Allahabad High Court
Shikha Abrol vs State Of U.P.Thr.Prin.Secy. Sainik ... on 23 February, 2023
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 6 Case :- WRIT - A No. - 3372 of 2002 Petitioner :- Shikha Abrol Respondent :- State Of U.P.Thr.Prin.Secy. Sainik Kalyan Lko. And Another Counsel for Petitioner :- Dr.L.P. Mishra Counsel for Respondent :- C.S.C.,Pradeep Tiwari Hon'ble Irshad Ali,J.
1. Heard Dr. L.P. Mishra, learned Senior Counsel assisted by Sri Naveen Shukla, learned counsel for the petitioner, learned ACSC for respondent No.1 and Sri Pradeep Tiwari, learned counsel for respondent No.2.
2. The present writ petition has been filed challenging the order dated 22.06.2002 passed by respondent No.2 contained as Annexure-1 to the writ petition with further prayer to issue a writ, order or direction in the nature of mandamus commanding the respondents to allow the petitioner to continue in service in the establishment of respondents as Stenographer with all service benefits notwithdstanding the impugned order dated 22.06.2002.
3. Factual matrix of the case is that a communication was made to the District Employment Exchange, Lucknow for making the names of eligible candidates on the post of Stenographer in the establishment of Directorate of Sainik Kalyan Evam Punerwas, U.P., Lucknow and the candidature was sought from district level offices i.e. Zila Sainik Kalyan Evam Punerwas Offices.
4. The selection was held and 12 candidates including the petitioner appeared and on the basis of written examination, short-hand, typing test and interview, the petitioner was recommended for appointment on the post of Stenographer by the selection committee on 23.12.1996. On the recommendation made by the selection committee, the Deputy Director submitted a note on 27.12.1996 before respondent No.2 clearly stating that the post was to be filled up through a candidate belonging to General Category.
5. An appointment letter was issued to the petitioner and in pursuance thereof, she joined as Stenographer on 01.01.1997 and was placed under probation. She successfully completed the probation period, which was never extended. After a period of more than 5 years of working, a notice was issued to her on three grounds:
a) the vacancy was determined and requisition was sent to District Employment Exchange and notice of the vacancy was also pasted on the notice board of the Directorate.
b) As per rules of reservation, this vacancy was to be filled up through scheduled caste reserved category and rules of reservation was not followed.
c) the prescribed eligibility for appointment to a clerical post i.e. experience of 5 years working in army service was not possessed by the petitioner.
6. The said show cause notice dated 18.05.2002 was replied by the petitioner on 17.06.2002 stating that it was to be ascertained at the official level before making petitioner's appointment. However, without considering the petitioner's reply, order of termination was passed on 22.06.2002.
7. Submission of learned Senior Counsel for the petitioner is that the order of termination vitiates on 3 grounds:
a) under the rules, there is no provision to issue advertisement inviting application from open market. For reference, Rule 5 of the applicable rules is being quoted below:
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b) in reference to Rule 5, Rule 15 was prescribed for procedure on direct recruitment, which is being quoted below:
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c) in regard to appointment on the post of Stenographer, ???????? "?" is relevant consideration for the said purpose, which has already been quoted above.
8. In the light of aforesaid rules, submission of learned Senior Counsel for the petitioner is that there are 4 posts, therefore, the reservation rules will not be made applicable and the process of selection of General Category candidate is correct and does not suffer from any infirmity or illegality. In case against 4 vacancies reservation is permitted of the scheduled caste and scheduled tribes, it will exceed 21% and there shall be 25%, therefore, the procedure of appointment against cadre strength of 4 vacancies without complying the reservation is correct.
9. His next submission is that the advertisement, as held in the impugned order, is not required to be published in the newspaper inviting applications from open market. In this regard, relevant rules have been quoted above, which does not lay down the procedure for making advertisement of the vacancy.
10. His last submission is that the appointment of the petitioner has been held to be in violation of Government Order dated 14.09.1989 (Anneuxre-5). In this regard, his submission is that the rules have been framed in exercise of power under Article 309 of the Constitution of India and a government order cannot over ride the provisions contained under the same. In support of his submissions, he placed reliance upon following judgments:
a) On the point of "after successful completion of probation, employee should deemed to be confirmed", he placed reliance upon following judgments:
i) Jaswant Singh Pratap Singh Jadeja Vs. Rajkot Municipal Corporation and others; (2007) 10 SCC.
ii) Rajinder Singh Chauhan and others Vs. State of Haryana & others; (2005) 13 SCC 179.
b) On the point that "reservation (Roster) for caste shall not be applicable if posts are less than five in number in cadre and that number of posts shall be determined individually for direct recruitment and promotional cadre", he placed reliance upon following judgments:
i) Heera Lal Vs State of U.P. and others; (2011) 29 LCD 1.
ii) Netrapal Singh Vs. Chandra Pal Singh and others; (2013) 2 ESC 535.
iii) Vinod Kumar Vs. State of U.P. and others; (2011) 29 LCD 103.
iv) Smt. Vandana Gangwar Vs. State of U.P. and others; (2011) 2 UPLBEC 1299.
c) On the point that "executive order cannot over ride the statutory provisions", he placed reliance upon following judgments:
i) Vijay Singh and others Vs. State of U.P. and others; (2004) 3 UPLBEC 2778.
ii) R.B. Dixit Vs. Union of India and others; (2005) 1 UPLBEC 83.
11. On the other hand, learned counsel for respondent No.2 submitted that the impugned termination order does not suffer from any infirmity or illegality and the same is just and valid. He submitted that the provisions of reservation against cadre strength of 4 vacancy is also applicable. In support of his submissions, he placed reliance upon following judgments:
i) Dr. Vishwajeet Singh and others Vs. State of U.P. and others; 2009 (2) ESC 1387 (All) (DB).
ii) National Fertilizers Ltd. and others Vs. Somvir Singh; (2006) 5 SCC 493.
12. He further submitted that the person belonging to army having 2 year's experience was required to be appointed against the said vacancy, therefore, the impugned order of termination is a just and valid one.
13. Learned ACSC has also adopted the same arguments, as has been advanced by learned counsel for respondent No.2.
14. I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as law reports cited by learned counsel for the parties.
15. While entertaining the writ petition, this Court passed an interim order on 27.06.2002 corrected vide order dated 04.07.2002, which is being quoted below:
"All the respondents are represented by learned Chief Standing Counsel.
As prayed counter affidavit may be filed by the next date.
List this matter in the 1st week of August, 2002.
It has been submitted by the learned counsel for the petitioner that petitioner was appointed in the year 1996 and she has completed probation period and without any complaint of any kind, she is continuing in service. It has been further submitted that after giving a show cause notice, without any further detailed enquiry, giving opportunity to the petitioner to participate therein, the impugned order has been passed.
In view of the aforesaid it is hereby provided as an interim measure that till further order of this court operation of the order dated 22-06-2002 (Annexure-1 to the writ petition) shall remain stayed and that will not be given effect to."
16. Vide aforesaid impugned order, the operation of the order dated 22.06.2002 contained as Annexure-1 to the writ petition was stayed with a further stipulation that it will not be given effect to. Meaning thereby, since 1997, the petitioner is discharging all duties and functions and has been paid salary and is on the verge of retirement.
17. To resolve the controversy involved in the matter, the judgments relied upon by learned counsel for the parties are being quoted below:
a) Judgments relied upon by learned Senior Counsel for the petitioner:
i) Jaswant Singh Pratap Singh Jadeja (Supra):
"11. Before, however, we embark upon the legal questions, we must notice that the appellant had not been confirmed in his services from 1999 to 2003. The power of Commissioner of Municipality to appoint a person on temporary basis is governed by the statutory rules. It has not been shown before the High Court or before us as to under what provisions of law the period of probation was extended from time to time. Applicability of the provisions of the Act is not in dispute. It may be true that such a contention was not raised before the High Court, but if under the statute, the period of probation could not have been extended, he will be deemed to have been confirmed on expiry of the period of probation."
ii) Rajinder Singh Chauhan and others (Supra) :
"11. The stand of the respondents was that the appellants were not confirmed employees. The appointment order of each of the appellants contains the stipulations which are as follows:
"1. Your appointment as Salesman is purely temporary.
2. During the period of probation, your services are liable to be terminated without giving any notice or assigning any reason.
3. You shall be governed by the terms and conditions contained in the Staff Service Rules of the Federation, amended from time to time."
This is a case where the period of probation is fixed having regard to Rule 4(b) read with Rule 10 as quoted above. Rule 10(6) no doubt provides that no employee shall be deemed to have been confirmed in the service unless specific order in this regard is issued. Relying on this provision, learned counsel for the fourth respondent submitted that there was no specific orders of confirmation and, therefore, the appellants should be deemed to have continued as probationers till the date of termination of their services. A similar stand was considered in Om Prakash Maurya v. U.P. Coop. Sugar Factories Federation. A Constitution Bench of this Court in State of Punjab v. Dharam Singh noted as follows:
"Where as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended and an employee appointed or promoted to a post on probation is allowed to continue in the post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication."
12. In High Court of M.P. through Registrar and Ors. v. Satya Narayan Jhavar (2001 (7) SCC 161), this Court categorised the provisions for probation as follows:
"11. The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination 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 has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."
In above view of the matter, the stand of the appellants that they were deemed to have been confirmed at the end of 24 months and they were permanent employees is in terra firma. 'Salesmen' belong to Class III of the category of permanent employees. The definition of "Probationer" given in Rule 4(b) fully supports the appellants' stand that the probation period shall not exceed 24 months in all. Therefore as was held in Om Prakash's case, Satya Narayan Jhavar's case and Dharam Singh's case (supra) the appellants inferentially have to be treated as permanent employees, and consequently the benefits under Rule 35(b) were available to them. But the same shall not be in addition to what is payable under Section 25-F. The amount which is higher of the two i.e. of Section 25-F or Rule 35(b) shall be paid to the appellants. If any amount has already been paid in terms of Section 25-F the same shall be adjusted while making the payment under Rule 35(L), which shall be made within three months. The appeal is allowed to the aforesaid extent. No costs."
iii) Heera Lal (Supra):
"27. However, even assuming that one such post can exist by applying the rule of necessity and the principle of rounding off, the rule of reservation of 21% in less than five posts cannot be implemented. Law is also acknowledged as a technical dress. The prescription of law therefore cannot be designed through an interpretive tool to make it look upside down. Neither the Government Order dated 8th March, 1973 or the subsequent orders nor the provisions of U.P. Act No. 4 of 1994 project and support any such proposition as advanced on behalf of the State. The mathematical calculation prohibits anything further, and so do the legal principles as noticed above. The game of digits and numbers cannot be taken further even by employing the intuitive mind of the great mathematician Ramanujam nor can such a view be made possible through the best of forensic legacy of law.
28. The rule of roster and the concept of a running account of the roster therefore would commence only if there are five or more posts for extending the benefit of 21% reservation in favour of the scheduled caste category. A numerically less strength figure, below the required number, would therefore not allow the roster to be operated, as a roster is there to implement the rule of reservation and not a tool to create reservation. As noticed in the judgments of the Apex Court that in the event of any any conflict between the percentage of reservation and the applicability of the roster, the former would prevail. Thus, in no event can the percentage of reservation be inflated or enhanced by the illusionary or imaginative application of the rule of roster. If such interpretation as suggested by the State is given then the same would amount to a non-constructive existence of a miscalculated proof in the words of the famous German Mathematician Leopold Kronecker (1823-91). In legal terms this would violate the mandate of the constitution and in cases of promotion it would not be in conformity with the same."
iv) Netrapal Singh (Supra):
"8. The learned Single Judge by the Judgment dated 30.6.2009 allowed the aforesaid Civil Misc. Writ Petition No.33002 of 2008 and quashed the said order dated 16.6.2008 passed by the District Inspector of Schools, Saharanpur. The learned Single Judge, further directed the District Inspector of Schools, Saharanpur to accord approval in respect of the promotion of the Petitioner-respondent No.1 from Class-IV post to Class-III post in the institution in question. The Respondent No.5-appellant (Netra Pal Singh) thereafter filed the present Special Appeal.
14. The Full Bench decision of this Court lays down that either in cases of promotion or direct recruitment, the rule of reservation providing for 21 per cent reservation to Scheduled Castes under the U.P. Act No. 4 of 1994 as applicable to the aided educational institutions cannot be pressed into service where the number of posts in the cadre is less than five.
15. In the present case, as noted above, there are only three posts in the cadre of Assistant Clerk. Therefore, in view of the above Full Bench decision, there could not be any reservation for Scheduled Castes in respect of the vacant post falling in promotional quota in the institution in question. The order dated 16.6.2008 passed by the District Inspector of Schools, Saharanpur was therefore, not in accordance with law. The learned Single Judge has rightly quashed the said order dated 16.6.2008."
v) Vinod Kumar (Supra):
"2. The appellant herein was respondent no.6 in the writ petition filed by one Anand Prakash. In the petition, the issue was in respect of validity of promotion of the appellant and the order passed by the District Inspector of Schools approving his appointment. The judgment of the learned Single Judge, after recording a finding that there were only three posts of Class-III, and considering the Full Bench judgment of this Court in Heera Lal v. State of U.P. & ors. 2010 (6) ADJ 1 (F.B.):2011 (29) LCD1 held that there could be no reservation unless the number of posts is more than five, and quashed the order dated 21.06.2010 granting approval to the appellant's appointment. The learned Judge has also issued a direction to the Managing Committee of the institution to act strictly as per the parameters provided under Regulation 2(2) of Chapter III of the U.P. Act No.II of 1921, preferably within next three months from the date of presentation of a certified copy of the order.
5. In that view of the matter, insofar as percentage of reservation is concerned, the law could be as declared by the Full Bench of this Court in Heera Lal (Supra). The observations made by the Division Bench in the case of Dr. Neeraj Shukla (supra) as relied on by Sri Khare would, therefore, be of no avail to the appellant.
6. In the light of above, in our opinion, there is no merit in the appeal, which is accordingly dismissed."
vi) Smt. Vandana Gangwar (Supra):
"4. A supplementary counter affidavit has been filed by the District Inspector of Schools dated 18.11.2006. From Annexure-1 to the supplementary counter affidavit as well as the facts on record, it is an admitted position that there are eight sanctioned posts of Lecturer, 50% of the same are required to be filled by way of promotion which would work out to four. It is further admitted on record that on the date Shyama Devi Sharma expired i.e. 15.6.1995, there were seven lecturers actually working in the institution including Shayama Devi Sharma. Out of seven persons, three had been appointed by direct recruitment and one post was vacant, meaning thereby that the vacancy which was occurred due to death of Shyama Devi Sharma, was required to be filled by way of promotion. It is against this vacancy that the petitioner had claimed promotion as Lecturer.
5. A Full Bench of this Court in the case of Heera Lal and others v. State of U.P. and others reported in (2010) 2 UPLBEC 1761 has held that for reservation being provided in favour of Scheduled Caste category, there must be at least five posts in the cadre concerned. The Full Bench has further explained that where the vacancies are required to be filled by promotion as well as direct recruitment, such number of posts have to be individually determined for each source of recruitment.
6. In view of the said Full Bench judgment, it has to be held that since there are only four posts within the promotion quota in the cadre of Lecturer in the institution, no reservation for Scheduled Caste category candidate can be provided. Consequently the reasons assigned in the impugned order fall to ground. The order impugned is therefore, quashed. Let the respondent No.3 (Joint Director of Education, Bareilly Region, Bareilly) reconsider the claim of the petitioner for regular promotion in accordance with the Act, 1982 preferably within eight weeks from the date a certified copy of this order is filed before him. All consequential action be taken accordingly."
vii) Vijay Singh and others (Supra):
"9. Similar view has been reiterated in Union of India v. Rakesh Kumar, AIR 2001 SC 1877; Swapan Kumar Pal and Ors. v. Samitabhar Chakroborty and Ors., AIR 2001 SC 2353; Khet Singh v. Union of India, (2002) 4 SCC 380; Laxminarayan R. Bhattad and Ors. v. State of Maharashtra and Anr., (2003) 5 SCC 413; and Delhi Development Authority v. Joginder S. Monga, (2004) 2 SCC 297, observing that statutory rules create enforceable rights which cannot be taken away by issuing executive instructions.
22. In Punit Rai v. Dinesh Chaudhary, (2003) 8 SCC 204; Union of India v. Naveen Jindal, (2004) 2 SCC 510; and State of Kerala v. Chandra Mohan, (2004) 3 SCC 429, the Apex Court held that executive instructions cannot be termed as law within the meaning of Article 13(3)(a) of the Constitution.
23. In M/s. Bisamber Dayal Chandra Mohan v. State of U.P. and Ors., AIR 1982 SC 33, the Hon'blc Supreme Court explained the difference in a statutory order and an executive order observing that executive instruction issued under Article 162 of the Constitution does not amount to law. However, if an order can be referred to a statutory provision and held to have been passed under the said statutory provision, it would not be merely an executive fiat but an order under the Statute having statutory force for the reason that it would be a positive State made law. So, in order to examine as to whether an order has a statutory force, the Court has to find out and determine as to whether it can be referred to the provision of the Statute.
30. In John Vallamattom and Anr. v. Union of India and Ors., AIR 2003 SC 2902, the Supreme Court held that Article 372 per force does not make a Pre-Constitutional statutory provision Constitutional. It merely makes a provision for the applicability and enforceability of Pre-Constitutional laws subject to the provisions of the provisions of the Constitution.
64. In the view of the above, we reach the inescapable conclusion that statutory rules cannot be set at naught by issuing executive instructions. But the facts of the instant case do no make the said proposition of law applicable at all. As herein the field is already occupied by the provisions of Act, 1861 which is in operation by virtue of the provisions of Article 313 of the Constitution, thus. Rules, 1972 could not be attracted at all. The Government Orders issued for fixing the maximum age for recruitment on subordinate police posts operate in an entirely different field and are not in conflict with the Rules, 1972. The case stands squarely covered by the Apex Court judgment in Chandra Prakash Tiwari (supra) and, thus, it is not possible for us to take any other view. The main submissions made by Mr. Chaudhary that Pre-Constitutional law stands abrogated altogether by commencement of the Rules, 1972, is devoid of any merit. Therefore; our answer to question No. 1 is that the field stood occupied on account of the provisions of Section 2 of the Act, 1961. The Legislature while enacting the provisions of Section 2 of Act, 1961 itself delegated the power to the statutory authorities to fix the eligibility including the age etc, The statutory authorities had performed their duties in exercise of the delegated powers from time to time without any deviation therefrom."
viii) R.B. Dixit (Supra):
"7. In the above hierarchy if there is conflict between a higher law and a lower law then the higher law will prevail. The executive instructions are part of the fourth layer in the hierarchy, which is at the lowest level, whereas an Act is part of the second layer and the Statutes made under the Act are delegated legislation and hence part of the third layer. The letters dated 31.8.1998 and 30.3.1999 are only executive instructions and hence they belong to the fourth layer. Hence they are neither Act nor Statutes. Hence in our opinion the age of retirement of an employee of the Indian Institute of technology is 60 years and not 62 years vide Section 13(2). We, therefore, respectfully disagree with the decision in Raja Ram Verma's case.
8. The judgment in Raja Ram Verma's case (supra) is hereby overruled. The writ petition is consequently dismissed."
b) Judgments relied upon by learned counsel for respondent No.2:
i) Dr. Vishwajeet Singh and others (Supra):
"74. In 4 cadre posts, if one post is reserved for Scheduled Castes then reservation for Scheduled Caster be 25% which is impermissible. However, if one post is treated to be reserved for Other Backward Class then reservation for Other Backward Class shall be only 25% i.e. within 27% as prescribed under sub section (1) of Section 3. Thus, out of four posts, one post can be validly reserved for Other Backward Class. Now an example of five posts cadre is taken. Four five posts cadre, if one post is reserved for Scheduled Castes that will be 20% and will be within 21% as prescribed under sub-section (1) of Section 3. One post for Other Backward Class can also be very well reserved out of five cadre posts since it shall be within the 27% as prescribed. Thus, for giving reservation to Scheduled Castes and Other Backward Class, it is clear that there has to be five posts in a cadre. In the roster point, the first point which comes for Scheduled Tribes is at serial No.47. Thus, even according to roster, Scheduled Tribes can get reservation at the 47th post. The above view of ours is fully supported by the judgment of the Supreme Court in the case of R.S. Garg v. State of U.P. and others, (2006) 6 SCC 430. The facts of R.S. Garg case needs to be noted in some detail. In the aforesaid judgment, both the appellant and respondents were working as Assistant Directors. The appellant having been appointed in the year 1972 whereas the third respondent was appointed on 13.1.1987 on adhoc basis. There were six posts of Deputy Director of Factories in the State of U.P. out of which four posts were designated of Deputy Director of Factories (Administration), one as Deputy Director of Factories (Chemical) and one Deputy Director of Factories (Engineering). The post of Assistant Director of Factories was the feeder post. The Government converted the post of Deputy Director Factories (Chemical) to Dy. Director Factories (Administration). The third respondent was promoted as Deputy Director of Factories (Administration) as a reserved category candidate, which promotion was challenged in the Supreme Court. One of the grounds of challenge was that reservation to the post of Scheduled Castes was illegal and unjust by reason thereof percentage of reservation for promotion cannot be raised from 21 to 33%. The contention raised before the apex Court has been noted in paragraph 6 of the judgment to the following effect:
"6. The said writ petition had been dismissed by the impugned judgment. The contentions raised before the High Court as also before us, on behalf of the appellant are:
(i) The 3rd respondent was illegally appointed as Assistant Director of Factories as his services were regularized without referring the matter to the Public Service Commission as was required by Rule 5(iii) of the 1992 Rules;
(ii) The order of promotion passed in favour of the 3rd respondent was male fide;
(iii) THe purported conversion of the post of Deputy Director of Factories (Chemical) to Deputy Director of Factories (Admn.) being contrary to the 1992 Rules and having been done with a view to favour the 3rd respondent, was illegal;
(iv) The 3rd respondent was not iligible to be promoted, as he did not complete 5 year's substantive service on the date of selection, i.e., in the year 1997 in terms of Rule 5(iii);
(v) Reservation to the post in favour of a Scheduled Caste was illegal and unjust by reason thereof the percentage of reservation in promotion would be raised from 21% to 33%.
(vi) The post of Deputy Director of Factories (Administration) has already been occupied by a candidate belonging to the reserved category, namely Shir Ghanshyam Singh."
ii) National Fertilizers Ltd. and others (Supra):
"Taking note of some recent decisions of this Court, it was held that the State does not enjoy a power to make appointments in terms of Article 162 of the Constitution of India. It further quoted with approval a decision of this Court in Union Public Service Commission v. Girish Jayanti Lal Vaghela & others [2006 (2) SCALE 115] in the following terms:
"The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution."
It was clearly held:[Umadevi (3) case, SCC p. 35, para 41] "These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment."
18. On perusal of aforesaid judgments, it is evident that if under the statute, the period of probation could not have been extended, the appointment will be deemed to have been confirmed on expiry of the period of probation.
19. In the case in hand, the petitioner has been granted appointment after following due procedure i.e. written examination, short-hand, typing test and interview and, thereafter, the petitioner was recommended for appointment on the post of Stenographer by the selection committee. Thereafter, on the recommendation made by the selection committee, the Deputy Director submitted a note before respondent No.2 clearly stating that the post was to be filled up through a candidate belonging to General Category and, thereafter, appointment letter was issued to the petitioner and she was placed under probation period, which she completed successfully. While entertaining the writ petition, this Court granted an interim order on 27.06.2002, which was subsequently corrected vide order dated 04.07.2002 and in pursuance thereof, the petitioner is discharging all duties and functions and has been paid salary and is on the verge of retirement and if there was any discrepancy in the petitioner's appointment, as raised vide termination order dated 22.06.2002, it was to be ascertained at the official level before issuing appointment letter to the petitioner.
20. The appointment of the petitioner has been made in accordance with ???????? "?" & ???????? "?" of the applicable rules and her probation period has not been extended. Meaning thereby, she has successfully completed the probation period. The service rules fix a certain period of time beyond which the probationary period cannot be extended and an employee appointed or promoted to a post on probation is allowed to continue in the post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication.
21. In the view of the above, this Court reaches to the inescapable conclusion that statutory rules cannot be set at naught by issuing executive instructions and the observations made in the case of Dr. Vishwajeet Singh and others (Supra) and National Fertilizers Ltd. and others (Supra) as relied upon by respondent No.2 would, therefore, be of no avail to the respondents. Therefore, the impugned order dated 22.06.2002 is liable to be quashed and is hereby quashed.
22. The writ petition succeeds and is allowed.
23. Consequences to follow.
Order Date :- 23.2.2023 Adarsh K Singh