Delhi High Court
Shri Hari Chand vs Food Corporation Of India And Others on 14 February, 2001
Author: Mukundakam Sharma
Bench: Mukundakam Sharma
ORDER Dr. Mukundakam Sharma, J.
1. This writ petition is directed against the order dated 5.5.1992 passed by the respondents extending the period of probation of the petitioner by another period of 6 months w.e.f 16.10.1991 in terms of regulation 15(2) of FCI Staff (Regulations), 1971.
2. The petitioner, who was serving with the respondent Corporation as an Assistant Manager was promoted to the grade of Deputy Manager by order dated 12.10.1990. In clause (5) of the aforesaid order dated 12.10.1990 issued by the respondent Corporation promoting the petitioner to the aforesaid post, it was further stated that the petitioner will be on probation for a period of one year w.e.f. the date he assumes charge of his post which could be extended for a further period not exceeding one year at the discretion of the Competent Authority. Pursuant to the aforesaid order the petitioner submitted his joining report in respect of the post of Deputy Manager on 15.10.1990. Since the petitioner was kept on probation for a period of one year the said period expired on 15.10.1991. An order was issued by the respondent on 5.5.1992 extending his probationary period for a further period of 6 months w.e.f. 16.10.1991 in terms of regulation 15(2) of FC! Staff Regulations, 1971. The said order is under challenge in this writ petition.
3. Counsel appearing for the petitioner submitted that admittedly one year period of probation in terms of the order of promotion and also in terms of regulation 15(2) of the regulations expired on 15.10.1991 and thereafter no order was passed by the respondent Corporation till 5.5.1992 and therefore, immediately after expiry of the period of probation of one year i.e. with effect from 15.10.1991 the petitioner should be deemed to have been confirmed in the said post and accordingly the order issued on 5.5.1992 is illegal and without jurisdiction. In support of his contention the counsel appearing for the petitioner relied upon the contents of the circular dated 31.8.1973 issued by the FCI which is annexed as Annexure X at page 117 of the paper book. In support of his contention the counsel also relied upon the contents of circular No.30 of 1990 dated 23.5.1990.
4. Counsel appearing for the respondent however, submitted that the promotion of the petitioner to the grade of Deputy Manager (Accounts( was with stipulation that he would be on probation for one year which could further be extended by one year at the discretion of the Competent Authority. According to him since after the petitioner completed on year of his probation on 15.10.1991 no specific order was passed by the respondent confirming him in the post of Deputy Manager, the petitioner continued to be on probation as the maximum period of probation prescribed under regulation 15 is 2 years. He submitted that the probationary period of the petitioner was therefore, specifically extended from 16.10.1991 with the approval of the Competent Authority and conveyed to the petitioner under order dated 5.5.1992. He also stated that the second half yearly probation report was due on 1.9.1991 and the same was written by the Returning Officer on 28.1.1992 and reviewed on 29.1.1992 and received from the Countersigning Officer on 5.2.1992, and since in the meanwhile the Vigilance Division of the FCI called for the personal file of the petitioner which was required by CBI in connection with the investigation of RC/25(A)/91-DLT the same were sent to them.
5. Let me now scrutinise and consider the aforesaid submissions made on behalf of the parties in the light of the records of the case. The order of promotion dated 12.10.1990 contained a specific provision that the petitioner would be on probation for a period of one year w.e.f. the date he assumes charge of his post which could be extended for a further period not exceeding one year at the discretion of the Competent Authority. In this connection reference may also be made to the Staff Regulations of 1971. Regulation 15 thereof states that every person regularly appointed to any post in the Corporation shall be probation for a period of one year from the date of appointment and that the appointing authority may in his discretion extend the period of probation by a further period not exceeding one year. Clause 4 thereof provides that an employee who has satisfactorily completed his probation on any post shall thereafter be confirmed. Reliance was also placed by the counsel appearing for the parties on the contents of circular dated 31.8.1973. By the said circular a clarification was issued by the respondent to the effect that the person concerned who is appointed on probation cannot automatically be deemed to have completed the period of probation successfully unless and until an order to this effect is issued by the Competent Authority. It was also clarified that in cases where however, the probationary period is extended which could be done for further period not exceeding one year, the person concerned would be deemed to have been confirmed after the expiry of the maximum period of two years if orders to the contrary are not issued. the intent of the aforesaid provision is clear and apparent. It is provided that initially the probationary period shall be for one year which could be extended by the Competent Authority for another period of one year, which shall be the maximum period for probation, to keep an employee on probation. It is only when at the end of the period of probation and on successful completion thereof an order is issued confirming the employee in the post, the said person shall be deemed to be confirmed in the said post. Again on completion of two years period of probation even if no order is passed confirming the employee then also it would be deemed that he is confirmed in the particular post after expiry of 2 years period. When there is a provision in the rules for initial probation and extension thereof and a maximum period for such extension is also provided beyond which it is not possible to extend the probation, on expiry of such period a person would be deemed to be confirmed.
6. In this connection reference may be made to the decision of the Supreme Court in Karnataka State Road Transport Corporation and Others Vs. S. Manju Nath etc. . Counsel appearing for the respondent on the other hand for the aforesaid purpose relied upon he decisions in a Kedar Nath Bahl Vs. The State of Punjab and others , ; Municipal Corporation, Raipur Vs. Ashok Kumar Misra , ; Life Insurance Corporation of India and another Vs. Raghavendra Sheshagiri Rao Kulkarni , ; Radhy Shyam Gupta Vs. U.P.State Agro Industries Corporation Ltd. and another , . I have perused the aforesaid decisions carefully. The aforesaid catena of decisions clearly lay down the principle as to how and when a probationer could be deemed to be confirmed in the post held by him. It is held by the Supreme Court that if in the rule or order of appointment a period of probation is specified and a power to extend probation is also conferred and the officer is allowed to continue beyond the prescribed period of probation he cannot be deemed to be confirmed and there is no bar on the power of termination of the officer after the expiry of the initial or extended period of probation. The Supreme Court came to the aforesaid conclusion because at the end of the probation the officer becomes merely qualified or eligible for substantive/permanent appointment. It was also held that where even though there is a provision in the Rules for initial probation and extension thereof, and a maximum period fur such extension is also provided beyond which it is not permissible to extend probation, on expiry of the said period a person would be deemed to be confirmed. It was held that presumption about continuing beyond the period of probation as a probationer would stand negatived by the fixation of a maximum time limit for probation and consequently, in such cases the termination after expiry of the maximum period up to which probation could be extended was held to be invalid, inasmuch as the officer concerned must be deemed to have been confirmed.
The aforesaid distinction has been succinctly brought out in the decision in Karnataka State Road Transport Corporation (supra.) in paragraph 10 as follows:-
"This Court had an occasion to review, analyze critically and clarify the principles on an exhaustive consideration of the entire case law in two recent decisions reported in Dayaram Dayal's (supra). One line of cases has held that if in the Rule or Order of appointment, a period of probation is specified and a power to extend probation is also conferred and the officer is allowed to continue beyond the prescribed period of probation, he cannot be deemed to be confirmed and there is no bar on the power of termination of the officer after the expiry of the initial or extended period of probation. This is because, at the end of probation he becomes merely qualified or eligible for substantive permanent appointment. The other line of cases are those where even though 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 Constitution Bench which dealt with the case reported in State of Punjab Vs Dharam Singh, , while distinguishing the other line of cases held that the presumption about continuation, beyond the period of probation, as a probationer stood negatived by the fixation of a maximum time limit for the extension of probation. Consequently in such cases the termination after expiry of the maximum period up to which probation could be extended was held to be invalid, inasmuch as the officer concerned must be deemed to have been confirmed".
7. Therefore, in the light of the aforesaid decision of the Supreme Court it would be necessary to examine the facts of the present case on the basis of the provisions of the Service Rules governing the case of the petitioner. A reading of the provision governing the case of the petitioner would indicate that in his case a period of probation is specified and a power to extend the probation is also conferred and that an officer could be said to be confirmed only when a specific order of confirmation is issued to the employee concerned. But the said principle would be applicable to a period of two years only, for a maximum period of such extension is also provided beyond which it is not permissible to extend the probation and on expiry of the said period a person would be deemed to be confirmed. The petitioner only completed one year of period of probation and no specific order was passed confirming the petitioner in service and therefore, he continued to be on probation. Therefore, there was no illegality committed by respondent when the order dated 5.5.1992 was issued by the respondent extending the probation period of the petitioner for further period of 6 months. The said order is in accordance with the order of promotion passed and also in consonance with regulation 15 of the Service Regulations and also the circular issued by the respondents to which reference has been made hereinabove.
8. It is also an admitted position that subsequent to the passing of the aforesaid order dated 5.9.1992 a criminal case of defalcation had been instituted against the petitioner in respect of which a charge sheet has been filed. It is also a fact that a departmental proceedings has also been instituted against the petitioner, for which a charge sheet has been issued. In the aforesaid circumstances no relief as sought for by the petitioner could be granted to the petitioner, for it cannot be ordered that the petitioner is deemed to have bene confirmed in the post of the Deputy Manager w.e.f. 14.10.1991.
9. In the result, I find no merit in the petition and the petition stands dismissed with without costs.