Abdur Rab v. Food Corporation of India — 1993 DIGILAW 46 (CAL)

JUDGMENT 1. In this application the petitioner, an officer of Food Corporation of India, has challenged the order dated 29.4.1988 purporting to revert him to the post of Chief Labour Inspector from the post of Deputy Manager (General Administration). 2. To appreciate the contentions it is necessary to set out the relevant facts. 3. On or about 1.3.1978 the petitioner was appointed as Chief Labour Inspector in the office of Food Corporation of India and was posted at Jorhat. The post of Chief Labour Inspector admittedly is equivalent to the rank of Assistant Manager. Pursuant to an advertisement issued for recruitment in the post of Deputy Manager (General Administration), the petitioner while serving as Chief Labour Inspector submitted his application for the said post through proper channel. 4. On 28.4.1986, the petitioner received an offer of appointment for the post of Deputy Manager (General Administration) on the terms and conditions laid down therein. One of the terms and conditions of the said appointment was that the petitioner would be on probation for a period of one year from date of his appointment, which may be extended by a further period not exceeding one year. On satisfactory completion of probation he will be considered for confirmation in the post. It was also provided that such appointment was subject to provisions of the Food Corporation Act, 1964 and the Rules and Regulations framed thereunder or that may be framed thereafter from time to time and also such orders and directions as are being or might be issued by the Corporation from time to time. The petitioner accepted the said offer of appointment and joined in the post of Deputy Manager (General Administration) on 1.5.1986. 5. The petitioner was acting as District Manager at Dimapur till 1.9.1987. Thereafter he was transferred to Gaya as District Manager of the said Corporation. It may be mentioned that the petitioner joined at Gaya on 20.10.1987. 6. On 24.4.1988 the petitioner was transferred from the District Office of Gaya to the office of Senior Regional Manager (West Bengal). He duly submitted his joining report on 5.5.1988. Thereafter the petitioner came to know that a purported telegraphic message had been issued by the Headquarters of the said Corporation whereby the petitioner was sought to be reverted from the post of Deputy Manager (General Administration) to the post of Chief Labour Inspector. 7. He duly submitted his joining report on 5.5.1988. Thereafter the petitioner came to know that a purported telegraphic message had been issued by the Headquarters of the said Corporation whereby the petitioner was sought to be reverted from the post of Deputy Manager (General Administration) to the post of Chief Labour Inspector. 7. Being aggrieved, the petitioner has moved this present writ application. Two questions call for determination. Firstly whether the order of reversion impugned in the proceeding is sustainable in law and whether the petitioner would still continue to be treated as on probation. 8. It has been contended by Mr. Kanan Ghose, learned advocate appearing for the respondents that the probationary period of the petitioner in the post of Deputy Manager (General Administration) was duly terminated within the stipulated period of two years and accordingly he was reverted to the post which he held prior to his appointment in the post of Deputy Manager (General Administration). It is also his contention that when the petitioner's services were found unsatisfactory, the Corporation decided to terminate his services during the probationary period and accordingly the petitioner cannot have any grievance on that score. 9. Mr. Ashok Ganguly, learned advocate appearing for the petitioner, has, however, contended that the respondents have no authority to revert the petitioner to the post which he held earlier before his appointment in the post of Deputy Manager (General Administration. It was not a case of promotion but it is a case of new recruitment and accordingly he could not have been reverted at all. 10. His further contention is that the petitioner having continued for two years as a probationary officer and his probationary period having not been terminated within the aforesaid period, he must be deemed to have been confirmed in the post of Deputy Manager (General Administration) and no order therefore could be made reverting the petitioner from the said post. 11. Several decisions have been cited from the Bar in support of the respective contentions to which I shall presently refer. 12. I shall first examine the question as to whether the order terminating the probationary period was made in accordance with the terms and conditions of the appointment and in accordance with the regulations. 11. Several decisions have been cited from the Bar in support of the respective contentions to which I shall presently refer. 12. I shall first examine the question as to whether the order terminating the probationary period was made in accordance with the terms and conditions of the appointment and in accordance with the regulations. Clause (ii) of the letter of appointment for the post of Deputy Manager (General Administration) is to the following effect: – "He will be on probation for a period of one year from the date of his appointment which may be extended further by a period not exceeding one year. On satisfactory completion of probation, he will be considered for confirmation in that post. During the period of probation, he is liable to discharge without any notice, for unsatisfactory work or other similar reasons." 13. Regulation 15 of the Food Corporation of India (Staff) Regulations, 1971, inter alia, provides as follows: – 15. Probation: – (1) Every person regularly appointed to any post in the Corporation under Sub-Clause (a) of Clause (1) of Regulation 7 shall be required to be on probation for a period of one year from the date of appointment. (2) The appointing authority may in his discretion extend the period of probation by a further period not exceeding one year. (3) During the period of probation an employee directly recruited shall be liable to be discharged from service without assigning any reason by giving him a notice of 30 days or pay and allowance in lieu thereof. An employee promoted from a lower post to a higher post shall be liable to be reverted to the lower post without notice and without assigning any reason. (4) An employee who has satisfactorily completed his probation in any post shall thereafter be confirmed. 14. It is, therefore, necessary to determine as to when the probationary period was completed inasmuch as the probationary period cannot be extended beyond two years. The order of appointment is dated 28.4.1986, but the petitioner joined as the Deputy Manager (General Administration) on 1.5.1986. This fact was sought to be disputed by Mr. Ghose in his argument, but his argument cannot re-write the records and statements on oath which speak for themselves. 15. The order of appointment is dated 28.4.1986, but the petitioner joined as the Deputy Manager (General Administration) on 1.5.1986. This fact was sought to be disputed by Mr. Ghose in his argument, but his argument cannot re-write the records and statements on oath which speak for themselves. 15. The first document is the Office Order No. 191 of 1986 dated 12.5.1986, issued by Food Corporation of India which records, inter alia, as follows: – Part-I In pursuance of Head Quarters Letter No. I(8)/86/BI dated 28.4.1986 the following persons on their appointment to the post of Deputy Manager (General) have reported to this office on the dates and posted to the places as indicated against each. Sl. Name of the Date of Posted to Remarks No. Officer Joining in Z.O. 1. Shri Abdur Rab 1.5.1986 (FR) Do, Dimapur under Vice Regional Shri Manager K.R. Unni 16. The next document is office Order No. 196 of 1986 dated 26.5.1986 which records as follows: – "In pursuance of Zonal Office (East), FCI, Calcutta Office Order Part-I No. 191/86 issued under reference No. Estt. 31(1)/84 Cal-I/82 Part 12.5.1986 Shri A. Rab, on his appointment to the post of Dy. Manager (General) and joining to the same post in Zonal Office, Calcutta on 1.5.1986 (FN) and subsequently on being released from Zonal Office, Calcutta on 12.5.1986 (AN), has resumed duty in this office on 26.5.1986 (FN) and assumed the charge of District Manager, FCI, N.E.F. Region, Dimapur." 17. In the affidavit affirmed by Kamagari Subba Rao, Senior Regional Manager of Food Corporation of India (West Bengal Region) affirmed on 3.2.1990 it is stated in paragraph 5, inter alia, as follows: – "I state that the petitioner was appointed as Deputy Manager (General) vide appointment order dated 28.4.1986 on direct recruitment basis. He joined on 1.5.1986 as Deputy Manager (General) and he was reverted to Chief Labour Inspector vide order dated 28.4.1986." 18. Another affidavit was affirmed by D.P. Chopra, Senior Divisional Manager (West Bengal Region) on 31.7.1991 wherein he, inter alia, stated as follows: – "On 1.5.1986 (Fore-noon) the petitioner joined his duties on probation to the post of Deputy Manager (General Administration) in the office of the Zonal Manager (East) Calcutta. In support of the said statement a true copy of the joining report of the petitioner contained in his letter dated 1.5.1986 is annexed hereto and marked C." 19. In support of the said statement a true copy of the joining report of the petitioner contained in his letter dated 1.5.1986 is annexed hereto and marked C." 19. The joining report referred to above is as follows: – "The Zonal Manager (East) Food Corporation of India, Calcutta. Sir, Subject: – Joining as Deputy Manager (General Administration) In pursuance of Head Office, FCI, New Delhi's letter of appointment as Deputy Manager (General Administration) vide letter no. 1(3)/86-BI dated 28.4.1986 and on being relieved from District Office, C, Muzaffarpur W.E.F. 30.4.1986 (AM) vide office order issued under reference No. Estt./PF(II)1755/80/994 dated 30.4.1986. I report for duty as Deputy Manager (General Administration) to day the 1.5.1986 (FN)." 20. Another document is a provisional integrated seniority list of Deputy Managers, who were empanelled upto 1985 and were working on 31.10.1987. In the said list, the name of the petitioner appears at Sl. No. 200 and the date of appointment to the post of Deputy Manager (General Administration) was shown as 1.5.1986. 21. All the aforesaid documents would clearly demonstrate that the petitioner joined as probationary Deputy Manager on 1.5.1986. In view of the Regulations and the terms and conditions of the appointment, the petitioner, therefore, could have been kept on probation for a period of one year from the date of his appointment that is to say 1.5.1986. The probationary period as, I have indicated, could have been extended for a further period not exceeding one year. One year from 1.5.1986 expired on 1.4.1987. After the expiry of the probation period, there is no order of extension of the probationary period any further. It is, therefore, contended that inasmuch as there was no order extending the probationary period, the petitioner must be deemed to have been confirmed upon expiry of the probationary period of one year on 1.4.1987. The petitioner has annexed various documents to show that both the promoted and directly recruited officers, if placed on probation, are informed by order in writing of the extension of their respective probationary period. 22. Two several orders dated 10.4.1979 and 13.7.1979 have been annexed to the affidavit affirmed on 10.9.1991 in respect of Deputy Managers (General) being Shyamal Kumar Bhattacharjee and Dibakar Basak respectively. 22. Two several orders dated 10.4.1979 and 13.7.1979 have been annexed to the affidavit affirmed on 10.9.1991 in respect of Deputy Managers (General) being Shyamal Kumar Bhattacharjee and Dibakar Basak respectively. In the case of Shyamal Kumar Bhattacharjee it was mentioned that his probation was extended for a further period of 6 months in terms of Regulation 15(1) of the FCI (Staff) Regulation, 1971. In the case of Dibakar Basak it was mentioned that since he had not completed his probationary period satisfactorily, his probation was further extended for a period of 6 months in terms of the said regulation. Similarly, by office order dated 25.11.1985 the probationary period of S. Jafirul Haque, Assistant Manager was extended for a further period of one year as he did not complete his probation satisfactorily. By office order dated 19.2.1990 S.K. Chanda, Dy. Manager General, was informed that on perusal of the reports of his work and conduct the competent authority has passed orders for extension of his probation for a further period of 6 months. The aforesaid two orders have been annexed to the affidavit of the petitioner affirmed on 15.7.1991. 23. The respondents have not given any satisfactory explanation why, in the case of the petitioner, no order of extension of the period of probation has been passed while in the case of other employees such extension of probationary period is invariably communicated to the concerned officers in writing. In the absence of such a written communication, the contention of the petitioner is that his probationary period was not required to be extended and the petitioner is entitled to be confirmed on expiry of the tenure on 30.4.1987. It is true that in the case of the petitioner no specific order was passed extending the period of probation but the circular of FCI dated 16.6.1977 to which I shall presently refer provides that in the case where probationary period is formally extended or where no formal order rather confirming or extending probation is issued, the persons concerned would be deemed to have been automatically confirmed after expiry of maximum period of 2 years. 24. In my view, therefore, even though no formal order of extension of the probationary period was made, the petitioner cannot be deemed to have been confirmed automatically until expiry of 2 years. But there is another aspect of this matter. 24. In my view, therefore, even though no formal order of extension of the probationary period was made, the petitioner cannot be deemed to have been confirmed automatically until expiry of 2 years. But there is another aspect of this matter. It has been contended by the respondents in the appeal in opposition affirmed by K. Subba Rao on 30.5.1990 that due to unsatisfactory performance the petitioner was not fit for confirmation. But in the case where the incumbent cannot be confirmed for unsatisfactory performance during the period of probation, the circular referred to above containing the guidelines have to be followed. Therefore, if the said guidelines are not followed, it has to be deemed that there is no basis of saying that the petitioner's performance was unsatisfactory and accordingly there was no question of extending the period of probation and in such a case the petitioner can legitimately claim that he must be deemed to have confirmed. 25. The circular dated 16.6.1977 referred to above is as follow: – THE FOOD CORPORATION OF INDIA, HEAD OFFICE, NEW DELHI Dated 16.6.1977 CIRCULAR Under the provision of Regulation 15(1) of Food Corporation of India (Staff) Regulation, 1971 an employee appointed on regular basis to any post in the service of the Corporation is required to be on probation for a period of one year from the date of his appointment. This period can the discretion of the appointing authority, be extended for a further period not exceeding one year under Regulation 15(2) ibid. 26. In view of the above provisions of FCI (Staff) Regulations, doubts had been expressed whether persons who were appointed on probation could be deemed to have been automatically confirmed in the service of the Corporation after the expiry of the prescribed period of probation. The position in this regard was examined and it was clarified vide our Circular No. 3-6/73-EP dated 31.8.1973 that the persons concerned cannot be deemed to have completed the probation period successfully after putting in one years service unless and until orders to this effect are issued by the competent authority within a period of two years from the date of appointment on probation. In case where, however, the probationary period is formally extended, which can be done for a further period not exceeding one year, or where on formal orders either confirming of extending the probation are issued the persons concerned would be deemed to have been automatically confirmed after the expiry of maximum period of two years. In order to ensure that appropriate action on to that effect is taken, the following instructions are laid down for the guidance of appointing authorities. (i) If the first half yearly probation report reveals that the probationer's work is not satisfactory he should immediately be placed whether in a different sear or under a different officer for the remaining period of probation. (ii) All other formalities leading to confirmation of otherwise should be completed within four weeks from the date of completion of the initial probation period. Action to call for and obtain the second half yearly period should be initiated by the appointing authority well before the date the completion of one year of probation. On receipt of this report, decision should be taken whether to confirm or to the extend the probationary period within a period of four weeks form the date completion of the initial period of probation. In cases where the period is extended, the cases of such persons should be reviewed well before the expiry of the extended period and orders for confirmation/termination should be issued before that case. The Zonal/Regional Manager and Joint Managers (Post Operations) will be personally responsible for ensuring that the probation report should reach Head Office, wherever necessary, atleast two weeks before the date of completion of one year period of probation or extended upto six months. However, in case where an employee may be completing 2 years for probation, the probation report of the complete period should reach Head Office wherever necessary, atleast one month before completion of 2 years period. (iii) As a gnera rule a probationer who is not making satisfactory progress or who shows himself to be inadequate for the service in any way, should be informed of his short comings in writing well before the expiry of the original probationary period so that he can make efforts a self improvement. Further soon after, the probation period of one year is completed the probations should be informed in writing about the confirmation extension of the probation period as far as possible. Further soon after, the probation period of one year is completed the probations should be informed in writing about the confirmation extension of the probation period as far as possible. Sd/- M.K. Garg Personal Manager 27. On perusal of the said circular dated 16.6.1977 it is abundantly clear that regular reports have to be prepared and maintained during the period of prohibition of the incumbent. The petitioner being a probationary officer, the procedure as mentioned in the said circular ought to have been followed by the respondent. The object of the said circular is that the short comings and/or defects, if any, recorded in the report during the period of probation should be communicated to the concerned employee within a period of one month from date of receipt of such report so that the contention of concerned incumbent can be drawn to his draw backs and shortcomings so that he may make efforts to improve his performance. It is an admitted position that in this care no alleged shortcomings have been comminuted to the petitioner. Wherefore, the contention of the respondent that the performance of the petitioner during the period of probation is wholly unsatisfactory cannot be sustained. The petitioner is entitled to know whether his performance was satisfactory or not inasmuch as, if the performance is unsatisfactory, his service could be terminated during the period of probation. It is, therefore, incumbent on the respondent not only to maintain the report regarding performance but also to communicate such report to the concerned incumbent so that he can improve his performance and make himself eligible for confirmation at the end of the probationary period. This having not done in this case, the respondents cannot take shelter on uncommunitated reports, if any, for the purpose on terminating the service of the petitioner during the period of probation. In my view, therefore, the petitioner is entitled to be confirmed after expiry of one year of probation as no report of unsatisfactory performance was communicated to him during that period or thereafter. 28. The contention of the respondent is that the said administrative circular is not a condition of service and the same is not a rule. This contention cannot, however, be accepted. It is too late in the day to contend that the said circular has no force of rules. 28. The contention of the respondent is that the said administrative circular is not a condition of service and the same is not a rule. This contention cannot, however, be accepted. It is too late in the day to contend that the said circular has no force of rules. If this contention is accepted, then it must be held that immediately after expiry of the probationary period of one year, the petitioner must be deemed to have been confirmed, as there was no formal order of extension of the probationary period communicated to him. 29. The Supreme Court in, B.S. Minhas vs. Indian Statistical Institute, AIR 1984 SC 363 , observed in paragraphs 22 and 23 as follows :- "The contention of Shri Garg, however, is that the bye-law having no force of statute, on-compliance with its requirement cannot in any away effect the appointment of respondent no. 4 as Director of respondent no. 1 Shri Tarkunde, however, contended that assuming that the bye-law is not statutory, even so respondent no. 1 was bound to comply with it. In support of his contention, he strongly relied upon Ramana Dayaram Shetty vs. International Airport Authority of India, (1979) 3 SCR 1014 : AIR 1979 SC 1628 . The Court in that case held (at page 1635 of AIR). It is a well settled rule of administrative law that an executive authority must be regularly held to the standards by which it professes its actions to be judged and it must scrupulously observe these standards on pain of invalidation of an set in violation of them. This rule was enunciated by Frankfurther J. in Vitareli vs. Seaton, (1959) 359 US 535: 3 L Ed 2d 1012 where the learned judge said. An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that record. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that record. The aforesaid principle laid down by Frankfurther, J. Vitareli vs. Seaton, (1959) 359 US 535: 3 L Ed 2d 1012 has been accepted as applicable in India by this Court in A.S. Ahluwalia vs. State of Punjab, (1975) 3 SCR 82 : AIR 1975 SC 984 and in subsequent decision given in Sukdev vs. Bhagtram, (1975) 3 SCR 619 : AIR 1975 SC 1331 . Mathew, J, quoted the above referred observation of Frankfurther, J. with approval." 30. In view of the pronouncement of this Court on the point it must be held to be obligatory on the part of respondent no. 1 to follow the bye-law, if law bye-law have been framed for the conduct of its affairs to avoid arbitrariness. Respondent no. 1 cannot, therefore, escape the liability for not following the procedure prescribed by bye-law 2. 31. In my view apart from the fact that the said circular is binding on the respondents, compliance with the said circular is necessary not only in the name of fair play but because of the fact that his appointment was subject to the provisions of Food Corporation of India Act, 1964 and the rules and regulations framed thereunder and also such orders and directions as may have been issued or may be issued by the Corporation from time to time. The aforesaid circular is, therefore, binding on the respondents and it is incumbent on them to comply with the provisions of the said circular which admittedly have not been done in the instant case. 32. Even otherwise, the petitioner completed more than two years as a probationary officer. Neither under the letter of appointment nor under the Regulation 15 of the aforesaid Regulations, the period of probation can be extended beyond two years. In the affidavit of the petitioner affirmed on 10th September, 1991, the petitioner has annexed a telex dated 6th may, 1988 issued by Food Corporation of India. Neither under the letter of appointment nor under the Regulation 15 of the aforesaid Regulations, the period of probation can be extended beyond two years. In the affidavit of the petitioner affirmed on 10th September, 1991, the petitioner has annexed a telex dated 6th may, 1988 issued by Food Corporation of India. The said telex is as follow:- TELEX FOOD CORPORATION NEW DELHI Estate(1)/87-EZ/CAT-I stop Ramesh Chandra from Balachandran stop Refyrtel MSG No. 7463-69 PF/A—196-EI regarding Termination of probation of A. Rab WEF 28, 4488 and reversion to the Post of CLI stop received your Telegram on 2nd instant but contents of Telegram was communicated by SRM Patna on 29th ultimo stop immediately SRM Patna was instructed through Telegram as he could not be contacted over phone to communicate the decision of HORS in person and by post stop Transpires from Telegram of SRM Patna that Rab was relieved from Patna WEF 25.4.1988 for reporting to West Bengal region Stop Advised SRM West Bengal to communicates the decision of HORS to Rab as soon as he Joins Stop fact remains that order of Termination of probation and reversion to post of act could not be communicated to Rab before expiry of his probation stop details follow. 33. It is evident from the aforesaid telex that the order of termination of probation could not be communicated to the petitioner before expiry of his probation. Accordingly, there is no question of reversion of the petitioner to the post of Chief Labour Inspector, the post the petitioner held before his direct recruitment to the post of Deputy Manager (General Administration), when the period of probation came to an end on expiry of two years on 30th April, 1988. The question is whether the petitioner could be deemed to have been confirmed automatically in the said post of Deputy Manager (General Administration). 34. Mr. Ghosh, learned counsel appearing for the FCI has contended that confirmation of a probationer is not automatic on expiry of the period of probation. He has drawn my attention to the decision of the Supreme Court in the case Municipal Corporation, Raipur vs. Ashok Kumar Misra, AIR 1991 SC 1402 . In that case the Supreme Court construing the provisions of M.P. Government Servants General Conditions of Service Rule, 1961 in particular Rule 8 thereof. He has drawn my attention to the decision of the Supreme Court in the case Municipal Corporation, Raipur vs. Ashok Kumar Misra, AIR 1991 SC 1402 . In that case the Supreme Court construing the provisions of M.P. Government Servants General Conditions of Service Rule, 1961 in particular Rule 8 thereof. Rule 8 of the Rules construed by Supreme Court reads thus:- "Probation-(1) A person appointed to a service or post by direct recruitment shall ordinarily be placed on probation for such period as may be prescribed. (2) The appointing authority may, for sufficient reasons, extend the period of probation by a further period not exceeding one year. Note-A probationer whose period of probation is not extended under this sub-rule but who has neither been confirmed nor discharged from service at the end of the period of probation shall be deemed to have been continued in service, subject to the condition of his service being terminable on the expiry of a notice of one calendar month given in writing by either side. (3) A probationer shall undergo such training and pass such departmental examinations during the period of his probation as may be prescribed. (4) & (5) Are not relevant, hence omitted. (6) On the successful completion of probation and the passing of the prescribed departmental examinations, the probationer shall be confirmed in the services or post to which he has been appointed." 35. The Supreme Court in that context observed as follows:- Thus, it is clear from Rule 8 of the Rules that the procedure to place a direct recruit on probation for a prescribed period was provided. The appointing authority would be entitled to place a direct recruit on probation for a specified period and for sufficient reasons may extend the period of probation to a further period not exceeding one year. Under the notes the sub-rule (2) if the probationer is neither confirmed nor discharged from service at the ends of the period of probation, he shall be deemed to have been continued in service as probationer subject to the condition of his service being terminated on the expiry of a notice of one calendar month given in writing by either side. A per sub-rule (6) on passing the prescribed departmental examination and on successful completion of the period of probation, the probationer shall be confirmed in the service or post to which he has been appointed. A per sub-rule (6) on passing the prescribed departmental examination and on successful completion of the period of probation, the probationer shall be confirmed in the service or post to which he has been appointed. Then he becomes an approved probationer. Therefore, after the expiry of the period of probation and before its confirmation, he would be deemed to have been continued in service as probationer. Confirmation of probation would be subject to satisfactory completion of the probation and to pass in the prescribed examinations. Expiry of the period of probation, therefore, does not entitle him with a right to a deemed confirmation. The rule contemplates to pass an express order of confirmation in that regard. By issue of notice of one calendar month in writing by either side, the tenure could be put to an end, which was done in this case. 36. The appointment letter provides that on satisfactory completion of probation the petitioner would be considered for confirmation in that post. It does not speak of automatic confirmation. Regulation 15 of the FCI Regulations which have been already set out provides that an employee who has satisfactory completed his probation shall thereafter be confirmed. Mr. Ghosh has laid emphasis on the expression satisfactory and has pointed out that the petitioner in this case has not completed the probation satisfactory and accordingly FCI is within their power to revert the petitioner. 37. The letter of appointment provides that if, during the period of probation, the work of the petitioner is found unsatisfactory, he is liable to be discharged. Regulation 15 provides that if an employee is promoted from a lower post to a higher post, he shall be liable to be reverted to the lower post, but where a person is directly recruited, during the probation he is liable to be discharged from service. The petitioner admittedly having been directly recruited, the question of reverting him to the lower post could not arise. But than the question remains whether he should be deemed to have been confirmed on expiry of the period of probation. It is true that Regulation 15 does not clearly spelt out about the automatic confirmation but circular referred to above in noun certain terms provides that an incumbent shall be deemed to be confirmed after expiry of a maximum period of two years. It does not speak of satisfactory completion of the probationary period. It is true that Regulation 15 does not clearly spelt out about the automatic confirmation but circular referred to above in noun certain terms provides that an incumbent shall be deemed to be confirmed after expiry of a maximum period of two years. It does not speak of satisfactory completion of the probationary period. Even assuming that satisfactory completion of probationary period is a condition precedent for confirmation on the expiry of the period of probation, in that case the incumbent must be informed of his shortcomings during the period of probation so that the incumbent can improve himself. Admittedly that was not done in the instant case. Apart from bold suggestions made from the bar no evidence has been adduced to show how the petitioner services were found unsatisfactory and whether he was communicated about his shortcomings of any unsatisfactory work during the probationary period in accordance with the circular dated 16.6.1977 which is binding on the respondents. The appointment letter also provides that rules of instructions issued from time to time will govern the service conditions of an incumbent. In that view of the matter it must be held that he petitioner should be deemed to have been automatically confirmed after expiry of a maximum period of 2 years. The decision of the Supreme Court in Municipal Corporations, Raipur (Supra) does not advance the case of the respondents. The said decision was based or relevant rule pertaining to confirmation in that case. There the Supreme Court as, indicated, held that confirmation shall be subject to satisfactory completion of the probation and to pass in the prescribed examination. The question of passing any examination in this case does not arise. Apart from that the rule in that case provides that if a person is neither confirmed nor discharged from service at the end of the period of probation, he shall be deemed to have been continued in service as probationer subject to the condition of service being terminated on the expiry of a notice of one calendar month given in writing by either side. The rule in the instant case does not provide such contengency. 38. Accordingly, I am of the view that contention of Mr. Ghosh must fail and the petitioner in absence of communication of any unsatisfactory work during the period of probation must be deemed to have been confirmed on expiry thereof. 39. The rule in the instant case does not provide such contengency. 38. Accordingly, I am of the view that contention of Mr. Ghosh must fail and the petitioner in absence of communication of any unsatisfactory work during the period of probation must be deemed to have been confirmed on expiry thereof. 39. It has been contended by Mr. Ghosh, learned Counsel for the respondents, relying on the decision of the Supreme Court in Samsher Singh vs. State of Punjab, AIR 1974 SC 2192 , that 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 this case, according to him, the probationers' work was found unsatisfactory and accordingly he was reverted to the substantive post. The petitioner was found unsuitable for the job and he could have been discharged but instead he was reverted which was to his advantage. It is true that unless the work of the probationer is found satisfactory, he cannot be confirmed. But in this case as I have already indicated the probationer was not told of his shortcomings, if any, during the period of probation and accordingly the question of his work being found unsatisfactory does not arise. He was not discharged during the period of probation in accordance with the letter of appointment. Whatever might have been the reason, the probationary period was not terminated and in absence of any report of unsatisfactory work in accordance with the circular referred to above, the question of termination of the probation of the discharge or reversion of the petitioner does not arise at all. 40. Mr. Ghosh, learned Counsel, has also relied on a decision of the Supreme Court in State of Punjab vs. Dharam Singh, AIR 1968 SC 1210 . It is his contention that unless express order of confirmation after completion of the maximum period of probation is made, the petitioner cannot be deemed to be confirmed in the post. In that case, Rule 6 of the Punjab Educational Service Provincialised Cadre) Class III Rules, 1961 E was construed by the Supreme Court. It was observed of follows: – "In the present case, Rule 6(3) forbids extension of the period of probation beyond three years. In that case, Rule 6 of the Punjab Educational Service Provincialised Cadre) Class III Rules, 1961 E was construed by the Supreme Court. It was observed of follows: – "In the present case, Rule 6(3) forbids extension of the period of probation beyond three years. Where as in the present case, the service rules fix a certain period of time beyond which the probationary period can be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication." 41. I fail to appreciate how this case helps or advances the contention of the respondents. On the other hand, it helps the contention of the petitioner. The probationary period cannot be extended beyond the maximum period provided under the rules or under the terms and conditions of the appointment letter. As indicated in this case, the probationary period came to an end on the expiry of two years and during that period admittedly the petitioner was not discharged. He was purported to have been reverted after the expiry of the probationary period. No order was communicated to the petitioner of such purported reversion during the continuance of probation. According to the circular, as I have already indicated, upon the completion of the probationary period the petitioner must be deemed to have been confirmed. It is permissible to infer in this case that since no shortcomings or defects or any unsatisfactory work of the petitioner were brought to the attention of the petitioner in accordance with the said circular, the work of the petitioner was considered satisfactory and the petitioner must be deemed to have been confirmed. According to the said circular his confirmation was automatic. 42. Mr. Ghosh has also relied on a decision of the Supreme Court Kedar Nath Bhai vs. State of Punjab & other, (1974) 3 SCC 21 . According to the said circular his confirmation was automatic. 42. Mr. Ghosh has also relied on a decision of the Supreme Court Kedar Nath Bhai vs. State of Punjab & other, (1974) 3 SCC 21 . In that case, the Supreme Court observed as follows: – "Where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if any order is passed in that behalf. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the• end of the specified period, or there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. At the end of the period of probation an order confirming the officer is required to be passed and if no such order is passed and he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer." 43. As it appears, the Supreme Court held that unless there is a specific rule the expiration of the probationary period does not necessary lead to confirmation. The letter of appointment provides that on satisfactory completion of probation, the petitioner will be considered for confirmation. The said circular which must be held to be a part of the rule, specifically provides that upon the expiry of the maximum period of probation, a probation will be confirmed in the post. Regulation 15(4) also provides that an employee who has satisfactorily completed his probation in any post shall thereafter be confirmed. It does not lay down that any specific order is necessary for such confirmation. Having regard to the facts and circumstances of this case, it must be held that the petitioner's work was found to be satisfactory and upon the completion of the expiry of the maximum period of probation he must be deemed to have been confirmed. 44. The question still remains as to whether in any event the petitioner could have been reverted to the post of Chief Labour Inspector. 44. The question still remains as to whether in any event the petitioner could have been reverted to the post of Chief Labour Inspector. Regulation 15 to which I have already referred specifically provides that during the period of probation an employee directly recruited shall be liable to be discharged from service without assigning any reason by giving him a notice of 30 days or pay and allowances in lieu thereof. An employee promoted from a lower post to a higher post shall be liable to be reverted to the lower post without notice and without assigning any reason. The petitioner was appointed to the post of Deputy Manager (General Administration) by direct recruitment and not by promotion. He could not, therefore, have retained any lien in the substantive post of Chief Labour Inspector. If the petitioner would have been promoted from the post of Chief Labour Inspector to the post of Deputy Manager (General Administration) in that event he was liable to be reverted to the feeder post. But admittedly in this case the petitioner was appointed to the post of Deputy Manager (General Administration) by direct recruitment. This fact has been admitted by K. Subba Rao, Senior Regional Manager of the Food Corporation of India (West Bengal Region) in his affidavit affirmed on 3.2.1990. Similarly, in the affidavit affirmed by his successor D.P. Chopra on 31.7.1990 it has also been admitted that the petitioner was appointed through direct recruitment in the post of Deputy Manager in response to advertisement made by the FCI. This fact will also be evident from the provisional integrated seniority list of Deputy Managers to which I have already referred. 45. The question of reversion to a post only arises if the incumbent held any lien in the feeder post upon his promotion to a higher post. In such a case according to FCI Regulations during the period of probation such an incumbent may be reverted to the feeder post. But where the appointment is made not by way of promotion but by way of direct recruitment, the incumbent does not hold any lien upon his appointment to a higher post by direct recruitment. That is why the letter of appointment provides that during the period of probation the petitioner is liable to be discharged without any notice for unsatisfactory work or other similar reasons. That is why the letter of appointment provides that during the period of probation the petitioner is liable to be discharged without any notice for unsatisfactory work or other similar reasons. As indicated, he can only be discharged from service provided notice of 30 days' has been issued or one month's pay and allowances have been paid to him in lieu of notice. This was not admittedly done in this case and accordingly even if the petitioner was liable to be discharged, he could not have been discharged without complying with Regulation 15. 46. The contention of the respondents, however, is that the petitioner in all practical purposes was promoted to the post of Deputy Manager (General Administration), but having regard to the mode of appointment of the petitioner and the averments made in the affidavits by the Senior Regional Managers referred to above, I cannot accept the contention that the petitioner was promoted to the post of Deputy Manager (General Administration). 47. The Supreme Court in Hussain Sasansahed Kaladgi vs. State of Maharashtra, 1988 (1) SLR 72, held that a direct recruit to a post cannot be reverted to a lower post. It is only a promoted who can be reverted from the promotion post to the lower post from which he was promoted. In view of the principles laid down by the Supreme Court, it must be held that reversion of the petitioner to the post of Chief Labour Inspector was illegal. In the result, this application succeeds, impugned order of reversion of the petitioner and the communication as contained in the telex message dated 28.4.1988 are set aside and quashed. There will be no order as to costs.