Delhi High Court
Shri Rajneesh Kumar vs State Farms Corporation Of India ... on 20 February, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.1672/2012
% 20th February, 2015
SHRI RAJNEESH KUMAR ..... Petitioner
Through: Mr. Anuj Aggarwal, Adv.
Versus
STATE FARMS CORPORATION OF INDIA LTD. ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition filed under Articles 226 and 227 of the
Constitution of India, the petitioner impugns the action of the
respondent/employer/State Farms Corporation of India Ltd terminating the
services of the petitioner-a probationary officer on the ground that the
performance of the petitioner during the period of probation was not found
to be satisfactory. The impugned order is dated 17.11.2011 and which reads
as under:-
"SFCI/PF-1168/2009-GA Dated: 17th Nov., 2011
OFFICE ORDER
WP(C) 1672/2012 Page 1 of 16
WHEREAS Shri Rajneesh Kumar was appointed to the post of
Marketing Manager vide offer of appointment No.SFCI/2-6/2009-GA
dated 3.11.2009 and he joined the services of SFCI on 18th November,
2009. He was posted at Regional Office of SFCI at Bhubaneshwar as
Marketing Manager.
WHEREAS in terms of offer of appointment and SFCI Staff
Regulation he was on probation for a period of one year during which
his performance was assessed by Competent Authority.
WHEREAS since his performance during probation period was
not found to be satisfactory by his Controlling Officer i.e. Chief
Marketing Manager, his period of probation was extended for a period
of 06 months w.e.f. 18.11.2010 and a communication to this effect
was sent to him vide Office Order No.SFCI/PF-1168/2009-GA dated:
26.11.2010 duly received by him.
WHEREAS even during this extended period, he did not improve
his performance satisfactorily in spite of due guidance and advices of
his Controlling Officer.
NOW therefore, in terms of Clause (i) of the Offer of appointment
No.SFCI/2-6/2009-GA dated 3.11.2009, the Competent Authority has
decided to terminate the services of Shri Rajneesh Kumar from the
post of Manager (Marketing) with immediate effect and accordingly
his services are hereby terminated and he stand relieved with
immediate effect. He shall handover the charge of the post held by
him and any other material in his charge to Shri R. Venkada Krishnan,
Asstt. HR (Gr-V). He dues shall be paid to him on receipt of No Dues
Certificate from all concerned.
Sd/-
(Binod Bihari Saw)
General Manager (HR)
For & On behalf of Competent Authority
Tour Address :-
Shri Rajneesh Kumar, Manager (Marketing),
C/o Maxichem & Fertilizers
Upper Bazar (Bazar Tand),
RANCHI."
(underlining added)
WP(C) 1672/2012 Page 2 of 16
2. Petitioner was given appointment to the post of Marketing
Manager by the respondent vide office order dated 15.1.2010 and this order
reads as under:-
"SFCI/PF-1168/2009-GA Dated: 15th January, 2010
OFFICE ORDER
Shri Rajneesh Kumar, is hereby appointed to the post of
Marketing Manager in the Pay Scale of Rs.20,600-46,500/- (IDA) at
the Regional Office, Bhubaneswar (Orissa) with effect from the
forenoon of 18th November, 2009 in a purely temporary capacity
until further orders.
As per Staff Regulation of the SFCI Shri Rajneesh Kumar shall be
on probation for a period of one year w.e.f. 18.11.2009. He will
draw basic pay of Rs.20,600/- which is minimum in the time scale of
Rs.20,600-46,500/- (IDA).
Sd/-
(Vinod Kumar)
Executive Officer
For Chief Administrative Officer
Distribution:-
1. Shri Rajneesh Kumar, Marketing Manager, Regional Office,
Bhubaneswar (Through Regional Manager, Bhubaneswar)
2. All Divisional Chiefs, SFCI, New Delhi
3. Director/Director-Incharge, All Central State Farms and Regional
Managers.
4. Secretary, BOT, EPF, SFCI, New Delhi.
5. SA to CMD, SFCI, New Delhi.
6. Executive Officer (Vig.) SFCI, New Delhi
7. Personal File/Guard File
Copy forwarded to Accounts for necessary action.
Sd/-
Regional Manager"
(underlining added)
WP(C) 1672/2012 Page 3 of 16
3. The office order dated 15.1.2010 was pursuant to the
appointment letter issued to the petitioner dated 3.11.2009 and para (i) of
which appointment letter reads as under:-
"i. You will be on probation for a period of one year from the
date of your joining, which may be extended at the discretion of the
Competent Authority. During this period, your service may be
terminated by either side without notice and without assigning any
reason. On satisfactory completion of the probation period, your
services will be governed by the normal rules of the Corporation as
amended from time to time. Your services may be terminated by
giving three months notice by either side or in default by paying pay
and allowances for a period short of three months notice."
(emphasis is mine)
4. Petitioner continued to work on probation for one year w.e.f
18.11.2009 and his probation period was extended for a further period of six
months vide order of the respondent dated 26.11.2010. On completion of
the probationary period, petitioner continued to work without any specific
order of confirmation or permanent appointment for about six months, when,
the impugned order dated 17.11.2011 was passed.
5. Counsel for the petitioner argues before this Court that the
petitioner is deemed to have been confirmed to the post inasmuch as the
petitioner has continued beyond the maximum period of probation of one
and a half years as prescribed under Rule 34 of the service rules of the
WP(C) 1672/2012 Page 4 of 16
respondent and to buttress his arguments reliance is placed upon the
Constitution Bench judgment of the Supreme Court in the case of State of
Punjab Vs. Dharam Singh AIR 1968 SC 1210.
6. In my opinion, the argument urged on behalf of the petitioner of
the petitioner being deemed to be confirmed after one and a half years'
service as probationer, including by placing reliance upon the judgment of
the Supreme Court in the case of Dharam Singh (supra) is misplaced and
reasons for the same are as under.
7. Let me at this stage refer to the relevant rules of probation and
which rules besides the Rule 34 relied upon by the petitioner also include
Rules 33,35 and 36. These Rules 33 to 36 read as under:-
"33. Every person regularly appointed to any post in the
Corporation shall be on probation for a period of one year from
the date of appointment.
34. The appointing authority may at its discretion extend the
period of probation by a further period not exceeding six months.
35. During the period of probation, an employee directly
recruited shall be liable to be discharged from service without
any notice and an employee promoted from a lower post to a
higher post shall be liable to be reverted to the lower post without
notice.
36. An employee who has satisfactorily completed his
probation in any post shall thereupon be continued in that post on
a regular basis."
8. A reading of the Rule 36 quoted above shows that there has to
WP(C) 1672/2012 Page 5 of 16
be a decision as to the satisfactory completion of the probationary period of
the probationary officer, and only thereupon the probationer has to be
continued on the post on a regular basis. It is this Rule 36 which has to be
read with Rule 34 which provides the maximum period of probation of one
and a half years, and in view of the applicable Rule 36 and the judgments of
the Supreme Court which are stated below, it cannot be held that the
petitioner was deemed to have been confirmed in his services.
9. The judgment of the Supreme Court in the case of Dharam
Singh (supra) has been considered by the Supreme Court in its recent
judgment in the case of Mohd. Salman Vs. Committee of Management and
Ors. (2011) 12 SCC 308 and wherein the Supreme Court has held that
merely because a maximum period of probation is prescribed does not mean
that at the end of the maximum period of probation there is an automatic
confirmation. The Supreme Court in the case of Mohd. Salman (supra) has
held that unless the terms of appointment clearly indicate that confirmation
would automatically follow at the end of the specified period or there is a
specific service rule to that effect, the mere expiry of the probationary period
does not necessarily lead to confirmation. The judgment in the case of
Dharam Singh (supra) was held in the case of Mohd. Salman (supra) to be
distinguishable on facts and the Supreme Court found the Rule 26 in the case
WP(C) 1672/2012 Page 6 of 16
of Mohd. Salman (supra) similar to the rule before the Constitution Bench
of the Supreme Court in the case of State of Uttar Pradesh Vs. Akbar Ali
Khan AIR 1966 SC 1842. The relevant paras of the judgment in the case of
Mohd. Salman (supra) are paras 12 to 18 and which paras read as under:-
"12. Rule 26 to which reference was made again and again is
extracted hereunder:
"The appointment of a candidate against the permanent
vacancy shall be made on probation. The period of probation
shall be one year. It can be extended by one year. Before the
completion of probation period, the Committee of
Management shall be entitled to pass an order for removal
from service."
13. Having considered the language of the aforesaid rule, we are
of the considered opinion that the decision in the case of Dharam
Singh:AIR 1968 SC 1210 is not applicable to the facts and
circumstance of the present case. In fact, the aforesaid Rule 26 is
somewhat similar to the Rule which was considered by this Court in
the case of Akbar Ali Khan (supra). A constitution Bench of this
Court in the case of Akbar Ali Khan (supra) examined relevant
provisions contained in Rules 12 and 14 of the UP Subordinate
Revenue Executive Service (Tahsildar) Rules dealing with the
provision of probation period. The said rule provided that the period
of probation would be two years which could be extended by the
Board to three years. The Constitution Bench of this Court
considered as to whether a probationer stood confirmed after the
expiry of the period of probation in paragraph 5 of the said judgment.
This Court held in paragraph 5 as follows: (Akbar Ali Khan
case(supra), AIR p. 1845)
"5.The Respondent was posted as a Tahsildar and placed on
probation for two years. The initial period of probation was
liable to be extended by the Board of Revenue or by the
Governor. There is No. rule that on the expiry of the period
of probation the probationer shall be deemed to have been
WP(C) 1672/2012 Page 7 of 16
confirmed in the post which he is holding as a probationer. If
a probationer was found not to have made sufficient use of
his opportunities or had failed to pass the departmental
examination 'completely' or if he had otherwise failed to give
satisfaction he may be reverted to his substantive
appointment again confirmation in the appointment at the end
of the period of probation could only be made if the
probationer had passed the departmental examination for
Tahsildars 'completely' and the Commissioner reported that
he was fit for confirmation and that his integrity was
unquestionable. It is common ground in this case that the
Respondent had not passed the departmental examination
before 1955. He had therefore not qualified himself for
confirmation."
14. Having held thus, this Court recorded its opinion in
paragraph 6 in the following manner: (Akbar Ali Khan case(supra),
AIR p. 1845)
"6. The scheme of the rules is clear: confirmation in
the post which a probationer is holding does not result
merely from the expiry of the period of probation, and so
long as the order of confirmation is not made, the holder of
the post remains a probationer. It has been held by this
Court that when a first appointment or promotion is made
on probation for a specified period and the employee is
allowed to continue in the post, after the expiry of the said
period without any specific order of confirmation he
continues as a probationer only and acquires No. substantive
right to hold the post. If the order of appointment itself
states that at the end of the period of probation the appointee
will stand confirmed in the absence of any order to the
contrary, the appointee will acquire a substantive right to the
post even without an order of confirmation. In all other
cases, in the absence of such an order or in the absence of
such a service rule, an express order of confirmation is
necessary to give him such a right. Where after the period of
probation an appointee is allowed to continue in the post
without an order of confirmation, the only possible view to
take is that by implication the period of probation has been
WP(C) 1672/2012 Page 8 of 16
extended, and it is not a correct proposition to state that an
appointee should be deemed to be confirmed from the mere
fact that he is allowed to continue after the end of period of
probation."
15. The aforesaid rule which is referred to in the case of Akbar
Ali Khan (supra) appears to be similar to the case in hand. So far the
case of Dharam Singh (supra) which is relied upon by the learned
counsel appearing for the Appellant is concerned, the rule which was
considered in that case was Rule 6(3). A bare perusal of the said rule
would indicate that by adding a proviso to the substantive rule, a
maximum period of probation was provided and in that context, this
Court has held that in view of the aforesaid proviso, the Rule
postulates that there would be an automatic confirmation after expiry
of the period mentioned in Rule 6(3). Because a maximum period of
probation was provided in the service rules in the case of Dharam
Singh (supra), therefore, in that decision, it was held by this Court
that continuation of the probationer thereafter would ipso facto be
held as deemed confirmation. The said decision is, therefore, not
applicable to the present case and is clearly distinguishable.
16. The correspondences which are on record also indicate that
the service of the Appellant was also found to be not satisfactory by
the Respondent and the said fact was also brought to the notice of the
Appellant continuously and repeatedly so as to give him an
opportunity to improve his performance. However, despite the said
opportunity granted and also extension, his performance and service
were not improved and, therefore, the service was terminated under
the aforesaid letter dated 3-4-1993.
17. In the case of Kedar Nath Bahl v. The State of Punjab:(1974)
3 SCC 21, this Court clearly laid down the proposition of law that
where a person is appointed as a probationer in any post and a period
of probation is specified, it does not follow that at the end of the said
specified period of probation he obtains confirmation automatically
even if No. order is passed on that behalf. It was also held in that
decision that unless the terms of appointment clearly indicate that
confirmation would automatically follow at the end of the specified
period or that there is a specific service rule to that effect, the
expiration of the probationary period does not necessarily lead to
WP(C) 1672/2012 Page 9 of 16
confirmation. This Court went on to hold that at the end of the period
of probation an order confirming the officer is required to be passed
and if No. such order is passed and if he is not reverted to his
substantive post, the result merely is that he continues in his post as a
probationer.
18. In our considered opinion, the ratio of the aforesaid decision
is also clearly applicable to the facts of the present case. In the
present case, in the appointment letter issued to the appellant, it was
specifically mentioned that his service would be regularised only
when his performance during the probation period is found to be
good/satisfactory. In view of the aforesaid stipulation, so long an
order is not passed holding that the service of the Appellant is good
and satisfactory, it could not have been held that his service could be
regularised automatically by a deeming provision." (underlining
added)
10. In another recent judgment in the case of Kazia Mohammed
Muzammil Vs. The State of Karnataka and Anr. (2010) 8 SCC 155, the
Supreme Court has by reference to the case of Dharam Singh (supra) as
also to other judgments of the Supreme Court stated that there are two lines
of judgments and whether a person is deemed to be confirmed after
completion of probationary period will be seen in the facts of each case and
the relevant rules. In the case of Kazia Mohammed Muzammil (supra),
the Supreme Court has referred to the aspect that the rules require an order
of satisfactory completion of probation and of confirmation and hence no
deemed confirmation was possible. The ratio of the case of Khazia
Mohammed Muzammil (supra) is culled out in head note G of the said case
WP(C) 1672/2012 Page 10 of 16
and which reads as under:-
...............
"G. Service Law-Probation/Probationer-Completion of
probation-Satisfactory completion of probation- Issuance of
formal order- Held, should not be unnecessarily delayed- Labour
Law- Probation/Probationer.
Held:
"Deemed confirmation" is an aspect which is known to the service
jurisprudence now for a considerable time. Different views have
been taken by the Supreme Court. Firstly, there can be "deemed
confirmation" after an employee has completed the maximum
probation period provided under the rules whereafter his entitlement
and conditions of service are placed at parity with the confirmed
employee. Secondly, that there would be no "deemed confirmation"
and at best after completion of maximum probation period provided
under the rules governing the employee, the employee becomes
eligible for being confirmed in his post. His period of probation
remains in force till a written document of successful completion of
probation is issued by the competent authority. As to what view has
to be taken, would depend upon the facts of a given case and the
relevant rules in force. It will be cumulative effect of these two
basics that would determine the application of the principle of law to
the facts of that case.
(paras 19, 20 and 33)
The pith and substance of the state 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. There can be cases where the rules
require a definite act on the part of the employer before an officer on
probation can be confirmed. In other words, there may be a rule or
regulation requiring the competent authority to examine the
suitability of the probationer and then upon recording its satisfaction,
issue an order of confirmation. Where the rules are of this nature,
the question of automatic confirmation would not even arise. Every
authority is expected to act properly and expeditiously. It cannot and
ought not to keep issuance of such order in abeyance without any
reason or justification. While there could be other cases where the
rules do not contemplate issuance of such a specific order in writing
but merely require that there will not be any automatic confirmation
or some act, other than issuance of specific orders, are required to be
performed by the parties, even in those cases it is difficult to attract
the application of the deemed confirmation doctrine. However, there
will be cases where not only are such specific rules absent but the
rules specifically prohibit extension of the period of probation or
even specifically provide that upon expiry of the period, he shall
attain the status of a temporary or a confirmed employee. In such
cases, again, two situations would rise: that he would attain the status
of an employee being eligible for confirmation and second, that
actually he will attain the status of a confirmed employee. The
courts have repeatedly held that it may not be possible to prescribe a
straitjacket formula of universal implementation for all cases
involving such questions. It will always depend upon the facts of a
case and the relevant rules applicable to that service.
(Paras 46 to 48, 24 to 27 and 51 to 56)"
11. As stated above, in the present case there is Rule 36 which
requires a satisfactory completion of probation and only thereupon the
petitioner would be continued in the post on a regular basis and which
therefore would require an order of satisfactory completion of probationary
services, and which order does not exist in the present case and in fact on the
contrary impugned order has been passed after about six months of the
completion of the probation period with respect to non-confirmation of the
petitioner in the post on account of unsatisfactory services of the petitioner.
I may note that after completion of the probationary period of service, surely
an employer is entitled to a reasonable time to call for reports of the
reporting and reviewing officers in order to determine the nature of
probationary services of a probationer and whether the services are
satisfactory or not, and, taking of a reasonable period of about six months
without any communication being given to the petitioner that he has been
confirmed to the post is not such an unreasonable period for it to be held that
there is a deemed confirmation of the petitioner to the post in question. In
the case of Dharam Singh (supra) relied upon by the petitioner, the
employment continued after the maximum period of probation for as many
as two and a half years (approx) and that too by receiving annual increments,
and therefore in the facts in the case of Dharam Singh (supra), the Supreme
Court held that there was deemed confirmation. Hence the facts in the case
of Dharam Singh (supra) are different and not applicable to the facts of the
present case.
12. Another recent judgment of the Supreme Court on the aspect of
deemed confirmation is in the case of Registrar, High Court of Gujarat &
Anr. Vs. C.G. Sharma (2005) 1 SCC 132 and which holds that even if the
maximum period of probation is completed and thereafter the employee
continues to work, there is no deemed confirmation unless an order is passed
of the work of the probationer being found to be satisfactory and which
aspect is an essential pre-condition for confirmation. The judgment in the
case of Dharam Singh (supra) has also been considered by the Supreme
Court in the case of C.G. Sharma (supra) and yet it was held that there was
no deemed confirmation of the employees in the facts of C.G. Sharma's
case (supra). Paras 26 to 28 of the judgment in the case of C.G. Sharma
(supra) are relevant and the same read as under:-
"26. A large number of authorities were cited before us by both the
parties. However, it is not necessary to go into the details of all
those cases for the simple reason that sub-rule (4) of Rule 5 of the
Rules is in pari materia with the Rule which was under
consideration in the case of State of Maharashtra v. Veerappa
Saboji: (1979) 4 SCC 466 and we find that even if the period of two
years expires and the probationer is allowed to continue after a
period of two years, automatic confirmation cannot be claimed as a
matter of right because in terms of the Rules, work has to be
satisfactory which is a pre-requisite or pre-condition for
confirmation and, therefore, even if the probationer is allowed to
continue beyond the period of two years as mentioned in the Rule,
there is no question of deemed confirmation. The language of the
Rule itself excludes any chance of giving deemed or automatic
confirmation because the confirmation is to be ordered if there is a
vacancy and if the work if found to be satisfactory. There is no
question of confirmation and, therefore, deemed confirmation, in
the light of the language of this Rule, is ruled out. We are,
therefore, of the opinion that the arguments advanced by learned
counsel for the respondent on this aspect has no merits and no legs
to stand. The learned single Judge and the learned Judges of the
Division Bench have rightly come to the conclusion that there is no
automatic confirmation on the expiry of the period of two years and
on the expiry of the said period of two years, the confirmation order
can be passed only if there is vacancy and the work is found to be
satisfactory. The rule also does not say that the two years' period of
probation, as mentioned in the rule, is the maximum period of
probation and the probation cannot be extended beyond the period
of two years. We are, therefore, of the opinion that there is no
question of automatic or deemed confirmation, as contended by the
learned counsel for the respondent. We, therefore, answer this issue
in the negative and against the respondent.
27. In this context, it is useful to reproduce para 6 of the judgment
of this Court in the case of State of Maharashtra v. Veerappa R.
Saboji(supra) on the question of deemed confirmation which reads
as under: (SCC pp.471-72, para 6)
"6. There are two parts of clause (iv): (1) that it is
imperative to put every person appointed under sub-rule
(2) on probation for a minimum period of two years
"unless otherwise expressly directed", and (2) on the
expiry of the said period of two years the person appointed
may be confirmed if there is a vacancy and if his work is
found to be satisfactory. The plain meaning of the rule is
that there is no automatic confirmation on the expiry of the
probationary period of two years in the first instance. On
the expiry of the said period and on the fulfillment of the
requirement of sub-clauses (a) and (b) a Government
servant becomes eligible for being confirmed and normally
he is likely to be confirmed. But it is a matter of common
knowledge in many branches of government service
including the judiciary that for administrative reasons or
otherwise the confirmation is delayed and is made at a
subsequent time. It may also be delayed for watching the
work of the government servant for a further period. The
expression "unless otherwise expressly directed" governs
only the first part of clause (4) and not the second as was
attempted to be argued by Mr. Nariman. In my opinion the
rule in question, therefore, comes under the ordinary and
normal rule that without an express order of confirmation
the government servant will not be taken to have been
confirmed in the post to which he was appointed
temporarily and/or on probation. It is not covered by the
exceptional rule like the one which was the subject matter
of consideration of this court in State of Punjab vs.
Dharam Singh:AIR 1968 SC 1210."
28. In view of our above findings on the question of deemed
confirmation, Civil Appeal No. 575 of 2003 filed by Mr C.G.
Sharma shall stand dismissed."
13. In view of the above, I do not find that there has been a deemed
confirmation of the petitioner as argued on his behalf, and therefore, it is
held that petitioner is not entitled to quashing of the impugned order dated
17.11.2011.
14. Dismissed.
FEBRUARY 20, 2015 VALMIKI J. MEHTA, J
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