Orissa High Court
Odisha State Medical vs Pravat Kusum Mandal on 16 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.2757 of 2023
Odisha State Medical ..... Appellants
Corporation, Bhubaneswar & Mrs. Pami Rath, Sr. Advocate
Anr. along with Ms. S. Gumansingh,
Advocate
Vs.
Pravat Kusum Mandal ..... Respondent
Ms. D. Mahapatra, Advocate
CORAM:
ACTING CHIEF JUSTICE DR. B.R. SARANGI
MR. JUSTICE MURAHARI SRI RAMAN
ORDER
16.11.2023
W.A. No.2757 of 2023
And
I.A. No.8063 of 2023
Order No. This matter is taken up through hybrid mode.
01 2. Heard Mrs. Pami Rath, learned Senior Counsel along with
Ms. S. Gumansingh, learned counsel appearing for the appellants
and Ms. D. Mahapatra, learned counsel appearing for the sole
respondent.
3. The appellants have filed this writ appeal seeking to set aside
the judgment dated 05.10.2023 passed in W.P.(C) No.2757 of 2023,
by which the learned Single Judge has directed the appellant to
reinstate the respondent in the post and regularize his service in
terms of Rule 10.3 of the Service Rules, 2017 on notional basis with
effect from the date of completion of two years of service in the post
of Manager-Procurement (Drugs and Surgical) in the appellant-
Corporation and further imposed a cost of Rs.20,000/- on the
appellants for unnecessary litigation and harassment to the
respondent.
4. Mrs. Pami Rath, learned Senior Counsel appearing for the
appellants vehemently contended that the respondent was continuing
on probation, after joining on 13.03.2017 pursuant to appointment
order issued on 10.03.2017. The one year probation period expired
on 13.03.2018. However, he continued as a probationer, which was
also communicated to him vide letter dated 09.01.2019 and he did
not raise objection to it. Accordingly, the second extended probation
came to an end on 13.03.2019 and prior to completion of the said
period, another order of extension of probation was issued. But the
respondent continued from 14.03.2018 to 09.01.2019 without any
protest. It is further contended that the respondent was terminated
from service with effect from 25.07.2019, vide office order dated
25.07.2019 under Annexure-6. If he was terminated from service,
the direction given by the learned Single Judge vide order dated
05.10.2023 to reinstate the respondent in service and regularize his
service in the appellant-Corporation is not justified. Therefore, the
order dated 05.10.2023 passed by the learned Single Judge in
W.P.(C) No.13096 of 2019 is bad in law. To substantiate her
contention, learned Senior Counsel appearing for the appellants has
relied upon the judgment of the apex Court in High Court of M.P.
through Registrar and Others v. Satya Narayan Jhavar, (2001) 7
SCC 161, wherein three lines of cases have been discussed in
paragraph-11 of the said judgment, which is extracted below:
"The question of deemed confirmation in service
jurisprudence, which is dependent upon language of the
relevant service rules, has been the 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 in
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.
The 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."
5. In the opinion of this Court, the matter requires consideration.
6. Issue notice to the respondent both on main case and
Interlocutory Application.
7. Since Ms. D. Mahapatra, learned counsel accepts notice on
behalf of the sole respondent, let an extra copy of the writ appeal be
served on her within three days to enable her to obtain instructions
or file counter affidavit.
8. As an interim measure, it is directed that there shall be stay
operation of the judgment dated 05.10.2023 under Annexure-14
passed by the learned Single Judge in W.P.(C) No.13096 of 2019,
till the next date.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
(M.S. RAMAN)
JUDGE
Alok
Signature Not Verified
Digitally Signed
Signed by: ALOK RANJAN SETHY
Designation: Secretary
Reason: Authentication
Location: orissa high court
Date: 17-Nov-2023 10:31:11
