Orissa High Court
Odisha State Medical Corporation vs Pravat Kusum Mandal on 30 January, 2025
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
Represented By Adv. -
Ms. Pami Rath, Sr. Advocate
-versus-
Pravat Kusum Mandal .... Respondent
Represented By Adv. -
Miss Deepali Mahapatra, Advocate
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
ORDER
30.01.2025
Order No.
02. 1. Ms. Rath, learned senior advocate appears on behalf of
appellants and submits, impugned is judgment dated 5 th October,
2023 of the learned single Judge directing regularization of
respondent, who was appointed on probation. She submits, 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."
2. Respondent was appointed on letter dated 10th March, 2017.
There was no controversy between the parties regarding
applicability of the rules, which came 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 relies 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."
She lays emphasis 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
submits, 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 adds, it was a simple
termination without stigma.
4. She relies 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 demonstrates from the
paragraph, there were three lines of cases discussed. She relies 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 reiterates, the
termination was during extended period of probation. She adds, the
first extension though happened after two years, no dispute was and
cannot be raised regarding continuance of it at the time of
termination.
5. She relies 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. Miss Mahapatra, learned advocate appears on behalf of
respondent. She will be heard on adjourned date.
7. List under heading 'For Orders' on 11th February, 2025.
Interim order to continue till next date of hearing.
(Arindam Sinha)
Acting Chief Justice
(M.S. Sahoo)
Judge
Radha/jyostna
