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2023 DIGILAW 706 (GUJ)

STATE OF GUJARAT v. CHINTAN HARISHBHAI VAISHNAV

2023-04-29

N.V.ANJARIA, NIRAL R.MEHTA

body2023
JUDGMENT : N.V. ANJARIA, J. 1. In this Letters Patent Appeal, whereby the State seeks to call in question judgment and order dated 04.04.2022 of learned Single Judge, though the facts of the case have their own dimensions, the decision-oriented issue to be addressed is whether the services of the respondent-petitioner who was a probationer stood confirmed because of non-extension of probation period beyond permissible. 2. The aforesaid question calls for consideration in the context of governing Rule 10A of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967, which was amended in 1994: “10-A Period of Probation: Notwithstanding anything contained in these Rules or any rules or orders relating to the Recruitment to any service of post included in the State Service or Subordinate Service, a candidate appointed to Class-I or Class-II service or post by direct selection, shall be on probation for a period of two years and in case of his appointment to Class-III service or post for a period of one year: Provided that the appointing authority may, if it thinks fit in any case, extend the period of probation for a further period not exceeding two years in case of Class-I and Class-II service or post and one year in case of Class-III service or post: Provided further that if in any case passing of a departmental examination during the period of probation is stipulated as a prerequisite condition for completion of such probation period and where the probationer could not pass the same within the prescribed chances admissible to him under the Rules reasons beyond his control the above ceiling on the period of probation shall not be applicable. “Provided also that nothing in this Rule shall apply to the appointments made to the Subordinate Services on contractual basis under Rule 9A.” 3. What was challenged before learned Single Judge was order dated 02.03.2019 passed by the competent authority of the revenue department whereby services of the probationer petitioner came to be terminated for the contents and reasons stated in the said order. Learned Single Judge held that the period of probation was over and the petitioner, in accordance with the provisions of Rule 10A of the aforesaid Rules, deserved to be treated to have been deemed confirmed. Consequently, learned Single Judge set aside the said order of termination dated 02.03.2019, and granted all consequential benefits. 3.1. The State stands aggrieved. Learned Single Judge held that the period of probation was over and the petitioner, in accordance with the provisions of Rule 10A of the aforesaid Rules, deserved to be treated to have been deemed confirmed. Consequently, learned Single Judge set aside the said order of termination dated 02.03.2019, and granted all consequential benefits. 3.1. The State stands aggrieved. 3.2 Noticing the attendant facts, the petitioner was appointed as Mamlatdar in pay-scale of Rs.9,300-34,800/- with grade pay of Rs. 4600/- by order dated 06.05.2011. He came to be posted as Administrator of Dwarkadhish Temple Trust at Dwarka. As per the conditions of the order, the appointment of the petitioner was on probation for 2 years. The petitioner resumed duties on 09.05.2011. He was transferred to Surendranagar on 19.03.2012, and thereafter worked at different places. He also cleared the lower level and higher level revenue examination. 3.3 The probation period of the petitioner got over on 08.03.2014. The probation was further extended twice. Initially, it was extended for one year till 08.05.2014 by order dated 03.02.2014. By another order dated 17.05.2014, it was extended for further six months till 08.11.2014 and then upto 08.11.2015. There is no dispute about the fact that after initial period of probation of two years expired, the petitioner's probation was extended twice upto 08.11.2014 and finally until 08.11.2015. Thereafter, there has been neither extension order passed nor anything about confirmation in service was communicated to the petitioner. 3.4 Two inquiries were initiated against the petitioner during the probation period, details of which, though not necessary to be gone into, as not much germane to the issue involved, for the purpose of completion of narration of facts, however it may be stated that charge-sheet dated 22.01.2013 was issued to the petitioner in relation to the charges inter alia that he had not remained present in a training programme and had went elsewhere to attend different meeting. As the charges were partially proved, the petitioner was imposed minor punishment of withholding increment for two years with future effect by order dated 24.06.2016. This punishment period is already over and the punishment had have has worked out for itself. Another charge-sheet dated 03.02.2014 was issued, which was in respect of the charges of insubordination and using abusive language to un-become a Government servant. The petitioner was exenorated and the disciplinary authority confirmed the exoneration by order dated 12.03.2015. This punishment period is already over and the punishment had have has worked out for itself. Another charge-sheet dated 03.02.2014 was issued, which was in respect of the charges of insubordination and using abusive language to un-become a Government servant. The petitioner was exenorated and the disciplinary authority confirmed the exoneration by order dated 12.03.2015. 3.5 It is conspicuous that the probation period of the petitioner was extended till 08.11.2015 as per the details given above. Subsequently, no order of extension or confirmation of probation was passed. Order dated 02.03.2019 terminating the services of the petitioner was issued to become impugned in the Special Civil Application. In the contents of the said order dated 02.03.2019, the respondent authorities mentioned the facts about two chargesheets and the inquiries against the petitioner referred to above. It was stated that the last extension of probation was upto 08.11.2015. It was stated further that during the period from 2012-2014, adverse entries were found in the confidential reports of the petitioner. It was also mentioned that for the first Inquiry, some of the charges were held partially proved. 3.6 A conclusion was drawn to be recorded in the said order that during the tenure of the service, the petitioner had not maintained good conduct and that he did not work with commitment and further that it was not advisable to continue the petitioner in service. It was further mentioned that since in the departmental inquiry the misconduct was proved, in the confidential report the adverse entries were found and further the petitioner had committed breach of the Conduct Rules, the conditions of probation was not satisfied. Resultantly, the services of the petitioner were terminated with effect from 02.03.2019. 4. A bare reading of the recitals in the order would unfailingly show that the order was passed on the ground of allegations of unbecoming in conduct, departmental inquiry and adverse entries. It was stigmatic order on face of it passed without any inquiry. The moot question is, however, since the probation was not extended after 08.11.2015 and the petitioner was continued in service could it be said in view of Rule 10A of the aforesaid Rules, whether the petitioner would be come a confirmed employee. 5. It was stigmatic order on face of it passed without any inquiry. The moot question is, however, since the probation was not extended after 08.11.2015 and the petitioner was continued in service could it be said in view of Rule 10A of the aforesaid Rules, whether the petitioner would be come a confirmed employee. 5. The decision of the Supreme Court in Wasim Beg vs. State of U.P. and Others, (1998) 3 SCC 321 , extensively relied on by the learned Single Judge deal with the aspect in its different situation and aspects as to when the probation culminates into an automatic confirmation. It was also that it depends on the nature of probation contained in the relevant rule. It was held and observed that whether an employee at the end of the probationary period automatically gets confirmed on the post or whether the order of confirmation or any specific act on the part of the employer confirming the employee is necessary, would depend upon the provisions of the relevant service rules relating to probation and confirmation. 5.1 It was observed by the Supreme Court that broadly there are two sets of judicial pronouncement dealing with the question in respect of the cases where the rules provide for maximum period of probation beyond which the probation cannot be extended, which the Supreme Court has held that at the end of the maximum probationary period, there will be deemed confirmation of the employee unless rules provide to the contrary. 5.1.1 The above proposition is laid down and reiterated by the Apex Court in State in Punjab vs. Dharam Singh, AIR 1968 SC 1210 , M.K. Agarwal vs. Gurgaon Gramin Bank, 1987 Supp. SCC 643, further in Om Prakash Maurya vs. U.P. Coop. Sugar Factories Federation, 1986 Supp. SCC 95 and in State of Gujarat vs. Akhilesh C. Bhargav, (1987) 4 SCC 482 . 5.1.2 The Supreme Court in Wasim Beg (supra), explained however that when rules prescribed a maximum period of probation, if there is a further provision in the rules for continuation of such probation period beyond maximum period, the Courts have made an exception and have held that there would be no deemed confirmation in such cases and the probation period would be deemed to have been extended. This proposition stands from the decision of the Supreme Court in Samsher Singh vs. State of Punjab, (1974) 2 SCC 831 . 5.1.3 The other line of cases, it was explained, deals with the rules where there is no maximum period prescribed for probation and there exist a rule providing for extension of probation or that the rule requires a specific act on the part of the employer either by issuing confirmation order or any such act which would result in confirmation of the employee. In such cases, it goes without saying, unless the confirmation order is passed, the employee continues to be on probation. 5.1.4 About the facts before the Supreme Court in Wasim Beg (supra), it was observed in paragraph 18 of the judgment that service rules in force at the time when the appeal before the Supreme Court, in that case the Government servant was appointed on probation, there was no time limit on the period upto which the probation could be extended. The appointing authority was required to issue certificate that the employee concerned had satisfactorily completed period of probation. It was held that the provision relating to deemed confirmation would come into effect. 5.2 In light of the above propositions of law laid down by the Supreme Court relating to aspect of confirmation and application of rule in that regard, when Rule 10A of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967, if the facts of the present case are appreciated, it falls within the category where maximum period of probation and extension thereof is provided, whereafter, confirmation would entail for the employee. The language of Rule 10A is clear. 5.3 When Rule 10A of the Rules is seen, it contemplates that the initial period of probation would be of two years. The proviso mentions that the appointing authority may extend the period of probation of a further period, not exceeding two years. The rule is silent thereafter. The probation period can be extended for two years for the employee. 5.4 The question of interpretation of Rule 10A of the aforesaid rules is no long res integra in view of the decision of the Division Bench of this court in Gujarat Maritime Board vs. C.M. Rathod in Letters Patent Appeal No. 855 of 1998 decided as per the judgment dated 14.08.1998. 5.4 The question of interpretation of Rule 10A of the aforesaid rules is no long res integra in view of the decision of the Division Bench of this court in Gujarat Maritime Board vs. C.M. Rathod in Letters Patent Appeal No. 855 of 1998 decided as per the judgment dated 14.08.1998. The facts in that case were that the probation period of the respondent employee was over on 09.01.1996. For more than one year, the appellant Maritime Board did not take any steps either for confirmation or extension of the probationary period. It was for the first time by passing order dated 20.03.1997 that the appellant extended probation period till 09.07.1997. It was again extended till 09.01.1998 and further till 09.03.1998. The probation period was extended as above on account of the pendency of the departmental inquiry. The two years probation was over for the employee in that case on 09.03.1998. 5.4.1 Interpreting and explaining the scope of Rule 10A, the Division Bench observed and laid down in Para 5 of the judgment: “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.” 5.4.2 The Division Bench referred to decision of the Supreme Court in Pratap Singh vs. Union Territory of Chandigarh, (1979) 4 SCC 263 , which laid down otherwise and explained that the principles laid down in the said decision would not apply to the case before it in light of the nature of provision in Rule 10A. 5.4.3 It was observed by referring to Wasim Beg (supra), thus: “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.” 6. While learned advocate for the original petitioner supported the impugned judgment and order of learned Single Judge on the aforesaid grounds and consideration, a vain attempt was made by learned Assistant Government Pleader for the appellant by referring to the decision of the Supreme Court in State of U.P. vs. Akbar Ali Khan, AIR 1966 SC 1842 . In that case, it was held that the respondent ceased to be probationer after expiry of the probation period without any specific rule he continue as probationer only and acquire no substantive right to hold the post. 6.1 The principle would however not apply in light of the specific rule in the present case and the interpretation to be attached with as per the laid laid down by the Supreme Court in Wasim Beg (supra). 6.2 Another decision in Mohd. Salman vs. Committee of Management and Others, (2011) 12 SCC 308 , was also attempted to be relied on to persuade the Court, wherein it was observed thus, Where a person is appointed as a probationer and a period of probation is specified, it does not follow that at the end of the said period of probation he obtains confirmation automatically. 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, expiration of the probationary period does not necessarily lead to confirmation. 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, expiration of the probationary period does not necessarily lead to confirmation. As provided in terms of the appointment letter of the appellant, at the end of the period of probation an order confirming service was required to be passed. No such confirmation order was passed. Hence, the appellant's service was rightfully terminated. 6.3 The distinguishing feature is that in the above case, there was a specific rule, which required express order of confirmation needed to be passed at the end of the probation period. It is in this context, it was held that no such express order of confirmation was passed, the employee could not be said to be confirmed to continue to be a probationer. As clearly noticed hereinabove Rule 10A of the Rules has different operation and application. 6.4 Reverting back to the facts of the present case, the petitioner was appointed on two years probation on 24.06.2011. His probation was extended more than once and the last extension was by order dated 08.12.2014 upto 08.11.2015. Recollecting the provision of Rule 10A of Rules, it permits appointing authority to extend the period of probation for a further period not exceeding two years in case a Class-I and Class-II post and one year in Class-III post. Thereafter, the rule is silent. Nothing further is provided. 6.5 The Rule 10A does not prove for specific act or order on the part of the employer to confirm the employee. When the Rule is silent, after the prescribed permissible period of extension of probation period, at the end of such maximum period for which the probation could be extended, deemed confirmation in service for the employee would entail as laid down in Wasim Beg (supra) and also in Dharam Singh (supra) and other decisions in line. 6.6 In view of the above position of law clearly emerging, the petitioner stood confirmed in the service by way of deemed confirmation entailing on account of operation of Rule 10A as interpreted by the Supreme Court and this Court in C.M. Rathod (supra). The decision in C.M. Rathod (supra) was followed in State of Gujarat vs. R.J. Mansuri in Letters Patent Appeal No. 1780 of 2017. The decision in C.M. Rathod (supra) was followed in State of Gujarat vs. R.J. Mansuri in Letters Patent Appeal No. 1780 of 2017. The proviso to Rule 10A gave power to the authority to extend the probation for further period not exceeding two years. There is no further contemplation in the Rule. Therefore, once the said permissible period is over in absence of anything further on the part of the employer authority, the deemed confirmation would come into play for the petitioner. 6.7 Once the petitioner is to be treated as confirmed employee, the order of the nature passed on 02.03.2019 which is stigmatic and based on circumstances of departmental inquiry, adverse entries and unbecoming conduct, was bad in law on the face of it. Even it lacked the factual foundation since the petitioner had either consumed punishment or was exonerated in the inquiry. 6.8 In the aforesaid facts and circumstances and for the reasons stated, the learned Single Judge has rightly applied the proposition of law to set aside the impugned order allowing the petition. No interference is called for in the Letters Patent Appeal in the judgment and order of the learned Single Judge, which is eminently just, proper and legal. 7. This Letters Patent Appeal is dismissed. 8. Civil Application would not survive in view of the disposal of the main appeal itself.