Orissa High Court
Pravat Kusum Mandal vs Odisha State Medical Corporation on 5 October, 2023
IN THE HIGH COURT OF ORISSA, CUTTACK
WP(C) No.13096 of 2019
Pravat Kusum Mandal ...... Petitioner
-Versus-
Odisha State Medical Corporation, ...... Opposite Parties
Bhubaneswar & another
For Petitioner - Ms. D. Mahapatra, Advocate
For Opposite Parties - Mr. N. Barik, Advocate
(for Opposite Party No.1)
Mr. S.N. Pattnaik, AGA
(for Opposite Party No.2)
CORAM: JUSTICE SANJAY KUMAR MISHRA
Date of Hearing: 13.07.2023 and Date of Judgment: 05.10.2023
_________________________________________________________
S.K. Mishra, J.
The Petitioner has preferred the Writ Petition being aggrieved by Office Order dated 25.07.2019 (Annexure-3), vide which his services were terminated w.e.f. 25.07.2019 (Fore Noon).
2. The factual matrix of the case, in nutshell, is that the Opposite Party No.1 i.e. Odisha State Medical Corporation Limited, shortly, 'the Corporation', which is being controlled by the State Government, published an Advertisement on 26.10.2016 inviting online applications from eligible candidates for filling up different posts of the Corporation, including the post of Manager-Procurement (Drugs and Surgical), which was a single unreserved post. The Petitioner, who was previously working under the VIMSAR since 01.04.2011, having the requisite qualification and experience, was selected to be appointed as Manager-Procurement (Drugs and Surgical). He was issued with the order of appointment on 10.03.2017, pursuant to which he joined in the said post on 14.03.2017. In Clause 1 of the said appointment order, it has been mentioned that the appointee would be on probation for a period of one year from the date of his joining and the period of probation can be extended for a further period of one year or more as per the satisfaction of the Authority. Further, it was mentioned therein that during the period of probation, the services of the Petitioner can be terminated by the Appointing Authority on issuing one month's notice or payment of one month's salary in lieu of the said notice period.
It is further case of the Petitioner that immediately after his appointment, the Odisha State Medical Corporation Ltd Employees' Service Rules, 2017, shortly, Service Rules, 2017, came into force with effect from 22.09.2017 and the same is applicable to all the employees recruited by the Corporation i.e. the employees, who are already in the roll of the Corporation by the said time.
Page 2 of 43
As per Sub-Rule 10.1 of Rule 10 of the Service Rules, 2017, all the employees directly recruited by the Corporation shall be on probation for one year from the date of joining. Sub-Rule 10.2 of Rule 10 of the said Rules prescribes that the Appointing Authority may extend the probation period for a further period of one year at a time considering the ability, suitability and performance of the employee and inform the employee concerned the reason for such extension. Sub-Rule 10.3 of Rule 10 prescribes that the Appointing Authority shall regularize the employee concerned in the post on successful completion of the probation period on the basis of his ability, suitability and performance by a written order. Sub- Rule 10.4 of Rule 10 prescribes that if during the period of probation and extended period thereof, the performance, progress and conduct of the Petitioner are not found satisfactory or up to the standard required for the post, the probation shall be cancelled and he shall be terminated from service by giving him one month's gross salary or one month's salary in lieu thereof.
It is further case of the Petitioner that as per Clause 1 of the terms of appointment, the probation is for a period of one year from the date of joining, which can be extended for a further period of one year or more as per the satisfaction of the Authority. But as per Rule 10 of the Service Rules, 2017, it was settled that the probation is for one year from the date Page 3 of 43 of joining and can be extended to a further period of one year at a time considering the ability, suitability and performance of the employee and in that case the concerned employee shall be informed about such reason for extension.
Pursuant to appointment letter dated 10.03.2017, as the Petitioner joined on 14.03.2017, his period of probation of one year ended on 13.03.2018. Therefore, on completion of the said period of probation of one year, undisputedly no such order extending the period of probation has been passed by the Authority concerned. As required under Clause 1 of the appointment order, by the time the Petitioner completed his one year of probation, the Service Rules, 2017 came into force with effect from 22.09.2017. As per Rule 10 of the Service Rules, 2017, no such order has been passed before 14.03.2018, extending the period of probation. Therefore, in absence of any order of extension of probation, with reasons to do so, it is to be inferred that the Petitioner, after completion of one year, is deemed to have been confirmed in service w.e.f. 14.03.2018.
On 12.03.2019, by which time the Petitioner had already completed two years of service, an office order was issued in respect of five employees, including the present Petitioner, extending their period of probation from 14.03.2019. Neither any reason was indicated in the said office order to do so, as required under Rule 10 of the Service Rules, 2017 Page 4 of 43 nor the Petitioner was informed about such reason for extending the probation period. Further, there is no such provision in the Service Rules, 2017 for extending the period of probation more than two years. Immediately thereafter i.e. on 08.04.2019, the Petitioner was asked for an explanation regarding discrepancy in the experience certificate submitted by him at the time of joining and over lapping in the period of service, where it has been stated that the Petitioner's experience certificate in VIMSAR shows that he was working there since 01.04.2011, though he joined in the Corporation as Senior Pharmacist on 12.04.2016 with due relieve order issued by the VIMSAR, Burla dated 11.04.2016.
Pursuant to the said communication seeking for explanation, the Petitioner submitted a detailed explanation on 16.04.2019 stating therein about the discrepancy and over lapping in the period of service indicating therein that though being relieved from VIMSAR on 11.04.2016, he joined as Senior Pharmacist, but he left the post on 23.04.2016 and joined back in the same contractual post under VIMSAR. On his request, the said period from 12.04.2016 to 23.04.2016 i.e. 12 days was sanctioned as leave by kind consideration of the VIMSAR Authority. The Petitioner further explained that for a period of 12 days he has neither claimed any pecuniary benefits from the Corporation nor the said over lapping period of 12 days has been claimed as experience for selection to the present post under the Page 5 of 43 Corporation. As after submitting such explanation on 16.04.2019, no such further order was passed by the Corporation, it was presumed by the Petitioner that the issue has been set at rest for all purposes.
While the matter stood thus, an Office Order was issued on 25.07.2019 by the Managing Director of the Corporation resorting to the terms and conditions stipulated in Clause 1 of the appointment letter, by which the services of the Petitioner was terminated w.e.f. 25.07.2019 with one month's salary in lieu of the notice period.
It is further case of the Petitioner that as the Office Order dated 12.03.2019, vide which the period of probation was extended for further period of another one year w.e.f. 14.03.2019, did not disclose any reason to do so in terms of the Service Rules, 2017 of the Corporation, the same is completely invalid. The impugned Order dated 25.07.2019, as at Annexure- 3, treating the Petitioner as probationer after he completed two years four months of service, is illegal and arbitrary. The same has been passed with oblique motive to remove the Petitioner from the post and to appoint somebody else, as the Petitioner was not amenable to undue and undesirable pressure and for some other oblique purposes. Hence, the impugned Order dated 25.07.2019, being illegal and arbitrary, is liable to be quashed.
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3. Being noticed, the Opposite Party No.1-Corporation has filed a Counter Affidavit taking a stand therein that the Corporation has been incorporated on 08.11.2013 under the Companies Act, 1956, in pursuance of the Government of Odisha Resolution dated 26.06.2013. It is stated that the Petitioner was selected for appointment as Manager-Procurement (Drugs & Surgical) on terms and conditions that he will be on probation for one year from the date of joining and the probation period may further be extended for another one year or more as per the satisfaction of the authority. During the period of probation, the services can be terminated by the Appointing Authority on one month's notice or in lieu of, one month's salary. Depending on satisfactory performance and conduct during the probation, the continuance and regularization in the post will be decided. The Petitioner joined in service on 14.03.2017 After Noon in the office of the Corporation.
It has further been stated that Odisha State Medical Corporation Ltd. Employees' Service Rules, 2017 was framed and the same came into force during the year, 2017, which is applicable to all employees recruited by the Corporation. As per the Order dated 29.06.2018 of the then Managing Director, the activities of the Petitioner were closely monitored for another six months instead of confirming him in the post, as the individual performance was far from satisfactory. Further, the probation of Page 7 of 43 the Petitioner was extended vide Order dated 09.01.2019 as per the terms and conditions laid down in Clause 1 of the appointment order with intimation to the Petitioner. It has also been stated that the extension of probation for six months was for the reason that the Petitioner's probation for one year from the date of joining was not satisfactory and such extension was granted only to reassess his performance. As the performance of the Petitioner was closely monitored and it was observed that his performance is far from satisfactory, it was decided to extend his probation instead of confirming him in the said post. Such extension of probation for one year was not confined to the present Petitioner only. Same was including four other employees whose probation period were also extended w.e.f. 14.03.2019 vide the same Order dated 12.03.2019. The said fact was communicated to the employees concerned vide Memo dated 12.03.2019.
It is stand of the Opposite Party No.1-Corporation that law is well settled that in absence of maximum period of probation specified in the letter of appointment, if the employee continues beyond the probation period, cannot be deemed to be confirmed. A probationer does not have a right over the post. His position therefore, is similar to a temporary employee. In other words, employee's service can be terminated on the basis of overall assessment of the performance by the employer. Page 8 of 43
It is further stand of the Corporation that with regard to performance of the Petitioner, the same being far from satisfactory, Show- Cause notices were issued to him previously. Also W.P.(C) No.8471 of 2019 was filed by one Sunil Kumar Mishra before this Court making some allegations against the Petitioner. However, the services of the Petitioner were brought to an end as per Clause 1 of the terms and conditions of the appointment order and not on the basis of allegations made by Sunil Kumar Mishra.
4. In response to the Counter Affidavit, a Rejoinder Affidavit has been filed by the Petitioner reiterating the stand taken in the Writ Petition. That apart, it has been pleaded in the Rejoinder that as per the advertisement the recruitment to the post was made in the regular scale of pay. There was no stipulation for appointment on probation or on contractual basis so far as the post of Manager-Procurement (Drugs & Surgical) is concerned.
The Petitioner was selected in a regular recruitment process. An order of appointment was issued in his favour vide Annexure-1. Though there was no such norm prescribed in the advertisement, while issuing the appointment letter it was indicated therein that during the period of probation of the Petitioner, his services can be terminated by the Appointing Authority on one month's notice or in lieu of, one month's Page 9 of 43 salary. It was further indicated therein that depending on satisfactory performance and conduct during the probation period, the continuance and regularization of the post will be decided. However, the Petitioner having no choice, had accepted the same and joined under the Opposite Party No.1. Reiterating the provisions under Rule 2 as well as Rule 10 of the Odisha State Medical Corporation Ltd. Employees' Service Rules, 2017, which has been annexed to the Rejoinder Affidavit as Annexure-5, it has been stated that as per Sub-Rule 2.1 of Rule 2 of the Service Rules, 2017, the same is applicable to all the employees appointed before the said Rules came into force. So far as Sub-Rule 2.1 in Rule 2, the same is applicable to the employees engaged for a limited tenure. Since the Petitioner was recruited by the Corporation through a recruitment process, Sub-Rule 2.1 in Rule 2 shall govern the service condition of the Petitioner, though he was recruited before the said Rules came into force.
As per Sub-Rule 10.1 in Rule 10 of the Service Rules, 2017, the period of probation of an employee should be for one year from the date of joining and in terms of Sub-Rule 10.2 in Rule 10, the period of probation can be extended for a further period of one year considering the ability, suitability and performance of the Petitioner and the employee concerned has to be intimated the reason for such extension. Sub-Rule 10.3 in Rule 10 of the Service Rules, 2017 specifies that on completion of the probation Page 10 of 43 period i.e. two years, and considering the ability, suitability and performance of the employee, the Appointing Authority shall regularize the service of the concerned employee by a written order. Though in the present case, the order of appointment was issued on 10.03.2017, on completion of one year probation period, no such order of extension of further period of one year was issued in favour of the Petitioner. However, on completion of two years probation period, a letter was issued under Annexure-2 extending the probation period for a further period of one year and the reason thereof has not been intimated to the Petitioner, which is clearly in contravention of the provisions enshrined under Sub-Rule 10.2 of Rule 10 of the Service Rules, 2017. Thus, the Petitioner's service is deemed to have been regularized as the service of the Petitioner was found to be satisfactory and suitable to hold the said post within the period of two years of probation as per Sub-Rule 10.2 in Rule 10 of the Service Rules, 2017. While the Petitioner was going to complete three years of probation, he got the letter of termination, as at Annexure-3 and the reason thereof has not been assigned in the said letter. Since after completion of the said probation period the Petitioner is deemed to be a regular employee of the Corporation, while taking any disciplinary action, the Authority concerned has to follow the procedure as per the Rules. The most important feature is to give reason for termination and before issuing an order of termination, Page 11 of 43 the principles of natural justice is to be followed, which was not done so far as the Petitioner is concerned. Hence, the order of termination is not sustainable and liable to be quashed.
It is further stated in the Rejoinder that the Service Rules, 2017 came into force on 22.09.2017. Applicability of the said Rule is having retrospective effect. Thus, Clause 1 of the order of appointment cannot override the said statutory Service Rules, 2017. Law is well settled that any Guideline/Notification, which is not in consonance with the statute, has no legal sanctity and cannot be applied. It has further been stated that the Corporation in its Counter has admitted as to applicability of the Service Rules, 2017 to all the employees recruited by the Corporation. Hence, Clause 1 contained in the order of appointment of the Petitioner has no force to be implemented as the same is in clear violation of Service Rules, 2017. Further, as required under Sub-Rule 10.2 in Rule 10 of the Service Rules, 2017, the reason for such extension was never communicated to the Petitioner. Thus, the presumption is that the Authorities have found that the conduct of the Petitioner is satisfactory and up to the standard required for the post. Under such circumstances, they cannot take a plea that applying Clause 1 of the order of appointment, the services of the Petitioner can be terminated by giving him one month's salary in lieu of the notice period. Page 12 of 43
It is further stand of the Petitioner that in view of Rule 10 of the Service Rules, 2017, the Authorities have no competency to extend the probation period after two years. It has further been stated in the Rejoinder Affidavit that the Corporation has admitted that the Authorities have taken into consideration the Writ Petition filed by one Sunil Kumar Mishra, but no show cause notice was issued before the order of termination was passed vide Annexure-3. It has been clarified that the case filed by Sunil Kumar Mishra is no way connected with the service of the Petitioner. However, with an oblique motive, Mr. Mishra made a complaint against the Petitioner, which was enquired into and the Inquiry Report was submitted on 29.07.2019 i.e. much after his termination. Thus, before the enquiry was conducted on the allegation of Sunil Kumar Mishra, which influenced the mind of the Authority for issuance of termination order, had the Opposite Party No.1 waited for the final outcome of the said enquiry, the decision could have been otherwise. To demonstrate such averment made in the Rejoinder, copy of the inquiry report has been annexed to the Rejoinder as Annexure-6. It has also been clarified in the Rejoinder that as per the said Inquiry Report, it was found by the Enquiring Officer that the allegation of Petitioner working in two Government Organizations to be incorrect, as he was relieved from the VIMSAR on 14.03.2017 and joined in the present post on 14.03.2017, though the letter was issued on Page 13 of 43 16.03.2017, it cannot be said that the Petitioner was working in two different organizations.
5. Ms. Mahapatra, learned Counsel for the Petitioner, drawing attention of this Court to the advertisement for recruitment dated 26.10.2016, as at Annexure-4, submitted that the said advertisement was made by the Corporation inviting online applications from eligible candidates for filling up the posts created for the Corporation. The post of Manager-Procurement (Drugs & Surgical) was a single post meant for unreserved category. Being selected by facing a due regular selection process in terms of the said advertisement, though there was no such mention in the advertisement that the Manager-Procurement (Drugs & Surgical) is to be appointed first on probation basis, the Petitioner was appointed as probationer. The Petitioner had no other way than to accept the same and report for duty. Rather, it was mentioned in the said advertisement that the selected candidates will be fitted in Pay Band-3 (Rs.15600-39100) with Grade Pay of Rs.5,400/- with further stipulation that the D.A. and other allowances will be paid as per Corporation norms and the recruitment to the said post shall be made in the regular scale of pay.
Ms. Mahapatra submitted that vide the advertisement dated 26.10.2016, it was advertised to fill up the posts like Accountant, Assistant Page 14 of 43 (HR & Admn.), Junior Assistant (MD's Secretariat) and few other posts initially on contractual basis. But, so far as the post of Manager- Procurement (Drugs & Surgical), there was no such mention in the said advertisement. Rather, it was clearly mentioned that the recruitment to the said post shall be made in the regular scale of pay under the heading "Scale of Pay". She further drew attention of this Court to Sub-Rule 2.1 in Rule 2 of the Service Rules, 2017, which came into force w.e.f. 22.09.2017. From the provisions under the said Rules, it is amply clear that the employees, who are on the Roll of the Corporation as on 22.09.2017, will be governed by the Service Rules, 2017. Relying on Sub-Rule 3.25 in Rule 3 of the Service Rules, 2017, which defines 'employee', she submitted that as per the said definition, an employee means any person under the employment of Odisha State Medical Corporation Ltd other than casual or contingent workers and includes a person on deputation to the Corporation whose salary is chargeable to the funds of the Corporation. Ms. Mahapatra further submitted that there is no dispute with regard to the applicability of the Service Rules, 2017 to the Petitioner. She further drew attention of this Court to Rule 10 of the Service Rules, 2017, which details as to how an employee is to be treated when directly recruited by the Corporation and submitted that in terms of the said Rule, an employee has to be on probation for one year from the date of joining, which may be extended for Page 15 of 43 a period of further one year at a time, considering his ability, suitability and performance. If it is so extended, the concerned employee has to be informed about the reason for such extension. On successful completion of probation period, the Appointing Authority shall regularize the employee concerned in the post he/she is holding by a written order.
Ms. Mohapatra submitted that in Paragraph 10 of the Counter Affidavit it has been stated that performance of the Petitioner was far from satisfactory and show cause notices were issued previously. Also one Sunil Kumar Mishra preferred W.P.(C) No.8471 of 2019 making allegations against the Petitioner. But to the said effect the Petitioner was never noticed either about his unsatisfactory performance or any show cause notice was issued by the Authority concerned, as has been falsely alleged in Paragraph 12 of the Counter Affidavit. Though it has been demonstrated in the Counter Affidavit that this is a case of termination simpliciter and the service of the Petitioner was brought to an end simply invoking the provisions in Clause 1 of the appointment letter dated 10.03.2017, but conduct of the Management well proves that such action was taken against the Petitioner as a punitive measure because of such allegation made by one Sunil Kumar Mishra, so also without issuing any show cause notice as to his poor performance or any kind of misconduct and it is not a case of termination simpliciter.
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Ms. Mahapatra further submitted that as per Rule 10 of the Service Rules, 2017, since there was no communication made to the Petitioner for extension of his probation period beyond completion of one year from the date of his joining and as such communication was made much after completion of two years of probation without indicating the reason thereof, the same being contrary to the provisions enshrined under Rule 10 of the Service Rules, 2017, deserves interference by this Court. It is submitted that a stand has been taken in Paragraph 9 of the Counter Affidavit that as per Order dated 29.06.2018 of the then Managing Director, the activities of the Petitioner were closely monitored for another six months instead of confirming him in the post as the individual performance of the Petitioner was far from satisfactory. Further, in Paragraph 12 of the Counter Affidavit, the same stand has been reiterated as to performance of the Petitioner so also alleged issuance of show cause notice to the Petitioner. But to substantiate such false stand, no documents have been appended to the Counter Affidavit. The pleadings made in Paragraphs 9 and 12 in the Counter Affidavit are not only false but also have been so pleaded intentionally to mislead this Court.
Ms. Mahapatra further submitted that law is well settled that where the appointment is made on probation for a specific period and the employee is allowed to continue in the post after expiry of probation period Page 17 of 43 without any specific order as to extension of probation period or confirmation, the probationer would be deemed to be confirmed in the said post, provided the Rules do not provide contrary to it. To substantiate her submission, so also claim of the Petitioner, Ms. Mahapatra relied on the judgments of the Apex Court in State of Punjab v. Dharam Singh, reported in AIR 1968 SC 1210, Om Parkash Maurya vs. U.P. Cooperative Sugar Factories Federation, Lucknow and others, reported in 1986 (Suppl.) SCC 95, State of Gujarat v. Akhilesh C. Bhargav and others, reported in (1987) 4 SCC 482, M.K. Agarwal v. Gurgaon Gramin Bank and others, reported in 1987 (Supp) SCC 643 and Wasim Beg v. State of U.P. and others, reported in (1998) 3 SCC 321.
6. Mr. Barik, learned Counsel for the Corporation, reiterating the stand taken in the Counter Affidavit, submitted that as the performance of the Petitioner was far from satisfactory, rightly the same was extended further. During the extended period of probation also when the performance of the Petitioner was found to be unsatisfactory, rightly the Petitioner's services were brought to an end in terms of Clause 1 of his letter of appointment by giving him one month's pay in lieu of the notice period. Further, a query being made by the Court, Mr. Barik fairly admitted that, as per the instruction received, there is no document to demonstrate before this Court as to any communication made to the Petitioner in writing Page 18 of 43 as to his poor performance. Mr. Barik also failed to apprise this Court any valid reason as to why no communication was made to the Petitioner to the said effect till completion of two years of probation period and thereafter also. He fairly admitted that though there was a stipulation in the appointment order dated 10.03.2017 of the Petitioner that he will be on probation for one year from the date of joining, which can be extended for a further period of one year or more as per the satisfaction of the Authority, even after completion of one year of probation period from the date of his joining, no further communication was made to the Petitioner extending the said period of probation beyond one year and also beyond two years from the date of such appointment. On being asked by this Court, Mr. Barik failed to explain as to the reason for not doing so by the Authority concerned though repeatedly it has been mentioned in various Paragraphs of the Counter Affidavit filed by the Corporation that the performance of the Petitioner during his probation period was far from satisfactory. However, Mr. Barik submitted that there is no infirmity in the impugned order vide which Petitioner's services were brought to an end in terms of Clause 1 of his appointment order. The Petitioner being a probationer has no right to ask for being absorbed in the said post automatically, as has been prayed in the Writ Petition. There being no merit in the Writ Petition, the same deserves to be dismissed in limine. To substantiate his Page 19 of 43 submission, Mr. Barik relied on the judgments of the Apex Court in G.S. Ramaswamy and others v. The Inspector-General of Police, Bangalore, reported in AIR 1966 SC 175, State of Uttar Pradesh v. Akbar Ali Khan, reported in AIR 1966 SC 1842, High Court of M.P. through Registrar v. Satya Narayan Jhavar, reported in (2001) 7 SCC 161, Registrar, High Court of Gujarat and another v. C.G. Sharma, reported in (2005) 1 SCC 132 and Kazia Mohammed Muzzammil v. State of Karnakata and another, reported in (2010) 8 SCC 155.
7. From the pleadings and documents on record, it is undisputed that an advertisement was issued on 26.10.2016 for recruitment to fill up various posts created by the Corporation and one of such posts was Manager-Procurement (Drugs & Surgical) and there being one such post, it was meant for unreserved category. The Petitioner, who was working in VIMSAR, being eligible for the said post, applied through online and got selected, so also appointed in the said post vide Order dated 10.03.2017. There was no such mention in the advertisement dated 26.10.2016 that the selected candidate for the post of Manager-Procurement (Drugs & Surgical) is to be first appointed as a probation. Rather, it was clearly mentioned in the advertisement that such post shall be made in the regular scale of pay. But in the letter of appointment dated 10.03.2017, it was indicated that the appointment of the Petitioner is purely temporary. He Page 20 of 43 will be on probation for one year, which can be extended for further period of one year or more as per the satisfaction of the authority. It has further been mentioned that during the period of probation the services of the Petitioner can be terminated by the Appointing Authority on giving one month's notice or payment in lieu of the said notice period. For ready reference, the relevant portions of the advertisement dated 26.10.2016, so far as the post of Manager-Procurement (Drugs and Surgical), so also Clause 1 of the letter of appointment dated 10.03.2017 of the Petitioner are extracted below:
"Advertisement for Recruitment No.2/OSMC/REC/HR/2016 Dated-26/10/2016 Odisha State Medical Corporation Ltd. (OSMC), Bhubaneswar invites online applications from eligible candidates for filling up the following posts created for the Corporation:
Sl. Name of the Post Total Nos. Reservation Pay Band & Grade of posts Category Pay No UR-1 Pay Band -3 with 1 Senior Manager - IT 1 Grade Pay of Rs.
6,600/-
Pay Band -3 with
Senior Manager- UR-1 Grade Pay of
2 Equipment 1
Rs. 6,600/-
Pay Band -3 with
Manager- UR-1 Grade Pay of Rs.
3 Procurement 1
5,400/-
(Equipment)
Pay Band -3with
Manager- UR-1 Grade Pay of Rs.
4 Procurement 1
5,400/-
(Drugs & Surgical)
Pay Band -2with
Asst.Manager- UR-1 Grade Pay of Rs.
5 Procurement 1
4,600/-
(Equipment)
Pay Band -2 with
Asst. Manager- UR-1 Grade Pay of Rs.
6 Procurement (Drugs 1
4,600/-
Page 21 of 43
& Surgical)
Pay Band -2 with
7 Accountant 1 UR-2(W-1) Grade Pay of Rs.
ST-1 4200/-
Pay Band -2 with
8 Assistant (HR & UR-1 (W-1) Grade Pay of Rs.
Admn.) 1
4200/-
UR-1(W-1) Pay Band -1 with
9 Jr. Assistant (MD's Grade Pay of Rs.
Secretariat) 1
1900/-
N.B. UR means unreserved. W means Women
Interested applicants should submit the online application forms which will be available in the website www.osmcl.nic.in from 27/10/2016 till 19/11/2016. Timely and correct filling up of the application forms and online submission are the sole responsibility of the candidates.
For details of the posts like scale of pay, eligibility criteria selection modalities, general instructions/ information, guideline for filling up of the online application form etc., the applicants may visit the OSMC website www.osmcl.in.
The earlier recruitment process for the posts indicated against Sl.3,4,5 and 6 floated in Advertisement No.1 OSMC/HR/2014, dated 15.12.2014 is hereby cancelled.
Sd/-
Managing Director Odisha State Medical Corporation"
"Manager-Procurement (Drugs and Surgical).
Nos. of post: 01- Unreserved (UR) Terms of Reference (Job Responsibility) :
S/he will be responsible for --
• Preparation of procurement plan for OSMC.
• Preparation of Standard Bidding Documents.
• Managing the tendering processes.
• Bid evaluation, award of contract and post - contract
management.
• Any other work as will be assigned by appropriate authority.
Page 22 of 43
Eligibility criteria: Bachelor in Pharmacy (with minimum 60% marks) with 3 years of post - qualification experience in procurement of drugs and surgical / healthcare commodities.
However relaxation of 10% marks will be given for SC/ST category candidates.
Age limit : The maximum age limit for the post is 40 years as on the last date for submission of application form i.e. 19/11/12016. However relaxation of age up to 10 years for PWD candidates, 5 years for SC/ST/SEBC/Women candidates shall be allowed. Relaxation of age in case of ex-service men will be made as per Government norm.
All other mandatory general eligibility conditions as laid down in the "General instructions / Information" shall be applicable. Scale of Pay: Pay Band - 3 (Rs. 15600-39100) with Grade Pay of Rs.5400/-. DA and other allowances will be paid as per Corporation norms. Recruitment to this post shall be made in the regular scale of pay."
Extract from the letter of appointment dated 10.03.2017 "Odisha State Medical Corporation Ltd. is pleased to offer you the post of Manager-Procurement (Drugs & Surgical) in the Corporation on the following terms and conditions.
1. The appointment is purely temporary. You will be on probation for one year from the date of joining. The probation period can be extended a further period of one year or more as per satisfaction of authority. During the period of probation, your services can be terminated by the Appointing Authority on payment of one month's notice or in lieu of the same with one month's salary. Depending on satisfactory performance and conduct during the probation period, your continuance and regularization in the post will be decided. The probation period will be counted towards normal annual increment, leave and seniority. On successful completion of probation, you will be confirmed in the concerned post."
(Emphasis supplied) Page 23 of 43
8. It is the admitted case of the Parties that immediately after appointment of the Petitioner, the Odisha State Medical Corporation Ltd. Employees' Service Rules, 2017 came into force w.e.f. 22.09.2017. In terms of Sub-Rule 2.1 of Rule 2 of the Service Rules, 2017, the same is applicable to the Petitioner, he being an employee of the Corporation as on the said date i.e. 22.09.2017 and not being a casual or contingent worker. Rather, he was appointed as such pursuant to an advertisement dated 26.10.2016 against posts created for the Corporation. As it is not disputed as to applicability of such Service Rules, 2017 to the Petitioner and it has not been disputed by the Corporation in its Counter Affidavit as to non- applicability of Rule 10 of the Service Rules, 2017 to the Petitioner, this Court is of the view that the said Service Rules, 2017, including Rule 10, which deals with probation and confirmation of an employee of the Corporation, is applicable to the case of present Petitioner.
9. Rule 2, Sub-Rule 3.25 of Rule 3, and Rule 10 of the Service Rules, 2017, which are germane to the present lis, are extracted below for ready reference.
"2. APPLICATION OF THIS RULE This Rule shall apply to 2.1 All employees recruited by the Corporation.
2.2 Consultants, person engaged for a limited tenure / purpose shall be governed by the terms and conditions of their appointment order.Page 24 of 43
The Board of Director reserves the power and authority to change or amend these Rules as they may deem fit and proper.
The interpretation of these Rules by the Board of Director shall be final and binding."
"3.25' Employee' means any person under the employment of Odisha State Medical Corporation Ltd. other than "casual or contingent" workers and includes a person on deputation to the Corporation whose salary is chargeable to the funds of the Corporation."
"10. PROBATION AND CONFIRMATION 10.1 All the employees directly recruited by the Corporation shall be on probation for one year from the date of joining. 10.2 The appointing authority may extend the period of probation "for a further period of one year" at a time considering the ability, suitability and performance of the officer and inform the employee concerned the reason for such extension.
10.3 The appointing authority shall regularize the employee concerned in the post on successful completion of probation period on the basis of his ability, suitability and performances "by a written order".
10.4 If during the period of probation or extended period thereof, the performance, progress and conduct of the probationer is not found satisfactory or up to the standard required for the post, the probation shall be cancelled and he shall be terminated from service by giving him one month's gross salary or one month's salary in lieu thereof.
10.5 The probation period will be counted towards normal increment, leave and seniority."
(Emphasis supplied)
10. It is also admitted fact from the pleadings and documents on record that neither in terms of Clause 1 of the letter of appointment dated 10.03.2017 nor in terms of Sub-Rule 10.2 in Rule 10 of the Service Rules, 2017, the period of probation of the Petitioner was extended beyond one Page 25 of 43 year, i.e. after 13.03.2018, or even thereafter also. Rather, only after completion of two years, the probation period of the Petitioner was extended for a period of one year w.e.f. 14.03.2019 vide Office Order dated 12.03.2019, as at Annexure-2. No reason was also indicated vide such office order for doing so, in terms of the relevant rules, as has been extracted above.
11. It is also admitted case of the Corporation that the Service Rules, 2017 came into force w.e.f. 22.09.2017 and was made applicable to all the employees recruited by the Corporation. Sub-Rule 3.8 in Rule 3 of the Service Rules, 2017 defines "Probationer" means a person who is provisionally employed on probation for a specific period with a view to being considered for regular employment in the establishment of the Corporation subject to satisfactory performance during probation period. Sub-Rule 10.1 in Rule 10 mandates that all the employees directly recruited by the Corporation shall be on probation for one year from the date of joining. Sub-Rule 10.2 permits the Appointing Authority to extend the period of probation for a further period of one year at a time considering the ability, suitability and performance of the employee and inform the employee concerned the reason for such extension and Sub-Rule 10.3 prescribes as to regularization of service of an employee so appointed in Page 26 of 43 the concerned post on successful completion of the probation period on the basis of his ability, suitability and performance by a written order.
12. Admittedly, as revealed from the pleadings made by the Parties, so also documents appended thereto, neither the period of probation of the Petitioner was extended on completion of one year probation period w.e.f. 14.03.2018 in terms of Sub-Rule 10.2 nor even any communication was made to the Petitioner to the said effect. When it was so extended only on 12.03.2019 i.e. after two years from the date of his appointment as a probationer, no reason was intimated to the Petitioner justifying such extension in terms of Sub-Rule 10.2 in Rule 10 of the Service Rules, 2017. Law is well settled that any guideline, notification or service condition imposed by the employer, which is not in consonance with the statute, has no legal sanctity and cannot be applied. Admittedly, the terms of employment imposed vide Clause 1 of the letter of appointment dated 10.03.2017 were never stipulated in the advertisement dated 26.10.2016. Hence, this Court is of the view that the said Clause being contrary to the terms of employment as detailed vide Rule 10 of the Service Rules, 2017, which has already been reproduced above, should not have been given effect to bring an end the services of the Petitioner after Service Rules, 2017 came into force w.e.f. 22.09.2017.
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13. As relied upon by the learned Counsel for the Petitioner, the apex Court, in State of Punjab (supra), vide Paragraphs 8 and 9 observed as follows:
"8. The initial period of probation of the respondents ended on October 1, 1958. By allowing the respondents to continue in their posts thereafter without any express order of confirmation, the competent authority must be taken to have extended the period of probation up to October 1, 1960 by implication. But under the proviso to R. 6 (3), the probationary period could not extend beyond October 1, 1960. In view of the proviso to R. 6 (3), it is not possible to presume that the competent authority extended the probationary period after October 1, 1960, or that thereafter the respondents continued to hold their posts as probationers.
9. Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct during the period of probation was in the opinion of the authority unsatisfactory. Instead of dispensing with their services on completion of the extended period of probation, the authority continued them in their posts until sometime in 1963, and allowed them to draw annual increments of salary including the increment which fell due on October 1, 1962. The rules did not require them to pass any test or to fulfill any other condition before confirmation. There was no compelling reason for dispensing with their services and re-employing them as temporary employees on October 1, 1960 and the High Court rightly refused to draw the inference that they were so discharged from services and reemployed. In these circumstances, the High Court rightly held that the respondents must be deemed to have been confirmed in their posts. Though the appointing authority did not pass formal orders of confirmation in writing, it should be presumed to have passed orders of confirmation by so allowing them to continue in their posts after October 1, 1960. After such confirmation, the authority had no power to dispense with their services under Rule 6 (3) on the ground that their work or conduct during the period of probation was unsatisfactory. It follows that on the dates of the impugned orders, the respondents had the right to hold their posts. The impugned orders deprived them of this right and amounted to removal from service by way of punishment. The removal from service could not be made without following the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, Page 28 of 43 1952 and without conforming to the constitutional requirements of Article 311 of the Constitution. As the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 was not followed and as the constitutional protection of Article 311 was violated, the impugned orders were rightly set aside by the High Court."
(Emphasis supplied) In Om Prakash Maurya (supra), in Paragraph-5, the apex Court held as follows:
"5. Learned counsel appearing for the U.P. Cooperative Sugar Factories Federation urged that the U.P. Cooperative Societies Employees Service Regulations, 1975 do not apply to the appellant as he was an employee of the U.P. Cooperative Sugar Factories Federation, as the condition of service of the appellant and other employees of the U.P. Cooperative Sugar Factories Federation are regulated by the U.P. Cooperative Sugar Factories Federation Service Rules, 1976 framed by Cane Commissioner in exercise of his powers under sub-section (1) of Section 121 of the Act published in the U.P. Gazette dated September 4, 1976. Rule 3 of the U.P. Cooperative Sugar Factories Federation Service Rules, 1976 (hereinafter referred to as the Federation Service Rules) provides that these rules shall apply to all the employees of the federation. Rule 5 provides that every employee shall be appointed on probation for such period as the appointing authority may specify and the period of probation may be extended by the appointing authority from time to time; the rule does not prescribe any limit on the extension of the probationary period. Rule 6 provides that upon satisfactory completion of probationary period an employee shall be eligible for confirmation. Placing reliance on Rule 5 learned counsel for the respondents urged that since there was no order of confirmation the appellant's probationary period stood extended, therefore, he could be reverted at any time to his substantive post. It is true that Rule 5 of the Federation Service Rules does not place any restriction on the appointing authority's power to extend the probationary period, it may extend the probationary period for an unlimited period and in the absence of confirmation order the employee shall continue to be on probation for indefinite period. It is well settled that where appointment on promotion is made on probation for a specific period and the employee is allowed to continue in the post after expiry of the probationary period without any specific order of confirmation he would be deemed to continue on probation provided the rules do not provide contrary to it. If Rule 5 applies to the appellant he could not require the status of a confirmed employee in the post of Page 29 of 43 Commercial Officer and he could legally be reverted to his substantive post."
(Emphasis supplied) In State of Gujarat (supra), the apex Court in Paragraphs 6, 7 and 8 has held as follows:
"6. While the Probation Rules prescribed an initial period of two years of probation it did not provide any optimum period of probation. Administrative instructions were issued by the Ministry of Home Affairs, Government of India, on March 16, 1973, indicating the guidelines to be follows in the matter. The relevant portion thereof may be extracted:
(ii) It is not desirable that a member of the service should be kept on probation for years as happens occasionally at present. Save for exceptional reasons, the period of probation should not, therefore, be extended by more than one year and no member of the service should, by convention, be kept on probation for more than double the normal period i.e. four years. Accordingly, a probationer, who does not complete the probationers' final examination within a period of four years, should ordinarily be discharged from the service.
7. It is not disputed that the circular of the Home Ministry was with reference to the Indian Police Service (Probation) Rules. We have not been shown that these instructions run counter to the rules. It is well settled that within the limits of executive powers under the constitutional scheme, it is open to the appropriate government to issue instructions to cover the gap where there be any vacuum or lacuna. Since instructions do not run counter to the rules in existence, the validity of the instructions cannot be disputed. Reliance has been placed in the courts below on the constitution Bench Judgment of this Court, and which is reported in Sant Ram Sharma v. State of Rajasthan, (1968) 1 SCR 111 : AIR 1967 SC 1910, where Ramaswami, J. speaking for the court stated thus :
We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection Page 30 of 43 grade posts. It is true 'that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
8. We are of the view that the rules read with instructions create a situation as arose for consideration by this Court in the case of State of Punjab v. Dharam Single. The Constitution Bench of this Court in that case interpreted the Punjab Education Service (Provincialised Cadre) Class III Rules and found that there was a maximum limit of three years beyond which the period of probation could not be extended. When an officer appointed initially on probation was found to be continuing in service beyond three years without a written order of confirmation, this Court held that it tantamounts to confirmation. In view of what we have stated above we are in agreement with the High Court about the combined effect of the rules and instructions. We hold that the respondent stood confirmed in the cadre on the relevant date when he was discharged. For a confirmed office in the cadre, the Probation Rules did not apply and therefore, proceedings in accordance with law, were necessary to terminate service. That exactly was the ratio of the decision in Moti Ram Deka v. General Manager, N.E.F. Railways, Maligaon, Pandu, (1964) 5 SCR 683 : AIR 1964 SC 600. On the analysis indicated above, the net result, therefore, is that respondent 1 had become a confirmed officer of the Gujarat I.P.S. cadre and under Rule 12 (bb) of the Probation Rules his services could not be brought to an end by the impugned order of discharge."
(Emphasis supplied) In M.K. Agarwal (supra), the apex Court in Paragraph-8 held as follows:
"8. The first point need not detain us. The period of the probation was one year, in the first instance. The employer could extend it only for a further period of six more months. The limitation on the power of the employer to extend the probation beyond 18 months coupled with the further requirement that at the end of it the services of the probationer should either be confirmed or discharged render the inference inescapable that if the probationer was not discharged at or before the expiry of the maximum period of probation, then there would be an implied confirmation as there was no statutory indication as to what should follow in the absence of express confirmation at the end Page 31 of 43 of even the maximum permissible period of probation. In cases where, as here, these conditions coalesce, it has been held, there would be confirmation by implication."
In Washim Beg (supra), in Paragraph-15, the apex Court held as follows:
"15. Whether an employee at the end of the probationary period automatically gets confirmation in the post or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary, will depend upon the provisions in the relevant Service Rules relating to probation and confirmation. There are broadly two sets of authorities of this Court dealing with this question. In those cases where the Rules provide for a maximum period of probation beyond which probation cannot be extended, this Court has held that at the end of the maximum probationary period there will be a deemed confirmation of the employee unless Rules provide to the contrary. This is the line of cases starting with State of Punjab v. Dharam Singh, M.K. Agarwal v. Gurgaon Gramin Bank, Om Prakash Maurya v. U.P. Coop. Sugar Factories Federation, State of Gujarat v. Akhilesh C. Bhargav."
(Emphasis supplied)
14. As cited by learned Counsel for the Opposite Party No.1- Corporation, in G.S. Ramaswamy (supra), in Paragraph-8, the Constitution Bench of apex Court held as follows:
"8. It has further been urged on the basis of R.486 that as the petitioners had worked for more than two years on probation, they became automatically confirmed under the said Rule, and reliance is placed on the following sentence in R. 486, namely, "promoted officers will be confirmed at the end of their probationary period if they have given satisfaction." The law on the question has been settled by this Court in Sukhbans Singh v. State of Punjab, AIR 1962 SC 1711. It has been held in that case that a probationer cannot after the expiry of the probationary period, automatically acquire the status of a permanent member of a service, unless of course the rules under which he is appointed expressly provide for such a result. Therefore even though a probationer may have continued to act in the post to which he is appointed on probation for more than the initial period of probation, he cannot become a permanent servant merely because of efflux of Page 32 of 43 time, unless the Rules of service which govern him specifically lay down that the probationer will be automatically confirmed after the initial period of probation is over. It is contended on behalf of the petitioners before us that the part of R. 486 (which we have set out above) expressly provides for automatic confirmation after the period of probation is over. We are of opinion that there is no force in this contention. It is true that the words used in the sentence set out above are not that promoted officers will be eligible or qualified for promotion at the end of their probationary period which are the words to be often found in the Rules in such cases; even so, though this part of R. 486 says that "promoted officers will be confirmed at the end of their probationary period", it is qualified by the words "if they have given satisfaction". Clearly therefore the Rule does not contemplate automatic confirmation after the probationary period of two years, for a promoted officer can only be confirmed under this Rule if he has given satisfaction. This condition of giving satisfaction must be fulfilled before a promoted officer can be confirmed under this rule and this condition obviously means that the authority competent to confirm him must pass an order to the effect that the probationary officer has given satisfaction and is, therefore, confirmed. The petitioners, therefore, cannot claim that they must be treated as confirmed circle inspectors simply because they have worked for more than two years on probation; they can only become confirmed circle inspectors if an order to that effect has been passed even under this rule by the competent authority. The first contention, therefore, that the petitioners before us have an indefeasible right to promotion once their names are put in the eligibility list and that they are entitled to continue as circle inspectors thereafter if they have once been promoted, on temporary or officiating basis, cannot be sustained."
(Emphasis supplied) In State of U.P. (supra), in Paragraph-6, the apex Court held as follows:
"6. The scheme of the rules is clear : confirmation in the post which a probationer is holding does not result merely from the expiry of the period of probation, and so long as the order of confirmation is not made, the holder of the post remains a probationer. It has been held by this Court that when a first appointment or promotion is made on probation for a specified period and the employee is allowed to continue in the post, after the expiry of the said period without any specific order of confirmation he continues as a probationer only and acquires no substantive right to hold the post. If the order of appointment itself states that at the end of the period of probation the appointee will stand confirmed in the absence of Page 33 of 43 any order to the contrary, the appointee will acquire a substantive right to the post even without an order of confirmation. In all other cases, in the absence of such an order or in the absence of such a service rule, an express order of confirmation is necessary to give him such a right. Where after the period of probation an appointee is allowed to continue in the post without an order of confirmation, the only possible view to take is that by implication the period of probation has been extended, and it is not a correct proposition to state that an appointee should be deemed to be confirmed from the mere fact that he is allowed to continue after the end of the period of probation. See Chief Conservator of Forests, U. P. Nainital v. D. A. Lyall, C. A. No. 259 of 1963, dated 24-2-1965 (SC); Sukhbans Singh v. State of Punjab, AIR 1962 SC 1711 and Accountant General, Madhya Pradesh, Gwalior v. Beniprasad Bhatnagar, C.A. No. 548 of 1962, dated 23-1-1964 (SC)"
In High Court of M.P. through Registrar (supra), the apex Court in Paragraph-11 held as follows:
"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 if 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 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 requisites test, he cannot be deemed to have been confirmed merely because the said period has expired."
(Emphasis supplied) Page 34 of 43 In Registrar, High Court of Gujarat (supra), in Paragraph-26, the apex Court observed as follows:
"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 v. Veerappa R. Saboji 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 matter of right because in terms of the Rules, work has to be satisfactory which is a prerequisite or precondition 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 is 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 argument advanced by learned counsel for the respondent on this aspect has no merits and no leg 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."
(Emphasis supplied) In Kazia Mohammed Muzzammil (supra), in Paragraphs 46, 47 and 48, the apex Court held as follows:
"46. On a clear analysis of the above enunciated law, particularly, the seven-Judge Bench judgment of this Court in Samsher Singh and the three-Judge Bench judgments, which are certainly the larger Benches Page 35 of 43 and are binding on us, the courts have taken the view with reference to the facts and relevant rules involved in those cases that the principle of "automatic" or "deemed confirmation" would not be attracted. The pith and substance of the stated principles of law is that it will be the facts and the rules, which will have to be examined by the courts as a condition precedent to the application of the dictum stated in any of the line of cases afore noticed.
47. There can be cases where the rules require a definite act on the part of the employer before an officer on probation can be confirmed. In other words, there may a rule or regulation requiring the competent authority to examine the suitability of the probationer and then upon recording its satisfaction issue an order of confirmation. Where the rules are of this nature the question of automatic confirmation would not even arise. Of course, every authority is expected to act properly and expeditiously. It cannot and ought not to keep issuance of such order in abeyance without any reason or justification. While there could be some other cases where the rules do not contemplate issuance of such a specific order in writing but merely require that there will not be any automatic confirmation or some acts, other than issuance of specific orders, are required to be performed by the parties, even in those cases it is difficult to attract the application of this doctrine.
48. However, there will be cases where not only such specific rules, as noticed above, are absent but the rules specifically prohibit extension of the period of probation or even specifically provide that upon expiry of that period he shall attain the status of a temporary or a confirmed employee. In such cases, again, two situations would rise: one, that he would attain the status of an employee being eligible for confirmation and second, that actually he will attain the status of a confirmed employee. The courts have repeatedly held that it may not be possible to prescribe a straitjacket formula of universal implementation for all cases involving such questions. It will always depend upon the facts of a case and the relevant rules applicable to that service."
(Emphasis supplied)
15. From the pleadings on record so also submissions made by the learned Counsel for the Parties, this Court comes to the following irresistible conclusions.
Page 36 of 43 15.1 The post of Manager-Procurement (Drugs and Surgical) is a single unreserved post and advertisement was made to fill up the said post along with other posts.
15.2. There was no such mention in the advertisement that the person who will be selected for appointment in the post of Manager-Procurement (Drugs and Surgical) shall be appointed on probation basis first and on successful completion of the probation period, the candidate will be permanently absorbed as per the offer of appointment dated 10.03.2017. 15.3 Though it was mentioned that the Petitioner will be on probation for one year from the date of his joining and the same can be extended for a further period of one year or more as per satisfaction of the authority, there was no communication by the Authority concerned for extension of probation period further beyond one year from the date of joining. Rather, after completion of two years, a communication was made vide Office Order dated 12.03.2019 extending the probation period of the Petitioner for a further period of one year without indicating therein the reasons for doing so.
15.4. Till completion of two years or more, it was never communicated to the Petitioner till 25.07.2019 as to extension of his probation period on the ground of unsatisfactory performance.
Page 37 of 43 15.5. Even in the Office Order dated 25.07.2019, which is impugned in the present Writ Petition, there is no mention as to termination of services of the Petitioner during the extended period of probation of further one year i.e. on the 3rd year on the ground of unsatisfactory performance. 15.6. After Service Rules, 2017 came into effect from 22.09.2017, the same became applicable to all the employees recruited by the Corporation, including the present Petitioner, who were already on the roll of the Corporation as on the said date in terms of Rule 2.1 read with Rule 3.25 of the said Rules,2017.
15.7. As per Rule 3.8 of the Service Rules, 2017, Probationer means a person, who is provisionally employed on probation for a specific period with a view to being considered for regular employment in the establishment of the Corporation subject to satisfactory performance during probation period.
15.8. As per Rule 10.1 of the said Rules, 2017, all the employees directly recruited by the Corporation shall be on probation for one year from the date of joining.
15.9. As per Rule 10.2 of the said Rules, 2017 the appointing authority may extend the period of probation for a further period of one year at a time considering the ability, suitability and performance of the officer and inform the employee concerned the reason for such extension. Page 38 of 43 15.10. As per Rule 10.3, the appointing authority shall regularize the employee concerned in the post on successful completion of the probation period on the basis of his ability, suitability and performance by a written order.
15.11. Though Rule 10.2 of the Rules, 2017 mandates to inform the employee concerned the reason for such extension by extending the period of probation for a further period of one year, till conclusion of two years of probation and thereafter also, till issuance of the impugned Office Order dated 25.07.2019, no communication was made to the Petitioner indicating therein the reason for such extension.
15.12. No reason was assigned in the Office Order dated 12.03.2019, while extending the period of probation of the Petitioner for a further period of one year on 12.03.2019 i.e. after completion of two years of probation period of the Petitioner.
15.13. The said Office Order for extension of probation period of the Petitioner for a further period of one year was issued after completion of two years of probation period from the date of first engagement of the Petitioner as a probationer.
15.14. The conduct of the Opposite Party No.1-Management well proves that such action to bring to end services of the Petitioner has been taken as a punitive measure in the guise of invoking the terms of engagement detailed Page 39 of 43 in the offer of appointment dated 10.03.2017, though the clause in the letter of appointment became inapplicable after the Service Rules, 2017 came into effect immediately thereafter.
15.15. In the order of termination dated 25.07.2019 also, it has been indicated that same was so done because of the unsatisfactory performance of the Petitioner during his period of probation.
15.16. Though a stand has been taken in the Counter Affidavit that the performance of the Petitioner was unsatisfactory, no document has been filed before this Court to demonstrate that the performance of the Petitioner as a probationer was unsatisfactory.
15.17. The Petitioner was asked for an explanation regarding discrepancy in the experience certificate and over lapping in the period of service. In response thereto the Petitioner gave a detailed explanation on 16.04.2019 clearly explaining about the alleged discrepancy and over lapping period of service. Thereafter no disciplinary proceeding was initiated against the Petitioner for the alleged discrepancy/misconduct and thereafter also till the impugned Office Order dated 25.07.2019 was issued terminating the services of the Petitioner invoking Clause 1 of the appointment letter dated 10.03.2017, though the Petitioner was governed by Rule 3 of the Service Rules, 2017 as on the date of issuance of the said Office Order dated 25.07.2019.
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16. Admittedly, vide letter of appointment dated 10.03.2017, the Petitioner was offered the post of Manager-Procurement (Drugs & Surgical) in the Corporation with an assurance that depending on satisfactory performance and conduct during the probation period, his continuance and regularization in the said post will be decided. It was further assured that on successful completion of probation period, he will be confirmed in the concerned post and the probation period will be counted towards normal annual increment, leave and seniority. The Corporation took a stand in the Counter as to unsatisfactory performance of the Petitioner during probation period but failed to demonstrate before this Court by producing any documentary evidence to substantiate the said stand. Rather, it was admitted that no such communication was made to the Petitioner in terms of Rule10 (2) of the Rules, 2017, while extending the probation period after two years from the date of his appointment. As no communication was made to the Petitioner either after completion of one year of service from the date of joining and thereafter also till 25.07.2019 i.e. the date of termination of his service and in the said letter also it has not been indicated that it was so done because of his unsatisfactory performance, his case deserves to be considered for the purpose of permanent absorption/regularization in the said post of Manager-Procurement (Drugs and Surgical) by issuing a written order to the said effect in terms of Rule 10.3 of the Service Rules, 2017. Page 41 of 43
17. In view of the above conclusions so also the Service Rules, 2017 of the Corporation and the settled position of law as detailed above, this Court is of the view that the action of the Corporation issuing the impugned Order of termination dated 25.07.2019 invoking Clause 1 of the appointment letter dated 10.03.2017 is illegal, unjustified, contrary to the Service Rules of the Corporation and deserves to be set aside. Accordingly, the Office Order dated 25.07.2019, as at Annexure-3, is hereby set aside.
18. Accordingly, the Opposite Party No.1-Corporation is directed to reinstate the Petitioner in the post of Manager-Procurement (Drugs and Surgical) and issue office order to regularize his service in terms of Rule 10.3 of the Service Rules, 2017 on notional basis with effect from the date of completion of two years of service in the post of Manager-Procurement (Drugs and Surgical), as there is no such provision under Rules, 2017 to extend the probation period beyond 2 years and before and after completion of the said probation period of two years and thereafter also no communication was made to the Petitioner as to his unsatisfactory performance, as has been detailed above.
It is further directed that on regularization of the service of the Petitioner in the Corporation, the probation period of the Petitioner shall be counted towards normal increment, leave and seniority in terms of Rule 10.5 of the said Rules, 2017 so also in terms of assurance given vide letter of Page 42 of 43 appointment dated 10.03.2017. The period for which the Petitioner was forced to remain unemployed/out of employment, shall also be counted towards his seniority and increment to be paid in terms of Rule 12 of the said Rules, 2017. Petitioner's pay on permanent absorption/regularization shall be fixed and paid accordingly.
19. Because of the illegality and irregularity committed by the Corporation, as detailed above, for which the Petitioner was being compelled to venture into unnecessary litigation and harassment, a cost of Rs. 20,000/- (Rupees twenty thousand) is awarded to compensate the hardship caused to the Petitioner, to be paid by the Corporation.
20. The entire exercise, as directed above, shall be completed within a period of four weeks from the date of communication/production of certified copy of this Judgment.
21. Accordingly, the Writ Petition is allowed and stands disposed of.
(S.K. MISHRA)
JUDGE
Signature Not Verified
Digitally Signed Orissa High Court, Cuttack
Signed by: PADMA CHARAN Dated,
DASH the 5th October, 2023/PCD
Designation: Personal Assistant
Reason: Authentication
Location: orissa high court cuttack
Date: 06-Oct-2023 12:50:47
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