Gujarat High Court
Shamim Ilyas Vohra vs State Of Gujarat & on 7 January, 2016
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/22763/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 22763 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
==========================================================
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 ? =============================================================== SHAMIM ILYAS VOHRA....Petitioner(s) Versus STATE OF GUJARAT & 1....Respondent(s) =============================================================== Appearance:
MR BHARGAV KARIA, ADVOCATE FOR M/S.BHARGAV KARIA & ASSO., for the Petitioner MR JANAK RAVAL, ASSISTANT GOVERNMENT PLEADER for the Respondents ========================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 07/01/2016 C.A.V. JUDGMENT
1. By preferring this petition under Article 226 of the Constitution of India, the petitioner has, inter alia, challenged the order dated
05.09.2006, passed by respondent No.1State of Page 1 of 60 HC-NIC Page 1 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT Gujarat, whereby, the services of the petitioner have been put to an end during her period of probation, on the ground that they were not found to be satisfactory. The petitioner has further prayed for a direction to the respondents to reemploy her on the original post by protecting her interse seniority and to pay her full backwages / salary with interest at the prevailing Bank rate.
2. A brief factual narration of the facts, as stated in the petition, would be necessary. In response to the public advertisement issued by the Gujarat Public Service Commission ("GPSC") for the post of Assistant Charity Commissioner (ClassI), the petitioner, being qualified, applied for the post and was selected through the competitive written examination and oral interview. The GPSC recommended the name of the petitioner by letter dated 16.10.2001, for the said post, to respondent No.1. The petitioner was appointed as Assistant Charity Commissioner on probation, for a period of two years from joining the service, vide order dated Page 2 of 60 HC-NIC Page 2 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT 23.04.2002, passed by respondent No.1. She joined her duties on 30.04.2002, at the Regional Office, Valsad. The petitioner was, thereafter, transferred and posted at the Regional Office, Junagadh and subsequently, at the Regional Office, Amreli. During her posting at the Regional Office Valsad, the petitioner was also given additional charge of Regional Offices, Godhara, Navsari and Dahod. While she was serving at the Regional Office, Junagadh, the petitioner was given the additional charge of Regional Office, Porbandar. It is the case of the petitioner that during her entire period of service, she has not received any communication with regard to the extension of her probation period and nor has she received any show cause notice contemplating the initiation of any disciplinary action against her. During her posting at Junagadh, a written explanation from the petitioner was called for by respondent No.2, with regard to an episode involving the "Dharna" and fast by a local political leader and Member of the Legislative Assembly ("MLA") Page 3 of 60 HC-NIC Page 3 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT regarding a Change Report of a Trust, of which the said MLA was the President. The petitioner submitted her explanation vide letters dated 06.04.2005 and 15.04.2005. Thereafter, the petitioner was transferred from the Regional Office, Junagadh, to the Regional Office, Amreli.
3. It appears that the petitioner was also implicated in a criminal case filed by the Deputy Charity Commissioner and an FIR dated 20.06.2005, was filed against the then Deputy Charity Commissioner. In this matter as well, the petitioner did not receive any intimation regarding departmental action being initiated against her. While the petitioner was working as Assistant Charity Commissioner at the Regional Office, Amreli, her services were terminated by the impugned order. Aggrieved thereby, the petitioner has approached this Court, by way of the present petition.
4. Mr.Bhargav D.Karia, learned counsel for the petitioner, has made elaborate submissions, Page 4 of 60 HC-NIC Page 4 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT which are briefly encapsulated hereinbelow. 4.1 It is submitted that Rule 10A of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 ("the Rules"
for short) provides that a candidate appointed to a ClassI or ClassII service or post by direct selection, shall be on probation for a period of two years. The first proviso to the said Rule permits the extension of the probation period for a further period of two years, in the case of ClassI and ClassII services. It is submitted that the extended period of probation of the petitioner, as per the proviso to Rule 10A, came to an end on 30.04.2006. The petitioner was terminated from service by an order dated 05.09.2006, passed after the extended period of probation was over;
therefore, the petitioner is deemed to have been confirmed in service even though no formal order has been passed in this regard. This being the position, the services of the petitioner could not have been terminated, except in accordance with law, by holding a regular departmental Page 5 of 60 HC-NIC Page 5 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT inquiry. As this has not been done and the petitioner has been wrongly treated to be on probation, the impugned order deserves to be quashed and set aside and the petitioner deserves to be reinstated on the post with full backwages and treated as a confirmed employee.
4.2 It is contended that the respondents have come out with certain allegations against the petitioner for the first time, in the affidavitinreply filed in the present petition. The petitioner was never given any show cause notice in this regard, expect the letter dated 06.04.2005, which was duly replied to. The petitioner has discharged her duties honestly, at her various places of posting and has never received any reprimand regarding the work performed by her. The termination of the services of the petitioner is nothing but political vendetta against the petitioner. It is urged that the incident regarding the MLA is the reason why the services of the petitioner have been terminated, at the behest of politically influential persons, who had intervened in the Page 6 of 60 HC-NIC Page 6 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT matter. Learned counsel for the petitioner has referred to the extract of the Confidential Report annexed to the affidavitinreply filed by respondent No.1, in this regard. It is submitted that the Confidential Report was created later on, to justify the action of the respondents in terminating the services of the petitioner.
4.3 It is emphatically argued that the impugned order of termination is stigmatic and punitive in nature. This aspect is further highlighted by the averments made in the affidavitinreply filed by the State Government. The said order, being bad in law, deserves to be quashed and set aside.
4.4 It is further submitted that the petitioner had applied for certain documents under the Right to Information Act, 2005 ("RTI Act" for short), and having received the information sought, it is clear therefrom that the respondents have suppressed material documents regarding the work done by the Page 7 of 60 HC-NIC Page 7 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT petitioner, from the Court.
4.4 That, the reliance placed by the respondents on Rule 4 of the Gujarat Assistant Charity Commissioner Rules, 1970 ("the Assistant Charity Commissioner Rules") is misplaced, as the said Rules are applicable only at the time of the selection of candidates. The petitioner has sufficient knowledge of the Gujarati and Hindi languages, therefore, was not required to pass the said examinations during her period of probation.
4.5 Learned counsel for the petitioner alternatively submits, that even if the Court is of the view that there is no deemed confirmation, the order of termination is unjustified on the facts of the case and the material on record, which shows it is a punitive order.
4.6 In support of the contention regarding deemed confirmation, learned counsel for the petitioner has placed reliance upon State of Punjab v. Dharam Singh - AIR 1968 SC 1210 Page 8 of 60 HC-NIC Page 8 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT 4.7 In support of the submission regarding the impugned order being stigmatic and punitive in nature, the following judgments have been relied upon on behalf of the petitioner:
(i) V.P.Ahuja v. State of Punjab and others
- AIR 2000 SC 1080
(ii) Mathew P.Thomas v. Kerala State Civil Supply Corporation Ltd. (2003)3 SCC 263
(iii) Yamini J.Dave v. Director, I.U.C.A.A. 2004 (2) GLH 1
(iv) Nehru Yuva Kendra Sangathan v. Mehbub Alam Laskar - (2008)2 SCC 479
(v) State Bank of India And Others v. Palak Modi And Another - (2013)3 SCC 607 4.8 In addition thereto, to further buttress the submission regarding both the submissions regarding deemed confirmation and the order being stigmatic, reliance has been placed upon a judgment of the Supreme Court in Samsher Singh v. State of Punjab and Another - (1974)2 SCC 831 and Jaswantsingh Pratapsingh Jadeja v.
Rajkot Municipal Corporation And Another - (2007)10 SCC 71.
Page 9 of 60 HC-NIC Page 9 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT
5. The petition has been strongly opposed by Mr.Janak Raval, learned Assistant Government Pleader, on behalf of the respondents, by making the following submissions:
5.1 That the question of deemed confirmation, in the case of the petitioner, does not arise as there is sufficient material on record to substantiate the statement made in the order of termination that the services of the petitioner were unsatisfactory. There can be no deemed confirmation unless there is a specific order to this effect, after the successful completion of the successful period of probation. In the present case, no order confirming the petitioner on the post was passed.
5.2 It is next submitted that the reliance placed by the petitioner upon High Court of M.P. Through Registrar and Others v. Satya Narayan Jhavar - (2001)7 SCC 161, is misplaced as the petitioner is misinterpreting the said judgment. The petitioner does not fall in the Page 10 of 60 HC-NIC Page 10 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT second line of cases mentioned in the judgment, but falls in the third line of cases, as it was incumbent upon the petitioner to have passed the examination in the Gujarati and/or Hindi languages, in accordance with Rule 4 of the Assistant Charity Commissioner Rules, which provides that a candidate appointed by direct selection shall be on probation for a period of two years and would have to pass the said examination(s) in accordance with the rules made by the Government in this behalf. As the petitioner has not passed the said examination, it cannot be claimed that she is deemed to have confirmed on the post, even though the maximum period of probation has expired.
5.3 It is further contended that the services of the petitioner have not been terminated due to any political reasons, but only on the ground that her work was found to be unsatisfactory. The order stating so is, therefore, neither punitive nor stigmatic.
5.4 In support of the submission that the Page 11 of 60 HC-NIC Page 11 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT petitioner is not entitled to receive the benefit of deemed confirmation, reliance has been placed by the learned Assistant Government Pleader upon the following judgments:
(i) Commissioner of Police, Hubli And Another v. R.S. More - (2003)2 SCC 408
(ii) Naginbhai Chhotubhai Patel v. State of Gujarat - 2000(1) GLH 568
(iii) Pratap Singh v. Union Territory of Chandigarh and Another - AIR 1980 SC 57
(iv) Dhanjibhai Ramjibhai v. State of Gujarat - AIR 1985 SC 603
(v) C.G.Sharma v. State of Gujarat -
2001(3) GLH 643
(vi) Om Prakash Shrivastava v. State of M.P. And Another - (2005)11 SCC 488
(vii) Chhayaben Labhshanker Mehta v. State of Gujarat - 2005(1) GLH 787
(viii) Director (Production), Heavy Engineering Corporation And Others v. Jagannath Prasad - 1995 Supp.(4) SCC 699
(ix) Popatlal Vasudev Vyas v. Gujarat Water Supply and Sewerage Board, Gandhinagar - 1988(2) GLH 82.
6. This Court has heard learned counsel for the respective parties at length and minutely perused the entire material on record. Page 12 of 60 HC-NIC Page 12 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT
7. Two questions arise for determination by the Court in the present petition, namely, (i) whether the services of the petitioner can be deemed to have been confirmed after the completion of the extended period of probation, when no order was passed either confirming her on the post or continuing the probation period? and (ii) whether the impugned order is an order of termination, simpliciter, or is punitive and stigmatic in nature?
8. In order to answer these questions, it would be necessary to refer to certain judgments that throw light on the issues involved in the petition.
9. First of all, reference may be made to a judgment rendered by seven Honourable Judges of the Apex Court in the case of Samsher Singh v. State of Punjab and Another (supra) cited on behalf of the petitioner, which addresses both the questions raised in the petition. It would, therefore, be fruitful to extract the relevant paragraphs of the judgment, as below: Page 13 of 60
HC-NIC Page 13 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT "62. The position of a probationer was considered by this Court in Purshotam Lal Dhingra v. Union of India [1958] S C.R. 828 Das, C.J., speaking for the Court said that where a person is appointed to a permanent post in Government service on probation the termination of his service during or at the end of the period of probation win not ordinarily and by itself be a punishment because the Government servant so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to do so. Such a termination does not operate as a forfeiture of any right of a servant to hold the post, for he has no such right. Obviously such a termination cannot be a dismissal, removal or reduction in rank by way of punishment. There are, however, two important observations of Das, C.J., in Dhingra's case (supra). One is that if a right exists under a contract or service Rules to terminate the service the motive operating on the mind of the Government is wholly irrelevant. The other is that if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and violates Article 311 of the Constitution. The reasoning why motive is said to be irrelevant is that it Page 14 of 60 HC-NIC Page 14 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT inheres in the state of mind which is not discernible. on the other land, if termination is founded on misconduct it is objective and is manifest.
63. No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution.
64. Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude Page 15 of 60 HC-NIC Page 15 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT the probationer is unsuitable for the job and hence must be discharged. No punishment is involved, in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim protection.
In Gopi Kishore Prasad v. Union of India A.I.R. 1960 S.C. 689 it was said that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment. Instead of taking the easy course the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and incompetent officer.
65. The fact of holding an inquiry is not Page 16 of 60 HC-NIC Page 16 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT always conclusive. What is decisive is whether the order is really by way of punishment. (See State of Orissa v. Ramnarain Das [1961] 1 S.C.R. 606). If there is an enquiry the facts and circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance, (See Madan Gopal v. State of Punjab [1963] 3 S.C.R. 716). In R. C. Lacy v. State of Bihar & Ors. (Civil Appeal No. 590 of 1962 decided on 23 October, 1963) it was held that an order of reversion passed following an enquiry into the conduct of the probationer in the circumstances of that case was in the nature of preliminary inquiry to enable the Government to decide whether disciplinary action should be taken. A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311 (2). (See R. C. Banerjee v. Union of India [1964] 2 S.C.R.
135.) A preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee has been held not to attract Article 311 (See Champaklal G. Shah v. Union of India [1964] 5 S.C.R. 190). On the other hand, a statement in the order of termination that the temporary servant is undesirable has Page 17 of 60 HC-NIC Page 17 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT been held to import an element of punishment (See Jagdish Mitter v. Union of India A.I.R. 1964 S.C. 449).
66. If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to attract Article 311. The substance of the order and not the form would be decisive. (See K. H. Phadnis v. State of Maharashtra [1971] Supp. S.C.R. 118).
67. An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct. (See State of Bihar v. Shiva Bhikshik [1971] 2 S.C.R.
191).
... ... ...
70. Counsel for the appellant relied on the decision of this Court in State of Punjab v. Dharam Singh [1968] 3 S.C.R. 1 where this Court drew an inference that an employee Page 18 of 60 HC-NIC Page 18 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT allowed to continue in the post on completion of the maximum period of probation is confirmed in the post by implication. In Dharam Singh's case (supra) the relevant rule stated that the probation in the first instance is for one year with the proviso that the total period of probation including extension shall not exceed three years. In Dharam Singh's case (supra) he was allowed to continue without an order of confirmation and therefore the only possible view in the absence of anything to the contrary in the Service Rules was that by necessary implication he must be regarded as having been confirmed.
71. Any confirmation by implication is negatived in the present case because before the completion of three years the High Court found prima facie that the work as well as the conduct of the appellant was unsatisfactory and a notice was given to the appellant on October 4, 1968 to show cause as to why his services should not be terminated. Furthermore, Rule 9 shows that the employment of a probationer can be proposed to be terminated whether during or at the end of the period of probation. This indicates that where the notice is given at the end of the probation the period of probation gets extended till the inquiry Page 19 of 60 HC-NIC Page 19 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT proceedings commenced by the notice under Rule 9 come to an end. In this background the explanation to Rule 7(1) shows that the period of probation shall be deemed to have been extended impliedly if a Subordinate Judge is not confirmed on the expiry of this period of probation. This implied extension where a Subordinate Judge is not confirmed on the expiry of the period of probation is not found in Dharam Singh's case (supra). This explanation in the present case does not mean that the implied extension of the probationary period is only between two and three years. The explanation on the contrary means that the provision regarding the maximum period of probation for three years is directory and not mandatory unlike in Dharam Singh's case (supra) and that a probationer is not in fact confirmed till an order of confirmation is made."
(emphasis supplied)
10. The above position of law enunciated by the Supreme Court holds good and has been reiterated and followed in several judgments, till date. As held by the Supreme Court, the termination of the services of a probationer during the period of probation, or, at the end of the said period Page 20 of 60 HC-NIC Page 20 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT would not ordinarily, by itself, amount to a punishment, as the Government servant has no right to hold the post while on probation. However, if the termination is founded on misconduct, negligence, inefficiency or any other disqualification, then it can be termed as punitive and violative of Article 311 of the Constitution of India, and in such a case, the Government servant concerned has not been granted an opportunity of showing cause against his termination within the meaning of Article 311(2). The Supreme Court has held, in Paragraph64 of the reported judgment, that before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory, or not, and whether he is suitable for the post. The suitability of a probationer for the post is, therefore, a prerequisite before an order of confirmation can be passed. If the authority concerned arrives at a conclusion that the services of the probationer are not satisfactory, the order of dismissal on Page 21 of 60 HC-NIC Page 21 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT the ground of unsatisfactory services would not amount to a punishment or stigma. In a case where an inquiry is held on the charges of misconduct and the services of the probationer are terminated without following the provisions of Article 311(2), then the situation would be different and the probationer can claim protection. Such is not the position in the case in hand, where the services of the petitioner have been terminated on the ground that they are found to be unsatisfactory.
11. In Paragraphs70 and 71 of the above judgment, the Supreme Court has discussed the decision of the Constitution Bench in State of Punjab v. Dharam Singh (supra), relied upon by the learned counsel for the petitioner, wherein an inference was drawn that an employee who is allowed to continue in the post after the completion of the maximum period of probation, is deemed to be confirmed in the post, by implication. In State of Punjab v. Dharam Singh (supra), the relevant rule stated that the probation, in the first instance, is for one Page 22 of 60 HC-NIC Page 22 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT year with the proviso that the total period of probation, including extension, shall not exceed three years. The petitioner in that case was permitted to continue without an order of confirmation and, therefore, taking into consideration the relevant Rule and as there was nothing contrary in the service rules, he was regarded to have been confirmed by necessary implication. However, in the very next paragraph (Paragraph71), the Supreme Court has distinguished Dharam Singh's case by stating that, as per the relevant Rules, in the case Samsher Singh, the explanation to the Rule, on the contrary, means that the provision regarding the maximum period of probation for three years is directory and not mandatory, unlike in Dharam Singh's case and that a probationer is not in fact confirmed till an order of confirmation is made.
12. The above exposition of law makes it amply clear that the language in which the Rules are couched is of utmost importance, as it conveys the intention of the legislature. In this Page 23 of 60 HC-NIC Page 23 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT background, in the present case, it would be necessary to reproduce the relevant rules before referring to the other judgments cited on behalf of the respective parties.
13. Rule 10A of the Rules reads as below:
"10A Period of Probation:
Notwithstanding anything contained in these rules or any rules or orders relating to the recruitment to any service or post included in the State Service or Subordinate Service, a candidate appointed to ClassI or ClassII service or post by direct selection, shall be on probation for a period of two years and in case of his appointment to ClassIII service or post for a period of one year:
Provided that the appointing authority may, if it thinks fit in any case, extend the period of probation for a further period not exceeding two years in case of ClassI and ClassII service or post and one year in case of ClassIII service or post:
Provided further that if in any case passing of a departmental examination during the period of probation is stipulated as a prerequisite condition for completion of such probation period and Page 24 of 60 HC-NIC Page 24 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT where the probation could not pass the same within the prescribed chances admissible to him under the rules reasons beyond his control the above ceiling on the period of probation shall not be applicable.
Provided also that nothing in this rule shall apply to the appointments made to the Subordinate Services on contractual basis under rule 9A."
(emphasis supplied)
14. The above Rule provides that a direct recruit appointed to a ClassI post or ClassII post, would be placed under probation for a period of two years, in the first instance. The period of probation could be further extended for a further period of two years, as per the first proviso to Rule 10A. This part of the Rule has been strongly relied upon by learned counsel for the petitioner. The learned Assistant Government Pleader has referred to Rule 4 of the Assistant Charity Commissioner Rules, which is reproduced hereinbelow:
"4. A candidate appointed by direct selection shall be on probation for two Page 25 of 60 HC-NIC Page 25 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT years and shall have to pass examination in Gujarati or Hindi or both in accordance with the rules made by the Government in that behalf."
15. According to the learned Assistant Government Pleader, the petitioner, having been appointed by direct selection to the post of Assistant Charity Commissioner, would be placed on probation for a period of two years and would have to pass the examination in the Gujarati or Hindi languages, or both, in accordance with the Rules made by the State Government in this regard.
16. It has been submitted on behalf of the petitioner that she has passed the Gujarat Secondary Board Examination with Gujarati as a higher level language in the first class, as also the Higher Secondary Certificate Examination, also in first class. The argument is that the petitioner, being proficient in the Gujarati language, is not required to pass the departmental examination as provided by Rule 4 of the Assistant Charity Commissioner Rules. It Page 26 of 60 HC-NIC Page 26 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT is further the case of the petitioner that she has passed the examination of "Hindi Vinit"
conducted by Gujarat Vidyapith, which is equivalent to graduation and recognized by the State by its various circulars, therefore, she is not required to pass any examination in the Hindi language, as well.
17. Learned counsel for the petitioner has relied heavily on the judgment of the Supreme Court in High Court of M.P. Through Registrar and Others v. Satya Narayan Jhavar (supra), by submitting that the case of the petitioner falls under the first line of cases, as held by the Supreme Court in the said judgment. This being so, as no order either extending the probation period or confirming her in the post was passed even after the expiry of the maximum period of probation, her services are deemed to have been confirmed in the post by implication.
18. On the other hand, learned Assistant Government Pleader has contended that, as the petitioner was required to pass the departmental Page 27 of 60 HC-NIC Page 27 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT examination in Gujarati and Hindi during her period of probation, her case would fall under the third line of cases mentioned in the above judgment, as a specific act would be required to be done before she can be confirmed.
19. The relevant extract of the judgment in High Court of M.P. Through Registrar and Others v. Satya Narayan Jhavar (supra), which has been cited by learned counsel for the petitioner and the learned Assistant Government Pleader, is reproduced hereinbelow:
"11. The question of deemed confirmation in service jurisprudence, which is dependent upon language of the relevant service rules, has been subject matter of consideration before this Court times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there Page 28 of 60 HC-NIC Page 28 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT is no bar against termination at any point of time after expiry of the period of probation. Other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry order of termination has not been passed. The last line of cases is where though under the rules maximum period of probation is prescribed, but the same require a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor the person concerned has passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.
12. Now we proceed to consider the first line of cases in which the earliest one is Sukhbans Singh vs. State of Punjab, (1963) 1 SCR 416. In that case the Constitution Bench was considering the question of confirmation Page 29 of 60 HC-NIC Page 29 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT under Rule 22 of the Punjab Civil Service (Executive Branch) Rules, 1930 which provides that a candidate on first appointment to the service shall remain on probation for a period of 18 months and proviso thereto enables the Governor to extend the period of probation. Rule 24 of the said Rules provides that on the completion of the period of probation prescribed or extended, a member of the service shall be qualified for substantive appointment. It was laid down by this Court that a probationer cannot automatically acquire the status of a permanent member of service, unless of course the rules under which he is appointed expressly provide for such a result and the rules in that case did not contain any such provision. Rules 22, 23 and 24 were interpreted to mean that such a probationer is merely qualified for substantive permanent appointment where a probationer is not reverted by the Government under Rule 23 on the ground that in the opinion of the Government his work or conduct was found to be unsatisfactory and where his service is not terminated under Rule 23, he continues to be a probationer, but requires the qualification for substantive permanent appointment. According to the Rules, at the end of the probationary period, a probationer who is neither Page 30 of 60 HC-NIC Page 30 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT terminated nor absorbed in a substantive post will be eligible for being made permanent and he will continue to be a probationer. The very fact that a person is a probationer implies that he has to prove his worth and suitability for the higher post in which he is officiating. If his work is not found to be satisfactory, he is liable to be reverted to his original post even without assigning any reason. In the said case, this Court further observed that it would not be correct to say that the probationer has any right to the higher post in which he is officiating or a right to be confirmed and he being a probationer merely made eligible for being absorbed in a permanent post, is in no better position.
... ... ...
22. The view taken in the case of Dharam Singh (supra) has been consistently followed in the cases of Om Prakash Maurya vs. U.P. Cooperative Sugar Factories Federation, Lucknow & Ors., (1986) Suppl. SCC 95, M.K. Agarwal vs. Gurgaon Gramin Bank and Ors. (1987) Supp. SCC 643, State of Gujarat vs. Akhilesh C. Bhargav & Ors., (1987) 4 SCC 482, which are cases in which a maximum period for extension of probation was prescribed and termination after expiry Page 31 of 60 HC-NIC Page 31 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT of the said period was held to be invalid inasmuch as the officer must be deemed to have been confirmed.
23. In the last line of cases, we may first refer to a decision by seven Judges Bench of this Court in the case of Samsher Singh v. State of Punjab & Anr., (1974) 2 SCC 831, where the Court was considering a case under Punjab Civil Services (Judicial Branch) Rules 1951 where maximum period of probation was prescribed as three years. There one Samsher Singh was appointed on 1 51964 as Subordinate Judge on probation. On 2231967 a notice was issued requiring him to show cause why his services be not terminated as he was found unsuitable for the job as there were serious charges against him. After filing of show cause, the services were terminated. Another person, Ishwar Chand Agrawal was appointed as Judicial Officer on probation initially for a period of two years and the maximum period of three years expired on 1111 1968. Thereafter, as the High Court found that the work as well as conduct of the Judicial Officer were unsatisfactory and there were serious charges against him, notice was given as to why his services be not terminated and ultimately after submission of show cause, upon the recommendation of Page 32 of 60 HC-NIC Page 32 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT the Full Court on 15121969, the services were terminated. Both the incumbents challenged the order of termination by filing separate writ applications before the Punjab High Court which were dismissed necessitating filing of appeals by special leave before this Court.
24. ..... In the case of Samsher Singh, law laid down by the Constitution Bench in the case of Dharam Singh (supra) was approved, but it was distinguished because of language of the relevant rule especially Explanation to Rule 7(1) and it was held that the provision prescribing the maximum period of probation as three years is directory and not mandatory and the period of probation shall be deemed to have been extended even beyond the period of three years till proceeding commenced by the notice came to an end either by confirmation or discharge of the probationer. It was specifically laid down in that case that no confirmation by implication can arise in view of the nature of relevant rules. But as it was found by the Court therein that services of both the persons aforementioned were terminated on serious charges of misconduct which could have been done by holding an inquiry only as required under Rule 9 and the same having not been done, Page 33 of 60 HC-NIC Page 33 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT the orders of termination were held to be bad being in infraction of the provisions of Rule 9 of the aforesaid Rules as well as Article 311 of the Constitution and consequently the same were quashed by this Court."
(emphasis supplied)
20. In State of Punjab v. Dharam Singh (supra), the Constitution Bench of Supreme Court held as below:
"6. The employees referred to in R.6(1) held their posts in the first instance on probation for one year commencing from October 1, 1957. On completion of the one year period of probation of the employee, four courses of action were open to the appointing authority under Section 6(3). The authority could either (a) extend the period of probation provided the total period of probation including extensions would not exceed three years, or (b) revert the employee to his former post if he was promoted from some lower post, or (c) dispense with his services if his work or conduct during the period of probation was unsatisfactory, or (d) confirm him in his appointment. It could pass one of these orders in respect of the respondents on Page 34 of 60 HC-NIC Page 34 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT completion of their one year period of probation. But the authority allowed them to continue in their posts thereafter without passing any order in writing under Rule 6(3). In the absence of any formal order, the question is whether by necessary implication from the proved facts of these cases, the authority should be presumed to have passed some order under Rule 6(3) in respect of the respondents, and if so, what order should be presumed to have been passed.
... ... ...
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 Page 35 of 60 HC-NIC Page 35 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT reason for dispensing with their services and reemploying them as temporary employees on October 1, 1960, and the High Court rightly refused to draw the inference that they were so discharged from service and re employed. 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 c 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, 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 Page 36 of 60 HC-NIC Page 36 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT was not followed and as the constitutional protection of Article 311 was violated, the impugned orders were rightly set aside by the High Court."
21. As can be seen from a perusal of the judgment in Samsher Singh v. State of Punjab and Another (supra), Dharam Singh's case was referred to and, though the principle laid down was approved, it was distinguished in the context of the relevant Rules.
22. The Supreme Court has, therefore, in High Court of M.P. Through Registrar and Others v. Satya Narayan Jhavar (supra), after extensively dealing with all the relevant judgments regarding probation, confirmation and deemed confirmation, including the judgments in the case of Samsher Singh v. State of Punjab and Another (supra) and State of Punjab v. Dharam Singh (supra), formulated the principles of law regarding deemed confirmation in the three lines of cases, as per the relevant rules, as already quoted hereinabove.
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23. Another judgment referred to in High Court of M.P. Through Registrar and Others v. Satya Narayan Jhavar (supra) was that of the Constitution Bench in S.Sukhbans Singh v. The State of Punjab - AIR 1962 SC 1711, wherein it is stated that at the end of the probationary period, a probationer, who is neither terminated nor absorbed in a substantive post, will be eligible for being made permanent and will continue to be a probationer unless he is reverted or absorbed in a permanent post. The very fact that a person is a probationer implies that he has to prove his suitability for the higher post in which he is officiating. If his work is not found to be satisfactory, he will be liable to be reverted to his original post even without assigning any reason. It would, therefore, not be correct to say that a probationer has any right to the higher post in which he is officiating or a right to be confirmed. A probationer, being merely made eligible for being absorbed in a permanent post, is in no better position. In the present case, Page 38 of 60 HC-NIC Page 38 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT the order of termination has been passed on the ground that the services of the petitioner, during the period of probation, were not found to be satisfactory. Therefore, in the view of this Court, the judgment in the case of State of Punjab v. Dharam Singh (supra) would not apply to the case of the petitioner.
24. Reverting to the first issue of deemed confirmation, there is no doubt regarding the fact that the petitioner was appointed as Assistant Charity Commissioner as a direct recruit, under the Charity Commissioner Rules. This being the position, it cannot be denied that the said Rules are applicable in the case of the petitioner. Rule 4 of the Assistant Charity Commissioner Rules clearly states that a candidate appointed by direct selection shall be on probation for two years and shall have to pass the examination in Gujarati or Hindi, or both, in accordance with the Rules made by the Government in that regard. The petitioner has been placed under probation for an initial period of two years which can be extended for a Page 39 of 60 HC-NIC Page 39 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT further period of two years as per Rule 10A of the Rules. The learned counsel for the petitioner sought to argue that the Assistant Charity Commissioner Rules would not apply in view of Rule 10A of the Rules as Rule 10A starts with a nonobstante clause. It may be true that Rule 10A begins with a nonobstante clause and would govern the period of probation of all civil servants in the service of the State of Gujarat. However, it is not as though the existence of the specific rules framed for a class of service under the State of Gujarat, in this case, the Assistant Charity Commissioner Rules, is not recognized in Rule 10A of the Rules. The second proviso to Rule 10A recognises and provides for a situation where the passing of a departmental examination during the period of probation is stipulated as a prerequisite condition for completion of such probation period but the probationer could not pass the said examination in the prescribed chances for reasons beyond his control. The second proviso is, in fact, in the nature of an Page 40 of 60 HC-NIC Page 40 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT exemption for passing the departmental examination which is prescribed as a prerequisite condition for the completion of the probationary period as per the Rules, if the probationer could not pass the said examination for reasons beyond his control. From the above proviso, it is clear that the existence and applicability of the specific rules governing a cadre or post in the service of the State of Gujarat is recognized in Rule 10A of the Rules. It is not the case of the petitioner that she could not pass the departmental examinations prescribed under the Assistant Charity Commissioner Rules, for reasons beyond her control. Hence, the second proviso to Rule 10A would not be applicable in the case of the petitioner. However, this proviso is being adverted to, only with a view to illustrating the aspect that the specific rules governing a service, such as the Assistant Charity Commissioner Rules, in this case, are not obliterated by Rule 10A. In the view of this Court, therefore, Rule 4 of the Assistant Page 41 of 60 HC-NIC Page 41 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT Charity Commissioner Rules, which mandates a probation period of two years and requires the passing of the examination in the Gujarati and Hindi languages, would clearly be applicable in the case of the petitioner.
25. As stated by the Supreme Court in High Court of M.P. Through Registrar and Others v. Satya Narayan Jhavar (supra), the last line of cases is that where, though the rules provide for a maximum period of probation, a specific act on the part of the employer, in issuing an order of confirmation, or, of passing a test by the probationer for the purposes of confirmation, is required to be performed. In such cases, which, in the view of this Court includes the case of the petitioner, even if the maximum period of probation has expired and no order confirming the employee in the post or extending the period of probation has been passed and where the Rules provide that a specific act be performed, such as the passing of a departmental examination, the employee cannot claim confirmation by implication, merely because the maximum period Page 42 of 60 HC-NIC Page 42 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT of probation has ended.
26. Taking into consideration the language of Rule 10A of the Rules and Rule 4 of the Assistant Charity Commissioner Rules, this Court is of the considered view that the case of the petitioner does not fall in the second line of cases but falls under the third line of cases as mentioned in High Court of M.P. Through Registrar and Others v. Satya Narayan Jhavar (supra). It is not enough for the petitioner to say that she is proficient in the Gujarati and Hindi languages as she has passed the Gujarat Secondary Education Board Examination with Gujarati as a higher level language and also the Higher Secondary Certificate Examination, with Gujarati as a higher level language in the first class, as well as the "Hindi Vinit" examination conducted by Gujarat Vidyapith, which, according to the petitioner, is equivalent to graduation and recognized by the State. The petitioner cannot confer upon herself a qualification or an exemption from the rigours of the Rules, or dispense with the requirement of passing the Page 43 of 60 HC-NIC Page 43 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT examinations as required by the Recruitment Rules governing the post she holds. If the Rules require that the petitioner should pass an examination in the Hindi or Gujarati, or both, within the period of probation, then it is incumbent upon her to do so. It is, therefore, clear that in the present case, a specific act on the part of the petitioner is required to be performed before the order of confirmation of her services can be made. As the case of the petitioner falls in the third line of cases as referred to above, she cannot claim deemed confirmation, simply because no order continuing her probationary period or confirming her services has been passed, after the completion of the maximum period of probation. In view of this conclusion, the other judgments referred to on behalf of the petitioner on the point of deemed confirmation are not required to be referred to in detail, as to do so would amount to a duplication of the principles of law already discussed.
27. Now, coming to the second limb of the Page 44 of 60 HC-NIC Page 44 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT submissions advanced on behalf of the petitioner, it is to be seen whether the impugned order of termination is stigmatic or punitive in nature. As has already been stated earlier, the impugned order of termination states that the services of the petitioner are being terminated during her probationary period, as they are found to be unsatisfactory. On the face of it, the said order, being one of termination, simpliciter, cannot be said to be stigmatic or punitive in nature. To state that the services of the petitioner are unsatisfactory cannot be termed as a punishment or stigma, as satisfactory service is a prerequisite for confirmation in a post. No employer would like to confirm on the post, an employee whose services are found to be unsatisfactory. As such, a probationer has no right to confirmed appointment on a post, as the very fact of being placed on probation indicates that the capability and suitability of the probationer, for the post in question, are under assessment. The fact that the petitioner was Page 45 of 60 HC-NIC Page 45 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT placed under probation would mean that she was required to prove her suitability for the post before she could be confirmed. If the work of the petitioner is not found to be satisfactory, the respondents are not obliged to confirm her on the post. The petitioner has no absolute right to be absorbed permanently, especially as she has not passed the examinations as required by the Assistant Charity Commissioner Rules.
28. Learned counsel for the petitioner has based his arguments regarding the order being stigmatic and punitive, on the affidavitinreply filed by the State Government, wherein it is stated that, as per the Confidential Report regarding the petitioner, her services were found to be unsatisfactory. It is further stated therein that the petitioner is dishonest and not eligible for Government employment. Reference has been made to the Confidential Report in respect of the petitioner for the period 01.04.2004 to 30.06.2004. According to the petitioner, this material was never revealed to her by the respondents while she was in service Page 46 of 60 HC-NIC Page 46 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT and she has obtained it through the RTI Act.
29. In this regard, reference is made on behalf of the petitioner to a judgment of the Supreme Court in V.P.Ahuja v. State of Punjab and others (supra). The relevant extract of the judgment is reproduced hereinbelow:
"5. The observation of the High Court that: "The impugned order is not stigmatic and nothing at all has been urged that may detract from such an order being passed during the currency of probation."
is surprising, to say the least. The order by which the services of the appellant were terminated has already been quoted by us above. The order, ex facie, is stigmatic as also punitive. The order is founded on the ground that the appellant had failed in the performance of his duties administratively and technically. It is for this reason that the services of the appellant were terminated. As pointed out above, the order, ex facie, is stigmatic.
6. Learned counsel for the respondents has contended that the appellant, after appointment, was placed on probation and Page 47 of 60 HC-NIC Page 47 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT though the period of probation was two years, his services could be terminated at any time during the period of probation without any notice, as set out in the appointment letter. It is contended that the appellant cannot claim any right on the post on which he was appointed and being on probation, his work and conduct was all along under scrutiny and since his work was not satisfactory, his services were terminated in terms of the conditions set out in the Appointment Order. This plea cannot be accepted.
7. A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice.
8. The affidavits filed by the parties before the High Court as also in this Court indicate the background in which the order, terminating the services of the appellant, came to be passed. Such an order which, on the face of it, is stigmatic, could not have been passed without holding a regular enquiry and giving an opportunity of hearing to the appellant.
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9. The entire case law with respect to a "probationer" was reviewed by this Court in a recent decision in Dipti Prakash Banerjee vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta & Others, (1999) 3 SCC 60 = AIR 1999 SC 983 = 1999 (1) JT SC
396. This decision fully covers the instant case as well, particularly as in this case, the order impugned is stigmatic on the face of it.
10. For the reasons stated above, the appeal is allowed, the judgment dated 26.3.1999, passed by the High Court is set aside and the Writ Petition of the appellant is allowed. The order dated 2.12.1998, by which the services of the appellant were terminated, is quashed with the direction that he shall be put back on duty with all consequential benefits. No costs."
30. Reliance has also been placed upon a judgment of the Supreme Court in the case of Mathew P.Thomas v. Kerala State Civil Supply Corporation Ltd. (supra), wherein it is held as below:
"11. An order of termination simpliciter passed during the period of probation has been generating undying debate. The recent Page 49 of 60 HC-NIC Page 49 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT two decisions of this Court in Deepti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others [(1999) 3 SCC 60] and Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences and another [(2002) 1 SCC 520], after survey of most of the earlier decisions touching the question observed as to when an order of termination can be treated as simpliciter and when it can be treated as punitive and when a stigma is said to be attached to an employee discharged during period of probation. The learned counsel on either side referred to and relied on these decisions either in support of their respective contentions or to distinguish them for the purpose of application of the principles stated therein to the facts of the present case. In the case of Deepti Prakash Banerjee (supra), after referring to various decisions indicated as to when a simple order of termination is to be treated as "founded" on the allegations of misconduct and when complaints could be only as motive for passing such a simple order of termination. In para 21 of the said judgment a distinction is explained, thus: "21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a Page 50 of 60 HC-NIC Page 50 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT regular departmental enquiry, the simple order of termination is to be treated as "founded" on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."
From long line of decisions it appears to us whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the Page 51 of 60 HC-NIC Page 51 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT order of termination simpliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter but the real face behind it is to get rid of services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his Page 52 of 60 HC-NIC Page 52 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT misconduct."
(emphasis supplied)
31. Learned counsel for the petitioner has further relied upon a judgment of the Supreme Court in State Bank of India And Others v. Palak Modi And Another (supra). The relevant observations of the Supreme Court are as under:
"25. The ratio of the abovenoted judgments is that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice."Page 53 of 60
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32. Relying upon the observations of the Supreme Court quoted hereinabove, it is submitted on behalf of the petitioner that in the present case as well, the background and circumstances in which the order of termination was passed is reflected from the averments made in the affidavitinreply, showing that though, on the face of it, the impugned order may seem to be an order of termination, simpliciter, however, in reality, it is stigmatic and punitive. An extract of the Confidential Report has been annexed to the affidavitinreply. The petitioner has annexed the full document. A perusal of documents obtained by the petitioner under the RTI Act reveals that they contain certain file notings, in which the performance of the petitioner has been referred to, in the context of the completion of the probationary period.
33. The Confidential Report refers to certain specific periods of the petitioner's service in the context of her suitability for the post of Assistant Charity Commissioner. The Report Page 54 of 60 HC-NIC Page 54 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT indicates that the services of the petitioner have not been found to be satisfactory. No allegations have been levelled against the petitioner in the impugned order and no departmental inquiry has been initiated. There was, therefore, no requirement of issuing a show cause notice or calling for an explanation from the petitioner. The incident regarding the MLA was a specific one for which an explanation of the petitioner was called. However, this was not done in the context of her confirmation on the post or the extension of the probationary period. What has been done in the Confidential Report is an evaluation of the work of the petitioner, which has been found to be unsatisfactory. It is the prerogative of the employer not to confirm on a post any probationer whose services are not satisfactory. Just because the maximum period of probation has elapsed, does not mean that an employee whose services are unsatisfactory should be foisted upon the employer, merely because no order extending the probationary period, or confirming Page 55 of 60 HC-NIC Page 55 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT the employee on the post, has been passed. In the present case, the impugned order terminating the services of the petitioner on the ground of unsatisfactory work is corroborated by the material on record. This Court is unable to agree with the submissions advanced on behalf of the petitioner that the background and circumstances that led to the passing of the impugned order are punitive and stigmatic in nature, therefore, these aspects be read into the impugned order. On the face of it, the impugned order is that of termination, simpliciter, and cannot be termed as punitive or stigmatic. The existence of the Confidential Report evaluating the performance of the petitioner for the purpose of confirmation, and the reference to it in the affidavitinreply, cannot convert the order into a stigmatic one. It is not mandatory for the employer to reveal each and every reason to the probationer regarding why his, or her, work has not been found to be satisfactory. However, the period of probation can be extended to give the Page 56 of 60 HC-NIC Page 56 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT probationer a chance to improve. Mere dissatisfaction with the services of a probationer, on the part of the employer, does not amount to a punishment or stigma. No allegation of misconduct has been levelled against the petitioner in the impugned order. Hence, this Court cannot but conclude that the said order is neither punitive nor stigmatic in nature.
34. The judgments cited by the learned Assistant Government Pleader are not required to be referred to in extenso, for the reason that the proposition of law that there can be no deemed confirmation in the absence of a specific order has already been discussed hereinabove. Each case would have to be examined in the context of the specific rules governing it. In Commissioner of Police, Hubli And Another v. R.S. More (supra), reliance has been placed upon High Court of M.P. Through Registrar and Others v. Satya Narayan Jhavar (supra), which has been quoted in extenso earlier in this judgment. The other judgments more or less Page 57 of 60 HC-NIC Page 57 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT reiterate the same principles of law, in the context of the relevant rules in particular cases. In order to avoid repetition, the said judgments are not being dealt with individually.
35. A submission has been advanced on behalf of the petitioner that the order of termination has been passed due to political vendetta. Much has been stated about the incident that took place regarding an MLA who visited the office of the petitioner, where an altercation took place between the petitioner and the said MLA. Learned counsel for the petitioner has referred to certain communications and material obtained under the Right to Information Act which, according to him, show that the then Law Minister was instrumental in directing the termination of the petitioner. This Court does not find any weighty or convincing material on record to substantiate the allegations of political vendetta, as the petitioner is not a politician but a Government servant. Certain averments have been made in the affidavitin rejoinder regarding communal bias, which have Page 58 of 60 HC-NIC Page 58 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT not been pressed by the learned counsel for the petitioner. In any case, the incident regarding the MLA took place on 04.04.2005, whereas the Confidential Report regarding the performance of the petitioner dates back to a period from 12.11.2003 to 31.03.2004, 01.04.2004 to 30.06.2004, and 01.01.2005 to 31.03.2005, which period also includes the period prior to the said incident. The submission on behalf of the petitioner that the Confidential Report is an afterthought and has been concocted later on, has no legs to stand upon being unsupported by any material on record.
36. In view of the above discussion and for the reasons stated hereinabove, this Court is of the view that the petitioner cannot claim deemed confirmation by implication, on the ground that the impugned order has been passed after the maximum period of probation was over. Moreover, this Court is further of the view that the impugned order is one of termination, simpliciter, and is not stigmatic or punitive in nature. For the aforestated Page 59 of 60 HC-NIC Page 59 of 60 Created On Fri Jan 08 01:55:25 IST 2016 C/SCA/22763/2006 CAV JUDGMENT reasons, the petitioner does not deserve to be granted the relief/s claimed in the petition.
37. The petition is, therefore, rejected. Rule is discharged. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) sunil Page 60 of 60 HC-NIC Page 60 of 60 Created On Fri Jan 08 01:55:25 IST 2016