counsel appearing on behalf of Respondents No.2-3, has drawn attention to the fact that the Petitioner has herself pleaded her non-confirmation even after the completion of the probation period.

2. The Constitution Bench has opined in S. Sukhbans Singh v. The State of Punjab, AIR 1962 SC 1711 that a probationer cannot, after the expiry of probationary period, automatically acquire the status of a permanent member of a service the rules under which he is appointed expressly provide for such a result. In State of Punjab v. Dharam Singh, 1968 3 SCR 1 the Constitution Bench has enunciated that - "where on the completion of the specified period of probation an employee is allowed to continue in the post without an order of confirmation, in the absence of anything to the contrary in the original order of appointment or promotion or the Service Rules, the initial period of probation is deemed to be extended by necessary implication". In Partap Singh v. Union Territory of Chandigarh and another, AIR 1980 SC 57 it has been held that the concerned officer cannot be deemed to have been confirmed in the absence of an order of confirmation even at the end of the probation of three years. Similar views have been expressed in Chandra Prakash Shahi v. State of U.P. and Ors., AIR 2000 SC 1706 where Regulation 541 of the U.P. Police Regulations had come up for consideration. The Court observed that the period of probation was for two years and the Regulation was silent as to the maximum period beyond which it could not be extended. The Apex Court held that in the absence of any such prohibition, even if the appellant had completed two years of probationary period successfully and without any blemish, his period of probation must be treated as having been extended, as a permanent status can be acquired only by means of a specific order of confirmation. The same conclusion has been arrived at in High Court of M.P. through Registrar and Ors. v. Satya Narayan Jhavar, (2001) 7 SCC 161.

3. The impugned Termination Order reads as follows:

Subject : Discharge Letter

Madam,

By virtue of Appointment Letter dated 04.02.2002, you were appointed to the temporary post of Assistant Controller of Examinations with the National Board of Examinations initially on probation for a period of two years. The probation period was extendable at the discretion of the Competent Authority.

During your probation period, which still continues, your services have not been found to be satisfactory by the Competent Authority, therefore, your services in terms of the Appointment Letter dated 04.02.2002 are hereby discharged forthwith.

You are requested to handover the charge to Shri M. Srinivasan, Deputy Director (Administration), National Board of Examinations forthwith.

This order shall come in effect forthwith.

Orders for release of your dues have been issued separately.

This order is issued with the approval of the Competent Authority i.e. President, National Board of Examinations.

Sd/-

Dr. A.K. Sood

Executive Director

4. Reliance has been placed by Mr. Bhatia on the ratio in Pavanendra Narayan Vema v. Sanjay Gandhi PGI of Medical Sciences and Anr., (2002) 1 SCC 520, the relevant portion of which is reproduced:

30. As was noted in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences:

"28. At the outset, we may state that in several cases and in particular in State of Orissa v. Ram Narayan Das it has been held that use of the word 'unsatisfactory work and conduct' in the termination order will not amount to a stigma"

31. Returning now to the facts of the case before us. The language used in the order of termination is that the appellant's "work and conduct has not been found to be satisfactory". These words are almost exactly those which have been quoted in Dipti Prakash Banejree case as clearly falling within the class of non-stigmatic orders of termination. It is, therefore safe to conclude that the impugned order is not ex facie stigmatic.

5. Mr. Vikas Singh, learned Senior Counsel appearing on behalf of the Petitioner, has not disputed this settled position of law. He has, however, contended that the controversial letter dated 5.2.2004 must be seen as a confirmation of the services of the Petitioner. In the first place, this runs counter to the tenor and averments in the Writ Petition itself. Secondly, there has to be a specific and explicit decision confirming the services of the Petitioner and an endorsement by the erstwhile Petitioner forwarding the letter of the Petitioner would not fulfilll this requirement, assuming the letter to be authentic and not manufactured on a later date.

6. Mr. Vikas Singh has also drawn attention to the decision in Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd. and Ors., JT 2003 (2) SC 162 where the Hon'ble Supreme Court had again taken note of the possibility that although the order of termination simplicitor did not show that it is punitive or stigmatic, if the Court discerns a background which is indicative of the decision being predicated on misconduct, the matter can be enquired into. Mr. Vikas Singh has also relied on Municipal Committee, Sirsa v. Munshi Ram, JT 2005 (2) SC 117 where their Lordships had taken into consideration the possibility of an incident of misconduct or incompetency prior to the persons discharged from service being the ground for the employer's decision not to retain such person in service. It had been observed that if the workman is able to satisfy the Court that the management, for reasons other than efficiency, wanted to remove him from service by exercising its power of discharge the matter could be looked into. The surrounding circumstances, which have been pressed on behalf of the Petitioner, are that stringent action was underway against her Husband.

7. Keeping all the facts and circumstances of the case in view I am firstly convinced that the decision to terminate the services of the Petitioner is not stigmatic or punitive. While there are no incidences of misconduct or inefficiency brought against the Petitioner, there is nothing on record to show that her services were such as to warrant her confirmation, especially in such a situation where both Husband and Wife have got employment in the same Institution. It has been submitted by the learned Additional Solicitor General that the Petitioner does not possess all the requisites for employment, and this fact was palpably glossed over in the eagerness to give the Petitioner employment, and, therefore, the equitable jurisdiction of the High Court under Article 226 of the Constitution should not be exercised.

8. It has also been contended by Mr. Vikas Singh that employees have been kept on probation as a uniform practice in order to silence any opposition. Such averments should not be entertained after the event, that is, the termination of service. The decision to terminate the services of the Petitioner cannot be held to be a mala fide exercise of power.

9. This is not a case which commends or warrants the exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution.

10. Petition is dismissed.