Andhra HC (Pre-Telangana)
G.S. Usha vs Life Insurance Corpn. Of India And Ors. on 7 November, 2000
Equivalent citations: 2001(1)ALT190
ORDER B.S.A. Swamy, J.
1. The petitioner, who has been working as an Assistant Divisional Manager in the respondent-Life Insurance Corporation of India, filed this writ petition questioning the office order, dated 29-6-1999, of the first respondent - Life Insurance Corporation of India - reverting her to the post of Administrative Officer from the post of Assistant Divisional Manager under Regulation 16(2) of the Life Insurance Corporation of India (Staff) Regulations, 1960 (for short "the Regulations") on the ground that she did not complete the probation period of one year satisfactorily even after extending her period of probation by one more year as contemplated under Regulation 16(1) of the Regulations, and the consequential order issued by the fourth respondent - the Senior Divisional Manager, Divisional Office, LIC of India, Secunderabad - giving effect to the order of the first respondent and posting her as Administrative Officer in Hyderabad Divisional Office, as illegal, arbitrary and discriminatory.
2. On 24-10-2000, having seen the confidential reports of the officer and having felt that it was a fit case for the Executive Committee to consider the case for regularisation of service, in exercise of the power under Regulation 86 of the Regulations, as she worked for more than one year from 30-6-1997 to 30-6-1999 after excluding the leave availed by her and also keeping in view her personal difficulties in availing the leave and her performance in the Corporation from the time of her employment, this Court called for the reply of the respondents. The respondents have now filed an affidavit agreeing to consider the proposal which reads:
"I submit that out of deference to the observations of the Hon'ble Judge and in response to the order dated 24-10-2000, the respondents herein are agreeable to put up the petitioner's case to the Board of the Corporation, which is the highest body in the Corporation for consideration as a special case."
3. I hope and trust that the Board will consider the case of the petitioner from its proper perspective keeping in mind the observations that are being made hereunder.
4. I have seen the characteristic role of the petitioner. She joined as Assistant Administrative Officer in the respondents-. Corporation on 1-7-1986 and she was promoted as ADM by order, dated 30-6-1997, and she was kept on probation for a period of one year. While promoting her to the said post, she was transferred and posted in Finance and Accounts Department, Southern Zonal Office, Chennai and she reported to duty immediately thereafter. Subsequently, she availed of privilege leave for 7 days in October and Special leave for 8 days in December 1997 that can be availed by any transferred officer. Once again she went on privilege leave from 5-5-1998 to 28-6-1998 due to her son's illness who was operated on 12-5-1998. She also went on sick leave from 29-6-1998 to 26-2-1999 due to spondilitis and Lumbago and thereafter for a fracture in the right ankle lower end. Ultimately, she reported to duty on 27-2-1999. As she could not complete the probation period for one year, the same was extended by the Corporation by order, dated 13-2-1999, retrospectively from 30-6-1998 onwards. While she was working at Madras, she was transferred to Secunderabad Divisional Office at her request on 30-5-1999. On 29-6-1999, the first respondent passed the impugned order reverting her to the post of Administrative Officer on the ground that she did not complete the probation period for one year even in the extended period of probation and as the rules do not permit for further extension, the impugned order was passed.
5. It is useful to extract Regulation 16 of the Regulations, which reads:
"16(1) An employee promoted to a higher post shall be treated as on probation in the higher post for period of one year in the case of promotions to posts belonging to Classes I and II and 6 months in other cases. Provided, however that the competent authority may in its discretion extend the period of probation, but in no case shall the total period of probation exceed-
a) in the case of promotions to posts belonging to Classes I and II ............... 2 years
b) in other cases......... 1 year
2) An employee on probation shall be liable to be reverted without notice at any time.
3) During the period of probation an employee retains his lien on his lower post and the period shall count as permanent service for all purposes."
6. From this, it is seen that within a period of 2 years, the petitioner who happens to be an Assistant Divisional Manager, who is treated as Class I Officer has to put in one year of service in the higher post to which she was promoted. It is pertinent to note that the Regulation does not stipulate that she should work for a continuous period of one year within a period of two years. In other words, it is suffice to state that she had completed one year period within a period of two years and her case has to be considered either for confirmation or for reversion on the basis of her performance. From the facts of the case, it is seen that between 1-7-1997 the day on which she reported in promotional post, till 5-5-1998, the petitioner availed privilege leave in two spells i.e., 3-10-1997 to 9-10-1997 and 21-3-1998 to 4-4-1998 and special leave, which a transferred employee is eligible to avail, from 22-12-1997 to 30-12-1997. The Counsel for Corporation admits that special leave shall be treated as duty period but not privilege leave. When the Court questioned him on what basis the said submission was made, the answer was that by practice the Corporation was not considering the period in which an employee is on privilege leave during probation as duty. As far as approved probationers are concerned, he admits that the period on which an employee is on privilege leave, that period is being treated as duty. The stand of the Corporation is inconsistent as the privilege leave is one earned by the employee for the actual service rendered in the Corporation after excluding the period of leave of any kind except casual leave and quarantine leave and the leave can be accumulated only for a period of 180 days in the total length of service put in by an employee at the rate of 1/11 part of the duty. As the privilege leave is one i.e., earned by the employee for the duty spent in the organisation, no distinction can be made between the Probationer and Approved Probationer in counting the privilege leave as duty. Hence, I find that there is no substance in the argument of the Corporation. Even assuming for argument sake that the contention of the respondent can be given some credence, admittedly, from 1-7-1997 till 5-5-1998 i.e., in a span of eleven months, she availed six days privilege leave on the first occasion and 15 days privilege leave on the second occasion. These privilege leaves availed by the employee being nominal, the respondent-Corporation cannot refuse to treat the same as duty and assess her performance as per the Rules at the end of every half-year. Viewed from that angle from 1-7-1997 to 5-5-1998, the petitioner worked for eleven months. After availing leave for a long time, she reported to duty on 27-2-1999 and she was continuously working up to 10-7-1999, the day on which the order dated 29-6-1999 reverting the petitioner to the post of Administrative Officer is received. From this, it is seen that she has worked for about 5 months before she was reverted from the promotional post. In all she worked for about 16 months. From this, it is seen that the petitioner worked for more than one year in the post to which she was promoted, before expiry of the extended period of probation. Hence, the respondents cannot contend that she had not worked for one year in the higher post. From the confidential reports, it is seen that for the half of year from 30-6-1997 to 29-12-1997 she was rated as good. During the period from 30-12-1997 to 29-6-1998 as she was on leave, the officer concerned recommended for extension of period of probation. But keeping her performance in mind, the Zonal Manager in his note, dated 2-9-1998, observed that the petitioner deserves to be confirmed perhaps keeping in mind her work. During the second half of the year i.e., 30-6-1998 to 29-12-1998, also she was also on leave and there was no possibility of assessing her performance. For the next half year i.e., 30-12-1998 to 15-5-1999, the date on which she was transferred to Secunderabad Division, the Zonal Officer in his appraisal observed:
"did not do much work. No point in giving rating."
7. At the same time, the Officer keeping in mind her past record made the following recommendation for confirmation:
"may be considered for confirmation on the basis of her performance in the pre-promotional cadre."
8. Though the second part of the rating is not in accordance with the Regulations, as she had not worked in the higher post for one year, according to the respondents, the first respondent, in December 1998, took a decision to confirm the petitioner in the post of Assistant Divisional Manager; but the letter of confirmation was not communicated to her. In February 1999, the issue was reopened and three top Executives opined that the earlier decision taken in December 1998 had to be reversed, as the petitioner could not work for one year, which resulted in the issuance of this impugned order. From the factual narration, I am prima facie of the opinion that she had completed one year period of probation and on the basis of the appraisal of her performance the Board has to take a decision. Even assuming that one has to work continuously for a period of one year in the promoted category as opined by the top Executives, the regulation is not to that effect. Definitely it is a case where the Board is expected to consider her case sympathetically for relaxation of the regulation, if they feel that any regulation is coming in their way for consideration of the promotion in view of her performance not only in pre-promotional post but also in the promotion post. During the period she worked in promotional post, she did not come to the adverse notice of the Board at any time and all the officers rated her performance as high. But, because of her personal difficulties beyond her control, she was forced to go on leave for a considerable length of time which fact is not being denied by the respondents. The Board, while considering her case, shall keep in view the observations made in this judgment and take an appropriate decision in accordance with law.
9. The respondents are directed to take a decision as expeditiously as possible as the petitioner could not get any interim orders and she was working in the reverted post for the last 16 months. At any rate, they shall take decision before the end of January 2001.
10. With the above observations, the writ petition is disposed of. No costs.