Ph. Nandakumar Sharma v. Board of Secondary Education, Manipur
1991-08-09
R.K.MANISANA SINGH, S.K.HOMCHAUDHURI
body1991
DigiLaw.ai
R.K. Manisana,J.— The facts giving rise to this application under Article 226 of the Constitution of India are thus. By an order dated 22.12.89, the petitioner Nandakumar Sharma was promoted to Assistant Secretary (G) of the Board of Secondary Education, Manipur temporarily on probation. The period of probation was for two years. Before completion of the period of probation, the petitioner was reverted to his substantive post of Research Assistant under order dated 25.5.91. Hence, this petition. 2. Mr. S. Jayanta, learned counsel for the petitioner, has contended that an employee appointed on probation for a fixed term has right to hold the post for the term of probation mentioned in the order of appointment, Mr. Jayanta has relied on a decision of a Division Bench of this Court in Civil Rule No. 16 of 1985 between Memcha Devi vs. State of Manipur. Mr. N. Kerani Singh, learned counsel for the respondents has contended that a probationer can be discharged during or at the end of the probation, if the employee so appointed on probation is found unsuitable. Support for this contention is sought from certain observations made in P.L. Dhingra vs. Union of India, AIR 1958 SC 36 . 3. In Civil Rule No. 16 of 1985 referred to above this Court has held that a probationer has a right to hold the post for the term of probation mentioned in the order of appointment. In Dhingra's case (supra-, the Supreme Court has observed: "An appointment to a permanent post in Government service on probation means, as in the case of a person appointed by a private employer, that the person so appointed is taken on trial. The period of probation may in some cases be for a fixed period e.g. for six months or for one year or it may be expressed simply as 'on probation' without any specification of any period. Such an employment on probation, under the ordinary law of master and servant, comes to an end if during or at the end of the probation the servant so appointed on trial is found unsuitable and his service is terminated by a notice." The above observations of the Supreme Court show that an appointment on probation means the person so appointed is taken on trial.
In some cases the period of probation may be fixed, and in some cases the period of probation may not be specified. The term of probation may be for six months or for one year or more depending upon the nature of the employment, and a probationer can be discharged during or at the end of the probation if the probationer is not found suitable. 4. The question which, therefore, arises for consideration is whether on the facts and in the circumstances of the case, the petitioner who was a probationer could be discharged before expiration of the period of probation. 5. In the present case, as already stated, the period of probation was two years and the petitioner was reverted before the completion of the probationary period. No rule has been brought to our notice that the period of probation could be cut short and the petitioner could be discharged at some point of time during the probationary period. The appointment order also does not show that the authority reserves to himself any right to terminate the petitioner during the probationary period. Unless a probationer has an opportunity to serve the entire period of probation, how the authority would come to the conclusion that the probationer is unsuitable for the job ? Therefore, in the context of the case, the consideration for confirmation would arise at the end of the period of probation. In Samsher Singh vs. State of Punjab, AIR 1974 SC 2129, the Supreme Court has observed: "Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post". In that view of the matter, the fitness or suitability has to be judged at the time of consideration for confirmation, unless any specific rule or the term of the appointment so provides. It has already been concluded that consideration for confirmation would arise only at the end of the period of probation. For these reasons, we conclude that a probationer has a right to continue in the service till the period of probation expires. 6.
It has already been concluded that consideration for confirmation would arise only at the end of the period of probation. For these reasons, we conclude that a probationer has a right to continue in the service till the period of probation expires. 6. With regard to the observations of the Supreme Court in Dhingra's case (supra) that a probationer may be discharged during or at the end of probation, the Supreme Court was referring to two categories of cases - one, where the period of probation is fixed and the other, where the period of probation is not special. There are also cases where period of probation is extended. We are, therefore, of the view that the observations of the Supreme Court that a probationer can be discharged during the probationary period may be referable to the class of cases where period of probation has not been specified. 7. In the result, the petition is allowed and the impugned order of reversion dated 25.5.91 is set aside. No costs.