Nemi Chand Mittal vs Zonal Manager (N) Fci & Ors
2010 Latest Caselaw 1805 Del

                 *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) No.4225/1996

%                                             Date of decision: 7th April, 2010

NEMI CHAND MITTAL                                          ..... PETITIONER
                               Through: Mr. Manoj Ranjan Sinha, Advocate

                                        Versus

ZONAL MANAGER (N) FCI & ORS.               ..... RESPONDENTS
                  Through: Mr. Deepak Dewan, Advocate

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.        Whether reporters of Local papers may
          be allowed to see the judgment?                 Yes

2.        To be referred to the reporter or not?                 Yes

3.        Whether the judgment should be reported                Yes
          in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner employed with the respondent Food Corporation of India (FCI) preferred this writ petition impugning the order dated 1st August, 1995 of the Disciplinary Authority of the respondent FCI by which three increments without cumulative effect of the petitioner were stopped and also for quashing the "penalty" order dated 9th October, 1995 passed by the Zonal Manager (North) of the respondent FCI by which the petitioner was reverted from the post of Assistant Manager (Technical) to the post of Technical Assistant-I. The petitioner has also sought a mandamus directing the respondent FCI to treat the petitioner as Assistant Manager and to allow him to work on the said post.

2. The counsel for the petitioner has at the outset stated that during the pendency of the present writ petition, in the departmental appeal preferred by the petitioner, the order dated 1st August, 1995 stopping the three increments of the petitioner has been set aside and thus the writ petition to that extent is

infructuous and survives only qua the "penalty" order dated 9th October, 1995 reverting the petitioner from the post of Assistant Manager (Technical) to the post of Technical Assistant-I. It is also informed that the petitioner has since retired on attaining superannuation and the present petition if succeeds would entitle the petitioner only to receive the additional monetary benefits from the respondent FCI.

3. A perusal of the "penalty" order dated 9th October, 1995 shows that the petitioner had joined as Assistant Manager on 17th October, 1994 on promotion and was placed on probation for a period of one year. Vide the said order dated 9th October, 1995, the probation of the petitioner was terminated and he was reverted to the post of Technical Assistant-I with immediate effect. It thus appears that the order of reversion is not by way of "penalty" or by any Disciplinary Authority but on cessation of probation of the petitioner to the promotion post.

4. The counsel for the petitioner also does not dispute that the petitioner on being promoted as Assistant Manager was on probation for a period of one year. He however draws attention to the order dated 23rd September, 1994 by which the petitioner was posted as Assistant Manager. It is pointed out that as per the said order the probation was for a period of one year extendable for a further period of not exceeding one year. The contention of the counsel for the petitioner is that the petitioner out of the first year of his probation and shortly prior to the completion whereof, his probation was terminated and he was reverted, was on medical leave for eight months. It is argued that since the petitioner was on medical leave for eight months out of one year of probation, the respondent FCI, for judging the petitioner ought to have extended his probation. Attention is also invited to a supplementary affidavit filed by the petitioner pursuant to queries made under the Right to Information Act. On the basis of the office notings in the files of respondent FCI made available to the petitioner, it is argued that the probation of the petitioner was terminated for the reason of the order dated 1st August, 1995 (supra) of the Disciplinary Authority

and which has since been set aside by the Departmental Appellate Authority. It is contended that thus the reason for which the probation of the petitioner was terminated has disappeared and the petitioner is entitled to the relief.

5. However from a perusal of the office notings filed with the supplementary affidavit, it transpires that the petitioner was reverted not only for the reason of the order dated 1st August, 1995 (supra) but also for the reason of his poor performance reflected in his PR. Thus it is not as if the petitioner was reverted solely for the reason of the order of the Disciplinary Authority which has since been set aside by the Appellate Authority. On appraisal of the performance of the petitioner as a probationer on the post of Assistant Manager, his performance was not found suitable to confirm him.

6. Faced with the aforesaid, the counsel for the petitioner contends that his performance could not have been judged in the short span of four months during which he worked in that year and his probation should have been extended. Office notings filed with the supplementary affidavit are sought to be read to mean that the extension of probation of the petitioner was recommended. However, a perusal of the office notings do not show that there was any proposal for extending the probation of the petitioner. The office notings merely record the representation of the petitioner to the said effect. Moreover, even if some employee of the respondent FCI preparing the office note has suggested the extension of the probation, it has no weight when admittedly the decision making authority of the respondent FCI has not accepted the said suggestion / proposal.

7. I have enquired from the counsel for the petitioner as to whether judicial review is permissible of the decision qua a probationer and / or qua the decision to extend the probation or not. The counsel has not been able to cite any precedent. In my opinion, in the absence of any averments of mala fide or malice, the said decisions are not open to judicial review.

8. Thus the reversion of the petitioner was during the period of probation.

The Supreme Court recently in Kamal Nayan Mishra Vs. State of Madhya Pradesh (2010) 2 SCC 169 has reiterated that the probationer does not have any substantial right to hold the post and a probationer's services can be dispensed with during the period of probation or at the end of the probation period, if his service is found to be unsatisfactory or if he is found to be unfit for promotion. Reliance was placed on Ajit Singh Vs. State of Punjab (1983) 2 SCC 217 laying down that period of probation gives a sort of locus pententiae to the employer to observe the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserves a right to dispense with his service without anything more, during or at the end of the prescribed period which is called as period of probation. It was further held that termination of service of a probationer during or on termination of probation will not ordinarily and by itself be a punishment because the servant so appointed has no right to continue to hold such a post any more. Reference was also made to Parshotam Lal Dhingra Vs. Union of India 1958 SCR 828 laying down that period of probation furnishes a valuable opportunity to the master to closely observe the work of the probationer and by the time the period of probation expires to make up his mind whether to retain the service by absorbing in regular service or dispense with his services.

9. The petitioner, thus as a probationer to the post of Assistant Manager had no right to that post and has not made out any case for continuing on that post.

10. The petition fails and is dismissed. However, no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 7th April, 2010 gsr