Srikanta Nayak vs State Of Odisha & Others
2023 Latest Caselaw 7126 Ori

            IN THE HIGH COURT OF ORISSA, CUTTACK
                          WPC(OA) No. 399 of 2014

      Srikanta Nayak                             ........                            Petitioner
                                                          -versus-
      State of Odisha & others                   ........                        Opp. Parties


                   For Petitioner         : Mr. M. Pratap, Advocate


                    For Opp.parties : Mr. B.P.Tripathy, AGA along
                                      with Mr. Nikhil Pratap,
                                     Addl. Standing Counsel


                                               ------------------

P R E S E N T:

THE HONOURABLE SHRI JUSTICE M.S. SAHOO

------------------------------------------------------------------------------------------ Date of hearing : 03.07.2023 Date of judgment : 03.07.2023

------------------------------------------------------------------------------------------ M.S.SAHOO, J The writ petition has been registered before this Court on 16.08.2021 upon abolition of the Odisha Administrative Tribunal, Principal Bench, Bhubaneswar.

Brief Facts

2. The Original Application was filed by the petitioner working as Senior Assistant in the office of the Engineer-in-Chief, Public Health, Odisha, Bhubaneswar with the following prayers :

"(i) the Hon'ble Tribunal graciously be pleased to quash the Reversion Order dt.07.02.2014, Annexure-5, with all consequential service and financial benefits;

(ii) further be pleased to pass any other order(s)/direction(s) as deems fit and proper in the facts and circumstances of the case."

3. On perusal of the available order-sheets of the learned Tribunal it is indicated that the notices were issued by order dated 14.02.2012 with the following interim order :

// 2 //

"So far as the prayer for interim relief is concerned, it is directed that the impugned reversion order dated 07.02.2014 at Annexure-8 shall be subject to final out come of this original application and in case of ultimate success of the applicant in this case, he would be entitled to get all service benefits, as if order dated 7.2.2014 had not been passed."

Thereafter, the matter was listed on 08.12.2015 and 14.01.2016 but never listed thereafter. By this Court's order dated 13.03.2023 learned counsel for the petitioner was directed to obtain up-to-date instruction regarding the present status of the services of the petitioner under the Government.

Learned counsel for the State was also on several occasions granted time to obtain instruction.

Submissions

4. It is submitted by the learned counsel for the petitioner that he has no up-to-date instruction regarding the present status of the services of the petitioner under the Government. But submits that since no counter has been filed, the prayer of the petitioner in the petition filed before the learned Tribunal ultimately transferred to this Court, should be granted.

It is contended by the learned counsel for the petitioner that by order dated 13.03.2013 the petitioner was given promotion, therefore, could not have been reverted before the completion.

Analysis

5. Essentially, the challenge in the petition is to the order dated 07.02.2014 (Annexure-8) by which the petitioner while continuing on probation in the promotional post of senior Assistant after being granted promotion on probation for one year by order dated 13.03.2013, was reverted to his former post, i.e., Junior Assistant as his work and conduct was not found to be satisfactory during the probation period in the promotional post. Such order of reversion was as per paragraph-19 (2) of the G.A. Department Notification No.7417 dated 11.04.1994, published in the Orissa Gazette on the 23rd May, 1994.

// 3 //

6. The G.A. Department Notification notified the Orissa Ministerial Services (Method of Recruitment and Conditions of Service of Assistants and Section Officers in the offices of the Heads of Departments) Rules, 1994. The Rule 1994 provides as follows :

Constitution 3. (1) The service shall consist of the and following grades, namely :-

composition of the cadre.

(a) Junior Assistant;

(b) Senior Assistant;

(c) Section Officer, Level - II;

(d) Section Officer, Level - I.

xx xx xx Probation. 19. (1) All persons appointed to a post in the service shall be on probation for a period of two years in case of direct recruitment and one year in case of promotion which shall be counted from the date of joining the post ; Provided that the period of probation shall not include the following :-

(a) Extra-ordinary leave,

(b) Period of unauthorized leave,

(c) Any other period held to be not being on actual duty.

(2) The appointing authority may extend the period of probation or terminate the services of a person appointed on probation (in case of the direct recruit) or revert a person to his previous post (in case of a promote) during or at the end of his period of probation, if the work and conduct of such person is not found to be satisfactory.

(3) The date of completion of the period of probation in each case shall be notified by an office order and shall also be recorded in the Service Book."

[Emphasis Supplied]

In considered opinion of this Court, Rule 19(2) of the 1994 Rules does provide that the period of probation in the promotional post may be terminated before completion of the period of probation if the work and conduct of such person is not found to be satisfactory. Rule 19(3) also provides completion of period of

// 4 //

probation shall be notified by office order and has to be recorded in the service book.

7. The relevant portion of the order dated 13.03.2013 granting promotion on probation is reproduced for reference :

"....Now, therefore, after careful consideration Sri Srikanta Nayak, Jr. Asst. is hereby promoted to the rank of Sr.Asst. with the date of his joining in the scale of pay Rs.9300- 34800/- with GP 4200/- against existing vacancy as per recommendation of DPC held on 24.03.2011.

The position of Sri Srikanta Nayak, Sr. Asst. is placed below the Sri S.S. Nayak, Sr. Asst & above Sri Tusar Kanta Sahu, Sr. Assistant.

The above promotion shall be on probation for a period of one year from the date of his joining in the said post."

It is not disputed that in terms of Rule 19 of the 1994 Rules the promotion of the petitioner was on probation for a period of one year from the date of joining of the petitioner, i.e., 24.03.2011 and the period of probation would have ended on 23.03.2012.

8. As is evident from the pleadings in the petition (Annexure-5), a disciplinary proceeding against the petitioner was initiated in the form of inquiry against the petitioner under Rule-15 of the OCS (CCA) Rules, 1962 on the ground of (i) unauthorized absence from the Government duties, (ii) misconduct and (iii) negligence of the Government duty.

It has not been indicated in the present petition as to whether the disciplinary proceeding has been completed or the same has been challenged by the petitioner or the petitioner has been exonerated from the charges alleged in the said disciplinary proceeding.

Since the initiation of the D.P. is not a subject matter of the petition, this Court is not a position to deal with the same. But it is referred to in view of the averments made in the petition.

// 5 //

9. The Hon'ble Supreme Court dealt with similar issue of premature termination on probation in Ram Narain Yadav v. State of Haryana, 1993 Supp (2) SCC 732 : 1993 SCC (L&S) 895 : (1993) 24 ATC 831 at page 733. The relevant paragraphs of the said decision are quoted herein :

"2. The appellant was holding the post of Secretary to the Speaker in the rank of Under Secretary. On the 15th of January, 1991 he was promoted as the Deputy Secretary to the Legislative Assembly and put on probation for a period of one year. On the 8th of November, 1991, the Speaker passed an order under Rule 10(2)(b)(i) of the Haryana Vidhan Sabha Secretariat Service Rules, 1981 reverting him as an Under Secretary. This order was challenged before the High Court on the ground of mala fides. By the impugned judgment, the High Court has dismissed the application.

3. Mr P.P. Rao, the learned counsel for the appellant has contended that since there was no warning given to the appellant earlier about the allegedly poor quality of his work and as the order of termination of his services came all of a sudden, the same is illegal in view of the observations made in paragraph 4 of the judgment in Dr Sumati P. Shere (Mrs) v. Union of India [(1989) 3 SCC 311 : 1989 SCC (L&S) 471 : (1989) 11 ATC 127] . It is also contended that a perusal of the order of reversion of the appellant indicates that till further orders were later passed he was to continue to perform the same work which he was doing earlier. If that was the position, the argument is, it was not a proper exercise of the authority under Rule 10 in terminating the period of promotion (sic probation) prematurely and reverting the appellant to Under Secretary rank. Lastly, it has been stated that in any event the appellant is entitled to his salary on the scale as admissible to a Deputy Secretary on the ground that he was discharging the same functions.

4. Mr Sibal, the learned counsel on behalf of the respondents has opposed the application mainly on the ground that it was for the authorities to consider the satisfactory nature of the services discharged by the appellant during the probation period and if his work was found unsatisfactory after 10 months, it was open to them to have terminated the probation. With respect to the aspect that the appellant was allowed to discharge the same function even later, it was explained by Mr Sibal that

// 6 //

since he was assigned the duty of dealing with the committee of public accounts and since the financial year was coming to a close, it was not practicable to entrust the work to another person immediately, and, therefore, although his work was not found satisfactory he was allowed to work. Having regard to all the facts and circumstances of the case, we are of the view that no interference in the present matter is expedient except issuing a direction to the respondents to pay the appellant his emoluments on the same scale as he was entitled to while holding the rank of Deputy Secretary of Legislative Assembly till he was relieved of that post. It appears from the records that he functioned up to the 7th May and was relieved from his duty from the 8th of May. The appeal is, therefore, dismissed subject to the aforesaid direction about the payment of the further amount by way of emoluments. The amount which has already been paid to him, however, shall be adjusted. The appeal is disposed of, but there will be no orders as to costs.

10. Hon'ble Supreme Court has dealt with the issue of termination of service during probation in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520 : 2002 SCC (L&S) 170 : 2001 SCC OnLine SC 1322 at page 524. The relevant paragraphs thereof are quoted herein :

"8. Since the decision in Parshotam Lal Dhingra v. Union of India [AIR 1958 SC 36] courts have had to perform a balancing act between denying a probationer any right to continue in service while at the same time granting him the right to challenge the termination of his service when the termination is by way of punishment. The law has developed along apparently illogical lines in determining when the termination of a temporary appointee or probationer's services amounts to punishment.

9. In 1974, Krishna Iyer, J. had said:

"The need, in this branch of jurisprudence, is not so much to reach perfect justice but to lay down a plain test which the administrator and civil servant can understand without subtlety and apply without difficulty." [Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550] (SCC p. 889, para 161)

10. Since "Dhingra [AIR 1958 SC 36] is the Magna Carta of the Indian civil servant, although it has spawned diverse

// 7 //

judicial trends, difficult to be disciplined into one single, simple, practical formula applicable to termination of probation of freshers and of the services of temporary employees" [Samsher Singh v. State of Punjab, supra at p.

887, para 158] , we have thought it best to refer to the facts of Dhingra case [AIR 1958 SC 36] to understand what exactly was meant when the Court said: (AIR p. 49, para 82)

"It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh v. Union of India [AIR 1956 Bom 455 : 58 Bom LR 673] , wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with."

11. In that case the employee had been reverted back from an officiating post. The records showed that adverse remarks had been made against the employee in his confidential reports while he was officiating. These remarks were placed before the General Manager who said that he was "disappointed" to read them and that he should be reverted as a subordinate "till he makes good the shortcomings noticed ...". The order of reversion was passed by the General Manager soon after this. When the issue ultimately came before this Court, this Court upheld the order of reversion, saying: (AIR p. 50, para 29)

"He had no right to continue in that post and under the general law the implied term of such appointment was that it was terminable at any time on reasonable notice by the Government and, therefore, his reduction did not operate as a forfeiture of any right and could not be

// 8 //

described as reduction in rank by way of punishment. Nor did this reduction under Note 1 to Rule 1702 amount to his dismissal or removal. Further it is quite clear from the orders passed by the General Manager that it did not entail the forfeiture of his chances of future promotion or affect his seniority in his substantive post. In these circumstances, there is no escape from the conclusion that the petitioner was not reduced in rank by way of punishment and, therefore, the provisions of Article 311(2) do not come into play at all."

Conclusion

11. In view of the fact that the petitioner was under probation for a period of one year in the promotional post before completion of one year, no right accrued in favour of the petitioner to continue in promotional post on probation beyond a period of one year as provided in Rule-19(2) of the 1994 Rules. As the period of one year has been completed and no further order has been passed by the authority, the prayer to continue on probation beyond 23.03.2012, i.e., the date of completion of one year cannot be granted.

Applying the principle laid in Ram Narain Yadav (supra) as well as Pavanendra Narayan Verma (supra) it has to be held that the period of probation in a promotional post can be prematurely terminated if the Rule provides and in the present case, Rule 19(2) does provide termination of the probation in the promotional post. In case of in service promotion, the period of probation is prescribed in the Rules, to be one year and it can be terminated before one year. As held in Pavanendra Narayan Verma (supra), such termination is founded on the service rules i.e. 1994 Rules in the case at hand and it is not a punishment and does not carry any evil consequence so as to attract Article

311. Further the order as at Annexure-8 dated 7.2.2014 terminating probation in promotional post and reverting the petitioner to his post as held before promotion, did not operate as a forfeiture of his chances of future promotion or affect his seniority in his substantive post.

// 9 //

Therefore, the prayer made in the petition in the present form is untenable since the petitioner seeks continuation of his probation in the promotional post on probation beyond one year. Accordingly, the writ petition is dismissed being devoid of any merit.

12. Before parting with the case, it is clarified that since the present status of the disciplinary proceeding is not known and it is not known whether the petitioner ever challenged the same being aggrieved in any manner, the order in the present petition shall not be in any manner be prejudicial to the petitioner's contention, if any such challenge is laid by the petitioner.

........................

M.S.Sahoo, J.

Orissa High Court, Cuttack The 3rd July,2023/dutta

Signature Not Verified Digitally Signed Signed by: AJIT KUMAR DUTTA Reason:

eMudhra.App.Views.PartialControls.SigningModeTab.Signi ngTabViewModel Location: ohc Date: 06-Jul-2023 18:22:54