Gujarat High Court
N.H.Thaker vs State Of Gujarat & on 5 October, 2015
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/13552/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13552 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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N.H.THAKER....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR SAMIR B GOHIL, ADVOCATE FOR MR IS SUPEHIA, ADVOCATE for the Petitioner
MS SHRUTI PATHAK, ASSISTANT GOVERNMENT PLEADER for the Respondents
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 05/10/2015
ORAL JUDGMENT
1. By preferring this petition under Article 226 of the Constitution of India, the petitioner has, inter alia, prayed that appropriate directions Page 1 of 19 HC-NIC Page 1 of 19 Created On Sat Oct 10 00:12:14 IST 2015 C/SCA/13552/2003 JUDGMENT be issued to the respondents to pass orders regarding the completion of the probation period of the petitioner, with effect from the date of the expiry of two years from the date of his appointment and to grant all the annual increments due to him, as well as arrears, with 12% interest.
2. Briefly stated, the facts of the case are that the petitioner was working as a Training Officer at the Adijati Training Center, Vadodara, under respondent No.2. By a Government Resolution ("GR") dated 03.01.1996, passed by respondent No.1 State of Gujarat, the petitioner was appointed to the post of Social Welfare Officer, ClassII, along with other candidates. As per the said GR, the petitioner was put on probation for a period of two years in the scale of Rs.2000/, subject to the condition that after the satisfactory completion of the probation period, his payscale would be decided and the probation period be considered for the payment of increments. Another condition imposed by the said GR was that the petitioner was to pass the Page 2 of 19 HC-NIC Page 2 of 19 Created On Sat Oct 10 00:12:14 IST 2015 C/SCA/13552/2003 JUDGMENT Hindi and Gujarati examinations and, further, to pass the departmental examination, within two years and two chances. It was further stipulated that if the petitioner failed to pass the departmental examination within the stipulated period of time, his period of probation could be extended, and he could even be terminated. It was however, stipulated that each case would be examined on its own merits. Even as per the District Social Welfare Officer and Nomadic Tribes Welfare Officer (Conditions of Service relating to Departmental Examination) Rules 1970 ("the Recruitment Rules" for short), the petitioner was to pass the departmental examinations within two chances, in two years. The first examination after the appointment of the petitioner was held on 22.08.1998 and 23.08.1998. The petitioner did not appear in the said examinations as, according to him, he had met with an accident. It appears that the petitioner had requested for exemption in the examinations by his letters dated 16.07.1998 and 21.08.1998. By a memorandum dated 17.09.1998, Page 3 of 19 HC-NIC Page 3 of 19 Created On Sat Oct 10 00:12:14 IST 2015 C/SCA/13552/2003 JUDGMENT the Director, Social Welfare Department, stated that as the petitioner could not appear in the departmental examinations which were held on 22.08.1998 and 23.08.1998, for reasons stated in his letters dated 16.07.1998 and 21.08.1998, it was decided after due consideration to exempt the petitioner from that particular chance, as if no chance of appearing in the departmental examination had been availed by him. According to the petitioner, the respondents have not held any departmental examinations thereafter, upto 25.04.2005, on which date the petitioner submitted his resignation. It is the case of the petitioner that though he continued to remain on probation till the acceptance of his resignation, no order extending the period of probation had been passed. According to the petitioner, he is entitled for the grant of annual increments after a period of two years on probation. In this regard, the petitioner addressed a communication dated 28.05.2002, to respondent No.2, who replied by a letter dated 22.07.2002, stating that the annual increments Page 4 of 19 HC-NIC Page 4 of 19 Created On Sat Oct 10 00:12:14 IST 2015 C/SCA/13552/2003 JUDGMENT of the petitioner could only be granted after he is confirmed in service. Various communications ensued between the petitioner and the respondents in this regard. Ultimately, by a letter dated 04.07.2003, the respondents informed the petitioner that his request for the grant of increments cannot be accepted as his period of probation had not come to an end. Aggrieved thereby, the petitioner has approached this Court by way of the present petition.
3. It is submitted by Mr.Samir B.Gohil, learned advocate for Mr.I.S.Supehia, learned counsel for the petitioner, that though the petitioner has not passed the departmental examinations, the fact remains that he was exempted from the first chance of appearing in the said examinations. No examinations have been held thereafter, as is admitted by the respondents in their affidavit inreply.
4. It is further submitted that the passing of the departmental examinations has nothing to do with the probation period of the petitioner. Not Page 5 of 19 HC-NIC Page 5 of 19 Created On Sat Oct 10 00:12:14 IST 2015 C/SCA/13552/2003 JUDGMENT passing the examinations have resulted in the termination of his services, however, the petitioner has already resigned from the post. That, as per the GR dated 30.03.1989, a decision to end the probation period of an employee is to be taken on the basis of his performance and has nothing to do with the passing of the departmental examinations. The service record of the petitioner is clean and no adverse remarks have been communicated to him. Under the circumstances, the probation period is required to be ended after two years from the date of appointment. The petitioner is required to be treated as though his service is confirmed and increments granted to him.
5. The petition has been strongly opposed by Mr.Shruti Pathak, learned Assistant Government Pleader, by submitting that the petitioner was appointed on probation by the GR dated 03.01.1996. The appointment is a conditional one. Condition No.3 of the said GR clearly stipulates that the petitioner would be granted salary of Rs.2,000/ during the period of Page 6 of 19 HC-NIC Page 6 of 19 Created On Sat Oct 10 00:12:14 IST 2015 C/SCA/13552/2003 JUDGMENT probation and upon the satisfactory completion of the probation period, his payscale would be decided and the period of probation considered for the grant of increments. It is submitted that no increments can be released to the petitioner before the successful completion of the probationary period. The petitioner has not satisfactorily completed the probation period, therefore, he is not entitled to be granted any increments, as prayed for.
6. Referring to Condition No.4 of the said GR, the learned Assistant Government Pleader has submitted that it was incumbent upon the petitioner to have passed the departmental examinations within a period of two years, within two chances. The petitioner did not do so. As per Condition No.5, in cases where the employee does not pass the departmental examination within the stipulated period of time and chances, the respondents can either terminate the services of such employee or extend his period of probation. In the present case, the period of probation of the petitioner Page 7 of 19 HC-NIC Page 7 of 19 Created On Sat Oct 10 00:12:14 IST 2015 C/SCA/13552/2003 JUDGMENT has been continued beyond two years. Hence, he is not entitled to increments until the satisfactory completion of the probation period and confirmation in the service.
7. The learned Assistant Government Pleader has drawn the attention of the Court to the Recruitment Rules, especially Rule 3(ii) and the proviso thereto. It is submitted that this rule stipulates that every person who is directly recruited as a Social Welfare Officer, such as the petitioner, shall be required to pass the departmental examination within a period of two years. As per the proviso to the said rule, if the examination is not passed within the stipulated period of time, further chances would be available and the period of probation would be deemed to have been extended upon the date of declaration of the result of the examination which provides him the last chance. Even though the petitioner was exempted from appearing in the first chance, however, the fact remains that it was incumbent upon him to have passed the departmental examinations.
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C/SCA/13552/2003 JUDGMENT
8. Referring to the letter dated 04.07.2003, addressed to the petitioner by the respondents, it is submitted that it is clearly mentioned therein that the request of the petitioner for the grant of increments cannot be considered as his period of probation had not yet come to an end. This letter has not been challenged by the petitioner, therefore he is estopped from demanding increments at this stage.
9. It is submitted that the petitioner made an application for resignation on 25.04.2005, which has been accepted by the respondents with effect from 08.06.2005. That, after the acceptance of the resignation, the relationship of master and servant between the respondents and the petitioner ceases to exist and the petitioner cannot have any claim for increments or any other monetary dues regarding his service.
10. The learned Assistant Government Pleader has relied upon the following judgments in support of her submissions:
(i) R.A.Potnis v. National Textile Page 9 of 19 HC-NIC Page 9 of 19 Created On Sat Oct 10 00:12:14 IST 2015 C/SCA/13552/2003 JUDGMENT Corporation (Gujarat) Ltd. and Ors. 2002(2) GLH 484
(ii) Jitendra Shantilal Shukla v. Bank of Baroda - 2005(3) LLJ 305
11. This Court has heard learned counsel for the respective parties, perused the averments made in the petition and other documents on record.
12. There is no dispute regarding the fact that as per the conditions of appointment, the petitioner was obliged to pass the departmental examination within a period of two years and within two chances. The departmental examination took place on 22.08.1998 and 23.08.1998. It is an admitted position that the petitioner did not take part in the said examinations as, according to him, he had met with an accident. The petitioner was given an exemption regarding this chance for appearing in the examination, by a letter dated 17.09.1998 of the Director, Social Welfare Department. A perusal of this letter makes it clear that the exemption is regarding the availing of that particular chance of giving the examination. It does not exempt the Page 10 of 19 HC-NIC Page 10 of 19 Created On Sat Oct 10 00:12:14 IST 2015 C/SCA/13552/2003 JUDGMENT petitioner from passing the departmental examinations as the requirement of passing the examinations, which is a statutory one, still remains. It is only due to the peculiar circumstances regarding the accident of the petitioner that an exemption to appear in the first chance of the examinations was granted. This means that the petitioner would still have two chances to appear in the departmental examinations.
13. It is the case of the petitioner that the respondents did not hold any departmental examinations thereafter, therefore, it is not his fault that he could not appear and clear them. In this regard, it would be pertinent to refer to the affidavitinreply dated 17.06.2013, filed on behalf of respondent No.2. It is stated therein that after the departmental examinations took place in the year 1998, a new department, that is, the Tribal Development Department, came into existence. No Rules have been framed for the conduct of examinations in this Department, though a proposal has been made Page 11 of 19 HC-NIC Page 11 of 19 Created On Sat Oct 10 00:12:14 IST 2015 C/SCA/13552/2003 JUDGMENT to the State Government to conduct the departmental examinations as per the old Rules. It is further stated that as the petitioner failed to clear the departmental examinations, increments have not been granted to him.
14. The requirement of passing the departmental examination within two years of the date of appointment as a direct recruit is a mandatory stipulation in Rule 3(ii) of the Recruitment Rules. It was, therefore, incumbent upon the petitioner to have passed the said examination for the claim of increments after confirmation. One of the conditions in the GR dated 03.01.1996 whereby the petitioner has been appointed is Condition No.3 which clearly stipulates that during the period of probation, the salary of the petitioner would be Rs.2,000/. Only after the satisfactory completion of the probationary period would his payscale be decided and the period of probation considered for the grant of increments. It is clear from this condition that the grant of increments is dependent upon the confirmation in service of the petitioner and no Page 12 of 19 HC-NIC Page 12 of 19 Created On Sat Oct 10 00:12:14 IST 2015 C/SCA/13552/2003 JUDGMENT increments can be granted before he is confirmed. This condition has been accepted by the petitioner. Condition No.4 of the GR speaks of the requirement of passing the departmental examination within the stipulated period of time and chances. Condition No.5 further stipulates that if the petitioner does not complete the probation period satisfactorily, or clear the departmental examination within the stipulated period of time and chances, his services could be terminated or his probation period extended. In the present case, the material on record indicates that the probation period of the petitioner has been extended. This is clear from the communications dated 22.07.2002, 01.05.2003 and 04.07.2003, of the respondents that are on record. The petitioner has been informed, in categorical terms, by the respondents by the communication dated 04.07.2003, that he is not eligible for the grant of increments until the satisfactory completion of his probation period.
15. The learned counsel for the petitioner has submitted that, as the respondents have not Page 13 of 19 HC-NIC Page 13 of 19 Created On Sat Oct 10 00:12:14 IST 2015 C/SCA/13552/2003 JUDGMENT conducted any departmental examinations, after the year 1998, the probation period of the petitioner is deemed to have been completed after two years from the date of his appointment and he ought to be considered as a confirmed employee. This Court is unable to accept this contention on behalf of the petitioner, as it is contrary to not only the Recruitment Rules but also to the conditions of the appointment of the petitioner as contained in the GR dated 03.01.1996. Condition No.5 clearly stipulates that if the petitioner is unable to satisfactorily complete the probation period and clear the departmental examinations within the period of time and chances, he may face either termination of service or extension of the probation period. In the case of the petitioner, the respondents have taken a conscious decision in not confirming the petitioner in service. He has remained on probation throughout, upto his resignation.
16. Condition No.3 in the appointment order of the petitioner clearly stipulates that the Page 14 of 19 HC-NIC Page 14 of 19 Created On Sat Oct 10 00:12:14 IST 2015 C/SCA/13552/2003 JUDGMENT petitioner would be entitled to increments only after the satisfactory completion of the period of probation. During the probation period, the salary of the petitioner would be Rs.2,000/ per month. When the payscale of the petitioner was also not fixed during the probation period and was to be fixed after his confirmation, the demand of the petitioner for increments during his probationary period is unsustainable and unjustified, in addition to being contrary to Rules.
17. In this context, the learned Assistant Government Pleader has relied upon R.A.Potnis v. National Textile Corporation (Gujarat) Ltd. and Ors. (supra), wherein this Court has stated as below:
"17. If the petitioner has been granted due increments by the order dated 21.11.1990 then the petitioner is entitled to the increments from the dated 22.05.1985 till 04.05.1991 that has to be determined by this Court. On going through the material on record I am of the opinion that the learned Counsel could not point out any rule or Page 15 of 19 HC-NIC Page 15 of 19 Created On Sat Oct 10 00:12:14 IST 2015 C/SCA/13552/2003 JUDGMENT regulation that the petitioner is entitled to annual increments during the period of probation. In absence of 1989, it is abundantly clear that the increments cannot be granted to the petitioner unless and until probation period was successfully completed by him.
(emphasis supplied)
18. The petitioner has resigned from service during his period of probation and his resignation has been accepted with effect from 08.06.2005. Resignation entails the severance of the master
- servant relationship between the employer and the employee, and its consequences are different from voluntary retirement, as has been held by a Division Bench of this Court in Jitendra Shantilal Shukla v. Bank of Baroda (supra), in the following terms:
"5. In our opinion, the question whether resignation is akin to voluntary retirement is no longer res integra and must be treated as settled against the appellant by the judgments of the Supreme Court in UCO Bank and others vs. Sanwar Mal AIR 2004 SC 2135 : (2004) 4 Supreme Court Cases 412 "Page 16 of 19
HC-NIC Page 16 of 19 Created On Sat Oct 10 00:12:14 IST 2015 C/SCA/13552/2003 JUDGMENT 2004IILLJ490, Jaipal Singh vs. Sumitra Mahajan (Smt) and another, AIR 2004 SC 2066 : (2004)4 Supreme Court Cases 522, and Reserve Bank of India and another vs. Cecil Dennis Solomon and another, (2004) 9 Supreme Court Cases 461 " 2004ILLJ782. In Sanwar Mal's case (supra), the Supreme Court interpreted the provisions of UCO Bank (Employees') Pension Regulations, 1995, which are parimateria to the regulations framed by the Respondent Bank. While allowing the appeal filed by the Bank against the order of the Punjab and Haryana High Court, which had upheld the Respondents' claim for pension by treating resignation at par with voluntary retirement, the Supreme Court observed as under 2004IILLJ490 at p.495:
"9 .......The words "resignation" and "retirement" carry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The Pension Scheme herein is based on adequate contributions from the members of the pension fund and requires the Bank, on actuarial calculation, to make annual contribution to the fund. It is a selffinancing scheme, which does not depend upon budgetary support and consequently Page 17 of 19 HC-NIC Page 17 of 19 Created On Sat Oct 10 00:12:14 IST 2015 C/SCA/13552/2003 JUDGMENT it constitutes a complete code by itself. The Scheme essentially covers retirees as the credit balance to their provident fund account is larger as compared to employees who resigned from service. Moreover, resignation brings about complete cessation of masterandservant relationship whereas voluntary retirement maintains the relationship for the purposes of grant of retiral benefits, in view of the past service. Similarly, acceptance of resignation is dependent upon discretion of the employer whereas retirement is completion of service in terms of regulations/rules framed by the Bank. Resignation can be tendered irrespective of the length of service whereas in the case of voluntary retirement, the employee has to complete qualifying service for retiral benefits. Further, there are different yardsticks and criteria for submitting resignation visavis voluntary retirement and acceptance thereof. .... Hence, we do not find any merit in the arguments advanced on behalf of the respondent....."
(emphasis supplied)
19. After his resignation, the petitioner can legally have no claim upon increments to which he was never entitled even during the probationary period of service under the respondents.
20. Examining the case of the petitioner in light of Page 18 of 19 HC-NIC Page 18 of 19 Created On Sat Oct 10 00:12:14 IST 2015 C/SCA/13552/2003 JUDGMENT the submissions advanced by the learned counsel for the petitioner from every angle, this Court is unable to find any merit in the petition.
21. The petition is, accordingly, rejected. Rule is discharged. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) sunil Page 19 of 19 HC-NIC Page 19 of 19 Created On Sat Oct 10 00:12:14 IST 2015