Union Of India & Ors. vs Tarseem Lal Verma
2009 Latest Caselaw 3219 Del

*              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.

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.

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

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

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

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

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

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

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,

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

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

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.

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

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,

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

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

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

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

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

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

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.

30. Writ petition is disposed of in above terms.

A.K. PATHAK, J

MADAN B. LOKUR, J

August18, 2009 ga