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2025 DIGILAW 356 (MP)

Brijrani v. District And Session Judge

2025-06-19

ATUL SREEDHARAN

body2025
ORDER : Dinesh Kumar Paliwal, J. This petition invoking writ jurisdiction of this Court under Article 226 of the Constitution of India seeks issuance of writ of certiorari for quashing the impugned order dated 15.07.2020 (Annexure P/1) whereby services of the petitioner have been discharged as she failed to perform her duties satisfactorily in the probation period and the Principal District Judge, Katni (M.P.) by impugned order has discharged her probationary services. 2. As per facts of the case, the petitioner was selected as Stenographer Grade-II and she was posted in the establishment of the Principal District & Sessions Judge of Katni on probation vide order dated 05.01.2015 (Annexure P/2) by District & Sessions Judge, Katni. She joined on 06.01.2015 vide Annexure P/3. Her probation period was extended for a year vide order dated 12.12.2019 (Annexure P/4) but her services in probation period were found unsatisfactory. Therefore, after assessing overall performance of the petitioner in probation period and finding that she is incompetent and is not fit for the post, discharged from services under Rule 8(5) of the Madhya Pradesh Civil Services (General Conditions of Services) Rules, 1961 (hereinafter referred to as ‘Rules of 1961’). She preferred a representation before High Court of M.P. but same was rejected on administrative side vide order dated 05.03.2025. She was informed about the same by District & Sessions Judge, Katni. 3. Being aggrieved with the order dated 15.07.2020, the petitioner has preferred this writ petition. The challenge is made by the petitioner mainly on the ground that her services have been terminated/discharged without conducting any preliminary and departmental enquiry and the impugned order is passed without following the principles of natural justice. It is also contended that the petitioner’s services have been terminated without giving one month’s advance notice, therefore, her termination/discharge being illegal is not sustainable. 4. Learned counsel for the petitioner has submitted that she had joined on 06.01.2015 and had completed her two years on 05.01.2017, therefore her services became permanent in nature. Her probation was extended only for a period of one year with retrospective effect and same was against the Rules. It is submitted that as soon as an employee completes his two years of probation, he automatically becomes permanent. Therefore, before terminating his services, charge sheet was required to be given and due enquiry was required to be conducted. Her probation was extended only for a period of one year with retrospective effect and same was against the Rules. It is submitted that as soon as an employee completes his two years of probation, he automatically becomes permanent. Therefore, before terminating his services, charge sheet was required to be given and due enquiry was required to be conducted. On the aforesaid, it is prayed that the impugned order be set aside. 5. Learned counsel for the State has submitted that the petitioner was appointed by order dated 05.01.2015 (Annexure P/2) but her services in probation period were not found satisfactory, therefore, her probation period was extended for one year. Petitioner’s work and conduct in almost about a period of five years of service was found unsatisfactory and she was found to be incompetent and unfit for service. Therefore, appointing authority has not committed any error in discharging/terminating her from services as she could not complete probation period successfully in spite of affording sufficient time. 6. We have heard learned counsel and perused the record. 7. The service profile of the petitioner in five years of her service career rendered during probation period was as follows : 8. One of the grounds raised by the petitioner in support of the challenge to the order of discharge is that as per Rule 8 of the Rules of 1961, after completion of two years of service by the petitioner in probation, her services should have been considered as permanent in nature and her services were not required to be discharged without conducting enquiry. On perusal of Rule 8, it is apparent that a person appointed to a service or post by direct recruitment shall ordinarily be placed on probation for such period as may be prescribed. On perusal of order dated 05.01.2015 (Annexure P/2), it is apparent that her services were temporary in nature. She joined on 06.01.2015. Her annual confidential reports (ACRs) for the year 2015-16, 2016-17, 2017-18, 2018-19 & 2019-20 reveal that she was found incompetent and unfit as she was not able to perform the duties of Stenographer, accuracy of her shorthand and typing was of poor quality and she was found unable to perform the duties of the post. 9. She joined on 06.01.2015. Her annual confidential reports (ACRs) for the year 2015-16, 2016-17, 2017-18, 2018-19 & 2019-20 reveal that she was found incompetent and unfit as she was not able to perform the duties of Stenographer, accuracy of her shorthand and typing was of poor quality and she was found unable to perform the duties of the post. 9. A perusal of Annexure P/4 makes it clear that on 12.12.2019 petitioner’s probation period was extended for one year from January 2019 to January 2020 and it was made clear that if she fails to improve her work and conduct, her services may be discharged. Despite such memo, she failed to improve quality of her work and conduct. Consequently, her services being found dis-satisfactory and she being unfit for the services, was discharged from services. 10. The petitioner was appointed on the post of Stenographer Grade-II on 05.01.2015 through direct recruitment. Her post was temporary. No probation period is mentioned in the order of appointment. In the year 2015 the M.P. Civil Services (General Conditions of Services) Rules, 1961 were applicable and the relevant rule is as under:- Rule 8. 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. (4) The services of a probationer may be terminated during the period of probation if in the opinion of the appointing authority he is not likely to shape into a suitable Government servant. (5) The services of a probationer who has not passed the departmental examination or who is found unsuitable for the service or post may be terminated at the end of the period of his probation. (6) On the successful completion of probation: and passing of the prescribed departmental examination, if any, the probationer shall, if there is a permanent post available, be confirmed in the service or post to which he has been appointed, either a certificate shall be issued in his favour by the appointing authority to the effect that the probationer would have been confirmed but for the non-availability of the permanent post and that as soon as a permanent post becomes available he will be confirmed. 11. 11. On 10 th March, 2017, ‘The Madhya Pradesh District Court Establishment (Recruitment and Conditions of Service) Rules 2016’ (for short “Rules of 2016’) were enforced in supersession of all rules, instructions and orders in force. Rule 25(4) of this Rule is reproduced below : “(4) A person shall not be considered to have satisfactorily completed the period of probation unless a specific order to the effect is passed, any delay in passing such an order shall not entitle the person to be deemed to have satisfactorily completed the period of probation.” 12. The petitioner was never regularized and no order was passed in her favour. Rules of 2016, which came into force in 2017 specifically provided that unless an order regarding satisfactory completion of probation period is passed, the employee shall be considered to be on probation. Hence, it is apparent that probation period of the petitioner was not completed, hence there was no requirement of initiating departmental proceedings against her. The recruitment on the post of Stenographer Grade-II, Schedule-I of The Madhya Pradesh District Court Establishment (Recruitment and Conditions of Service) Rules 2016 provides eligibility criteria of Hindi Shorthand Certificate with speed of 100 words per minute from the Board/Institution recognized by M.P. Government i.e. Council for Shorthand and Typing Examination, Lok Shikshan Sanchanalay Madhya Pradesh, Bhopal. In appeal it was found that eligibility certificate granted to petitioner-Brijrani Manjhi has been cancelled by letter dated 16.11.2020 after conducting an enquiry by Lok Shikshan Sanchanalay Madhya Pradesh. The said fact was also informed to the District & Sessions Judge, Katni by the High Court Establishment vide memo dated 08.12.2020. 13. Thus, it is apparent that adverse remarks and gradings contained in the ACRs of the petitioner for the period from 2015 to 2020 resulted into non-completion of probation period. Her certificate of Shorthand and Typing was also cancelled by Lok Shikshan Sanchanalay Madhya Pradesh, which shows that she got appointment on the basis of certificate, which was later on cancelled. Her inefficiency in shorthand and typing during working in courts is reflected in her ACRs and it is apparent that she got appointment on the basis of a forged certificate of shorthand and typing, which was later cancelled. 14. Her inefficiency in shorthand and typing during working in courts is reflected in her ACRs and it is apparent that she got appointment on the basis of a forged certificate of shorthand and typing, which was later cancelled. 14. This Court is unable to accept the argument of the petitioner that after completing two years of services, deemed confirmation has to be assumed since concept of deemed confirmation has been given up long time ago in service jurisprudence. Rule 8(4) of the Rules of 1961 clearly stipulates that the services of a probationer may be terminated during the period of probation if in the opinion of the appointing authority he/she is not likely to shape into a suitable Government servant. Rule 25(4) of the Rules of 2016 quoted above, makes it clear that unless a specific order to the effect is passed, any delay in passing such an order shall not entitle the person to be deemed to have satisfactorily completed the period of probation. Therefore, it is apparent that mere completion of period of two years or three years of probation would not confer on the probationer the right to be confirmed till specific order is passed by the authority under Rule 25(4) of the Rules of 2016. The Rule 25(4) if read objectively keeping in mind the objects sought to be achieved, clearly stipulates that a person shall not be considered to have specifically completed the period of probation unless a specific order to the effect is passed. The confirmation is not only subject to specific order but also to all important attending aspects of the probationers conduct and work being satisfactory which element in the present case is fully absent. 15. The petitioner throughout in her career during probation received adverse remarks and has been found unfit and incompetent and her work has been found dis-satisfactory throughout the period. 16. There is no mala fide alleged against the appointing authority or any other superior authority to the petitioner in the petition. 17. The concept of probation is to enable the Employer to analyze the work, conduct and behavior of the appointee during the period of probation to come to a conclusion whether the probationer is suitable to be continued by confirmation in service. This power cannot be taken away from the Employer/appointing authority on the anvil of the concept of deemed confirmation. The concept of probation is to enable the Employer to analyze the work, conduct and behavior of the appointee during the period of probation to come to a conclusion whether the probationer is suitable to be continued by confirmation in service. This power cannot be taken away from the Employer/appointing authority on the anvil of the concept of deemed confirmation. Deemed confirmation is a perilous concept in service jurisprudence which has long been discarded since it erodes into the power of the Employer to assess work, conduct and behaviour of the probationer. In discharge/termination order, it is clearly mentioned that her services are being terminated/discharged due to non-satisfactory services. 18. In this case, petitioner has not been terminated on the ground of misconduct. Her services have been terminated/discharged only because she has been found incompetent and unfit for the job for which she was recruited as throughout her career, her work has been unsatisfactory and below standard. It is settled position of law that if a probationer is not terminated on the ground of misconduct, then no regular departmental enquiry is required to be initiated. In Samsher Singh vs. State of Punjab and another reported in (1974) 2 SCC 831 , the Hon’ble Supreme Court held as under :- “67. An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with, Article 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct (see State of Bihar v. Shiva Bhikshuk Mishra (1970) 2 SCC 871 ).” Further in Nehru Yuva Kendra Sangathan vs. Mehbub Alam Laskar reported in (2008) 2 SCC 479 , the Hon’ble Supreme Court held as under: “16. The respondent was appointed on a temporary basis. He was put on probation. Indisputably, the period of probation was required to be completed upon rendition of satisfactory service. Only in the event of unsatisfactory performance by the employee, the termination of probation would have been held to be justified. The respondent was appointed on a temporary basis. He was put on probation. Indisputably, the period of probation was required to be completed upon rendition of satisfactory service. Only in the event of unsatisfactory performance by the employee, the termination of probation would have been held to be justified. It is, however, well known that when the foundation for such an order is not an unsatisfactory performance on the part of the employee but overt acts amounting to misconduct, an opportunity of hearing to the employee concerned is imperative. In other words, if the employee is found to have committed a misconduct, although an order terminating probation would appear to be innocuous on its face, the same would be vitiated, if in effect and substance it is found to be stigmatic in nature.” 19. In view of the discussion made herein above and the law laid down by the Apex Court on the issue and the fact that services of the petitioner in her service career have been constantly found dissatisfactory and she has been found unfit for the services, therefore her discontinuation from service by the employer/appointing authority cannot said to be perverse or illegal. Therefore, we are of the considered view that there is nothing illegal in the action of the respondent. We are of the considered view that the order of discharge/termination of the petitioner from service during the probation period does not suffer from any illegality, therefore no interference is called for. Hence, the grounds raised in this regard by the petitioner are rejected. Thus, the impugned order of discharge of the petitioner from probationary service being legal, does not call for any interference. 20. Consequently, this petition being without any substance is hereby dismissed.