Allahabad High Court
Batuk Nath Pandey vs Rajya Krishi Utpadan Mandi Parishad ... on 14 February, 2020
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 81 Case :- WRIT - A No. - 66515 of 2013 Petitioner :- Batuk Nath Pandey Respondent :- Rajya Krishi Utpadan Mandi Parishad Thru Director And 2 Ors. Counsel for Petitioner :- Irshad Ali,Jai Singh Yadav Counsel for Respondent :- Satish Mandhyan,Meenakshi Singh,SC Hon'ble Yashwant Varma,J.
Heard Sri Prabhakar Awasthi learned counsel for the petitioners and Ms. Meenakshi Singh who appears for the respondents.
The instant petition has been preferred seeking the following reliefs:-
"A writ order or directions in the nature of certiorari quashing the impugned order dated 08.11.2002 passed by respondent no.2 to the extent it directs regularization of the petitioner w.e.f. 04.10.1994 filed as Annexure-5 to the writ petition as well as order dated 14.08.2013 passed by respondent no.2 filed as Annexure-17 to the writ petition.
A writ order or directions in the nature of mandamus directing the respondents to grant annual increment w.e.f. 04.10.1994 as well as arrears of salary to petitioner treating him to be regular on Class III w.e.f. 04.10.1994 within a period to be specified by this Hon'ble Court."
The first relief is in respect of an order passed by the respondents bringing to an end the period of probation on which the petitioner had continued and confirming him on the Class-III post to which he had been promoted. The relief itself is claimed on the ground that since the petitioner had been promoted initially on 28 September 1993 and had joined on 04 October 1993, he should be treated as having been confirmed in service upon completion of one year from the date of initial appointment in light of the provisions made in Rule 20, 21 and 22 of the U.P. Agricultural Produce Market Committees (Centralised) Services Regulations 19841. The order of 14 August 2013 has come to be passed negativing the claim of the petitioner for grant of pay increments which too were based on an identical contention of a deemed confirmation of the petitioner and consequent to completion of his probationary period on the Class III post. The respondents in terms of the impugned order of 14 August 2013 have taken the position that since the probation period of the petitioner was brought to an end by the order of 08 November 2002 whereafter he stood confirmed, his appointment on the Class-III post could not relate back to the original date of appointment. They have also taken into consideration the fact that although the petitioner had joined on 04 October 1993 and was stated to have suffered an accident on 23 May 1994 as a consequence of which some of his fingers came to be amputated, since this fact was brought to the attention of the respondents only in 1998 no relief was liable to be accorded.
Shorn of unnecessary details it may be noted that the petitioner while working as a Class-IV employee was promoted to the Class III cadre on 28 September 1993. He is stated to have joined that post on 04 October 1993. The respondents while granting promotion had clearly provided that the same was subject to promotees establishing their competence in typing and passing a typing test. On 23 May 1994 the petitioner met with the accident which has been referred to above. It is submitted that it was on that count that the petitioner could not participate or undertake the typing test as was prescribed. The matter continued to linger till an opinion of the Chief Medical Officer was obtained on 03 September 2002 in which it was opined that the petitioner may be exempted from typing work. Taking a sympathetic view of the matter and notwithstanding the imperative of all Class-III employees showing proficiency in typing, the respondents confirmed the petitioner in service on 08 November 2002.
Sri Awasthi learned counsel for the petitioner placing reliance upon the provisions made in Rules 20, 21 and 22 of the 1984 Regulations submitted that the petitioner must be held to have been confirmed in service upon completion of one year since no material has been brought on record to establish that the Appointing Authority had recorded any reason that the services rendered by him were unsatisfactory. He also refers to the provisions made in Rule 21(2) on the strength of which it is submitted that the Rule itself mandates that the period of probation shall not be extended beyond a period of two years. In that light it is his submission that the petitioner should in any case be treated as having been confirmed upon completion of two years from 04 October 1993. Sri Awasthi learned counsel further contends that the denial of increments by the respondents is also illegal since in terms of Rule 28 a person, though continuing on probation, is entitled to increments provided he has rendered satisfactory service. According to Sri Awasthi learned counsel the delay in the confirmation of the services of the petitioner was solely on account of a failure on the part of the petitioner to undertake the typing test which in the backdrop of the facts which are noted earlier was not a deliberate omission or refusal. The submission essentially is that the petitioner failed to take that test for reasons beyond his control, namely the accident which led to the amputation of some of his fingers. Similarly it was submitted that Rule 28 does not deprive an employee from claiming increments even if the period of probation is extended. Sri Awasthi submits that as provided in Rule 28 and the Proviso thereto the increment could have been denied only if the Appointing Authority had directed otherwise.
Sri Awasthi has also referred to an unreported decision rendered by a learned Judge of the Court in Narmada Prasad v. State of U.P. And Others2 to submit that Rule 23 which fell for consideration in that case was pari materia to Rule 28 as applicable here. It was submitted that the learned Judge in paragraph-4 observed thus:
"4. It is not the case of the respondents that the period of probation of petitioner was extended since his service was not found satisfactory. What the respondents' case is that during the probation period, no increment was payable at all. This is nothing but a clear misreading of relevant Rule 23 which shows that the increment shall not be payable unless first year's year is found satisfactory. As a matter of fact Rule 23 nowhere shows that no increment shall be payable during the period of probation and this is clearly non est ground for passing the order impugned in this writ petition. The impugned order, therefore, cannot sustain."
Ms. Meenakshi Singh, learned counsel for the respondents, on the other hand submits that Rules 21 and 22 when read together clearly establish as contemplating an order of confirmation being passed before it could be held that the period of probation stands successfully completed and concluded. Ms. Singh submits that continuance on probation beyond two years of the initial appointment cannot result in any presumption being raised that the employee stands confirmed in service automatically. Referring specifically to the provisions made in Rule 22 it was submitted that confirmation contemplates a positive act in the sense of an order being made by the Appointing Authority at the end of the period of probation and mere continuance without a specific order even upon the extended period of probation cannot lead to a presumption of permanency or confirmation. In support of her submissions Ms. Singh has placed reliance upon the decision of the Supreme Court in Head Master, Lawrence School Lovedale v. Jayanthi Raghu and Another3 and the decision of this Court in Raj Kamal Sonkar v. High Court of Judicature At Allahabad Through R.G.4.
Ms. Singh then referring to the counter affidavit which was filed drew the attention of the Court to the averments taken in paragraph-6 to submit that the promotion of the petitioner was clearly provisional and conditional upon him clearing the typing test. It was pointed out that despite repeated notices issued right from May 1995 the petitioner chose not to clear or undertake the typing test. Ms. Singh further submitted that regard must also be had to the fact that as per the petitioner's own showing although he is stated to have met with a road accident on 23 May 1994, the respondents were not apprised of this accident and the consequential inability of the petitioner to participate and take the typing test till at least 1998. In view thereof it was contended that the reliefs as claimed are not liable to be granted. On the issue of grant of increments Ms. Singh would submit that the extension of the probation period is itself indicative and evidence of the petitioner's services not being satisfactory. Ms. Singh submits that extension of the probationary period itself indicates and establishes the intent of the respondents to grant an opportunity to the employee to improve and prove himself worthy to be confirmed in service. Ms. Singh submits that extension of the period of probation even in the absence of any certification of satisfactory service cannot possibly lead to a presumption or assumption of the petitioner being entitled to increments.
Having noticed the rival submissions, the Court deems it apposite to firstly extract the provisions of Rule 20 to 22 of the 1984 Regulations which read thus: -
"20. Appointment- (1) The Appointing Authority shall make appointments against substantive vacancies by taking candidates in the order in which they stand in the lists prepared under Regulations 16, 17 or 18 as the case may be.
(2) The Appointing Authority may make appointments in temporary and officiating vacancies also from the lists referred in sub-regulation (1).
(3) The candidates selected for appointment as Secretary shall not be given appointment unless they have successfully undergone a training prescribed for Market Secretaries by the Government of India, Ministry of Rural Reconstruction at present being imparted at Lucknow and Hyderabad Centres.
21. Probation- (1) A candidate shall on appointment to a post in a substantive vacancy in the Centralised Service be placed on probation for a period of one year from the date of joining the post.
(2) The Appointing Authority may, for reasons to be recorded, extend the period of probation specifying the date up to which the extension is granted but in no case the period of probation shall be extended by more than two years.
(3). If it appears to the Appointing Authority at any time during or at the end of the period of probation that the probationer has not made sufficient use of his opportunities or has otherwise failed to give satisfaction, he may be reverted to his substantive post, if any, without assigning any reason. If he does not hold a lien or any post, his services may dispensed with.
(4) A probationer who is reverted or whose services are dispensed with under sub-regulation (3) shall not be entitled to any compensation.
(5) The Appointing Authority may allow continuous service rendered in an officiating or temporary capacity in a post included in the cadre of the Centralised Service or any other equivalent or higher post, to be taken into account for the purpose of computing the period of probation.
22. Confirmation- A probationer directly appointed or promoted to a post in the Centralised Service shall be confirmed in his appointment by an order of the Appointing Authority at the end of his period of probation or extended period of probation, as the case may be, if-
(a) he has satisfactorily completed the training prescribed, if any;
(b) his work and conduct are reported to be satisfactory;
(c) his integrity is certified; and
(d) the Appointing Authority is satisfied that he is otherwise fit for confirmation."
For the purpose of evaluating the correctness of the rival submissions addressed on the issue of annual increment, the Court deems it apposite to reproduce Rules 27 and 28 which read as under:-
"27. Annual increment- (1) An annual increment on the completion of one year of service may be allowed to a member of the Centralised Service at the rate shown in the time scale of pay in which he has been appointed, provided his increment has not been withheld as a disciplinary measure or he is not held up at an efficiency bar.
(2) Increment in a time scale will be granted to a member of the service from the first day of the month in which it falls due.
28. Pay during probation- A person, on probation, may be allowed his first increment in the time scale on completion of one year's satisfactory service, and second increment after two year's service when he has completed the probationary period and is also confirmed:
Provided that if the period of probation is extended on account of failure to give satisfaction such extension shall not count for increment unless the Appointing Authority directs otherwise."
Dealing firstly with relief No. 1 which is claimed, the Court notes that the order of confirmation of 08 November 2002 did not prescribe or hold out that the petitioner would stand confirmed in service from the date of his initial provisional promotion in September 1993. That order also does not relate the confirmation back to 04 October 1993 when the petitioner initially joined the Class-III post on probation. The stipulations as contained in this order were accepted and are assailed by the petitioner for the first time by means of the present petition filed in 2013. The Court notes that once the terms and conditions of appointment had been duly accepted it would be wholly impermissible for the petitioner to now seek either a reopening or amendment of the stipulations contained in that order. The Court bears in mind the following principles as enunciated by the Division Bench of the Court in Union of India Thru. Sec. Ministry of Defence and Others v. Roop Chandra And others5 where dealing with an identical challenge, the Court held thus: -
"5. Once applicant-respondent have not challenged their appointment from particular date, applicant-respondent cannot subsequently claim that their appointment be treated prior to date of appointment as same will enable them benefit of old pension scheme.
....
7. In our view appointment begins with the issue of appointment letters. terms of appointment are governed by appointment letter. Once appointment letter so issued to applicant respondent was accepted without any protest, applicant respondents could not have turned around and claim appointment prior to the date mentioned in appointment letters. Tribunal erred in granting the relief prayed for. Both the writ petitions are consequently allowed. Impugned judgements and orders dated 20.5.2011 and 27.4.2012, passed by Tribunal, are set aside."
Notwithstanding the Court holding against the petitioner on this premise, it proceeds to deal with the contention of deemed confirmation which is addressed on the strength of the provisions made in the statutory rules. It is by now well settled that the contention of automatic or deemed confirmation would ultimately depend upon the language of the relevant statutory rules. Rule 21 in this case empowers the Appointing Authority to extend the period of probation for reasons to be recorded. It also puts in place a maximum period of probation with Rule 21(2) providing that in no case the period of probation shall stand extended by more than two years. However Rule 21(2) cannot be considered or interpreted in isolation. It must be read in conjunction with Rule 22 which deals with the subject of confirmation. As per that Rule a probationer stands confirmed consequent to an appointment being made by an order of the Appointing Authority. That order must come into existence at the end of the period of probation or extended period as the case may be. Rule 22 envisages the Appointing Authority making that order upon being satisfied that the probationer has satisfactorily completed training, his work and conduct during that period has been satisfactory, his integrity is certified and he is otherwise satisfied that he is fit for confirmation. When Rule 22 is read in its entirety, it is manifest that it clearly contemplates an application of mind by the Appointing Authority to the aspect of confirmation and thereafter making a positive order confirming the probationer in service. The law on the aforesaid subject was duly enunciated by the Supreme Court after noticing the line of decisions rendered on the subject in High Court of M.P. v. Satya Narayan Jhavar6 and while reiterating the principles enunciated in that decision the Supreme Court in Lawrence School v. Jayanthi Raghu7 observed: -
"27. After referring to the decisions in Dharam Singh [AIR 1968 SC 1210]), Sukhbans Singh [AIR 1962 SC 1711] and Shamsher Singh [(1974) 2 SCC 831] and other authorities, the three-Judge Bench expressed thus:- (Satya Narayan Jhavar case [(2001) 7 SCC 161: 2001 SCC (L & S) 1087: AIR 2001 SC 3234], "11. The question of deemed confirmation in service jurisprudence, which is dependent upon language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the Rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor the person concerned has passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.
(emphasis supplied)
28. After so stating, it was further clarified as follows: (Satya Narayan Jhavar case [(2001) 7 SCC 161: 2001 SCC (L & S) 1087: AIR 2001 SC 3234],-
"37. Ordinarily a deemed confirmation of a probationer arises when the letter of appointment so stipulates or the rules governing service condition so indicate. In the absence of such term in the letter of appointment or in the relevant Rules, it can be inferred on the basis of the relevant Rules by implication, as was the case in Dharam Singh [AIR 1968 SC 1210]. But it cannot be said that merely because a maximum period of probation has been provided in the Service Rules, continuance of the probationer thereafter would ipso facto must be held to be a deemed confirmation which would certainly run contrary to seven-Judge Bench judgment of this Court in Shamsher Singh [(1974) 2 SCC 831: 1974 SCC (L & S) 550] and Constitution Bench decisions in Sukhbans Singh [AIR 1962 SC 1711] G.S. Ramaswamy [AIR 1966 SC 175] and Akbar Ali Khan [AIR 1966 SC 1842]."
More recently two learned Judges of the Supreme Court in Durgabai Deshmukh Memorial Sr. Secondary School and Another v. J.A.J. Vasu Sena and Another8 reiterated the legal position as under:-
"51. It emerges from the consistent line of precedent of this Court that where the relevant rule or the appointment letter stipulates a condition precedent to the confirmation of service, there is no deemed confirmation of service merely because the services of a probationer are continued beyond the period of probation. It is only upon the issuance of an order of confirmation that the probationer is granted substantive appointment in that post. Rule 105(2) stipulates the satisfaction of the appointing authority as a condition precedent to the issuance of an order of confirmation. The argument advanced by the learned counsel for the first respondent that there is a deemed confirmation upon the continuation of service beyond the expiry of the period of probation is negatived by the express language of Rule 105(2). In this view, the continuation of services beyond the period of probation will not entitle the probationer to a deemed confirmation of service. The High Court has erred in holding that there is a deemed confirmation where the services of a probationer are continued beyond the expiry of the probationary period.
....
56.In the view that we have taken, the High Court has erred in concluding that the case of the first respondent falls within the second category of cases enumerated in Satya Narayan Jhavar. Rule 105(2) stipulates the satisfaction of the appointing authority as a condition precedent to the issuance of an order of confirmation. Admittedly, no order of confirmation was issued by the appointing authority. The case of the first respondent falls squarely within the third category of cases enumerated in Satya Narayan Jhavar wherein though the rules prescribe a maximum period of probation and the probationer is continued beyond the expiry of the probationary period, the substantive appointment of the probationer is subject to a specific act on the part of the appointing authority of issuing an order of confirmation. In the absence of an order of confirmation, the first respondent did not acquire the status of a confirmed employee."
From a reading of the principles so elucidated and on a due consideration of the provisions made in Rules 21 and 22, this Court is of the firm opinion that the submission of deemed or automatic confirmation cannot be countenanced. The position which emerges from a consideration of Rules 21 and 22 clearly puts the present case in what was described by the Supreme Court to be the third category of cases which were noticed in Satya Narayan Jhavar. On a conjoint reading of the two provisions it is manifest that the probationer would not stand confirmed automatically upon completion of the maximum period of probation as prescribed. This since the Rule clearly contemplates the Appointing Authority being satisfied that the officer/employee is entitled to be confirmed and proceeds to pass a positive order holding so.
The Court notes that the submission of payment of increments which is controlled by Rule 28 must also meet similar fate since the Proviso to Rule 28 in unambiguous terms mandates that in case the period of probation is extended, such extension shall not count for the purposes of increment unless the Appointing Authority directs otherwise. Undisputedly the probationary period of the petitioner was extended right from 1993 till he was confirmed in service in 2002. The continuance of the petitioner on the extended period of probation cannot possibly be read as suggestive of satisfactory service as was contended. Even the absence of reasons for extension may not answer the question as arising conclusively since it is manifest from the extension of the period of probation itself that the Appointing Authority had not arrived at the satisfaction as is contemplated in Rule 22.
The Court also finds itself unable to hold in favour of the petitioner even on the strength of the decision in Narmada Prasad since it has already held that Rule 22 clearly warranted satisfaction being expressed and being arrived at by the Appointing Authority while dealing with the issue of confirmation. It has also been held that the continuance of the period of probation or its extension cannot be evidence or suggestive of satisfactory service. In Narmada Prasad the learned Judge was principally dealing with the contention as addressed on behalf of the respondents there that during the period of probation, no increments was payable at all. It is that question which has essentially been answered. The decision thus is clearly distinguishable.
On an over all conspectus of the aforesaid, the Court finds no merit in the petition, which shall stand dismissed.
Order Date :- 14.2.2020 faraz (Yashwant Varma, J.)