Ashok Kumar Singh vs Union Of India & Ors
2010 Latest Caselaw 4227 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) No. 550/1993

                                   Reserved on :   18th August, 2010

                             Date of judgment : September 13th , 2010


         ASHOK KUMAR SINGH                 ..... Petitioner
                      Through : Mr. P.C. Shukla, Adv.
                      Mr. Balaji Subramanian, Advocate
                      appointed as amicus curiae

                         versus


         UNION OF INDIA & ORS                ..... Respondents

Through Mr. Sachin Dutta, Adv.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA

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 in the Digest? Yes

GITA MITTAL, J

1. The writ petitioner assails a discharge certificate dated 30th

June, 1990 whereby he was discharged from service on the

ground that his services were no longer required and the order

dated 1st December, 1992 passed by the Directorate General of

Border Roads rejecting the petitioner's appeal assailing the

order of termination of his services by way of the present

petition. The facts giving rise to the writ petition are undisputed

and to the extent necessary, are briefly noted hereafter.

2. The respondent had issued an advertisement no. 1/85

inviting applications for several posts in the General Reserve

Engineering Force including for the post of "M.T. Driver". The

advertisement placed before us stipulated certain `Special

Conditions' which have been relied upon by the respondents

before us and read as follows :-

"Special Conditions : 1. The members of the Force (Department) are deployed in Projects/Units all over India, especially in the Northern and Eastern Regions or in Projects outside India. Individuals may be posted anywhere in India or abroad.

2. Individuals selected will be on probation for last two years on completion of which the competent authority will assess their suitability for continuity and pass appropriate order.

3(a) Members of the Force are governed by the Provisions of Central Civil Services (Classification, Central and Appeal) Rules, 1964 as amended from time to time

(b) Notwithstanding above, all members of the Force are also subject to certain provisions of Army Act, 1950 and Rules made thereunder as laid down in S.R.Os. 329 and 330 of 1960."

3. Pursuant to a selection process undertaken by the

respondent on 16th November, 1985, the petitioner was

appointed as an M.T. Driver at Dighi Camp, Pune. On 1st

January, 1986, the petitioner was issued a movement order and

directed to report at Chandigarh.

4. In December, 1986, the petitioner was posted with the 51,

Road Construction Company. Unfortunately on 23rd December,

1986, the vehicle being driven by the petitioner met with an

accident near the Changla Pass in high altitude conditions.

While it was alleged that the accident occurred for the

reason that the petitioner did not perform his duty with due

care and caution, the petitioner has contended that the accident

occurred for reasons of poor conditions of the road and the

difficult weather conditions in the snow covered area at 17000

feet above sea level.

5. The respondents have submitted that because of the

petitioner's lack of skill, the Tata Tipper which he was driving fell

into a deep nullah and could not be recovered resulting in a loss

to the tune of rupees 1,74,832.45 to the public exchequer. The

petitioner on the other hand submits that the Tata Tipper

vehicle being driven by him was not provided with the necessary

non-skid chains to drive in such conditions.

6. The court of inquiry cum board of officers which was

constituted to find out the cause of the accident, found the

petitioner guilty and attributed the accident to his negligence

and overspeeding by the petitioner. Pursuant thereto, a penal

recovery of Rupees 5,000/- was effected from the petitioner and

the amount was deposited in the Government Treasury with the

SBI, Leh on 23rd May, 1990.

7. The matter did not end here. It appears that on 20th June,

1987, when the petitioner was posted at 111 Road Construction

Company, he had been detailed for driving a Tata Tipper vehicle

bearing BL No. 65449 in the Ramsay area at a height of about

13000 feet when he was involved in another accident. The

petitioner submits that on account of falling rocks, the steering

wheel of the vehicle turned completely, resulting in the vehicle

falling on the mountain side. In this accident, it is stated that

while the petitioner suffered some injuries, two of the GREF

personnel who were passengers in the vehicle, were fatally

injured and expired. The truck was also severally damaged

resulting in huge loss to the State. Again, the court of inquiry

conducted into this incident found the petitioner blameworthy

and penal deduction of rupees 5,000/- was made from his pay

and allowances.

8. The respondents have further contended that an amount

of Rs.1,53,724/- has been paid to the next of kin of the two

deceased personnel on account of compensation under the

Workman Compensation Act, 1923. In addition, damage to the

vehicle which was assessed as Rs.25,900/- was also caused.

9. The findings of culpability of the petitioner for these two

accidents and penalties imposed were not assailed by him in

any other proceedings and have attained finality. It is

noteworthy that the two accidents occurred within six months of

each other.

10. So far as the service of the petitioner is concerned, the

petitioner was appointed on probation for two years

commencing from 16th November, 1985 to 15th November, 1987.

For the reason that the petitioner's performance was not found

satisfactory "due to his involvment in court of inquiry on account

of two MT accidents which had not yet been finalised", his

probation period was extended by an order dated 11 th October,

1988 for a period of one year from 16th November, 1987 to 15th

November, 1988. This extension was effected to give him one

more chance to improve his performance for becoming suitable

for continuous appointment in GREF.

11. The probation period was again extended vide an order

passed on 7th February, 1990, by one more year from 15th

November, 1989 to 15th November, 1990 as an exceptional case

in the light of the decision no.3(viii) incorporated in Article 202

of CSR Vol.-I. In these circumstances, taking into consideration

the petitioner's overall performance as well as his suitability and

fitness, the respondents did not find his overall performance

satisfactory despite his being given a fair chance by extension of

the probation period. Consequently, in exercise of powers

conferred under Article 202 of the CSR Vol.-1, the respondents

issued an order dated 24th May, 1990 discharging the petitioner

from service during this period of the extended probation for the

reason that he was not found suitable for further retention in

service.

12. It is noteworthy that the respondents also issued a

memorandum dated 6th June, 1990 proposing to hold a

disciplinary inquiry against the petitioner on the following

charge:-

" Article 1

That the said Shri Ashok Kumar Singh (G/162705 MT Dvr) of Sec. 1 of 591 Tpt P1 (GREF) while attached with 51 RCC for duty, his vehicle TATA Tipper BA No.85E-65442 of 593(1) Tpt P1 met with an accident on 23 Dec 86 at KM 28.7000 on Karu-Tangtse road due to negligent and overspeeding without considering the road condition prevailing at the time of accident. Thus, the vehicle rolled down into the Nallah about 500 Mtrs below the road surface which resulted in extensive damage and downgradation of the vehicle to Class DEE. Subsequently when he was attached with 111 RCC while driving vehicle TATA Tipper BA No.86E-65449 of 593(1) Tpt Pl., on 20 June 87 detailed for conveyance of six GREF personnel to Dett Debring, met with an accident at KM 74 on Upshi-Sarchu road due to negligent driving on the part of said driver, who committed second MT accident within six months period, resulting in loss of Govt. Property and death of G/159021 overseer AP Jena of 156 RMPI (111 RCC) and G/79845 Pnr. Bhawani Dutt of 1609 Pnr Coy, thereby not maintaining absolute integrity, devotion to duty and displaying a conduct unbecoming of a Government servant

violating sub rule 1(i) & (iii) of Rule 3 of CCS (Conduct) Rules 1964."

13. The respondents had subsequently issued a

communication dated 22nd June, 1990 informing the petitioner

that the memorandum dated 6th June, 1990 stood cancelled by

the competent authority.

14. The petitioner has also placed before us a copy of

communication dated 10th May, 1990 whereby the respondents

communicated the adverse/remedial remarks endorsed in his

Annual Confidential Report (ACR) for the year 1989. In para 22

of the petitioner's ACR for 1989, the reporting officer had

commented that though the petitioner was a well built smart

driver, but he could not achieve safe driving standard and his

knowledge about the trade and his driving are below average.

The reporting officer had also commented that the petitioner

was not fit for safe driving and was a below average driver. The

same comment was reiterated in para 27 & 30 of the ACR. The

petitioner was advised to improve upon the

shortcomings/remedial remarks in his own interest.

15. The petitioner's appeal assailing the order dated 30th June,

1990 was rejected on 1st December, 1992 by the Appellate

Authority.

16. After the passing of the impugned order to discharge him

from service, the petitioner had assailed the same by way of a

petition registered as OA No.1172/1992 before the Central

Administrative Tribunal. By the order passed on 27th July, 1987

the petitioner was permitted to withdraw the petition with liberty

to file an appeal if the cause of action arose, before the

appropriate forum.

17. The petitioner thereafter assailed the impugned order by

way of an appeal to the authorities which was rejected by an

order passed on 1st December, 1992. The present petition has

been filed thereafter on or about 12th January, 1993.

18. The primary contention of Mr. Shukla, learned counsel for

the petitioner is that the respondents had no authority or

jurisdiction to extend the period of probation beyond a total

period of two years and that the action of the respondents in

extending the probation of the petitioner for a period upto four

years was illegal and contrary to the applicable rules and

instructions. Premised on this contention, it is urged that the

respondents' stand that the petitioner was a probationer and

that the respondents were legally empowered to pass an order

of termination of his services simplicitor without casting any

aspersion or stigma on him, is totally misconceived and

erroneous. Learned counsel has vehemently urged that in view

of the maximum period of probation which has been stipulated

under the office memorandum dated 15th April, 1989, on expiry

of this period, there would be deemed confirmation of the

petitioner's service without anything more and as such, the

respondents could not have terminated his service without

conducting a proper inquiry.

19. Learned counsel for the petitioner has placed reliance on

the OM No. 44/1/59-Ests(A) dated 15th April, 1959 which

are Government Instructions issued by the Ministry of Home

Affairs which has been captioned as 'Probation on Appointment'

to urge that the probation could have been extended only

during the currency of its tenure so that the probationer could

make special efforts at self improvement. The extension of

probation after expiry of the tenure is urged to be without

jurisdiction.

20. OM No. F 44/1/59/ ESTS(A) dated 15th April, 1959 has

been extracted in Swami's Complete Manual on Establishment &

Administration (For Central Government Officers) 2005 Edn. The

relevant portion of these instructions reads as follows :-

(1) General principles.- All aspects of appointments on probation in various services have been recently reviewed by Government and the following recommendations are forwarded for adoption in respect of the services controlled by the various Ministries, etc.:-

xxx xxx xxx

(viii) While the normal probation may certainly be extended in suitable cases, it is not desirable that an employee should be kept on probation for years as happened occasionally at present. It is, therefore, suggested that, save for exceptional reasons, probation should not be extended for more than a year and no employee should be kept on probation for more than double the normal period.

(ix) The decision whether an employee should be confirmed or his probation extended should be taken soon after the expiry of the initial probationary period, that is ordinarily within six to eight weeks, and communicated to the employee together with the reasons in case of extension. A probationer who is not making satisfactory progress or who shows himself to be inadequate for the service in any way should be informed of his shortcomings well before the expiry of the original probationary period so that he can make special efforts at self-improvement.

21. Mr. Sachin Dutta, learned standing counsel for the

respondents however has placed before us the relevant extract

of the OM No. 21011/2/90 - Estt.(C) dated 19th May, 1983

which are government instructions issued by the Department of

Personnel & Administrative Reforms of the Ministry of Home

Affairs which amended the aforesaid OM of 15th April, 1959 and

also dealt with the issue of period of probation in various central

services in the following terms.

" xxx xxx xxx

(3) Period of probation in various Central Services.- 1. Para 1(vii) of Ministry of Home Affairs, O.M. No.44/1/59-Estt. (A) dated the 15th

April, 1959 (General Principles - Order (1) above) stipulates that the fresh entrants as well as those promoted should be kept on probation for a period of two years to judge the potentialities of an officer for a higher service. On review, it has now been decided that -

(i) Save as provided in Clause (ii) below, direct recruits to a post/service shall be on probation for a period of two years.

(ii) Direct recruits to posts carrying a pay scale, the minimum of which is Rs.2,000 (Fourth Pay Commission) or above or to posts for which the maximum age-limit for recruitment is 35 years or above and where no training is involved, shall be on probation for a period of one year only.

(iii) Persons who are inducted into a new service through promotion shall also be placed on probation for two years; but there will be no probation for a person promoted from one grade to another within the same service, except where the promotion involves a change in the Group of posts in the same service, e.g., promotion from Group `B' to Group `A' in which case the probation shall be for two years.

(iv) Wherever probation includes `on the job' or `institutional training' combined with actual performance on the job, probation for a period of two years should be prescribed in the Recruitment Rules.

(v) In the case of those who are re-employed before the age of superannuation e.g., Ex-Military personnel, there will be a probation of two years on their appointment/re-employment to civil posts except in respect of cases covered by Clause (ii) above.

(vi) There will be no probation in the case of officers appointed to various posts on -

(a) contract basis;

(b) deputation;

(c) tenure basis;

(d) re-employment after superannuation; and

(e) permanent transfer.

2. On the expiry of the period of probation, steps should be taken to obtain the assessment reports on the probationer and to -

(i) Confirm the probationer/issue orders regarding satisfactory termination of probation, as the case may be, if the probation has been completed to the satisfaction of the competent authority; or

(ii) Extend the period of probation (in terms of Para 1(viii) of the OM, dated the 15th April, 1959) or discharge the probationer's or terminate the services of the probationer's, as the case may be, in accordance with the relevant rules and orders, if the probationer's has not completed the period of probation satisfactorily.

3. The date from which confirmation should be given effect to is the date following the date of satisfactory completion of the prescribed period of probation or the extended period of probation, as the case may be. The decision to confirm the probationer's or to extend the period of probation, as the case may be, should be communicated to the probationer normally within 6 to 8 weeks. Confirmation of the probationer's after completion of the period of probation is not automatic but is to be followed by formal orders. As long as no specific orders of confirmation or satisfactory completion of probation are issued to a probationer's, such probationer's shall be deemed to have continued on probation.

4. The instructions contained in the O.M. of 15th of April, 1959 (General Principles) referred to in Para. 1 above may be treated as amended to the extend stated in the preceding paragraphs."

(Underlining by us)

22. It is submitted by Mr. Sachin Dutta, learned standing

counsel that assuming that para 2 of the OM of 1959 was to be

treated as stipulating a maximum period of probation for which

the probation of a person could be extended, the government

instructions, in any case, mandated that a specific order has to

be passed on the completion of such probation and assessment

of the suitability of the personnel, before it could be held that

the probation has been successfully concluded. Absent such

order, it is urged that the personnel would be deemed to be

continued on probation.

23. So far as the power to extend probation is concerned, it is

urged by learned standing counsel that even if the rules

expressly did not provide for extension of the probation, the

power to extend the probation is implicit. In this regard, our

attention has been drawn to the pronouncement of the Apex

Court reported at (1985) 2 SCC 5 Dhanji Bhai Ramji Bhai vs.

State of Gujrat wherein the Apex Court has held as follows :-

"7. It is next urged that as no rules have been framed indicating the manner for extending the period of probation, there is no power to extend the period of probation. The argument suffers from a fallacy. The power to extend the period of probation must not be confused with the manner in which the extension may be effected. The one relates to power, the other to mere procedure. Merely because procedural rules have not been framed does not imply a negation of the power. In the absence of such rules, it is sufficient that the power is exercised fairly and reasonably, having regard to the context in which the power has been granted."

24. In our view, however, no such issue would arise for the

reason that the relevant Government Instructions relied upon by

the petitioner, which admittedly bind the parties and would

guide adjudication of the issues raised before us, contemplate

and specifically empower the respondents to extend the

probation. The issue which has been raised relates to the period

for which such probation can be extended.

25. From a reading of the office memorandum dated the 19th

of May, 1983, it is evident that merely spending the period of

two years after joining service with the respondents is not

enough. Under the applicable instructions, the respondents are

required to assess the performance of the probationer and pass

appropriate orders about the satisfactory performance.

26. So far as the assessment or completion of probation is

concerned, our attention is also drawn to the 'Special Conditions'

which were notified to all candidates applying for appointment

to the post in question. As per the public advertisement and the

instructions issued to the applicants, inter alia the following

special conditions may be usefully extracted and read as

follows :-

"Special Conditions : 1. The members of the Force (department) are deployed in Projects/Units all over India, especially in the

Northern and Eastern Regions or in Projects outside India. Individuals may be posted anywhere in India or abroad.

2. Individuals selected will be on probation for first two years on completion of which the competent authority will assess their suitability for continuity and pass appropriate orders. 3(a) Members of the Force are governed by the provisions of Central Civil Service (Classification, Control and Appeals) Rules, 1964 as amended from time to time (b) Notwithstanding above, all members of the Force are also subject to certain provisions of Army Act, 1950 and Rules made thereunder as laid down in SROs 329 and 330 of 1960."

(Emphasis supplied)

27. Learned counsel for the petitioner has placed reliance on

the pronouncement reported at AIR 2001 SC 3233 High

Court of Madhya Pradesh thru. Registrar and Ors. vs.

Satya Narayan Jhavar. In para 11 of the judgment, the

Supreme Court has considered the three line of cases which

may arise so far as probation and its extension were concerned

and summed up as follows :-

"11. The question of deemed confirmation in service Jurisprudence, which is dependent upon language of the relevant service rules, has been 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 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 cases there is no bar against termination at any point of time after expiry of the period of probation. Other line of cases is that where while there is a provision in the 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. The inference in such cases is that officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry 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 require 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 and neither any order of confirmation has been passed nor the person concerned has passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."

28. In High Court of Madhya Pradesh Through Registrar

vs. Satya Narayan Jhavar (supra), the Supreme Court has

clearly held that there was no bar against termination of service

at any point of time after expiry of the period of initial probation.

The Supreme Court has further held that so far as the first

eventuality is concerned, if the officer is continued beyond the

prescribed or extended period, he cannot be deemed to be

confirmed.

29. So far as the second line of cases is concerned, it was held

that in such a case, the officer concerned would be deemed to

have been confirmed upon expiry of the maximum period of

probation, in case, before its expiry, an order of termination has

not been passed.

30. So far as the third eventuality is concerned, the Supreme

Court held that even if the maximum period of probation has

expired and neither any order of confirmation has been passed,

nor the person concerned has passed the requisite test, he

cannot be deemed to have been confirmed merely because the

said period has expired.

31. Mr. Sachin Dutta, learned standing counsel for the

respondents has urged that the instant case is covered under

the first category of cases inasmuch as the Government

instruction dated 26th April, 1989 (which amended the OM of 15th

April, 1959) provides for extension of the original period of

probation without prescribing any bar or a maximum period

thereof. It is therefore evident that in terms of para 3 of this

Government instruction, following the satisfactory completion of

the prescribed period of probation or the extended period of

probation, specific orders of confirmation of satisfactory

completion are required to be issued, failing which the

probationer shall be deemed to have been continued on

probation.

32. We find that the `Special Conditions' afore-noticed clearly

informed the candidate that on completion of the period of

probation, there has to be specific assessment of their suitability

for the service. Even this assessment is by itself not sufficient

inasmuch as the Special Conditions envisage and require a

specific and appropriate order to be passed in this behalf. In

view of the stipulation contained in these special conditions as

well as in the government instructions which have been relied

upon by both parties, it is evident that the instant case may

appropriately fall under the third line of cases considered by the

Supreme Court in the Registrar of M.P. High Court vs. Satya

Naryan Jhavar (supra). As a result it follows that mere

completion of the period of probation would not ipso facto

entitle the probationer to his confirmation in service. Therefore

in order to urge a case of deemed confirmation, the petitioner

would have to point out assessment of his suitability for the

service and an order by the respondent to this effect.

33. It is urged by learned counsel for the petitioner that

Clause (viii) of the office memorandum of 15th April, 1959

stipulates the maximum period for which probation could be

extended. It has been contended by learned counsel for the

petitioner that an employee is to be appointed normally on

probation for a period of one year and only in exceptional cases,

such probation could be extended for more than another year

which should be double the period. However, we find that

clause (viii) specifically empowers the appointing authority to

draw an exception for exceptional reasons and empowers the

appointing authority to extend the probation. A reading of the

clause would show that the same qualifies both eventualities

noticed by the Supreme Court. The appointing authority

appears to have been empowered thereby to extend the

probation for exceptional circumstances and reasons even

beyond the period which has been stipulated in the sub clause.

34. On such reading of clause (viii), the question which would

require to be answered is as to whether the instant case would

fall within the meaning of 'exceptional cases' to justify extension

of the probation beyond double of the normal period of one

year. The placement of the expression for 'exceptional reasons'

would show that the authorities are so empowered. In order to

read the stipulation in the manner suggested on behalf of the

petitioner, this expression would have been placed in the later

part of the clause.

35. We also find that it is the admitted stand in the writ

petition that "the petitioner was the least experienced driver to

drive a heavy vehicle in such poorest condition of road and

weather. Still the petitioner tried his best to drive his vehicle

without non skid chains." The special conditions to which the

petitioner was put to notice at the time of advertisement issued

by the respondents inviting applications as well as the

conditions to which the petitioner was put to notice at the time

of his enrolment clearly informed the applicants that after

enrolment, the members of the General Reserve Engineering

Force are deployed in the projects or units all over the country

especially in the Northern and Eastern regions. The applicants

were required to possess a valid heavy vehicle licence with

three years experience or have passed the clause II course for

driver plant and mechanical transport as prescribed in the

"Qualification, Regulation for Soldiers" in the Defence Service

Regulations. It is also implicit in these stipulations that the MT

Drivers are required to be equipped to drive all kinds of vehicles

being used by the respondents and can make no grievance.

36. The petitioner's reluctance to drive the TATA Tipper vehicle

is further manifested from his statement in the letter dated 23th

June, 1988 wherein he has raised an objection that he was

assigned duty of driving this vehicle despite his reluctance to

drive it. It is manifested from the above that the petitioner was

admittedly inexperienced and unable to cope with the duties

assigned to him by the respondents.

37. So far as the recommendation of his confirmation in

service is concerned, it is noteworthy that the respondents have

explained that they were giving an opportunity to the petitioner

to improve his performance and for this reason, no immediate

action with regard to discharge of the petitioner or termination

of his services was taken even though he was involved in such

serious accidents. Even though the order extending the

petitioner's probation has been passed after the probation has

expired, however, in our view, nothing turns on the same and

the action cannot be held to be illegal especially in the given

facts.

38. So far as the objection of Mr. Shukla, learned counsel for

the petitoiner to the effect that the petitioner was never

informed of his shortcomings and was given no opportunity to

improve, we can only say that the petitioner knew the conditions

in which his job required him to drive. Further, the first accident

by itself was enough warning to the petitioner. Despite the

above stipulations even if the petitioner had not known about

the nature of the terrain where he was required to drive, this

incident ought to have had guided him fully and he should have

had the initiative to acquire such skills as were lacking in him to

enable him to effectively discharge the assigned duties. In any

case, it is for the respondents to consider the matter with regard

to the ability and skills of the petitioner.

39. The respondents have placed before us the

pronouncement of the Division Bench of this court reported at

MANU/DE/1934/2009 Union of India & Ors. Vs. Tarseem Lal

Verma. In this case, the respondents had not been confirmed

in service after completion of the probation period of two years.

Instead, by an order dated 31st October, 1989, the period of his

probation was extended upto 15th July, 1990. The respondent

assailed the extension of his probation by way of a petitoin

before the Central Administrative Tribunal and sought a

declaration that his services were permanent with effect from

the date on which his original probation stood confirmed. It was

the respondents' contention that he had to be declared deemed

to have been confirmed on the post to which he was appointed

when his period of probation was not extended within the period

of two years from the date of his appointment. The petitioner

in this case also had submitted that the probation was extended

long after the expiry of the period to enable him to show some

improvement. in para 19 of this judgment, the Division Bench

had observed as follows:-

"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."

40. Learned counsel for the petitioner has placed reliance on

several pronouncements in support of his plea of deemed

confirmation of the petitioner. So far as the issue of a person

continuing in the post after the expiry of original period of

probation without any spsecific order is concerned, reference

can usefully be made to the pronouncement of the Supreme

Court reported at MANU/SC/0183/1968 : AIR 1968 SC 1210,

State of Punjab Vs. Dharm Singh cited by Mr. Shukla,

learned counsel before us. The principles laid down by the court

shed valuable light on the issue in hand and read as follows:-

"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 Punjab MANU/SC/0356/1962 : 1963 (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,

of 1962 decided on January 23, 1964.], D.A. Lyall v. The Chief Conservator of Forests, U.P. and Ors. [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."

(Emphasis furnished)

In this judicial pronouncement, the Supreme Court also laid

down the principle that there can be no extension of probation

beyond the period appointed under the rules. Certainly, there

can be no dispute at all with these principles.

41. The principles laid down in 1994 II SVLR 101

Commissioner, Food & Civil Supplies, Lucknow, U.P. &

Anr. Vs. Prakash Chander Saxena & Anr. are to the same

effect. Therefore, the prime question which has to be examined

is as to whether there is a prescription of a maximum period

under the rules by which the petitioner was appointed.

42. In the judgment reported at (2007) 10 SCC 161 Jaswant

Singh Pratapsingh Jadeja Vs. Rajkot Municipal

Corporation & Anr., the period of probation of the petitioner

had expired when his misconduct was taken note of. Learned

counsel for the petitioner has placed reliance on this

pronouncement in support of his plea that the order of

termination of the service was not an order of discharge

simplicitor but was stigmatic. In para 16 of the pronouncement,

the Supreme Court had observed that if the satisfaction of the

employer rested on the unsatisfactory performance on the part

of the appellant, the matter may have been different but in that

case, from the impguned order it was evident that it was not the

unsatisfactory nature and character of his performance only

which was taken into consideration but series of other acts as

well, misconduct on his part has also taken into consideration.

The court, consequently, observed that there was also one thing

to say that he was found unsuitable for a job but it is another

thing to say that he was said to have committed some

misconduct. We also find that the order of discharge as noted

by the Supreme Court in para 4 had made specific allegations

against the petitioner. In this background, the Supreme Court

was of the view that the order of discharge of the appointment

was not an order of discharge simplicitor.

43. We find that it is not so in the instant case. The order

dated 24th May, 1990 passed against the petitioner merely

states that during the period of his probation, he was not

considered suitable for continuation in service and his services

stand terminated after one month. The said order is clearly

based on an assessment that the services of the petitioner were

not suitable.

44. It is trite that the discharge of a person on probation by an

order of discharge simplicitor is legally permissible. (Ref.: AIR

1964 SC 449 (CB) Jagdish Mitter Vs. Union fo India (Paras

10 to 13, 22); (2007) 10 SCC 71 Jaswant Pratapsing

Jadeja Vs. Rajkot Municipal Corporation (paras 9, 17 to

28) & (2008) 2 SCC 479 Nehru Yuva Kendra Vs. Mehbub

Alam Laskar (paras 16 to 24))

45. The petitioner's probation was extended to give him a

chance to show improvement. The discharge certificate issued

to the petitioner clearly states that the petitioner's character

was "good" and that the reason for his discharge was stated to

be that "his services are no longer required". We find that the

impugned orders vest no stigma on the petitioner and the action

of the respondents is legally permissible.

46. So far as the issue of commencement of the departmental

inquiry and the same having been dropped and a simple order

of termination having been passed thereafter is concerned,

reference can usefully be made to the pronouncement of the

Supreme Court in AIR 1968 SC 1089 : (1968) 3 SCR 234

State of Punjab Vs. Sukh Raj Bahadur wherein, on similar

facts, the High Court had felt that the object of departmental

inquiry, being to punish the employee, the order of termination

must be treated as punitive. The Supreme Court held that the

departmental inquiry did not proceed beyond the stage of

submission of a chargesheet followed by the respondents

response thereto. The inquiry was not proceeded with. There

was no sittings of the inquiry officer, no evidence recorded and

no conclusion arrived at in the inquiry. For this reason, the

order of discharge simplicitor after dropping the inquiry

proceedings was held to be valid. The Supreme Court had

further observed that the charge memo was served, reply given

and at that stage itself, the proceedings were dropped and a

termination order was passed. The Supreme court reversed the

High Court judgment and held that neither Madan Gopal's case

nor Jagdish Mitter's case applied. This was because in the case

before the court the inquiry did not go beyond the stage of the

explanation. No findings were given and no inquiry report was

submitted as in the above two cases. In the case in hand, the

matter was dropped without awaiting any reply from the

petitioner even. In view of the consideration in Sukh Raj

Bahadur's case (supra), it cannot be held that the order of

termination is without disciplinary proceedings.

47. The various judicial precedents relied upon by the

petitioner clearly state that the applicable rules must prescribe a

maximum period for probation. The above discussion would

show that three eventualities are possible. Firstly, the rules may

provide a period of probation and power to extend the same is

also conferred upon the authority without prescribing any

maximum period. In such an eventuality, if the officer is

continued beyond the prescribed period or extended period, he

cannot be deemed to be confirmed. In such a case, there would

be no bar against termination at any point of time after expiry of

the period of probation. The second line of case is that while

there is a provision in the rule for initial probation and extension

thereof as well, however, a maximum period for extension is

provided beyond which it is not permissible to extend the

probation. Only in such a case would the officer concerned be

deemed to have been confirmed upon expiry of maximum

period of probation in case before its expiry, no order of

termination has been passed.

The third line of case would be those cases where when

though, under the rules, a maximum period of probation has

been prescribed, however, the rules require a specific act on the

part of the employer who, upon completion of the period of

probation, is required to satisfy itself about the suitability of the

employee and issue an order of confirmation. The same test

may even be prescribed for the purposes of confirmation. In

such a case, even if the maximum period of probation has

expired, but neither any order of confirmation has been passed

nor the person concerned has passed the requisite tests, he

cannot be deemed to have been confirmed merely because the

period has expired. Therefore, the absolute proposition of

deemed confirmation urged on behalf of the petitioner on expiry

of the initial period of probation is legally untenable.

48. We have also found that the applicable instructions in the

instant case required assessment of the satisfactory completion

of of the probation as well as of the suitability of the petitioner.

The same was also stipulated under the special conditions to

which the petitioner had been put to notice. Merely because no

order of extension of probation or termination of his services

was passed till expiry of the period of probation would be of no

consequence or legal effect. The plea of the petitioner with

regard to his deemed confirmation therefore is clearly devoid of

legal merits.

For all these reasons, we find no merit in this writ petition

which is hereby dismissed.

(GITA MITTAL) JUDGE

(J.R. MIDHA) JUDGE September 13th , 2010 kr/aa