Chattisgarh High Court
Shailendra Soni vs High Court Of Chhattisgarh on 16 July, 2025
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
2025:CGHC:33307
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 4152 of 2015
Order Reserved on : 28.04.2025
Order Delivered on : 16.07.2025
1. Shailendra Soni S/o Shri Manharan Lal Soni, Aged About 41 Years
Working As Translator, In The Supreme Court Section Of The High
Cout Of Chhattisgarh, R/o R. K. Lane, Near Nandu Garage,
Telipara, Bilaspur, District Bilaspur Chhattisgarh, Chhattisgarh
... Petitioner(s)
versus
1. High Court Of Chhattisgarh Through Registrar General, Bilaspur,
Raipur Road, Bodari, District Bilaspur Chhattisgarh, Chhattisgarh
2. Registrar General, High Court Of Chhattisgarh At Bilaspur, District
Bilaspur Chhattisgarh, District : Bilaspur, Chhattisgarh
3. Shri Vijay Kumar Minz, S/o Shri Fardint Minz, Aged About 30 Years
Working As Assistant Grade - I In The Supreme Court Section Of
The High Court Of Chhattisgarh At Bilaspur, District Bilaspur
Chhattisgarh, District : Bilaspur, Chhattisgarh
... Respondent(s)
For Petitioner(s) : Mr. Shailendra Soni, petitioner in person For Respondent(s) : Mr. Anurag Dayal Shrivastava, Advocate Hon'ble Shri Justice Narendra Kumar Vyas (CAV Order)
1. The petitioner has filed the present writ petition under Article 226 of the Constitution of India for quashing the order dated 09.09.2015 passed by the respondent No. 2 to the extent of extension of Digitally signed by MANISH MANISH YADAV YADAV Date:
2025.07.17 10:36:47 +0530 2 probation period and delayed confirmation on the post of Translator with effect from 09.07.2015 in place of 28.02.2014.
2. Brief facts of the case as projected by the petitioner are that:
a) The High Court published an advertisement for the post of Translator and the petitioner alongwith other candidates has applied for the said post. After passing the examination, petitioner and respondent No. 3 were appointed on 29.02.2012 on the post of Translator for probation period of two years, he joined the services on 03.03.2012.
b) The respondent No. 3 was confirmed on the post of Translator with effect from 07.03.2014 on completion of 2 years service and he was promoted on the post of Assistant Grade-I on 27.01.2015 though he was junior to the petitioner which is contrary to the rules. It has also been contended that in view of well settled position of law that every entry in the Annual Confidential Report (in short "ACR") of a public servant must be communicated to him within a reasonable period, but till extension of probation period the ACR of the petitioner was not communicated to him without any rhyme and reason.
c) It has also been contended that ACR of the year 2013-14 was provided to him on 31.02.2013 and from perusal of his ACR, it demonstrates that there is no adverse remark against the petitioner to deprive the petitioner from confirmation and promotion. There is neither any adverse entry in the ACR of the petitioner nor any complaint or enquiry is pending against him and even no adverse remark had ever been communicated to 3 the petitioner by the respondent No. 2 to deprive him from promotion and confirmation.
d) It is also the case of the petitioner that the petitioner has submitted his detailed representation on 29.04.2015 to the respondent No. 2 to confirm him and grant promotion maintaining his seniority above the respondent No. 3, but they have passed the order on 07.09.2015 confirming the petitioner on the post of Translator with immediate effect stating that the period of services beyond the probation period of two years is treated as deemed extension without considering the grievance of the petitioner raised in his representation. On above factual matrix he has prayed for quashing of the order dated 09.09.2015 to the extent his probation period has been extended and he has not been granted promotion on the post of Assistant Grade-I.
3. The High Court filed its return mainly contending that the petitioner joined his service on 03.03.2012 and on completion of two years of probation on 02.03.2014 his case alongwith respondent No. 3 and other employees were considered, but at the relevant time ACR of the petitioner was not available as he was appointed in the month of February-March, 2012, therefore, work and conduct report was called from concerned reporting authority which was found not good and average, accordingly, the competent authority deferred the matter relating to his confirmation. It has also been contended that again work and conduct report was sought from the reporting authority who reported vide its memo dated 01.07.2015 to be good and he may be confirmed to the post of Translator and accordingly the order dated 09.09.20015 was issued which is legal, justified and 4 in accordance with Chhattisgarh High Court Establishment (Appointment and Conditions of Service) Rules, 2003 (in short "Rules of 2003"), as such the same is not liable to be interfered by this Court. So far as promotion to the post of Assistant Grade-I with effect from 27.01.2015 is concerned, it is quite vivid that the petitioner was confirmed on the post of Translator on 09.09.2015, therefore, he was not qualified for promotion on the post of Assistant Grade-I. Therefore, his case cannot be considered. It has also been contended that the ACR of the year 2013-14 was communicated to the petitioner on 30.03.2015 which is within the time period prescribed under the administrative instruction. It has been further contended that the petitioner's representation dated 03.10.2015 has been rejected on 02.12.2015 which has not been challenged by the petitioner, therefore, the writ petition is not maintainable and same is liable to be dismissed.
4. Petitioner in person would submit that though the case of the petitioner has been deferred for confirmation on the post of Translator, but one Sharad Kumar Yadav, Stenographer was confirmed though his ACR was not available and as such, pick and choose policy has been adopted by the respondents. It has been further contended that as per Rule 10(1)(c) of Rules of 2003 ordinarily the probation period cannot exceed three years, but his probation period has been extended beyond the Rules, as such, extension of probation period beyond three years is illegal and he is deemed to have been confirmed on the said post after completion of two years of probation period. He would further submit that ordinarily is interpreted to reflect the normal or expected course of 5 action rather than an exceptional circumstance, therefore, his extension of probation by the respondent after more than three years is illegal, as such, order dated 27.01.2015 (Annexure P/2) promoting the respondent No. 3 on the post of Assistant Grade-I and order dated 07.09.2015 as corrected on 15.10.2015 are liable to be quashed. It has also been contended that if authority decided to extend the probation period they should have given the reason. In the present case no such reason has been assigned, therefore, the impugned order so far as extension of probation period is against the law laid down by the Hon'ble Supreme Court in case of State of Punjab vs. Dharam Singh and in case of Dayaram Dayal vs. State of M.P. & Others reported in 1997 (7) SCC 440. It has also been contended that due to non-communication of Adverse ACR, it has lost significance and his case should have been considered by the respondents. To substantiate his submission he has referred to the judgment of Hon'ble Supreme Court in case of Devi Dutta vs. Union of India reported in 2008 (8) SCC 725 and Sukhdev Singh vs. Union of India and Others reported in 2013 (9) SCC 566. He would further submit that as per Rule 12(1)(a) of CG Services (General Conditions of Service) Rules, 1961 the person appointed as a result of earlier selection shall be senior to person those appointed as a result of subsequent selection and as per Rule 12(1)
(f) the employee shall be allowed to retain original seniority where extension of period of probation is not due to any fault or shortcomings of the employees. To substantiate his submission he has referred to the judgments of Hon'ble Supreme Court in case of Warad Murti Mishra vs. State of Madhya Pradesh and Others 6 reported in 2020 (7) SCC 509, Direct Recruit Class-II Engineering Officer's Association vs. State of Maharashtra and Others reported in 1990 (2) SCC 715, Dr. (Capt.) Akhouri Ramesh Chandra Sinha and Others vs. State of Bihar and Others reported in 1996 (2) SCC 20 and would pray for allowing the petition.
5. On the other hand, learned counsel for the High Court reiterating the submission made in the return would submit that the appointment order dated 29.02.2012 (Annexure R/1) expressly stipulated that on successful completion of the probation or till the time the employee is not confirmed, he shall be deemed to be on probation. The relevant clause of appointment order dated 29.02.2012 is reproduced below:
"ijhoh{kk vof/k lQyrk iwoZd iw.kZ u gksus ij ijhoh{kk vof/k ,d o"kZ rd vkSj c<+k;h tk ldsxh vkSj tc rd LFkk;h u dj fn;k tk, rc rd mUgsa ijhoh{kk ij ekuk tk;sxkA"
The aforesaid clause clearly stipulates that until an order of confirmation is passed employee would be deemed to be on probation. The petitioner joined his services on 03.03.2012 and on completion of the initial two years of probation on 02.03.2014, his case was processed for confirmation along with other employees, including respondent No. 3 who had completed two years of date of joining in the service. He would further submit that at the relevant time ACRs were not available because appointments were made in February-March, 2012, therefore, work and conduct report of the petitioner as well as respondent No. 3 was called from the concerned Reporting Authority. The Reporting Authority reported 7 petitioner's work and conduct to be 'not good and Average'. Accordingly, the Competent Authority resolved to defer the matter relating to his confirmation. Thereafter, the work and conduct of the petitioner was further observed and report was again called from the Reporting Authority, who reported vide memo dated 01.07.2015 the work and conduct of the petitioner "Good and he may be confirmed to the post of Translator". The work and conduct report of the petitioner was placed before the Competent Authority along with the representation made by him. Accordingly, the petitioner was confirmed in terms of Rule 10(2) of Rules of 2003, w.e.f. 09.09.2015, as such there is no illegality in the order dated 09.09.2015.
6. He would further submit that the employer is within its jurisdiction and authority to adjudge the work, conduct and performance of the probationer before confirmation. There being no dispute regarding work and conduct report given by the Reporting Authority, the challenge to the confirmation order is not amenable to challenge. As far as the claim of the petitioner for promotion to the post of Assistant Grade-I w.e.f. 27.01.2015 is concerned, it is not maintainable because the petitioner has been confirmed on the post of Translator w.e.f. 09.09.2015 and he was not qualified for promotion from 27.01.2015 to the post of Assistant Grade-I, criteria of which is strictly Merit Cum Seniority from the post of (Sic) translator. There is no parity between the case of the petitioner and Respondent No. 3 who was confirmed on successful completion of probation w.e.f. 07.03.2014 and consequentially has been promoted 8 to the next higher post on fulfilling the requisite criteria under the rules and would pray for dismissal of the writ petition.
7. I have heard learned counsel for the parties and perused the record.
8. From the submission made by the parties, the point emerged for determination by this Court is:
"Whether in absence of any specific provision for automatic confirmation as per the Rules of 2003 the petitioner will be deemed to have been confirmed on 28.02.2014 after completion of probation period of two years?"
Discussion and finding on Point:
9. From the submission made by the petitioner in person, it is quite vivid that the petitioner in person is intended to canvas that he is deemed to be confirmed after completion of two years and extension of probation period beyond three years is illegal, this submission deserves to be rejected as in the appointment order itself, it is specifically mentioned that the probation period will be extended for one year unless and until he is confirmed he will be remained in probation only. Rule 10(2) of Rule of 2003 also provides that on completion of probation period of officiation as the case may be, the probationer or the promotee, if there is a permanent post available shall be confirmed in the service and if no permanent post is available a certificate should be issued that he would have been confirmed. This rule clearly establishes that there will be no deemed for confirmation and the employee should first complete the probation period successfully and the permanent post should be available. The deemed confirmation after completion of probation 9 period is always subject matter of challenge before the Hon'ble Supreme Court in various cases. The Hon'ble Supreme Court in case of Shamsher Singh vs State of Punjab and Another reported in 1974 (2) SCC 831 in paragraphs 71 and 72 has held as under:-
"71. Any confirmation by implication is negatived in the present case because before the completion of three years the High Court found prima facie that the work as well as the conduct of the appellant was unsatisfactory and a notice was given to the appellant on 4 October, 1968 to show cause as to why his services should not be terminated. Furthermore, Rule 9 shows that the employment of a probationer can be proposed to be terminated whether during or at the end of the period of probation. This indicates that where the notice is given at the end of the probation the period of probation gets extended till the inquiry proceedings commenced by the notice under Rule 9 come to an end. In this background the explanation to rule 7(1) shows that the period of probation shall be deemed to have been extended impliedly if a Subordinate Judge is not confirmed on the expiry of this period of probation. This implied extension where a Subordinate Judge is not confirmed on the expiry of the period of probation is not found in Dharam Singh's case (supra). This explanation in the present case does not mean that the implied extension of the probationary period is only between two and three years. The explanation on the contrary means that the provision regarding the maximum period of probation for three years is I directly and not mandatory unlike in Dharam Singh's case (supra) and that a probationer is not in fact confirmed till an order of confirmation is made.
72. In this context reference may be made to the proviso to Rule 7(3). The proviso to the Rule states that the completion of the maximum period of three years' probation would not confer on him the right to be confirmed till there is a permanent vacancy in the cadre. Rule 7 (3) states that an express order of confirmation is necessary. The proviso to Rule 7(3) is in the negative form that the completion of the maximum period of three years would not confer a right of confirmation till there is a permanent vacancy in the cadre. The period of probation is therefore extended by implication until the proceedings com- menced against a probationer like the appellant are concluded to enable the Government to decide whether a probationer should be confirmed or his services should be terminated. No confirmation by implication can arise in the present case in the facts and circumstances as also by the meaning and operation of Rules 7(1) and 7(3) as aforesaid."10
10. The Hon'ble Supreme Court in case of High Court of M.P. Through Registrar & Others vs. Satya Narayan Jhavar reported in 2001 (7) SCC 161 831 in paragraph 11 has held 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 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."
11. The Hon'ble Supreme Court in case of Registrar, High Court of Gujarat and Another vs. C.G. Sharma reported in 2005 (1) SCC 132 831 in paragraph 26 has held as under:-
"26. A large number of authorities were cited before us by both the parties. However, it is not necessary to go into the details of all those cases for the simple reason that sub-rule 4 of Rule 5 of the Rules is in pari materia with the Rule which was under consideration in the case of State of Maharashtra vs. Veerappa Saboji & Anr. (Supra) and we find that even if the period of two years expires and the probationer is allowed to continue after a period of two years, automatic confirmation cannot be claimed as a 11 matter of right because in terms of the Rules, work has to be satisfactory which is a pre-requisite or pre-condition for confirmation and, therefore, even if the probationer is allowed to continue beyond the period of two years as mentioned in the Rule, there is no question of deemed confirmation. The language of the Rule itself excludes any chance of giving deemed or automatic confirmation because the confirmation is to be ordered if there is a vacancy and if the work if found to be satisfactory. There is no question of confirmation and, therefore, deemed confirmation, in the light of the language of this Rule, is ruled out. We are, therefore, of the opinion that the arguments advanced by learned counsel for the respondent on this aspect has no merits and no legs to stand. The learned single Judge and the learned Judges of the Division Bench have rightly come to the conclusion that there is no automatic confirmation on the expiry of the period of two years and on the expiry of the said period of two years, the confirmation order can be passed only if there is vacancy and the work is found to be satisfactory. The rule also does not say that the two years' period of probation, as mentioned in the rule, is the maximum period of probation and the probation cannot be extended beyond the period of two years. We are, therefore, of the opinion that there is no question of automatic or deemed confirmation, as contended by the learned counsel for the respondent. We, therefore, answer this issue in the negative and against the respondent."
12. From perusal of the Rules of 2003, the appointment order of the petitioner and considering the law on the subject, it is quite vivid that there is no deemed confirmation provided in the Rules as the employee has to complete the probation period successfully and there is provision in the Rules for extension of probation period, and there must be permanent post is available, as such, it cannot be said that petitioner is deemed to have been confirmed on the post. The completion of probation period successfully indicates that the petitioner's work and conduct should be good then only he can be qualified after completion of probation period successfully. In the present case for petitioner's work and conduct was not good and average which is essential for assessing the suitability of the petitioner for confirmation.
12
13. So far as contention raised by the petitioner that work and conduct report of the petitioner was an alternate of ACR in such case any adverse remark must have been communicated so that he would have submitted representation against the adverse remark made against him. The further contention made by the petitioner that since this adverse remark have been adversely affected the confirmation, promotion and seniority, therefore, in view of case of Dev Dutt (Supra) and Sukhdev Singh (Supra), the same should have been communicated is being considered by this Court. This submission deserves to be rejected by this Court as the ACR is a formal document which evaluates the performance, conduct and capabilities of a government employee over a specific period, usually a year whereas work and conduct means a work report is essential for tracking activities, time and productivity, as such both work in different sphere but have common object to assess suitability of the employee by its employer. It is not in dispute that the petitioner was appointed on 29.02.2012 and ACR for the period from 03.03.2012-31.03.2013 was good and he was graded "B" in the ACR, as such, it is not required for the respondent to communicate the same, therefore, the judgment of Hon'ble Supreme Court in case of Dev Dutt(Supra) and Sukhdev Singh (Supra) does not give any assistance to the petitioner.
14. The further submission is that in view of the well settled position of law once an incumbent is appointed to a post according to rule his seniority has to be counted from the date of appointment and not according to the date of confirmation. This legal submission is not in dispute as the Hon'ble Supreme Court in recent judgment in case of 13 V. Vicent Velankanni vs. Union of India reported in 2024 INSC 748 decided on 30.09.2024 has held that when an employee completes the probation period and is confirmed in service albeit with some delay the confirmation in service shall relate back to the date of initial appointment. Any departure from this principle in the form of statutory rules, executive instructions or otherwise must consist of the requirement of Article 14 and 16 of the Constitution of India. In the present case the petitioner's seniority on the post of Translator was not affected adversely by delayed confirmation. In view of non-submission of any gradation list wherein the seniority of the petitioner on the post of Translator has been downgraded by the respondent, the submissions are hypothetical and rejected.
15. So far as seniority on the post of Assistant Grade-I is concerned, it can be considered only from the date when he was born in the cadre of Assistant Grade-I. The petitioner has been promoted on the post of Assistant Grade-I on 02.12.2015 as per the document filed by the petitioner itself, therefore, he will be granted seniority on the post of Assistant Grade-I w.e.f. 02.12.2015 whereas the respondent No. 3 has been promoted on 27.01.2015 on the post of Assistant Grade-I therefore, he has been rightly granted seniority from the date of his promotion. As such, there is no illegality on the part of respondent to grant the seniority to respondent No. 3 and no seniority on the post of Translator of the petitioner is being adversely affected. Thus, the submission made by the petitioner in person that his seniority on the post of Translator is adversely affected by the respondent on account of delayed confirmation is far from truth and deserves to be rejected and accordingly, it is rejected. 14
16. From the submission made above, it is quite vivid that there is no provision for deemed confirmation and unless and until the petitioner completed successful probation period though he was awarded good grade in the ACR yet his work and conduct was average and not good, he was not found fit for confirmation, as such, the impugned order dated 07.09.2015 (Annexure P/6) and corrigendum dated 15.10.2015 are not liable to be quashed by this Court. Accordingly, the writ petition being devoid of merit deserves to be dismissed and it is hereby dismissed.
Sd/-
(Narendra Kumar Vyas) Judge Manish