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Himachal Pradesh High Court · body

2002 DIGILAW 31 (HP)

GURDIAL SINGH v. STATE OF HP

2002-02-25

V.K.BHATNAGAR

body2002
JUDGEMENT Honble Mr. V.K. Bhatnagar, Member (A). - 1. The present original application has been filed praying for the following relief: "The respondents be directed to consider the applicant having been confirmed as a Senior Auditor (now Section Officer), Assistant Accounts Officer (now Assistant Controller) and Senior Accounts Officer (now Deputy Controller) w.e.f. 16-7-1978, 18-1-1986 and 11-6-1989 respectively and to fix the on line special pay of Rs. 50/- only being given to him and to make payment of arrears to the applicant alongwith interest and consequential benefits". 2. The facts in brief are that the applicant was appointed to the post of Senior auditor vide order dated July 7, 1976 as per Annexure PA. The appointment order specifically mentioned that the applicant was to remain on probation for a period of 2 years from the date of appointment. No formal orders confirming the applicant on the post of Senior Auditor were, however, passed. Vide another notification as per Annexure PB dated 3-11-1983, a special pay of Rs. 50/- was allowed to the Senior Auditor w.e.f. 1-8-1983. The applicant received this special pay till he was promoted to the post of Assistant Accounts Officer (now Assistant Controller) vide order dated 17-1-1984 as per Annexure PC. The applicant was to remain on probation of two years on this post also, as per para 2 of Annexure PC. However, the applicant was confirmed only on 28-9-1987 (Annexure PD). The applicant was further promoted as Senior Accounts Officer (now Deputy Controller) vide notification dated 11-6-1987 as per Annexure PE and again a probation of two years was prescribed, which expired on 11.6.1979. 3. The case of the applicant is that though in view of the judgment of the Honble Supreme Court in case of State of Punjab versus Dharam Chand reported in AIR 1968 Supreme Court 1210, the applicant was entitled to be confirmed as a Senior Auditor, Assistant Accounts Officer and Senior Accounts Officer on 16-7-1978, 18-1-1986. and 11-6-1989 respectively after completion of the probation period, but he was not so confirmed. However, the present original application involves confirmation of the applicant as a Senior Auditor when the applicant was getting a special pay of Rs. 50/- w.e.f. November 3, 1983. On promotion of the applicant to the post of Assistant Accounts Officer, the special pay of Rs. 50/- was hot taken into account while fixing the pay of the applicant. However, the present original application involves confirmation of the applicant as a Senior Auditor when the applicant was getting a special pay of Rs. 50/- w.e.f. November 3, 1983. On promotion of the applicant to the post of Assistant Accounts Officer, the special pay of Rs. 50/- was hot taken into account while fixing the pay of the applicant. The applicants representation in this behalf was not accepted. The request was rejected as per Annexure PJ dated May 31, 1993. the applicant made another representation after receipt of this reply as per Annexure PK dated 3-8-1983, but nothing was done. The present original application has been filed against non-counting of special pay while fixing the pay of applicant on the post of Assistant Accounts Officer. 4. This original application has been opposed by the respondents who have filed a reply affidavit. The main ground taken for opposing the original application is that the applicant was appointed as a Senior Auditor as per Annexure PA and that according to the Recruitment and Promotion Rules, the appointment of the applicant was ordered to be made on probation for a period of two years. A copy of Recruitment and Promotion Rules has been attached as Annexure RA. The respondents have tried to distinguish between two positions i.e. when a person is appointed as a probationer in or against a post substantively vacant with condition of probation. Second situation when a person is appointed on probation i.e. he is appointed to a post (not necessarily vacant substantively) for determining his fitness for eventual substantive post. Instructions in this behalf have been annexed as Annexure RB. It has, therefore, been pleaded that when a person is appointed on probations, such appointment does not qualify the applicant for confirmation on the post on which the promoted person is kept on probation to see if he is good at the actual work. It has also been pleaded that the completion of probation period does not confer a right on the government servant for confirmation immediately on completion of period of probation. That confirmation is made against a permanent post available in the department either by way of conversion from a temporary post to a permanent post or by vacation of a permanent post when a person already holding such a post is promoted or retired. That confirmation is made against a permanent post available in the department either by way of conversion from a temporary post to a permanent post or by vacation of a permanent post when a person already holding such a post is promoted or retired. It has also been pleaded that in the instant case no permanent post of Senior Auditor was available against which the applicant could be confirmed. 5. It has also been pleaded that before the applicant could be confirmed against a post of Senior Auditor he had already been promoted as Assistant Controller (finance and Accounts) w.e.f. 18-1-1984 and was confirmed on the higher, post on 26-9-1987. Therefore, there is no question of confirming the applicant on the lower post. 6. As regards, the applicants request for counting of his special pay for fixation of his pay on the post of Assistant Accounts Officer, it has been pleaded that the applicant does not fulfil second condition as laid down in Govt. of India Order No. 13 under F.R. 22(c) as Annexured by the applicant as Annexure PH. 7. The learned counsel for the parties have been heard and pleadings have been gone into. 8. The entire case of the applicant for counting of his special pay of Rs 50/- for fixation of pay in the higher post i.e. that of Assistant Accounts Officer hinges on the condition that the applicant is confirmed prior to his promotion as Assistant Accounts Officer as . would be seen from F.R. 22(6) which was applicable at that time. As per Government of India Division (Sic-decision) No. 13 below F.R. 22(c) regarding counting of special pay for purpose of fixation of pay on promotion, following conditions are to be fulfilled: "i. The special pay in the lower post should have been granted in lieu of separate higher scale. ii. If the special pay has been drawn in the lower post continuously for a maximum period of three years on the date of promotion, the pay in the higher post will be fixed, under normal rules, treating the special pay as part of the basic pay. In other case the pay in the time scale in higher post will be fixed under the normal rules with reference to basic pay drawn in the lower post (excluding the special pay). iii. In other case the pay in the time scale in higher post will be fixed under the normal rules with reference to basic pay drawn in the lower post (excluding the special pay). iii. In-both the kinds of case referred to in Clause ii above, it should be certified that, but for promotion, the government servant would have continued to draw the special pay in the lower post. 9. The case of the applicant is not covered under this decision of Government of India and on that ground the respondents have opposed this prayer. However, the case of the applicant can be covered under note-2 below this decision as referred to by the learned counsel for the applicant, if the applicant is confirmed as Senior Auditor before his promotion to the post of Assistant Accounts Officer. Note 2 below this decision reads as follows: "The condition of special pay having been drawn continuously for a minimum period of three years as well as the certificate of continued drawl of Special pay but for promotion should not be insisted upon in the case of a person holding substantively the lower post carrying special pay in lieu of a separate higher scale". 10. The above note clearly shows that if the applicant was holding the lower post substantively the special pay would count for fixation of pay and it is for this reason that the prayer has been made that the applicant be confirmed w.e.f. 16-7-1978. when he completed probation as Senior Auditor. 11. The learned counsel for the applicant referring to the Recruitment and Promotion Rules as contained in Annexure RA has argued that according to these Rules the probation of two years fixed on appointment of the applicant as a Senior Auditor could not have been extended beyond one more year and in this context referred to the judgment of the Honble Apex Court in case of "State of Punjab versus Dharam Singh" reported in AIR 1968 Supreme Court 1210. The learned counsel submitted that the Honble Apex Court in this case has considered two situations. The learned counsel submitted that the Honble Apex Court in this case has considered two situations. The first situation is when appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation, he should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules. In such a case, the express order of confirmation is necessary to give the employee a substantive right to the post and from the mere fact that he is allowed to continue in the post after the expiry of specified period of probation, it is not possible to hold that he should be deemed to have been confirmed. The second case is one where it is specifically mentioned in the order of appointment or promotion or service Rules as to what will happen on completion of period of probation i.e. whether the applicant will stand confirmed or whether the probation can be extended up to a specific period or it can be extended without limit. In the case where probation can be extended only upto the limited period and that limited period is over the employee will be deemed to have been confirmed against the post he \ was holding on probation, on completion of that maximum period. The I Honble Apex Court in the case before the court observed as under: "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 cannot 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 it that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. The reason it 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". 12. The learned counsel referring to Annexure RA which is a copy of Recruitment and Promotion Rules for the post of Senior Auditor, has invited attention to the following conditions in these rules regarding probation: "Two years subject to such further extension for a period not exceeding one year as may be ordered by the competent authority in the special circumstances and for reasons to be recorded in writing". 13. The learned counsel argued that the probation of the applicant could not be extended beyond one year. The applicant had been appointed as a Senior Auditor on 16-7-1976, he completed two years on 16-7-1978 and period of probation could be extended at the most by one year. Thus, the probation could not be extended beyond 16-7-1979 and the learned counsel relying on the case cited above submitted that the applicant would be deemed to have been confirmed w.e.f. 16-7-1979 irrespective of the fact that no specific order to that effect had been passed. It has been argued that on the basis of this judgment a provision to that effect has been incorporated (Sic-in) the Hand book of Recruitment and Promotion and other service Matters, Vol. I as per Annexure PF. This statement also made in para 6(d) of the original application has not been refuted in the reply. The reply is only to the effect that the completion of probation period does not give title for confirmation on the permanent post in a particular cadre. It has not been explained as to why this situation has not been with in the Hand book of Recruitment and Promotion and other Service Matters, Vol. I while making a provision as per Annexure PF. 14. The learned Additional Advocate General has cited only view taken by the respondents in their reply. No case law to the contrary or any instruction against Annexure PF, have been cited. 15. I while making a provision as per Annexure PF. 14. The learned Additional Advocate General has cited only view taken by the respondents in their reply. No case law to the contrary or any instruction against Annexure PF, have been cited. 15. In view of the above discussion and in view of the Recruitment and Promotion Rules for the post of Senior Auditor which I clearly mentions that the probation period of the applicant could not be extended beyond one year, the judgment of the Honble Apex Court in the case of "State of Punjab versus Dharamn Singh" referred to above is fully applicable. Similarly the instructions quoted in Annexure PF are also applicable. The applicant would, therefore, stand confirmed on the post of Senior Auditor even if no specific order was passed w.e.f. 16-7-1979. 16. In view of the position given in the previous para the applicant becomes entitled to the. benefits under note 2 given below decision No. 13 of the Government of India under F.R. 22(c) as it stood on the date in question. The F.R. 22(c) has been deleted only later but was very much in force on the date when the applicant had been promoted as an Assistant Accounts Officer, and would thus, be entitled to the benefit of counting of special pay towards basic pay of the post of Senior Auditor in the fixation of pay to the post of Assistant Accounts Officer to which the applicant had been promoted. 17. Other reliefs i.e. confirmation w.e.f. 18-1-1986 and 11-6-1989 have not been pressed. 18. As a result of the above discussion, this original application is allowed and the respondents are directed to treat the applicant as a confirmed Senior Auditor as on 16-7-1979 and to fix the pay of the applicant on the post of Assistant Accounts Officer by giving him the benefits of special pay of Rs. 50/- which the applicant was getting w.e.f. Nov. 1983. The applicant will also be entitled to all the consequential benefits. No order as to costs.