Govt. Of Nct Of Delhi & Anr. vs Sub Inspector Om Prakash Meena & ...
2010 Latest Caselaw 3782 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                      Reserved on :05.08 2010
%                                                Date of decision :13.08.2010


+                               WP (C) No.255/2000


GOVT. OF NCT OF DELHI & ANR.                                       ...PETITIONERS

                                Through:        Ms.Avnish Ahlawat, Ms.Latika
                                                Chaudhary,    Ms.Simran     and
                                                Mr.Nitesh Singh, Advocates.

                                         Versus


SUB INSPECTOR OM PRAKASH MEENA & ANR.
                                                                    ...RESPONDENTS

                                Through:        Mr.Shyam Babu,
                                                Advocate for R-1.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE VALMIKI J. MEHTA

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                           YES

2.        To be referred to Reporter or not?                            YES

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


SANJAY KISHAN KAUL, J.

1. The legal question which arises for consideration in the

present case is as to whether a probationer, who during

the extended period of probation is proceeded against

departmentally, can be deemed to have been confirmed

on the expiry of the extended period of probation even

though departmental proceedings were pending and _____________________________________________________________________________________________

subsequently culminated in punishment being imposed

on the concerned probationer.

2. SI Om Prakash Meena/R-1 was appointed as a temporary

SI(Executive) in Delhi Police on 10.04.1972 and was

confirmed on 10.03.1976. The service tenure of R-1 was

chequered inasmuch as his conduct invited censures on

three occasions. There were adverse ACRs for two

periods and one increment withheld for a period of one

year with the suspension period not treated as spent on

duty.

3. The case of R-1 was considered by the Departmental

Promotion Committee on 11.03.1985 for Promotion List

(F) Executive which decision was deferred because of

pendency of departmental enquiry. On conclusion of

enquiry, R-1‟s name was brought on the said Promotion

List (F) Executive with effect from 11.03.1985. The R-1

was actually promoted to officiate as Inspector

(Executive) with effect from 01.09.1986 giving him pro

forma promotion form 13.06.1985 to 31.08.1986. The

period of probation specified in Delhi Police (Promotion

and Confirmation) Rules, 1980 {„the said Rules‟ for

short} is two years and thus in normal course R-1 was

due for confirmation in the rank of Inspector (Executive)

with effect from 01.11.1987. However, his probation was

extended for a period of one year with effect from

01.11.1987 due to indifferent record of service. This

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order came to be passed on 11.04.1988 on account of

initiation of departmental proceedings against R-1. The

case of R-1 was examined for confirmation on the expiry

of the extended period of probation on 31.10.1988, but

since he was facing departmental enquiry, the issue of

confirmation was kept pending till finalization of the

departmental enquiry. The departmental enquiry

resulted in an order dated 11.12.1989 whereby the

punishment of reduction to the rank of Sub Inspector was

imposed on R-1 for a period of three years. The ACR of

R-1 even thereafter for the period 01.04.1989 to

31.03.1991 was recorded as adverse.

4. It is the case of R-1 that under the said Rules applicable

to him, there could not have been an extension of

probation for a period beyond 31.08.1989 and he should

be deemed to have been confirmed irrespective of

pendency of the departmental proceedings against him.

This plea is predicated on a premise that nothing

prevented the petitioner from reverting R-1 to the

original post without any stigma during the period of

probation.

5. The aforesaid plea found favour with Central

Administrative Tribunal („CAT‟ for short) before whom R-1

moved an OA and in terms of the impugned order dated

16.07.1999, the challenge laid by the petitioner to the

order dated 22.02.1994 proceeding on the assumption

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that R-1 had failed to complete his probation period was

quashed and the petitioner was directed to restore R-1 to

the rank of Inspector permanently from the date on

which he was reverted to the post of SI with all

consequential benefits in accordance with rules and

regulations.

6. We may notice at this stage that the order dated

22.02.1994 records that since R-1 has been reduced to

the rank of Sub Inspector as a measure of penalty on

11.08.1989, he is deemed to have been reverted to the

rank of Sub Inspector with effect from 11.12.1989 for his

failure to successfully complete the probation period. It

is this decision which is now sought to be impugned by

the petitioner/Govt. of NCT of Delhi by filing the present

writ petition under Article 226 of the Constitution of India.

7. In order to appreciate the controversy, it is necessary to

reproduce the relevant rules and thereafter proceed to

interpret their effect. The same are Rule 5 and Rule

18(i) and (iv) of the said Rules.

                         "Rule 5 :            General        Principles         of
                         Promotion

                         i).....

                         ii) All the promotions form one rank to

another against temporary or permanent vacancies, except in the case of ad hoc arrangements shall be on officiating basis and the employees shall be considered for confirmation only on availability of permanent posts and on successful completion of probation period of minimum 2 years provided that _____________________________________________________________________________________________

the appointing authority may, by a special order in each case permit periods of officiating service to count towards the period of probation. On the conclusion of the probationary period, the competent authority may either confirm the promotee or revert or, if it so thinks fit, extend the period of probation by the year and on the cancellation of the extended period of probation pass such orders as it may deem fit provided that the period of probation shall not be further extended in any case while on probation, an officer may be reverted without departmental proceedings.

Such reversion shall not be considered reduction in rank for the purpose of Rule 8(b) of Delhi Police (Punishment and Appeal) Rules, 1980.

Rule 18 Confirmation

i) Save as otherwise provided in these rules, confirmation in all ranks shall be strictly on the basis of seniority when permanent posts become available.

ii)...

iii)...

iv) No member of subordinate rank, who is under suspension or facing departmental/criminal proceedings shall be eligible for confirmation. Their cases shall be decided by the DPCs concerned after such proceedings are over. A departmental enquiry shall be deemed to have been initiated after the summary of allegations has been served."

8. We may also extract the Circular No. 13794-876/CB

dated 19.04.1980 governing confirmation and the

relevant para 4(ii) of the same reads as under:

" Where an officer has been awarded a punishment either minor or major for an act of misconduct reflecting adversely on his integrity, he will be placed on probation for two years from the date of the availability of _____________________________________________________________________________________________

permanent post and will not be given the benefit of converting his officiating period into probation as in the case of others."

9. It is the interplay of the aforesaid rules which would

certainly determine the controversy in question and it is

the submission of the learned counsel for the petitioner

that the CAT has referred to and mis-interpreted Rule

5(ii) without noticing rule 18(iv) of the said Rules.

10. Learned counsel for the petitioner has also pointed out to

us that even during the period of reversion, R-1 was

awarded a major penalty of forfeiture of six years

approved service for a period of six years which

punishment was also upheld by the CAT in OA

No.1474/2002 clarifying that R-1 was not to get any

increment during these periods of six years when his pay

was reduced.

11. This conduct of R-1 also invited a show cause notice

under Rule 7(ii) of the said Rules on 06.04.1994 for

removal of the name of R-1 from Promotion List (F) and

his name was removed on 09.09.1994.

12. Now proceeding to the said Rules, it is quite apparent

that the salient features of Rule 5(ii) of the said Rules

laying down the general principles of promotion are as

under:

 All promotions form one rank to another against

temporary or permanent vacancies shall be on

officiating basis.

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 An employee shall be considered for promotion only

on availability of permanent posts.

 An employee can be considered for promotion on

successful completion of probation period of minimum

two years.

 On the completion of probation period, the competent

authority may either confirm or revert the promotee

as it deems fit or extend the period of probation by

one year.

 In case of extension of probation period by one year,

on completion of such extended period the competent

authority may pass such orders as it deems fit.

 The period of probation shall not be further extended

in any case while on probation, an officer may be

reverted without departmental proceedings.

13. Similarly, the salient features of Rule 18(iv) of the said

Rules are as under:

 No member of the subordinate rank, who is under

suspension or facing departmental/criminal

proceedings, shall be eligible for confirmation.

 The cases of such candidates will be decided by DPC

concerned after such proceedings are over.

 The departmental enquiry shall be deemed to have

been initiated after the summary of allegations has

been served.

_____________________________________________________________________________________________

14. Insofar as the factual matrix is concerned, learned

counsel for R-1 initially sought to contend that since

name of R-1 was brought on the Promotion List (F) with

effect from 13.06.1985, the period of two years of

probation and one year of extended period of probation

should be counted from the said date. However, this

plea is without any merit for the question of probation to

begin would only arise when a person starts working on a

post though he may have got some other benefits

retrospectively. Undoubtedly, R-1 started functioning on

the promoted post only from 01.09.1985. His probation

has been counted from the said date and also extended

accordingly which was never challenged. The day to

reckon would thus be 01.09.1985.

15. The departmental proceedings were initiated on

11.04.1988 and were in progress when R-1 completed

the extended period of probation on 31.10.1988. The

case of R-1 was kept pending for such consideration of

confirmation or reversion in view of the departmental

enquiry which resulted in a punishment only on

11.12.1989. The moot point which thus arises for

consideration is whether pending such enquiry in the

absence of either confirmation or reversion, can R-1 be

deemed to have been confirmed.

16. We may notice at this stage that there was apparently

amendment to the Rules with effect from 09.05.1989

_____________________________________________________________________________________________

during the pendency of the proceedings and the relevant

amended Rules are as under:

                        "Rule 5 :             General         Principles         of
                        Promotion

                        i).....

ii) All promotions from one rank to another temporary or permanent vacancies, except in the case of adhoc arrangements shall be on officiating basis. The competent authority on completion of probation period of two years may assess the work and conduct of the officer himself and in case the conclusion is that the officer is fit to hold the higher grade, he will pass an order declaring that the person concerned has successfully completed the period of probation. If the competent authority considers that the work of the officer has not been satisfactory or needs to be watched for some more time, he may recruit him to the post or grade from which he was promoted, or extend the period of probation, as the case may be.

Rule 18 Confirmation

i) Confirmation shall be made only once in the service of an official which shall be in the entry grade. Confirmation is delinked from the availability of permanent vacancy in the grade. In other words, an officer who has successfully completed the period of probation may be considered for confirmation.

ii)....

iii)....

iv) No member of subordinate rank, who is under suspension or facing departmental/criminal proceeding shall be eligible for confirmation. Their cases shall be decided by competent authority _____________________________________________________________________________________________

concerned after such proceedings are over. A departmental enquiry shall be deemed to have been initiated after summary of allegations has been served."

17. We may, however, note that the impugned order also has

proceeded on the basis that unamended Rules would

apply. In any case, insofar as R-1 is concerned, we may

say that the unamended Rules are more beneficiary

especially Rule 5(ii) of the said Rules on which R-1 has

relied.

18. The legal issue relating to „deemed confirmation‟ has

been noticed in a catena of judgments of the Supreme

Court. There have been different lines of reasoning on

this principle being applied to service jurisprudence. The

various judgments have been discussed in a recent

judgment of the Supreme Court in Khazia Mohammed

Muzammil v. The State of Karnataka & Anr; JT 2010 (7)

SC 149.

19. The Supreme Court has itself re-cognized that there are

two views prevalent in the Supreme Court. The first view

is that there can be deemed confirmation after an

employee has completed the maximum period of

probation provided under the said Rules. The second

view is that there would be no deemed confirmation and

at best after completion of maximum probation period

provided under the said Rules governing an employee,

the employee becomes eligible for being confirmed in his

_____________________________________________________________________________________________

post. The period of probation remains in force till written

document of successful completion of probation is issued

by the competent authority. In fact, the Supreme Court

observed "having examined the various judgments cited

at the bar, including that of all larger Benches, it is not

possible for this Bench to state which of the view is

correct enunciation of law or otherwise. We are of the

considered opinion, as to what view has to be taken,

would depend upon the facts of a given case and the

relevant Rules in force."

20. The fact that the purpose of probation is to ensure that

before an employee attains the status of confirmed

regular employee, he should satisfactorily perform his

duties and functions to enable the Authorities to pass

appropriate orders, has been recognized in para 12 of the

judgment in Khazia Mohammed Muzammil v. The State of

Karnataka & Anr.‟s case (supra). Thus, the scheme of

probation is to judge the ability, suitability and

performance of an officer under probation. Thereafter

there is discussion on the different judgments earlier

pronounced by the Supreme Court. We would like to cull

out the substance of the views expressed in different

judgments.

21. In State of Punjab v. Dharam Singh; AIR 1968 SC 1210, it

was observed that there would be confirmation by

implication when there is certain period beyond which

_____________________________________________________________________________________________

the probation period cannot be extended. The Seven-

Judge Bench of the Supreme Court in Shamsher v. State

of Punjab; (1974) 2 SCC 834 while examining the

question whether termination during probation could be

viewed as a punitive action in some cases or always has

to be as discharge simplicitor during the said periods,

also discussed at some length whether a probationer can

automatically be confirmed on the expiry of period of

probation. It was held that though the principle of

deemed confirmation existed in that case, any

confirmation by implication was negatived because

before the completion of three years, the work as well as

the conduct of the concerned officer was found to be

unsatisfactory and a notice was given to the officer.

Where such a notice is given, it was observed, that the

period of probation gets extended till the enquiry

proceedings come to an end in pursuance to that notice

and the period of probation shall be deemed to have

been extended impliedly. In Dayaram Dayal v. State of

MP; (1997) 7 SCC 443, the Supreme Court specifically

noticed the two lines of rulings pronounced by that Court

in its different judgments. The conclusion was that there

was no serious conflict between the two sets of decisions

and it depended on the conditions contained in the order

of appointment and the relevant rules applicable.

Similarly, in Karnataka State Road Transport Corporation

_____________________________________________________________________________________________

v. S.Manjunath; (2000) 5 SCC 250, it was observed that a

person should not be considered to have satisfactorily

completed the period of probation unless specific order

to that effect is made and the delay in issuance of

certificate would not entitle the person to be deemed to

have satisfactorily competed the period of probation.

While observing so, a reference was also made to the

view in Wasim Beg v.State of UP; (1998) 3 SCC 321. In

that context, it was observed that one line of cases held

that if the rule or order of appointment specified a period

of probation, power to extend probation is also conferred

and the officer is allowed to continue beyond the

prescribed period of probation, he cannot be deemed to

be confirmed and there is no bar on the power of

termination of the officer after expiry of the initial or

extended period of probation. This is so, as at the end of

probation, the officer merely becomes qualified or

eligible for substantive permanent appointment.

22. The second line of cases are where even though there is

a provision in the said Rules for initial probation and

extension thereof, a maximum period for such extension

is also provided beyond which it is not permissible to

extend probation. It is in this line of cases that the

continuation beyond period of probation as a probationer

stood negatived by the fixation of a maximum time-limit

for the extension of probation.

_____________________________________________________________________________________________

23. The third string which emerges from Shamsher v. State

of Punjab‟s case (supra) is that despite indication of a

maximum period of probation, the implied extension was

held to render the maximum period of probation a

directory one and not mandatory and an order of

confirmation is a must. In such a situation, what is also

material is whether there is anything else in the Rules

which had the effect of whittling down the right to

deemed confirmation on account of the prescription of a

maximum period of probation beyond which there is an

embargo upon further extension being made.

24. In High Court of Madhya Pradesh v. Satya Narayan

Jhavar; (2001) 7 SCC 161, the Supreme Court declined to

accept the contention that the employee was entitled to

an automatic confirmation after expiry of the probation

period. The rule provided maximum period of probation,

but it depended on the fitness of such employee and his

passing departmental examination by high standards.

This view has been followed in Registrar, High Court of

Gujarat v. C.G.Sharma (2005) 1 SCC 132.

25. It is in the conspectus of the aforesaid judgments that

the Supreme Court in Khazia Mohammed Muzammil v.

The State of Karnataka & Anr.‟s case (supra) came to the

conclusion that the pith and substance of the stated

principles of law is that it will be the facts and the Rules

which will have to be examined by the Courts as a

_____________________________________________________________________________________________

condition precedent to the application of the dictum

stated in any of the line of cases noticed. There can be

cases where rules require a definite act on the part of the

employer before officer on probation can be confirmed

and in those cases automatic confirmation would not

arise. On satisfactory completion of probation period,

the authorities shall have to consider the suitability of the

probationer to hold the post to which he was appointed.

26. If the aforesaid principles and Rules are applied to the

facts in the present case, we find that Rule 5(ii) of the

said Rules requires "successful completion of probation

period of minimum 2 years". This is a pre-requisite for

confirmation on an available permanent post. This of

course has to be read with the stipulation that the

competent authority may either confirm or revert or

extend the period of probation by a year without further

extension of period of probation. However, in our

considered view, the successful period of probation is

mandatory and it can hardly be said that there is a

successful completion of the period of probation when

during the extended period of one year, a departmental

proceeding itself is initiated which has culminated in a

punishment.

27. The most important aspect is that Rule 18(iv) of the said

Rules seems to have been lost sight of and not even

noticed in the impugned order. It has already been

_____________________________________________________________________________________________

observed in Khazia Mohammed Muzammil v. The State of

Karnataka & Anr.‟s case (supra) that in determining the

question of such deemed confirmation, the play of other

rules has also to be taken into account as to whether

they whittle down this principle. If in this context Rule

18(iv) of the said Rules is analyzed, it is obvious to us

that where departmental proceedings are initiated, no

person is eligible for confirmation and the competent

authority has to decide the issue of confirmation only

after such departmental proceedings are over. This is

exactly what has happened in the present case. The

departmental proceedings had commenced well before

the expiry of the extended period of three years. When

the extended period of three years was expiring on

31.08.1988, it was deemed appropriate to keep the

matter in abeyance pending departmental enquiry.

These departmental proceedings ultimately culminated

in a punishment of reduction of rank of R-1 to SI for a

period of three years vide order dated 11.12.1989. If we

were to accept the contention of learned counsel for R-1,

that the absence of exercise of power of reversion

without any stigma ought to have been exercised within

the extended period and the petitioner ought not to

have waited till the conclusion of the departmental

enquiry, an anomalous position would emerge where R-1

himself would have challenged any such reversion on the

_____________________________________________________________________________________________

ground that it is tainted by a view taken in view of the

pendency of the departmental proceedings which had

not culminated against or in favour of R-1. It would be

travesty of justice if a person like R-1 was to be given the

benefit of such deemed confirmation while departmental

proceedings are pending against him.

28. The career graph of R-1 from the inception has been

tardy inviting three censures, two adverse ACRs and one

increment being withheld for one year even prior to his

being placed on Promotion List (F). When R-1 got the

benefit to serve on the promoted post, he failed to render

satisfactory service to an extent that the department

instead of merely reverting him deemed it appropriate to

initiate proceedings even during the probation period

which culminated in R-1 being imposed with the

punishment of reduction of rank for a period of three

years vide order dated 11.12.1989. Even thereafter in

another departmental enquiry, R-1 has been awarded a

major penalty of reduction of pay in six stages for a

period of six years on 28.09.1990 apart from subsequent

censure.

29. If the facts of the present case are thus examined along

with the relevant Rules, we have no doubt in our mind

that R-1 can hardly be said to be a person who has been

found suitable to hold the post or that he has

satisfactorily performed his duties. In fact, it is a case of

_____________________________________________________________________________________________

deemed extension of probation period in view of

departmental proceedings having commenced against R-

1 during the period of probation. The impugned order is

predicated on only Rule 5(ii) of the said Rules ignoring

Rule 18(iv) of the said Rules.

30. The writ petition is accordingly allowed, the impugned

order of the CAT dated 16.07.1990 is set aside and the

Rule is made absolute. The parties are left to bear their

own costs.

SANJAY KISHAN KAUL, J.

August 13, 2010                                         VALMIKI J. MEHTA, J.
dm

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