Orissa High Court
Odisha State Medical Corporation vs Pravat Kusum Mandal on 20 February, 2025
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.2757 of 2023
Odisha State Medical Corporation .... Appellants
and another
-Versus-
Pravat Kusum Mandal .... Respondent
Advocates appeared in this case:
For Appellants : Ms. Pami Rath, Senior Advocate
For Respondent : Miss Deepali Mahapatra, Advocate
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
JUDGMENT
-------------------------------------------------------------------------------
Dates of hearing: 30th January, 2025 and 20th February, 2025
Date of Judgment: 20th February, 2025
--------------------------------------------------------------------------------------
ARINDAM SINHA, ACJ.
1. Ms. Rath, learned senior advocate appears on behalf of
appellants. She, on 30th January, 2025 had submitted, impugned
is judgment dated 5th October, 2023 of the learned single Judge
directing regularization of respondent, who was appointed on
probation. Odisha State Medical Corporation Limited
Employees' Service Rules, 2017, which came into force with
effect from 22nd September, 2017 was applicable to the parties.
Rule 10 deals with probation and confirmation. The relevant
rules 10.1 to 10.3 are reproduced below.
"10.1 All the employees directly recruited by the
Corporation shall be on probation for one year from
the date of joining.
10.2 The appointing authority may extend the period of
probation for a further period of one year at a time
considering the ability, suitability and performance of
the officer and inform the employee concerned the
reason for such extension.
10.3 The appointing authority shall regularize the
employee concerned in the post on successful
completion of probation period on the basis of his
ability, suitability and performances by a written
order."
(emphasis supplied)
2. Respondent was appointed on letter dated 10 th March,
2017. There was no controversy between the parties regarding
applicability of the rules that had come into force later, as
aforesaid on 22nd September, 2017. The learned single Judge
recorded as much in impugned judgment. That position continues
in appeal.
3. She had relied on 1st term and condition in the
appointment letter, reproduced below.
"1. The appointment is purely temporary. You will
be on probation for one year from the date of joining.
The probation period can be extended a further period
of one year or more as per satisfaction of authority.
During the period of probation, your services can be
terminated by the Appointing Authority on payment
one month's notice or in lieu of the same with one
month's salary. Depending on satisfactory
performance and conduct during the probation
period, your continuance and regularization in the
post will be decided. The probation period will be
counted towards normal annual increment, leave and
seniority. On successful completion of probation, you
will be confirmed in the concerned post."
(emphasis supplied)
She submitted that her client could extend the period of probation
for a further period of one year or more as per its satisfaction.
Furthermore, during period of probation, the service could be
terminated on one month's notice or in lieu of the same with one
month's salary. Going back to rules 10.2 and 10.3 she submitted,
regularization of respondent in the post could only be by a
written order. Facts in the case did not proceed to that stage. Prior
thereto, during extended continuation of the probation period,
respondent's service was terminated. She added, it was a simple
termination without stigma.
4. She relied on judgment of the Supreme Court in High
Court of M.P. v. Satya Narayan Jhavar, reported in (2001) 7
SCC 161, inter alia, paragraph-11. She demonstrated from the
paragraph, there were three lines of cases discussed. She relied
on the first line of cases, said to be 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. If the officer
continued beyond the prescribed or extended period, he cannot be
deemed to be confirmed. This line was approved by the Supreme
Court in saying, in such cases there is no bar against termination
at any point of time after expiry of the period of probation. She
reiterated, the termination was during extended period of
probation. The extension though happened after two years, no
dispute was and cannot be raised regarding continuance of it at
the time of termination.
5. She relied on one more judgment of the Supreme Court
in Registrar, High Court of Gujarat v. C.G. Sharma, reported
in (2005) 1 SCC 132, paragraph-26. The proposition is that even
if period of probation expires and the probationer is allowed to
continue, automatic confirmation cannot be claimed as a matter
of right because in terms of the rules, as in that case, work had to
be satisfactory, which is pre-requisite or pre-condition for
confirmation. The Supreme Court went on to say that language of
the rules itself excluded any chance of giving deemed or
automatic confirmation.
6. Today Miss Mahapatra, learned advocate appearing on
behalf of respondent draws attention to impugned judgment and
submits, the declarations of law made by the Supreme Court on
the point of probation and confirmation were duly considered by
the learned single Judge. Facts in the case were appreciated and
are that her client successfully completed probation period of one
year as required under rule 10.1. On having done so the
appointing authority was mandated by rule 10.3 to regularize her
client in the post on basis of his ability, suitability and
performance, by a reasoned order. Her client was entitled to this.
There was no communication to indicate her client was
unsuccessful in completing the period of probation or that he
lacked ability, suitability or performance.
7. She draws attention to several paragraphs in impugned
judgment to demonstrate that this was taken note of by the
learned single Judge. There is nothing on record to show her
client was ever noticed on performance. Hence, irresistible
conclusion drawn by the learned single Judge was, the severance
was punitive. This cannot be as the Supreme Court in very many
cases has declared that there must be opportunity given for a
probationer employee, to improve on performance. She submits,
impugned judgment is good. There be no interference in appeal.
8. Question to be answered in this appeal turns on
interpretation of rules 10.1, 10.2 and 10.3. Rule 10.1 says,
employees directly recruited shall be on probation for one year
from the date of joining. There is no dispute respondent was
directly recruited and had to undergo probation for one year from
his date of joining. Moving on to rule 10.2, thereby is permission
for the appointing authority to extend the period of probation for
further period, of one year at a time, considering the ability,
suitability and performance of the officer. There is further
requirement to inform the employee concerned, the reasons for
such extension. On query Miss Mahapatra submits, the first
extension was by office order dated 12th March, 2019. Text of the
order is reproduced below.
"OFFICE ORDER
The probation period of the following employees of
Odisha State Medical Corporation Ltd. is hereby extended
for a further period of one year in terms of the provision
laid down in their appointment letters.
Sl Name of the Designation Date of joining Due date for Date from
No. employee OSMCL completion of which
probation probation
period period will
be extended
1 Shri Sr. Manager-IT 14.03.2017 13.03.2019 14.03.2019
Soumyakanta
Samal
2 Shri Tapas Sr. Manager- 14.03.2017 13.03.2019 14.03.2019
Ranjan Kar Equipment
3 Shri Pravat Manager- 14.03.2017 13.03.2019 14.03.2019
Kusum Mandal Procurement
(D & S)
4 Ms. Biswajita Manager- 17.03.2017 16.03.2019 17.03.2019
Pani Procurement
(Eqp.)
5 Shri Biswajit Asst. Manager- 14.03.2017 13.03.2019 14.03.2019
Jena Procurement
(Eqp.)
"
Ms. Rath submits, there was earlier office order dated 9th
January, 2019. She draws attention to pages-48 and 49 in the
appeal brief to demonstrate existence of the office order and
relevant page in peon book bearing signature, said to be of
respondent, acknowledging receipt thereof. On query made Ms.
Rath submits, counter was filed but the documents were not
disclosed. Text of the office order is reproduced below.
"OFFICE ORDER
The probation period of Sri Pravat Kusum
Mandal, Manager, Procurement (Drugs & Surgical),
Odisha State Medical Corporation Ltd. is hereby
extended in terms of the provision laid down in his
appointment letter no.3232/OSMC/HR/2017, dated
10.03.2017."
Since we are dealing with the writ petition in appeal, on affidavit
evidence, it will be better not to solely rely on this office order
dated 9th January, 2019 even though we notice, in paragraph-9 of
the counter affidavit there is reference to it.
9. It will appear from contents of both, the disputed office
order as well as office order dated 12th March, 2019, there was no
indication informing the employees concerned, reason for such
extension. We may add that the disputed office order is dated 9 th
January, 2019 and following office order dated 12 th March, 2019.
Respondent joined service on 14th March, 2017. Thus, both office
orders extending the probation period came long after initial
probation period of one year.
10. Subsequent fact is, respondent's service was terminated
by office order dated 25th July, 2019. Text of the office order is
reproduced below.
"OFFICE ORDER
In pursuance to the terms & condition laid down in
clause no.1 of the appointment letter no.3232, dated
10.03.2017 issued, the services of Shri Pravat Kusum
Mandal, Manager-Procurement (D & S) who is under
probation, is hereby terminated with effect from
25.07.2019 (FN). One month salary in lieu of notice
period of one month be released to Shri Pravat Kusum
Mandal."
The termination must be seen as done in terms of clause (1) in
the appointment letter.
11. Judgments relied upon by the parties and duly
considered, as reflected from impugned judgment, are of the
Supreme Court declaring the law that an employee continuing
beyond the period of probation must be seen as a situation, where
the employer has impliedly extended it. In the case at hand, rule
10.2 permits the employer to extend the period of probation for
further periods, one year at a time. In the circumstances, the
belated extension, if it can be said so, must be seen as permissible
by the employer.
12. However, we do see that there has been infraction of the
rule by the employer in having thus extended the probation. No
information was given to respondent on the reason for the
extension. As such, the extension therefore cannot be seen as
duly made. So, the situation becomes one of respondent having
been appointed on 10th March, 2017 and continued to serve as in
probation till his termination on 25th July, 2019. He thus had put
in approximately two and half years of service on probation,
without information had on any shortcoming in respect thereof.
13. In State of Gujurat v. Akhilesh C. Bhargav, reported
in (1987) 4 SCC 482 the Supreme Court had occasion to
consider administrative instruction issued by the Ministry
indicating guidelines to be followed regarding it being not
desirable that a member of the service should be kept on
probation for years. In the case considered there was requirement
for the probationer to take final examination within four years of
probation. Said requirement is not there in the present case.
However, we do have facts where respondent continued in
service initially beyond requisite one year probation period and
till he was terminated, without information on reason for belated
extension of probation. It follows, the learned single judge
concluded the termination to be punitive. As we see things, we
do not have reason to interfere. High Court of M.P. (supra) does
not come to aid of appellant because we cannot quarrel with the
declaration of law, of an employee continuing in service while in
probation, to be on implied extension of it. We have arrived at
finding that the extension of probation was not in terms of rule
10.2 on no information given to respondent, for reason of it. In
the circumstances, C.G. Sharma (supra) is of no aid to
appellants.
14. The learned single Judge by impugned judgment directed
regularization of respondent's service. The direction is modified
to be that respondent is to be reinstated on probation with
deemed continuation of service and for appraisal of his
performance on expectation to be confirmed.
15. The appeal is disposed of.
(Arindam Sinha)
Acting Chief Judge
(M.S. Sahoo)
Judge
Jyostna
