Gujarat High Court
Popatlal Vasudev Vyas vs Gujarat Water Supply And Sewerage Board ... on 24 March, 1988
Equivalent citations: (1988)2GLR895, (1989)ILLJ161GUJ
JUDGMENT
1. The petitioner was appointed on purely temporary basis on probation for one year as English Stenographer by an order dated 27th February 1984 on the establishment of respondent No. 1 Gujarat Water Supply & Sewerage Board (hereinafter to be referred to as 'the Board'). The petitioner's probation period was extended from time to time and ultimately it was extended upto 27th February 1986 by an order dated 6th November 1985. Thereafter, the question whether the probation period should be extended or whether the petitioner should be continued on long term basis or whether the petitioner should be discharged from service was under consideration. In the meantime, the present petition was filed in the month of February 1987 on 20th February 1987. This Court on 23rd February 1987 directed notice pending admission to be issued to the respondents. Thereafter, during the pendency of this petition, the order or termination was passed on 14th December 1987 terminating the services of the petitioner with effect from 15th December 1987 forenoon. The petitioner was paid salary in lieu of one month's notice. The petitioner has been relieved as per the said order. The petitioner's contention is that he was not relieved, while the contention of the respondents as per the affidavit of the Executive Engineer or the respondent-Board filed on 17th December 1987 is to the effect that the order of termination was served upon the petitioner who accepted the same but after reading the same and having known the contents, returned the same and refused to acknowledge the receipt thereof. To the same effect is the affidavit of the Senior Manager (Personnel) and other officers of the Board. The petitioner is, therefore, no more in active service thereafter. This aspect need not detain as any further because I am inclined to take the view that there is no merit in this petition and it deserves to be dismissed.
2. The petitioner's case is that his work was quite satisfactory and even then his services have been terminated by extending the probation from time time. It is also the contention of the petitioner that when he was appointed on probation for a period of one year he should be deemed to have been confirmed on the expiry of the said period and the period of probation could not have been extended. It is also the contention of the petitioner that after the period of probation was extended on the last occasion upto 27th February 1986 for a period of six months, he was continued in service without passing an order of extension of probation thereafter and therefore, also he should be deemed to have been continued in service on long term basis and, therefore, also his service could not have been terminated. It is also the contention of the petitioner that the Rules framed by the Government for appointment of Stenographers have been adopted by the respondent-Board and those Rules do not provide for any extension of probation period and, therefore also the period of probation could not have been extended by the respondents. The contention of the respondents, on the other hand, is that the respondent-Board has not adopted the Rules of the Government. The say of the respondent-Board is that no Rules have been framed for recruitment of Stenographers by the Board and that the process is going on for framing the Rules. It is the contention of the respondents that the petitioner was appointed on probation for a period of one year but the respondent-Board has the power to extend the period of probation, accordingly the respondents extended the period of probation of the petitioner because his work was not found to be satisfactory and ultimately his services have been terminated as he did not show improvement. It is also the contention of the respondents that the conditions mentioned in the letter of appointment provide for termination of service by giving one month's notice and accordingly the services of the petitioner have been terminated and, therefore, the petitioner cannot have any grievance against the order of termination. It is also the contention of the respondent-Board that there being no Rules for recruitment and there being no indication in the order of appointment that on the expiry of one year of the period of probation, the petitioner was to be continued on long term basis is cannot be and that the petitioner automatically got conformation on the expiry of the probation period.
3. Having heard the learned Advocates for the petitioner and the respondent-Board, I am of the opinion that the respondent-Board has rightly terminated the services of the petitioner and this petition is without any merit and therefore, it deserves to be dismissed at the admission stage for the reasons which follow.
4. The first question is whether the period of probation could have been extended by the Board or not. The say of the respondent-Board is that no Rules have been framed so far as recruitment of Stenographers is concerned. The learned Advocates for the petitioner as well as the respondents have shown me compilation of Rules which contain Recruitment Rules for different categories of employees of the Board but the said compilation does not contain any Rules for recruitment of English Stenographers. That appears to be an admitted position. The say of the petitioner is that the respondent-Board has adopted the Rules framed by the Government. This contention is denied by the respondent-Board. But even if we take into consideration the Rules framed by the Government which are produced at Annexure 'I' by the petitioner, then also the petitioner cannot succeed because these Rules provide for appointment on probation for a period of one year. These rules nowhere indicate that the period of probation cannot be extended or that on the expiry of the said period the employee will be automatically confirmed without any express order by the employer. It is true that the said Rules do not contain a provision for extension of probation, but at the same time they also do not contain any prohibition against extension. These Rules also do not provide that the probation period can be extended only for a particular period. Hence even if these Rules are taken into consideration, they do not advance the case of the petitioner any further.
5. Several decisions have been cited on either side. The first decision is reported in Paramjit Singh Sandhu v. Ram Rekha, (1979-II-LLJ-6). I fail to understand how this decision of the Supreme Court can help the petitioner because the observations made by the Supreme Court in that case, which are reproduced by the petitioner in the draft amendment, show that where the Rules provide for a fixed period of probation with a power in the Government to extend it upto a specific period and not any unlimited period, either by express provision or by necessary implication, at the end of such specified period beyond which the Government had no power to extend the probation, the probationer if he continues beyond that period, should he deemed to have been confirmed in that post. In the present case. There are no Rules as stated above. The Rules framed by the Government upon which the petitioner relies also do not help the petitioner because they do not provide that the period of probation can be extended only upto a specific period. There is also nothing in the order of appointment which would indicate that the probation period can be extended upto a specified period and not beyond that period. This decision of the Supreme Court, therefore, does not advance the case of the petitioner any further.
6. The next decision relied upon by the learned Advocate for the petitioner is reported in State of Punjab v. Dharam Singh, (AIR) 1968 SC 1210. It appears that in that case also the proviso to Rule 6(3) prohibited extension of the period of probation beyond three years. In that case, the employee was allowed to be continued on that post after the expiry of three years and no express order of confirmation was passed. But in view of the specific provision in the proviso, the Supreme Court held that the petitioner must be deemed to have been confirmed in that post. This decision also does not advance the case of the petitioner any further because there is no such Rule which would help the petitioner.
7. The decision of the Supreme Court reported in State of Gujarat v. Akhilesh 1987 (4) SCC 482 also does help the petitioner because in that case also it appears that there were administrative guidelines providing that a member of the said service should not be kept on probation for more than double the normal period i.e. four years. In that case it appears that the original petitioner was continued even beyond the period of four years without terminating his services and, therefore, it was held on account of the said guidelines that the petitioner should be deemed to have been continued on long term basis after the expiry of four years. Even in that decision the Supreme Court has observed that the said Court has held in a series of decisions that an order of confirmation has to be made and confirmation would not follow automatically, but after referring to the administrative guidelines the Supreme Court took the view as stated above in that matter. In the present case, there is nothing in the order of appointment which will indicate that the probation period could not have been extended or that it could not have been extended beyond a particular period and, therefore, the above decision of the Supreme Court does not help the petitioner in the present case.
8. The decision reported in Dhanjibhai Ramjibhai v. State of Gujarat, (1985-II-LLJ-521) relied upon by the learned Advocate Mr. Patel for the respondents is not applicable in the present case because it appears from what has been stated at para 6 of the said decision that the Rule provided for appointment on probation and they also specifically provided for extension in accordance with the Rules.
9. The decision of the Supreme Court reported in Kedamath v. The State of Punjab, (AIR) 1972 SC 873 lays down that where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed in that behalf. If has been laid down by the Supreme Court further that unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of specified period, or there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. The Supreme Court further laid down that at the end of the period of probation an order confirming the officer is required to be passed and if no such order is passed and he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer. In that case, it appears that the petitioner was promoted on a higher post and appointed on probation and the said temporary post having not been continued further, the petitioner was reverted and his petition was dismissed in the light of the above observations made by the Supreme Court. The ratio of this decision of the Supreme Court is a applicable on all fours in the present cast. There are no Rules of recruitment for English Stenographers as stated earlier. Even the Rules framed by the Government upon which the petitioner relies do not advance the case of the petitioner because the said Rules do not provide that the period of probation cannot be extended or that the employee cannot be kept on probation beyond a particular period. The said Rules do not prohibit extension of probation. So far as the order of appointment is concerned, it only says that the petitioner was appointed on probation for one year. It does not indicate the maximum period of probation. It does not indicate either expressly or by necessary implication that the period of probation will not be extended or that on the expiry of the period of one year, the petitioner will automatically be confirmed. In view of this, the ratio of the decision of the Supreme Court in the above case applies on all fours and hence the grievance of the petitioner that the period of probation could not have been extended is without any merit and it deserves to be rejected.
10. So far as the merits are concerned, the respondent-Board has shown the original file containing the relevant remarks of the Department with regard to the work of the petitioner. The said file was even shown to the learned Advocate for the petitioner. Xerox copies of four relevant pages of the said file have been produced by the learned Advocate for the respondent-Board and they are kept on record. The confidential report dated 6th September 1985 shows that the petitioner was very weak so far as his work as English Stenographer was concerned. It also shows that his English was very poor and he had no control over the spelling and language and it was not in the interest of the Board to continue him in service. It also shows that the petitioner was neither careful nor regular. That is the first report. Then so far as the second reports dated 20th June 1986 is concerned, it is stated in column-7 that it was not necessary to extend the period of probation. Relying upon the said remarks in column-7, Mr. Mehta for the petitioner submitted that this report showed that the work of the petitioner was satisfactory. At the first sight, this argument may appear to be attractive, but the remarks in column-8 clearly shows that by saying 'No' in column-7, the officer concerned wanted to indicate that the petitioner's services should be terminated. In column-8 it is specifically stated that the question of appointment of the petitioner on any other post did not arise because there was no question of extending the probation. If we read columns-7 and 8 together, they clearly indicate that the said Officer was of the opinion that the services of the petitioner should be terminated though he has not specifically stated so therein. It would have been better if the concerned officer had stated in column-7 that the petitioner's services should be terminated. Then there are remarks dated 27th February 1987. They indicate that the petitioner's English was very poor. He committed many spelling mistakes and his work was not upto standard. The said report also indicates that the petitioner was short-tempered and he was a quarrelsome fellow, and he was not following the instructions and other officials used to keep away from the petitioner looking to his temperament. These remarks were dated 27th February 1987. The present petition has been filed on 20th February 1987. Notice was served. Thereafter the V.P. was filed on 9th March 1987. The aforesaid remarks dated 27th February 1987 clearly indicate that the petitioner did not deserve to be continued any further in the employment. We may not place much reliance upon the remarks dated 28th October 1987 which were made long after the filing of the petition and long after even appearance was made by the respondent-Board in this petition. But the remarks dated 27th February 1987 clearly indicate that the petitioner's work was not satisfactory and he was also not temperamentally suitable to it. If we leave aside these remarks which were made about seven days after the filing of the present petition, the remarks dated 6th September 1985 which were made long before the filing of the petition clearly indicate that the petitioner was very weak in English and it was not desirable to continue the petitioner. It is thus clear that the respondent-Board was not satisfied with the work of the petitioner and, therefore, the period of probation was extended from time to time but ultimately when it was found that there was no improvement shown by the petitioner, the Board ultimately decided to terminate the services of the petitioner. I do not think that the respondent-Board or any of the officers acted mala fide in terminating the services of the petitioner. It appears from the order dated 14th December 1987 terminating the services of the petitioner that his services were terminated as per the conditions of service mentioned in the appointment order. It is not that his services were terminated solely relying upon the term of appointment order. His services, it appears, were terminated because the work of the petitioner was not satisfactory. It is even stated in the said order that the petitioner was not found suitable for the post of Stenographer and, therefore, his services are terminated. But as stated earlier, the petitioner was on probation when his services were terminated in the month of December 1987. The petitioner joined service in the month of February 1984. The order was passed about 3 years and 10 months after the petitioner joined service. It appears that the respondent-Board did not immediately pass the order of termination because the petitioner filed the petition before this Court in the month of February 1987. It cannot be said that the order of termination was passed after allowing the petitioner to continue on probation for an unreasonably long period. The services were terminated within four years from the date of joining service by the petitioner. In the circumstances of the case, it cannot be said that the petitioner was allowed to continue for an unduly long period and thereafter his services were terminated. The order passed by the respondent-Board is based on material which shows that the work of the petitioner was not satisfactory and he did not show any improvement even though he was given opportunity to improve.
11. The discussion made above will go to show that the respondents were entitled to extend the period of probation of the petitioner and it was rightly extended from time to time and that the petitioner continued as probationer till the date of termination of his services as no express order of confirmation was passed at any time. The petitioner's services have, therefore, been rightly terminated treating him as a probationer on the ground that his work was not found to be satisfactory. The petition is, therefore devoid of any merit and it deserves to be dismissed at the admission stage. The petition, therefore, stands dismissed at the admission stage with no order as to costs. The notice issued to the respondents stands discharged.