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2011 DIGILAW 603 (PNJ)

Anita Sharma v. State Of Haryana

2011-02-17

M.M.KUMAR, T.P.S.MANN

body2011
Judgment M.M.Kumar, J. 1. The instant appeal under Clause X of the Letters Patent is directed against the judgment dated 17.11.2008 rendered by the learned Single Judge holding that there was no legal infirmity in relieving the appellant of her duties on the ground that her work and conduct was unsatisfactory. The learned Single Judge has placed reliance on two judgments of this Court rendered in the cases of the The Managing Committee, Guru Gobind Singh College v. State College Tribunal, Punjab, C. W.P. No. 9646 of 2005 decided on 30.7.2007 and Simaranjit Kaur Walia v. State of Punjab, (C. W.P. No. 14409 of 2007 decided on 6.5.2008. 2. Brief facts of the case necessary for disposal of the instant appeal are that the post of Social Studies Mistress was advertised. The appellant was selected and appointed as per the provisions of Haryana Aided Schools (Security of Service) Rules, 1974 (for brevity 1974 Rules). After the approval accorded by the Director, Secondary Education, Haryana vide letter dated 3.1.1996, she was issued appointment letter by the D.D. Aggarwal Senior Secondary School, Jagadhari on 8.1.1996. She was put on probation for a period of two years. Her period of probation was extended by one year on 17.11.1997, which was duly noted by her on 21.11.1997. On account of unsatisfactory work, her services were terminated vide order dated 6.12.1998 (P.4) and she was relieved on 7.1.1999. It is, thus, obvious that the services of the appellant were dispensed with within a period of three years, which is the maximum period of probation prescribed in Rule 8 of the 1974 Rules. The aforesaid order has been upheld and the view of the learned Single Judge is discernible from the following paras of the judgments which reads as under :- "Undisputedly, the services of the petitioner were terminated within a period of three years of her appointment. It has come on record that initially the petitioner was appointed on probation for a period of two years vide appointment letter dated 8.1.1996. The said period was extended by another one year vide letter dated 17.11.1997. The period of probation of three 1 years would, therefore, complete on 8.1.1999. The basis for such termination has been given as "unsatisfactory work" which has been depicted in the chart reproduced above. The said assertion and the comparative result of the petitioner and other teachers have not been disputed. The period of probation of three 1 years would, therefore, complete on 8.1.1999. The basis for such termination has been given as "unsatisfactory work" which has been depicted in the chart reproduced above. The said assertion and the comparative result of the petitioner and other teachers have not been disputed. It is a settled proposition of law that during the period of probation, the services of a probationer can be dispensed with as it is this period which is provided to the employer to assess the work of such probationer. If the employee- probationer attains the bench-mark to the satisfaction of the employer, he attains a right for confirmation. xxx xxx xxx xxx Counsel for the respondents, on the other hand, has relied upon two Division Bench judgments of this Court in C.W.P. No. 9646 of 2005, The Managing Committee, Guru Gobind Singh College v. The State College Tribunal, Punjab and others, decided on 30.7.2007 and C.W.P. No. 14409 of 2007 Simaranjit Kaur Walia and another v. State of Punjab and others decided on 6.5.2008, to contend that when an employee has been put on a specific period of probation, it would always be open to the employer to discharge him before the expiry of the period of probation. The employee during the period of probation has no right to continue to hold such a post in case his services are dispensed with during the period of probation. The case of the petitioner is covered against her by these two judgments. The petitioner was on probation when her services were terminated and the respondent-Management has in the written statement given justifiable reasons for doing so on the basis of the records." 3. We have heard learned counsel for the parties and perused the paper-book with their able assistance. 4. In order to appreciate the controversy, it would be necessary to examine Rule 8 of the 1974 Rules, which deals with probation and confirmation of the. member of the service. Rule 8 has been framed in pursuance of power given by Sub-Section 1 of Section 8 of the Haryana Aided Schools (Security of Service) Act, 1971. The aforesaid rule is set out below for a ready reference. "8. Probation. member of the service. Rule 8 has been framed in pursuance of power given by Sub-Section 1 of Section 8 of the Haryana Aided Schools (Security of Service) Act, 1971. The aforesaid rule is set out below for a ready reference. "8. Probation. Section 4.- (1) The persons appointed to any post in the Service shall remain on probation for a period of two years, if appointed by direct recruitment and one year, if appointed otherwise :- Provided that any period of officiating appointment shall be reckoned as period spent on probation, but no person who has so officiated shall, on the completion of the prescribed period of probation be entitled to be confirmed, unless he is appointed against a permanent vacancy. (2) If, in the opinion of the appointing authority, the work or conduct of a person during the period of probation is not satisfactory, it may-- (a) If such person is appointed by direct recruitment, dispense with his services, and (b) If such person is appointed otherwise than by direct recruitment; (i) revert him to his former post; or (ii) deal with him in such other manner as the terms and conditions of his previous appointment permit. (3) On the completion of the period of probation of a person, the appointing authority may (a) if his work or conduct has, in its opinion, been satisfactory,- (i) confirm such person from the date of appointment, if appointed against a permanent vacancy; or (ii) confirm such person from the date from which a permanent vacancy occurs, if appointed against a temporary vacancy, or (iii) declare that he has completed his probation satisfactorily, if there is no permanent vacancy, or (b) if his work or conduct has, in its opinion, been not satisfactory,- (i) dispense with his services, if appointed by direct recruitment, or if appointed otherwise, revert him to his former post or deal with him in such other manner as the terms and conditions of his previous appointment permit; or (ii) extend his period of probation and thereafter pass such order, as it could have passed on the expiry of the first period of probation :- Provided that the total period of probation, including extension, if any, shall not exceed three years." (emphasis added) 5 A perusal of rule 8(i) and 8(3)(b)(i) & (ii) would show that initially the period of probation for a member of service is two years if appointed by direct recruitment. On the expiry of the initial period of probation, if the work or conduct of a member of service has not been found to be satisfactory then his services can be dispensed with if appointed by direct recruitment and if he is promoted then he can be reverted to his former post. Sub-rule 3(b) of Rule 8 further clarifies that the period of probation can also be extended but in no case it shall exceed three years. The principles governing probation have been considered repeatedly by their Lordships of Honble the Supreme Court. At one point of time, it was considered appropriate to adopt the principle of automatic confirmation on completion of probationary period. In that regard, we may cite the judgment of Honble the Supreme Court, in Dayaram Dayal v. State of M.P., 1997(4) S.C.T. 304: (1997) 7 SCC 443 which has now been over-ruled. At one point of time, it was considered appropriate to adopt the principle of automatic confirmation on completion of probationary period. In that regard, we may cite the judgment of Honble the Supreme Court, in Dayaram Dayal v. State of M.P., 1997(4) S.C.T. 304: (1997) 7 SCC 443 which has now been over-ruled. In case of High Court of Madhya Pradesh v. Satya Narayan Jhavar, 2001(3) S.C.T. 1114 : (2001) 7 SCC 161, a three-Judge Bench of Honble the Supreme Court has overruled the aforesaid view by holding that in the absence of a specific order, even after the expiry of the maximum period of probation, no confirmation could be implied or presumed. Accordingly, no concept the automatic confirmation on the expiry of the maximum period of probation has been discarded. The view of the Three-Judge Bench is discernible from para 11 of the judgment, which reads as under :- "The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired." 6. In the present case Rule 8(3)(a)(i) imposes a legal obligation on the appointing authority to confirm a member of service on the post if his work and conduct is satisfactory. Rule 8(3) (a)(iii) also gives an option to the appointing authority to declare such a member of service to have completed his probationary period satisfactorily even when there is no permanent vacancy. It shows that an order declaring the completion of probationary period satisfactorily is required to be passed by appointing authority. Accordingly, the present case falls in the third category. Therefore, the view of the learned Single Judge deserves to be upheld. 7. However, in the present case, no claim by the appellant could be made on the basis of rule 8 because her services were terminated before completion maximum period of probation of three years provided by the rules. Therefore, in any case no right had accrued to the petitioner to hold the post on permanent basis. Accordingly, we hold that the view of the learned Single Judge does not suffer from any illegality. There is thus no merit in the appeal, which is, hereby, dismissed.