Bombay High Court
Smt. Pratibha D/O Samuel Dube vs The State Of Maharashtra on 24 February, 2009
Author: K.K. Tated
Bench: P.V. Hardas, K. K. Tated
1
WRIT PETITION NO.5685 OF 2007
Date of decision 24th February, 2009.
For approval and signature.
THE HONOURABLE SHRI JUSTICE P.V. HARDAS.
THE HONOURABLE SHRI JUSTICE K.K. TATED.
1. Whether Reporters of Local Papers }
may be allowed to see the judgment? } Yes
2. To be referred to the Reporter or not? } Yes/No
3. Whether Their Lordships wish to see
the fair copy of the judgment? } No
4.
Whether this case involves a substantial
question of law as to the interpretation
}
}
of the Constitution of India, 1950 or } No
any Order made thereunder? }
5. Whether it is to be circulated to the }
Civil Judges? } No
6. Whether the case involves an important }
question of law and whether a copy of } No
the judgment should be sent to Mumbai, }
Nagpur and Panaji offices? }
[ S.U.Tupe ]
Personal Assistant to
the Honourable Judge.
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.5685 OF 2007
Smt. Pratibha d/o Samuel Dube,
Age: 50 years, Occ: At present Nil,
R/o. Avdhutnagar, Baramati,
District Pune.
.... PETITIONER
VERSUS
1. The State of Maharashtra,
Through the Secretary,
Social Justice, Cultural Affairs
& Special Assistant Department,
Maharashtra Strate, Mantralaya,
Mumbai 32.
2. The Secretary,
Tribal Development Department,
Maharashtra State, Mantralaya,
Mumbai.
3. The Director,
Social Welfare Department,
Maharashtra State, Pune.
.... RESPONDENTS
...
Mr. P.R. Katneshwarkar, Advocate for petitioner.
Mr.N.B. Patil, A.G.P. for respondent Nos.1 to 3.
...
CORAM: P.V. HARDAS, AND
K.K. TATED, JJ.
RESERVED ON : 12/02/2009
PRONOUNCED ON:24/02/2009
JUDGMENT:( PER : K.K. TATED, J.) . By this writ petition under Article 226 and 227 of the Constitution of India the petitioner is challenging the judgment and order in Original ::: Downloaded on - 09/06/2013 14:22:13 ::: 2 Application No. 579/2005 passed by the Division Bench of Maharashtra Administrative Tribunal, Mumbai, Bench at Aurangabad dated 03-05-2007. The petitioner preferred Original Application No..579/2005 before the Maharashtra Administrative Tribunal, Mumbai Bench at Aurangabad challenging the Government Resolution dated 03-06-2005 issued by respondent No. 2 terminating the petitioner's services.
2. Mr. P.R. Katneshwarkar, learned Counsel appearing on behalf of the petitioner submitted that the petitioner as a probationary officer worked for a period of more than 11 years and thereafter on 15-03-1994 she was selected by Maharashtra Public Service Commission and was recommended to the respondents for being appointed as Assistant Project Officer in Class - II cadre in Tribal Development Department. Mr. P.R. Katneshwarkar,, learned Counsel appearing on behalf of the petitioner submitted that appointment of the petitioner was on probation for the period of two years. Thereafter, the petitioner has passed departmental examination and has successfully completed her probation period.
For that purpose, learned Counsel Mr. P.R. ::: Downloaded on - 09/06/2013 14:22:13 ::: 3 Katneshwarkar, appearing on behalf of the petitioner relied on notification dated 3rd October 1996 wherein it is stated that the petitioner has passed departmental examination.
It is the case of the petitioner that the petitioner has successfully completed probation period and thus, become permanent with effect from 13-08-1996 on the post of Assistant Project Officer Class - II. For that purpose, the State of Maharashtra issued order dated 21-04-1998. In the year 1995-1996 the Maharashtra Public Service Commission published an advertisement for the post of Social Welfare Officer in Social Welfare Department which is Class - I cadre post. It is the case of the petitioner that she came to be selected for the said post and came to be appointed vide order dated 24-06-1997. In the said appointment letter some conditions are as under.
A) The probation period shall be of two years from the date of appointment. The candidate shall pass departmental examination and if he/she does not pass it, the services shall be terminated as per provisions of Circular dated 24-03-1975. The candidate has to pass Hindi / Marathi examination.
B) If during the probation period the candidate has not acquired requisite ::: Downloaded on - 09/06/2013 14:22:13 ::: 4 standard of work and his/her behaviour was not proper then he/she would he liable for terminated from the services.
3. It is the case of the petitioner that in view of the said appointment, the petitioner requested the Secretary Tribal Development Department to relieve her from the post so as to join post of Research Officer Class-I. The said request came to be accepted by the respondent and the petitioner was relieved and she joined Class-I cadre post as District Social Welfare Officer on 22-07-1997.
It is the case of the petitioner that she successfully completed her probation period of two years i.e. on 22-07-1999 and thereafter the petitioner continued in service. Mr. P.R. Katneshwarkar, learned Counsel appearing on behalf of the petitioner submitted that on 27-05-2002 / 01-07-2002 the petitioner was informed about adverse confidential remarks. In the said communication of adverse confidential remarks, the petitioner immediately filed representation for cancellation of those adverse confidential remarks vide her letter dated 01-07-2002. It is the case of the petitioner that the respondents did not decide her representation till her removal from service. It is the case of the petitioner that ::: Downloaded on - 09/06/2013 14:22:13 ::: 5 from 22-07-1997 the petitioner was continued on the post of the District Social Welfare Officer even after two years. The petitioner submitted that in view of the continuation of service after probation period for two years, it is to be presumed that the petitioner was confirmed on the said post. Mr. P.R. Katneshwarkar, learned Counsel appearing on behalf of the petitioner submitted that in view of the continuous service of the petitioner after completion of probation period, it is to be deemed that the petitioner completed probation period successfully and she stood confirmed in her service.
4. The petitioner submitted that on 03-06-2005 the Deputy Secretary issued order and terminated the services of the petitioner on the ground that during her probation period she has not successfully shown her calibre. Said termination order dated 03-06-2005 challenged by the petitioner before the Maharashtra Administrative Tribunal, Mumbai Bench at Aurangabad by preferring Original Application No. 579/2005 on various grounds. After hearing both the sides, Member, Maharashtra Administrative Tribunal dismissed the petitioner's Original Application No. 579/2005.
::: Downloaded on - 09/06/2013 14:22:13 ::: 6In the present petition, the petitioner challenged the impugned order dated 02-05-2007 passed by the M.A.T. on various grounds including that learned Member of M.A.T. ought to have seen that there is no Rule in the recruitment Rules which prescribed for any positive act of passing of any confirmation order by the employer. In the absence of such rule after completion of probation period the petitioner would stand automatically confirmed after completion of her probation period. Mr. P.R. Katneshwarkar, learned Counsel appearing on behalf of the petitioner submitted that the impugned order passed by the M.A.T. is punitive in nature and amounts to stigma on the working of petitioner. For this argument, Mr. P.R. Katneshwarkar, learned Counsel for the petitioner relied on ratio laid down in the judgment of the Apex Court in the case of Dipti Prakash Banarjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others 1999 (3) SCC 60. Mr. P.R. Katneshwarkar, learned Counsel appearing on behalf of the petitioner further submitted that no point of time the petitioner was informed about her adverse remarks except for the year 2000-2001. The petitioner has submitted that she challenged those ::: Downloaded on - 09/06/2013 14:22:13 ::: 7 adverse remarks by making representation and therefore, remarks which were under challenge could not be considered. Without considering the said representation, the Principal Secretary of Government of Maharashtra has issued a letter to Chief Executive Officer on 08-03-2004 and stated therein that the confidential remarks of the petitioner are satisfactory.
5. Mr. P.R. Katneshwarkar, learned Counsel appearing on behalf of the petitioner submitted that in G.R. dated 28-03-1995 it is specifically mentioned that, if it is found necessary to terminate the service of Government employee on the ground that, it is not possible to extend the probation period or it is not necessary to continue the services of the employee, who is on probation, such employment shall be terminated within three months from the completion of probation period. Learned Counsel for the petitioner further submitted that no documentary record was shown before M.A.T. about the probation period which was extended on humanitarian ground. The contention of the learned Counsel Mr. Deshmukh, for the petitioner was that the services of the petitioner are not ::: Downloaded on - 09/06/2013 14:22:13 ::: 8 terminated either during the period of two years probation period or at the end of completing two years of probation period. The services came to be terminated after a period of about 6 years from the date of completion of two years probation period. This action of the respondents terminating the petitioner's services after six years from the date of completion of two years probation period clearly amounts to imposition of punishment as per Rule 5 of the Maharashtra State Civil Services (Discipline and Appeals) Rules. If the termination is way of punishment or penalty, in that event, action of issuing termination order without giving opportunity to the petitioner to explain and without following due procedure of law laid down in Maharashtra State Civil Services (Discipline and Appeals Rules), is clearly violative of principles of natural justice and therefore, Mr. P.R. Katneshwarkar, learned Counsel appearing on behalf of the petitioner submitted that the order of termination is bad in law and the same needs to be quashed and set aside.
6. Mr. P.R. Katneshwarkar, learned Counsel appearing on behalf of the petitioner at the time ::: Downloaded on - 09/06/2013 14:22:13 ::: 9 of argument made a specific statement on instructions from his client that the petitioner is not pressing alternative prayer as claimed by her in the above mentioned petition i.e. "This Hon'ble Court may be pleased to direct the respondents to reinstate the petitioner on the post of Assistant Project Officer in Class-II cadre from 03-06-2005 alongwith back wages as well as with direction to give all the consequential reliefs thereto to the petitioner". Mr. P.R. Katneshwarkar, learned Counsel appearing on behalf of the petitioner in support of the contention of the petitioner in respect of nature of order dismissing the petitioner about stigma on her character relied on the judgment of the Apex Court in the matter of Dipti Prakash Banarjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta reported in 1999 DGLS 154 ( also reported in 1999 (3) SCC 60 ).
) It is the
contention of the petitioner that without
communicating adverse remarks against her, the
respondents terminated her services w.e.f.
03-06-2005. The learned Counsel for the
petitioner contended that if the findings are
arrived for terminating the services of the
petitioner on the basis of confidential reports
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10
behind back of the petitioner or without a regular departmental enquiry, in that case, simple order of termination is to be treated as founded on the allegations and will be bad in law. The petitioner submitted that it is the duty of the respondents to communicate all confidential reports and consider representation of petitioner before coming to the conclusion for termination on the basis of confidential reports. The petitioner submitted that in the present case neither respondents communicated all confidential reports to the petitioner nor held any inquiry in respect of the same and without following due process of law, the respondents issued termination order dated 03-06-2005 to the petitioner. In view of that same is liable to be set aside. The learned Counsel for the petitioner appearing on behalf of the petitioner relied on Paragraph Nos. 23, 25 and 26 of the above mentioned citation, which read as under :
"23. In the present case before us, the order of termination dated 30-04-1997 is not a simple order of termination but is a lengthy order which we have extracted above. It not only says that performance during probation is not satisfactory but also refers to a letter dated 30-04-1996 by which the period of probation was extended by six months from 02-05-1996, and to ::: Downloaded on - 09/06/2013 14:22:13 ::: 11 letters dated 17-10-1996 and 31-10-1996. It concludes by saying that the appellant's "conduct, performance, ability and capacity during the whole period of probation" was not satisfactory and that he was considered "unsuitable" for the post for which he was appointed.
25. In the matter of "stigma", this Court has held that the effect which an order of termination may have on a person's future prospects of employment is a matter of relevant consideration. In the seven Judge Bench decision in Samsher Singh vs. State of Punjab Ray, C.J. observed that if a simple order of termination was passed, that would enable the officer to "make good in other walks of life without a stigma".
It was also stated in Bishan Lal Gupta vs. State of Haryana that if the order contained a stigma, the termination would be bad for "the individual concerned must suffer a substantial loss of reputation which may affect his future prospects".
26. There is, however, considerable difficulty in finding out whether in a given case where the order of termination is not a simple order of termination, the words used in the order can be said to contain a "stigma". The other issue in the case before us is whether even if the words used in the order of termination are innocuous, the Court can go into the words used or language employed in other orders or proceedings referred to by the employer in the order of termination".
. In any case, in the present case, the respondents issued termination order dated 03-06-2005 to the petitioner on the ground that during probationary period, her performance was not upto satisfaction and therefore, her services were terminated. Nowhere it is stated in ::: Downloaded on - 09/06/2013 14:22:13 ::: 12 termination letter dated 03-06-2005 that because of confidential reports her services are terminated by the respondents. Therefore, there is no substance in the present submission of the learned Counsel Mr. P.R. Katneshwarkar, for the petitioner that termination letter dated 03-06-2005 issued by the respondents without holding any inquiry and without giving any chance to explain to the petitioner about her confidential reports. Learned Counsel for the petitioner further submitted that respondents during the course of probation period had not taken any action against the petitioner and only after expiry of more than 3 years from completing of three years probation period they issued termination letter dated 03-06-2005 which is bad in law. Mr. P.R. Katneshwarkar,learned Counsel appearing on behalf of the petitioner submitted that if the person is allowed to continue after expiry of the probationary period in service then that to be treated as automatic confirmation / deemed confirmation. Therefore, the termination letter issued by the respondents dated 03-06-2005 to the petitioner after expiry of three years from the date of completion of probation period is against the justice, equity and good conscience ::: Downloaded on - 09/06/2013 14:22:13 ::: 13 and same is liable to be set aside.
7. In support of this contention, Mr. P.R.Katneshwarkar, learned Counsel for the petitioner relied on the decision of the Apex Court in the matter of Mir Mohammad Kasim vs. Union of India and others, reported in 2004 DGLS 205 (also reported in (2004) 10 SCC 721). In this case, the Apex Court held that if an employee is continued after maximum period of probation which under the rules cannot be extended any further, the employee shall be deemed to have been confirmed. But where no maximum period of probation is provided there would be no automatic confirmation of the employee on expiry of period of probation unless an order is passed in that regard. Learned Counsel for the petitioner relied on Paragraph 9 of the said judgment and submitted that once the probationary period is extended without any terms and conditions then there should automatic confirmation. Paragraph 9 of the above referred judgment reads as under :
"9. The moot question which arises for consideration is about the effect of the order of granting relaxation to the appellant from Rule 7 (e) and the consequences which flow from the said ::: Downloaded on - 09/06/2013 14:22:13 ::: 14 order. According to the appellant, on successful completion of period of probation nothing further is required to be done before confirming the officer. All that was required had been accomplished since the appellant had cleared the tests as required under Rule 6 (b) [sic 7 (b)] as well as had undergone the period of probation which has been considered to be successful completion of period of probation as per Rule 7 (e). That being the position, the appellant shall be deemed to have been confirmed. Whereas Ms K. Amareshwari, learned Senior Counsel for respondent 3 submits that unless an order of confirmation is passed, the appellant cannot be deemed to have been confirmed. It is further pointed out that the Rules do not prescribe any maximum period of probation nor any provision says that it shall not be extended behind any given period of time. In such circumstances, it is submitted, the law is settled that there will be no automatic confirmation unless such an order is passed. In our view, there cannot be any dispute about the proposition that where no maximum period of probation is provided there would be no automatic confirmation of the employee on expiry of period of probation unless an order is passed in that regard. In such cases it is taken that the period of probation continues unless and until an order of confirmation is passed. Our attention has been drawn to the decision in the case of Commr. of Police vs. R.S. More. In this case the appointing authority was empowered to extend the period of probation upto certain prescribed limit. But there was a further provision that mere expiry of the prescribed period or extended period of probation would not entitle the probationer to claim satisfactory completion of his probation. Hence he would continued to be under probation and it would not be treated as deemed confirmation. In connection with this case it may be observed that the rule itself provided for extension of period of probation and thereafter that completion of period of probation or extended period of probation will not automatically entitle ::: Downloaded on - 09/06/2013 14:22:13 ::: 15 the employee deemed to have been confirmed unless a specific order in that regard is passed. Hence the above decision would not be of any help to the respondent. It may further be observed that in the matter of period of probation and confirmation, it would always depend upon the language of the rule on the point. Reference has also been made to a decision of this Court in the case of High Court of M.P. vs. Satya Narayan Jhavar, more particularly to para 11 of the judgment which we beneficially quote as under : (SCC p. 169) "11. 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 cases is where in the service rules or in the letter of appointment a period 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 ::: Downloaded on - 09/06/2013 14:22:13 ::: 16 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."
. We have gone carefully through the said judgment in which it is specifically stated in Paragraph 9 itself that " In our view, there cannot be any dispute about proposition that where no maximum period of probation is provided there would be no automatic confirmation of the employee on expiry of period of probation unless the order is passed in that regard. In such cases, it is taken that the period of probation continues unless and until order of confirmation is passed".
On the basis of this, Mr. P.R. Katneshwarkar, learned Counsel appearing on behalf of the petitioner also submitted that while there is a provision in the Rules for initial probation and extension thereof, a maximum period of such extension is also provided beyond it is not permissible to extend probation. The inference in ::: Downloaded on - 09/06/2013 14:22:13 ::: 17 such cases is that the Officer concerned is deemed to have been confirmed upon expiry of maximum period of probation in case before its expiry,the order of termination has not been passed.
8. On the other hand, Mr.N.B. Patil, A.G.P. on behalf of the respondents submitted that they issued termination order dated 03-06-2005 as the department found that the petitioner's services were not satisfactory during the period of probation. Learned A.G.P. further submitted that in the appointment letter, it was specifically stated that " the petitioner shall be liable to be removed from the service if she did not achieve expected standard of performance and her conduct and performance was inappropriate". Without scrutinizing her probation period, the respondents came to the conclusion that her probation period was not upto the standard and therefore, they terminated the petitioner's service by order dated 03-06-2005. Mr. N.B. Patil, learned A.G.P. on behalf of the respondents submitted that during the period of 1998 to 2001 the gradation of petitioner's confidential reports shows that the performance was not satisfactory i.e. ::: Downloaded on - 09/06/2013 14:22:13 ::: 18 1998 - 1999 B (-) 1999 - 2000 B (+) 2000 - 2001 B (-) . This itself shows that the petitioner's probation period was not satisfactory and upto the mark and therefore, the respondents took decision to issue termination letter to the petitioner.
Mr. N.B. Patil, learned A.G.P. appearing on behalf of the respondents submitted that since the termination order is not punitive in nature and there was no question in granting opportunity to the petitioner of being heard. The termination order result of non compliance on the part of the petitioner of certain conditions as laid down in the appointment order of the petitioner. The petitioner was very well aware of all these conditions. The respondents further submitted that action to terminate the petitioner's services was not punishment imposed on her, for want of satisfactory services during period of probation.
Learned A.G.P. further submitted that department took sometime to evaluate the petitioner's performance during the probation period. As ::: Downloaded on - 09/06/2013 14:22:13 ::: 19 petitioner's performance was not satisfactory for initial two years they extended one year more to give one more chance to the petitioner on humanitarian ground. In spite of giving extension of one year which remained on the part of the petitioner failed to show performance satisfactory upto the mark during that period. The respondents further submitted that there is no question of taking into consideration the petitioner's performance after completing probation period at the time of taking action against her. Learned A.G.P. Mr. N.B. Patil for the respondents further submitted that delay in issuing termination order was due to procedural. After completion of probationary period it was necessary to call report of the petitioner from the concerned officer under whom the petitioner had worked during the probationary period. In that process there was some delay on the part of respondents for taking immediate action against the petitioner. In support of his contention, learned A.G.P. Mr. N.B. Patil, for the respondents relied on the decision of Apex Court in State of Maharashtra vs. Veerappa R. Saboji and another, reported in AIR 1980 SC 42.
42 In that case, the Apex Court held that officer cannot be ::: Downloaded on - 09/06/2013 14:22:13 ::: 20 deemed to be automatically confirmed unless and until specific order is not issued to that effect.
Paragraph - 6 of this judgment is relevant for the present petition.
. " 6. There are two parts of cl. (iv) -
(1) that it is imperative to put every person appointed under sub-rule (2) on probation for a minimum period of two years "unless otherwise expressly directed" and (2) on the expiry of the said period of two years the person appointed may be confirmed if there is a vacancy and if his work is found to be satisfactory. The plain meaning of the rule is that there is no automatic confirmation on the expiry of the probationary period of two years in the first instance. On the expiry of the said period and on the fulfilment of the requirement of sub-clauses (a) and (b) a Government servant becomes eligible for being confirmed and normally he is likely to be confirmed. But it is a matter of common knowledge in many branches of Government service including the Judiciary that the administrative reasons or otherwise the confirmation is delayed and is made at a subsequent time. It may also be delayed for watching the work of the Government servant for a further period. The expression "unless otherwise expressly directed" governs only the first part of clause (iv) and not the second as was attempted to be argued by Mr. Nariman. In my opinion the rule in question, therefore, comes under the ordinary and normal rule that without an express order of confirmation the Government servant will not be taken to have been confirmed in the post to which he was appointed temporarily and/or on probation. It is not covered by the exceptional rule like the one which was the subject matter of consideration of this Court in State of Punjab vs. Dharam Singh (1968) 3 SCR 1."
::: Downloaded on - 09/06/2013 14:22:13 ::: 219. Mr.N.B. Patil, learned A.G.P. appearing for the respondents also relied on the authority of the Apex Court in the matter of High Court of Madhya Pradesh through Registrar and others vs. Satya Narayan Jhavar, reported in 2001 AIR SCW 3112.
3112 In that case also the Apex Court held that continuance of probationer on expiry of maximum period of probation cannot be deemed as confirmed.
Learned A.G.P. relied on Paragraph 11 and 38 of this judgment which reads as under :
" 11. The question of deemed confirmation in service Jurisprudence, which is dependent upon language of the relevant service rules, has been 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 cases is where in the service rules or the letter of appointment a period 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. 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 officer concerned is deemed to have been confirmed ::: Downloaded on - 09/06/2013 14:22:13 ::: 22 upon expiry of the maximum period of probation in case before its expiry 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 require 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 the person concerned has passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.
38. Ordinarily a deemed confirmation of a probationer arises when the letter of appointment so stipulates or the Rules governing service condition so indicate. In the absence of such term in the letter of appointment or in the relevant Rules, it can be inferred on the basis of the relevant Rules by implication, as was the case in Dharam Singh (AIR 1968 SC 1210 :
1968 Lab IC 1409) (supra). But it cannot be said that merely because a maximum period of probation has been provided in Service Rules, continuance of the probationer thereafter would ipso facts must be held to be a deemed confirmation which would certainly run contrary to Seven Judge Bench Judgment of this Court in the case of Shamsher Singh (AIR 1974 SC 2192 : 1974 Lab IC 1380) (Supra) and Constitution Bench decisions in the cases of Sukhbans Singh (AIR 1962 SC 1711) (supra), G.S. Ramaswamy (supra) and Akbar Ali Khan (AIR 1966 SC 1842) (supra)".
10. Mr. N.B. Patil, learned A.G.P. for the respondents further relied on the judgment of Apex Court in the matter of the Commissioner of Police, Hubli and another vs. R.S. More, reported in ::: Downloaded on - 09/06/2013 14:22:13 ::: 23 2003 AIR SCW 478 in which the Apex Court held that probationer shall not be entitled to be deemed to have satisfactory completed probation by reasons of his being continued in service beyond extended period of probation. Paragraph 8 of this judgment is helpful in the present case which reads as under :
" 8. In our view, the case at hand falls under category 3. As noticed sub-rule (2) of Rule 5 requires that a probationer shall not be considered to have satisfactorily completed the probation unless a specific order to that effect is passed. specific order having been passed by any No authority, certifying the satisfactory completion of probation period of the respondent, has been brought to our notice. Mr. Hegde, learned counsel, submitted that no order as contemplated under sub-rule (2) of Rule 5 has been passed by the competent authority. Admittedly, the order discharging the respondent, in exercise of powers under Rule 6, has been passed after the extended period of probation was over. In our view, however, that itself would not entitle the respondent to have claimed deemed confirmation in absence of the specific order to that effect. In service Jurisprudence confirmation of service on a particular post is preceded by satisfactory performance of the incumbent unless service rules otherwise prescribe. In the instant case sub-rule (2) of Rule 5 of the Rules provides that unless there is a specific order that the probationer has satisfactorily completed the period of probation, he shall not be entitled to be deemed to have satisfactorily completed the probation by reason of his being continued in service beyond the extended period of probation. The High Court has failed to consider this important aspect of the ::: Downloaded on - 09/06/2013 14:22:13 ::: 24 matter, resulting in miscarriage of justice. In our view, the High Court fell into error resulting in miscarriage of justice".
. In view of the above mentioned facts and circumstances, learned A.G.P. Mr. N.B. Patil, for the respondents submitted that the termination letter dated 03-06-2005 issued by the respondents is according to rules and therefore, there is no scope to interfere with the judgment and order passed by the M.A.T. dated 03-05-2007 in Other Application No. 579/2005.
11. It is well settled principle of law that person appointed as probationer cannot claim to have been confirmed only because he has completed period of probation. Unless positive decision is taken by the appointing authority and after taking his service record, such employee cannot claim to have become permanent merely because he has completed probationer period. In the present case, though initially the petitioner was appointed on probationary period for two years, respondents extended probationary period for further one year on humanitarian ground in the interest of petitioner. Inspite of extension of one year probation period, the petitioner did not ::: Downloaded on - 09/06/2013 14:22:13 ::: 25 show any improvement and therefore, the respondents were constrained to take decision for terminating her services. In the present case, the petitioner is claiming that after completing probationary period, the respondents allowed her to work for more than three years and therefore, it is to be deemed that she confirmed during that period. In any case, learned counsel Mr. P.R. Katneshwarkar, appearing for the petitioner failed to point out any rules where after completing probationary period, the petitioner's services are deemed to be confirmed automatically. It is well settled that where rules empowering authority to extend probationary period beyond prescribed, continues in service even after initial period of probation, in absence of any express order of confirmation would amount to extension of probationary period. In such situation, the termination after initial period of probation would not amount to termination of petitioner's services. Therefore, there is no question of holding any inquiry at the time of issuing termination letter. In similar way, the Apex Court in the matter of Satya Narayan Athya vs. High Court of M.P. and another, reported in (1996) 1 SCC 560 held that on completion of ::: Downloaded on - 09/06/2013 14:22:13 ::: 26 probationary period even in the absence of order of extension, the probationer cannot be deemed to be confirmed automatically. Paragraphs 4 and 5 of this judgment is helpful to this case, which reads as under :
" 4. It is contended on his behalf by the learned Counsel for the petitioner that since later record was found satisfactory as per the norms laid down by the High Court, the finding that his performance was not satisfactory is not correct.
Therefore, his discharge from service is clearly arbitrary. We find no force in the contention. The Division Bench held that during the relevant period his performance was not satisfactory and that subsequent good or bad performance of the petitioner became meaningless. We find that the approach adopted by the High Court cannot be said to be unjustified. Even the strong reliance placed by the learned Counsel for the petitioner on the report of the learned District Judge indicates that he needed improvement in disposal of cases which would show that the Full Court of the High Court considered his performance as not satisfactory.
5. Under these circumstances, the High Court was justified in discharging the petitioner from service during the period of his probation. It is not necessary that there should be a charge and an inquiry on his conduct since the petitioner is only on probation and during the period of probation, it would be open to the High Court to consider whether he is suitable for confirmation or should be discharged from service."
12. In similar way, the Apex Court in the ::: Downloaded on - 09/06/2013 14:22:13 ::: 27 matter of Tarsem Lal Verma vs. Union of India and others reported in (1997) 9 SCC 243 held that merely expiry of one year beyond original two years period of probation did not result in automatic confirmation. In the present case also similar situation arises. Therefore, there is no question of holding that after completing probationary period the petitioner is presumed to be confirmed as she was working with the respondents. For the objection raised by the petitioner about communication of adverse remarks, can be relied upon the decision of Bombay High Court in the matter of Savitrabai Fule Shiskshan Prasarak Mandal Wardha and another vs. Dhananjay Deoraoji Diwate and others, reported in 2004 (3) Mh.L.J. 18. Head Note (b) reads as under :
" (b) Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act ( 3 of 1978), S. 5( 3) and Maharashtra Employees of Private Schools ( Conditions of Service ) Rules, 1981, R. 15 (6) -
Communication of adverse remarks, holding of enquiry, grant of further chance of improvement to a probationer is not contemplated under Section 5 ( 3) of the Act or Rule 15 (6) of the Rules of 1981.
On a conjoint reading of Section 5 (3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and Rule 15 (6) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 it can ::: Downloaded on - 09/06/2013 14:22:13 ::: 28 be inferred that adverse remarks need not be communicated to a probationer in order to grant him opportunity to improve upon the same or agitate the same. All that is provided is the assessment of probationer's work by the Head and decision of the Management whether to continue his services or not. If the Management is of the opinion that during the period of probation, the services of the probationer were not satisfactory, it can very well terminate the services of such employee before the probation period comes to an end."
. The relevant portion in Para. 8 of the judgment referred above reads as under :
" If sub-section (3) of section 5 of the Act and sub-rule (6) of Rule 15 of the Rules are read conjointly, it can very well be inferred that adverse remarks need not be communicated to a probationer in order to grant him opportunity to improve upon the same or agitate the same. All that is provided is the assessment of probationer's work by the Head and decision of the Management whether to continue his services or not. Communication of adverse remarks; holding or enquiry; grant of further chance for improvement etc., in my view, is not contemplated either under section 5(3) of the Act or Rule 15(6) of the Rules."
13. It is specifically held by our High Court that adverse remarks need not be communicated to the petitioner in order to grant opportunity to him to improve upon the same or agitate the same.
In any case, in the present case, the termination ::: Downloaded on - 09/06/2013 14:22:13 ::: 29 order dated 03-06-2005 is passed by the respondent not on the ground of adverse confidential remarks but on the ground that the petitioner failed to complete probationary period satisfactorily.
14. In the above mentioned facts and circumstances, there is no question of interfering in the order passed by the M.A.T. dated 03-05-2007 in Original Application No. 579/2005.
Consequently writ petition is dismissed with no order as to costs. Rule discharged.
[ K.K. TATED, J.] [ P.V. HARDAS, J.] sut/u/FEB09/wp5685.07 ::: Downloaded on - 09/06/2013 14:22:13 :::