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2016 DIGILAW 1793 (GUJ)

R. J. Mansuri v. State of Gujarat

2016-08-23

G.R.UDHWANI

body2016
JUDGMENT : G.R. Udhwani, J. 1. The petitioner in this petition has inter-alia prayed for following relief's:- "6(A) quash and set aside the impugned termination order dated 20.9.2008 Annexure-A to this petition, and further be pleased to direct the respondent to continue the petitioner on the post of Principal (Class-II), without any break, will all consequential benefits; (B) quash and set aside the orders dated 29.11.2007, 26.2.2008 and 16.7.2008, Annexure-J to this petition." 2. The question raised in this petition is as to whether after having completed the prescribed period of probation and in absence of the rule prescribing for confirmation of the employee, the petitioner was deemed to have been confirmed and whether under such circumstances, his services could have been terminated for his having not completed the probation satisfactorily. 3. The petitioner was appointed in Class-II on 12/02/2002 by an order issued by the Social Justice and Empowerment Department, State of Gujarat, initially on a probation of two years as prescribed by Rule 10A of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967. In terms of the conditions of appointment, the petitioner was required to clear departmental examination within the period of probation and in case of non-clearance of the departmental examination, the period of probation was extendable in aggregate by further term of two years, as provided in 2nd proviso to Rule 10A of the Rules. Since the petitioner could not clear the departmental examination in the first attempt, the period of probation was extended by an order dated 16/03/2004 upto 31/08/2004. The petitioner thereafter cleared the departmental examination, admittedly within prescribed chances. However, by different orders passed from time to time, his probation was extended until the impugned order of termination dated 20/09/2008. The impugned order notes that the services of the petitioner during the period of probation were not found to be satisfactory. It is this order which is challenged in this petition under Article 226 of the Constitution of India seeking the relief's quoted above. 4. The respondent has filed the affidavit opposing the petition principally asserting the authority of the respondent to extend the period of probation under Rule 10A and the circular dated 30/03/1989. 5. It is this order which is challenged in this petition under Article 226 of the Constitution of India seeking the relief's quoted above. 4. The respondent has filed the affidavit opposing the petition principally asserting the authority of the respondent to extend the period of probation under Rule 10A and the circular dated 30/03/1989. 5. Learned Counsel for the petitioner invited the attention of this Court to the averments made in the memo of this petition, as also the decision of this Court passed in LPA No. 855 of 1998 in SCA No. 1913 of 1998 (Gujarat Meritime Board v. C.M. Rathod) delivered on 14/08/1998 wherein the above Rule 10A was the matter of consideration. In the said case, the Division Bench considered the issue in detail and it was held as under: "5. A bare reading of the above-referred to Rule makes it abundantly clear that the probation period can be extended for a maximum period of two years beyond which probation cannot be extended. As noticed earlier, probation period of the respondent was over on January 9, 1996, which was extended till July 9, 1997 by order dated March 20, 1997 i.e. after expiry of period of probation. Again, the probation period of the respondent was extended till January 9, 1998 by order dated July 8, 1997 and thereafter it was extended till March 9, 1998 by an order dated January 8, 1998. As the rule relating to probation provides for extension for a maximum period of two years, beyond which probation cannot be extended, we are of the view that at the end of maximum extended probationary period, there will be deemed confirmation of the respondent because Rule does not provide to the contrary. In Kedar Nath Bahl (Supra), the Supreme Court has held that 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 no order is passed in that behalf. The Apex Court has emphasised in the said case that at the end of 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. The Apex Court has emphasised in the said case that at the end of 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. Similarly, in the case of Pratap Singh (Supra), the Apex Court has held that after expiry of the period of probation, the probationer does not automatically get confirmed unless rules specifically so provide and termination, therefore, of a probationer after expiry of such period, is not improper. 6. In our view, the principle laid down in the above-referred two decisions would not be applicable to the facts of the present case. In the case of WASIM BEG (Supra), the Supreme Court has reviewed the whole law on the subject. After taking into consideration almost all the decisions rendered by Supreme Court earlier on this point, the Apex Court has ruled that where the rules provide for a maximum period of probation beyond which probation cannot be extended, at the end of the maximum probationary period, there will be a deemed confirmation of the employee, unless the rules provide to the contrary. Whether an employee at the end of the probationary period automatically gets confirmation in the post or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary, will depend upon the provisions in the relevant service rules relating to probation and confirmation. In the case of WASIM BEG, the appellant was selected and appointed as Divisional Manager in the respondent-Corporation on January 10, 1978. The appointment letter was as under:- "His appointment will be on probation for a period of one year which can be extended at the discretion of the Managing Director. His services are liable to be terminated on one month's notice or salary in lieu thereof. He will be governed by the Service Rules of the Corporation." The appellant continued to work as Divisional Manager of the respondent-Corporation till April 21, 1981. In April, 1983 he was even allowed to cross the efficiency bar. However, by an order dated March 31, 1985 his services were terminated, validity of which was subject matter of examination before the Apex Court. In April, 1983 he was even allowed to cross the efficiency bar. However, by an order dated March 31, 1985 his services were terminated, validity of which was subject matter of examination before the Apex Court. The service rules which were in force at the time of appellant's appointment, were as under:- "Any employee regularly appointed for the first time or promoted to any post in the corporation shall be placed on probation for a period of one year from the date of joining the new post. The performance of the employee in the new post will be watched during the probation and the appointing authority will issue a certificate of having satisfactorily completed the probation at the end of the period. The appointing authority has discretion to extend the period of probation without assigning any reason therefor." 7. In the said case, the relevant Rule relating to confirmation was as follows: "Confirmation An employee directly appointed or promoted to any post in the corporation shall be deemed to have become a confirmed employee in that grade after he has successfully completed the period of probation." On review of the law on the subject, the Supreme Court has held as under:- "15. Whether an employee at the end of the probationary period, automatically gets confirmation in the post or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary, will depend upon the provisions in the relevant Service Rules relating to probation and confirmation. There are broadly two sets of authorities of this Court dealing with this question. In those cases, where the Rules provide for a maximum period of probation beyond which probation cannot be extended, this Court has held that at the end of the maximum probationary period there will be a deemed confirmation of the employee unless Rules provide to the contrary. This is the line of cases starting with State of Punjab v. Dharam Singh, M.K. Agarwal v. Gurgaon Gramin Bank, Om Prakash Maurya v. U.P. Co-op. Sugar Factories Federation, State of Gujarat v. Akhilesh C. Bhargav. 16. This is the line of cases starting with State of Punjab v. Dharam Singh, M.K. Agarwal v. Gurgaon Gramin Bank, Om Prakash Maurya v. U.P. Co-op. Sugar Factories Federation, State of Gujarat v. Akhilesh C. Bhargav. 16. However, even when the Rules prescribe a maximum period of probation, if there is a further provision in the Rules for continuation of such probation beyond the maximum period, the courts have made an exception and said that there will be no deemed confirmation in such cases and the probation period will be deemed to be extended. In this category of cases we can place Samsher Singh v. State of Punjab which was the decision of a Bench of seven Judges, where the principle of probation not going beyond the maximum period fixed was reiterated, but on the basis of the Rules which were before the Court, this Court said that the probation was deemed to have been extended. A similar view was taken in the case of Municipal Corpn. v. Ashok Kumar Misra. In Satya Narayan Athya v. High Court of M.P. although the Rules prescribed that the probationary period should not exceed two years, and an order of confirmation was also necessary, the termination order was issued within the extended period of probation. Hence, the termination was upheld. 17. The other line of cases deals with Rules where there is no maximum period prescribed for probation and either there is a Rule providing for extension of probation or there is a Rule which requires a specific act on the part of the employer (either by issuing an order of confirmation or any similar act) which would result in confirmation of the employee. In these cases unless there is such an order of confirmation, the period of probation would continue and there would be no deemed confirmation at the end of the prescribed probationary period. In this line of cases, one can put Sukhbans Singh v. State of Punjab, State of U.P. v. Akbar Ali Khan, Kedars Nath Bhl v. State of Punjab, Dhanjibhai Ramjibhai v. State of Gujarat and Tarsem Lal Verma v. Union of India, Municipal Corpn. v. Ashok Kumar Misra and State of Punjab v. Baldev Singh Khosla. In this line of cases, one can put Sukhbans Singh v. State of Punjab, State of U.P. v. Akbar Ali Khan, Kedars Nath Bhl v. State of Punjab, Dhanjibhai Ramjibhai v. State of Gujarat and Tarsem Lal Verma v. Union of India, Municipal Corpn. v. Ashok Kumar Misra and State of Punjab v. Baldev Singh Khosla. In the recent case of Dayaram Dayal v. State of M.P. (to which one of us was a party) all these cases have been analysed and it has been held that where the Rules provide that the period of probation cannot be extended beyond the maximum period there will be a deemed confirmation at the end of the maximum probationary period unless there is anything to the contrary in the Rules." 8. Applying the ratio laid down in the said decision to the facts of the present case, we find that the relevant Service Rules of the respondent provide for extension of probation period for a maximum period of two years beyond which probation cannot be extended and, therefore, the ratio laid down in Para-15 of the reported judgment of the Supreme Court would be applicable to the facts of the present case. This is not a case, wherein rule prescribes a maximum period of probation which can be continued beyond the maximum period. Under the circumstances, the principles laid down by the Apex Court in Para-16 of the WASIM BEG's case will not apply to the facts of the present case. 9. In Gujarat Mineral Development Corporation Ltd. v. B.B. Sinha and another, Letters Patent Appeal No. 918/1995 decided on October 24, 1997 by Court (Coram: Mr. Justice C.K. Thakker and Miss Justice R.M. Doshit) petitioner was appointed as Mines Manager at Lignite Project, Panondhro in February, 1987. He was appointed as Mines Manager in March, 1987 on probation for a period of one year. His services were, however, terminated in exercise of power under Rule 27 of the Rules by offering him a sum equivalent to three months' salary. The said action was challenged by the petitioner in Special Civil Application No. 10679/94. The petition was allowed by the learned Single Judge. His services were, however, terminated in exercise of power under Rule 27 of the Rules by offering him a sum equivalent to three months' salary. The said action was challenged by the petitioner in Special Civil Application No. 10679/94. The petition was allowed by the learned Single Judge. Rule-14 of the Rules provided that the first appointment to a post shall be made on probation for a period not exceeding one year provided that the appointing authority may from time to time extend such period of probation as may be considered necessary, so that the total period of probation does not exceed two years. Rule-20 provided for confirmation of an employee and it empowered the appointing authority to confirm an employee in the service of the Corporation on satisfactory completion of the period of probation. The Division Bench after considering the Rules has held as under in Para-10 of the judgment:- "In our opinion, the ratio laid down in Dharamsingh would apply with equal force to the facts of the instant case. Though a specific and express order of confirmation was not passed in favour of the petitioner, Rule 14 of the Rules provides for maximum period of probation and as the said period was over, as per the law laid down by the Apex Court, the petitioner could be deemed to have been confirmed. He, therefore, cannot be treated as a probationer and no action can be taken on that basis." Applying the principle laid down by the Division Bench, with which we agree, to the facts of the present case, we are of the view that the respondent must be deemed to have been confirmed after expiry of the maximum extended period of probation." 6. Learned Counsel for the petitioner thus contended that the issue raised in this petition is squarely covered by the said judgment. He, therefore, urged this Court to allow the petition. 7. Learned AGP for the respondent-State drew the attention of this Court to the averments made in this affidavit-in-reply and contended that the respondent has an authority to extend the period of probation beyond the initial period of two years by virtue of Rule 10A as well as the circular dated 30/03/1989 issued by the Social Justice and Welfare Department. Learned AGP relied upon, more particularly, clause Nos. 3.4 and 9 of the said circular. 8. Learned AGP relied upon, more particularly, clause Nos. 3.4 and 9 of the said circular. 8. This Court has considered the rival contentions: 9. In the opinion of this Court, the issue stands resolved by the judgment in the case of CM Rathod (Supra). Rule 10A has been interpreted by the Division Bench and it has been held that as the rule relating to probation provides for extension for a maximum period of two years, beyond which probation cannot be extended, there will be deemed confirmation because the rule does not provide to the contrary. It is therefore fallacious to contend that Rule 10A of 1967 Rules does not restrict the Government from extending the period of probation beyond the period of two years. That seems to be incorrect reading of the rule. Moreover, the circular relied upon by the learned AGP principally refers to the manner and method of writing confidential remarks and it also points out that if service of the employees is not found satisfactory during the period of probation or if the terms and conditions of appointment on probation are not complied with, the appropriate decision for dispensing with the services of the probationer shall be taken promptly. Thus, the circular does not control the rule and it could not, inasmuch as, it is settled legal position that the statutory rules cannot be controlled by a mere administrative fiat. 10. Learned AGP relied upon paragraph No. 9 of the affidavit as well which reads as under:- "9. I say and submit that the petitioner's conduct and his behavior was not good. He was punished by withholding two increments for two years without future effect vide order dated 03-10-2007 for the irregularities made by him during probation period. More over he avoided to appear before inquiry officer during the said inquiry. A copy of the order passed dated 03-10-2007 is annexed to petition as Annexure-K. I further say and submit that one Criminal case was also registered against the petitioner. The petitioner has been acquitted. Moreover several irregularities were also found against the petitioner, in pursuance of the payment made by the petitioner. For there irregularities he was warned by the authority vide order dated 05-03-2008 Annexure R.II. The petitioner has been acquitted. Moreover several irregularities were also found against the petitioner, in pursuance of the payment made by the petitioner. For there irregularities he was warned by the authority vide order dated 05-03-2008 Annexure R.II. Moreover the evaluation of working during the probation period was also average good, except one year." 10.1 In the opinion of this Court, even if the averments made in paragraph No. 9 above are correct, the only course open for the employer to get rid of a confirmed employee is to follow necessary procedure under the relevant rules. The averments made in paragraph No. 9 would not justify the respondent to extend the period of probation and circumvent the procedure necessary for getting rid of the confirmed employee. 10.2 Attention of this Court was also invited to paragraph No. 8 of the affidavit-in-reply which reads as under:- "8. I respectfully say and submit that there is no such order in existence, providing that the probation period would be treated as deemed completed at the end of probation period, even if the probation period is not extended. In fact the Rule provide that the period of probation can be extended beyond the maximum probation period. There is no provision for deemed confirmation. Hence, I say and submit that the respondent authority has extended the probation period time to time, and no specific order issued to confirm the petitioner. Moreover, if is to state that the petitioner had not objected for the extension of probation period when the probation period was extended vide orders dt. 29-11-2007, 26-2-2008 and 16-7-2008, but has raised such objection when his services are discontinued. Such contention ought to have been raised by the petitioner at the time when his probation period was extended." 10.3 It is argued that the period of probation was extended on 29/11/2007, 26/02/2008 and 16/07/2008 without any objection from the petitioner. It was contended that when at that point of time, no objection was raised by the petitioner against extension of the period of probation, no such objection was permissible when services were terminated. It was contended that when at that point of time, no objection was raised by the petitioner against extension of the period of probation, no such objection was permissible when services were terminated. This Court is unable to accept the said contention for the simple reason that the extension of period of probation without authority of law is non est and merely because no objections were raised in past by the employee, the waiver would not invest an authority in employer to extend the period of probation when non-exists. 11. In above view of the matter, this Court finds substance in the arguments advanced by the learned Counsel for the petitioner and for the reasons afore-stated, the petition is required to be allowed. The termination order dated 20/09/2008 at Annexure-A and orders dated 29/11/2007, 26/02/2008 and 16/07/2008 at Annexure-J are quashed and set aside. Rule is made absolute with no order as to costs. Petition Allowed.