Rajasthan High Court - Jaipur
D.L. Dabgar And Anr. vs State Of Rajasthan And Ors. on 25 February, 1987
Equivalent citations: 1987(2)WLN836
JUDGMENT Kishore Singh Lodha, J.
1. These two writ petitions can conveniently be disposed of by a single order as there is some connection between the two.
2. The petitioner was appointed as Assistant Director in the Industries Department on December 10, 1975 and was promoted as Deputy Director on adhoc basis on June 26,1978. He was confirmed on the post of Assistant Director on September 27, 1982 with effect from August 17, 1981. Thereafter, he was promoted as Deputy Director, Industries Department on probation for a period of one year on November 4, 1982.
3. It appears that while the petitioner was posted as Deputy Director Industries in the District Industries Centre, Jhalawar during the period 1978-81 there were certain complaints against him along with two other persons, namely, Surjamal Verma, Economic Investigator and Brij Mohan, U.D.C. and a preliminary enquiry was sought to be initiated against them. Shri Surajmal and Shri Brijmohan were also placed under suspension. On the completion of the preliminary enquiry the Government came to the conclusion that no formal departmental enquiry was needed and Shri Surajmal and Brij Mohan were reinstated. The order of the State Government dated April 22, 1981 (Annx. 1) and the consequential orders reinstating Shri Surajmal and Shri Brij Mohan and the order of the State Government dated May 4, 1981 confirming these actions have been filed as Annexure 2. However it appears that once having dropped the idea of initiating and departmental enquiry against the petitioner and the two others named above, the matter was reopened and by the order dated August 4, 1981 passed by the Chief Minister it has directed that an independent enquiry by a senior officer not below the rank of Additional District Industries Officer should be held. It further appears that in pursuance of this order some action was taken for preparation of the charge-sheet etc and ultimately it was on January 21, 1985 that a charge-sheet was ordered to be served upon the petitioner vide letter Annexure 6. In the mean time it appears that the petitioner had already been promoted as Deputy Director on the recommendation of the Departmental Promotion Committee vide order dated November 4, 1982 a copy of which has been filed as Annexure 4. The case of (he petitioner further is that not only was he so promoted as Deputy Director, but was confirmed on that post by the order dated June 26, 1984. a copy of which has been filed as Annexure 5, though he adds that order of confirmation was recalled by another order dated June 27, 1984.
4. Aggrieved of the order dated June 27, 1984, the petitioner filed writ petition No. 1806 of 1984. The petitioner in that writ petition claims that he had already been confirmed on the post of Deputy Director, Industries, and that order could not have been recalled. In the alternative, it has also been urged that after the expiry of period of probation the petitioner must be deemed to have been automatically confirmed and therefore, also the order recalling his confirmation is bad.
5. When the charge-sheet Annexure 6 was served upon the petitioner on February 14, 1985, the petitioner moved an application asking for documents mentioned therein and as all the relevant documents had not been made available to him, he filed an interim reply to the charge-sheet reserving his right to file a further reply lateron. A copy of the reply has been filed as Annexure 8. Later, a further reply was also filed on September 3, 1985, a copy of which has been filed as Annexure 9. One of the objections raised in that reply dated September 9, 1985 was about the jurisdiction of the State Government for holding the said departmental enquiry. But as the enquiry is proceeding he has now challenged that order by way of this writ petition No. 73 of 1986.
6. The Writ Petition No. 1806 of 1984 first came up for hearing and during the course of the hearing it was suggested by the learned Additional Government Advocate that it would be proper that both the writ petitions are heard and disposed of together, because one of the questions involved in recalling the order of confirmation of the petition r on the post of Deputy Director, Industries was during the pendency of the departmental inquiry which has been challenged by the another writ petition & if that writ petition comes to be allowed, the question recalling the order of confirmation may easily be answered. Therefore, the other writ petition was also got listed for hearing and has been heard.
7. It will be proper and convenient to first consider the Writ Petition No. 73 of 1986 whereby the departmental enquiry has been challenged. The learned Counsel for the petitioner has raised three contentions before me during the course of hearing of that writ petition. The first ground is that, once tile State Government had decided not to hold any departmental enquiry against the petitioner after considering the report of the preliminary enquiry tile order became final and as under the Rajasthan Civil Services (Classification, Control and Appeals) Rules there is no power of review, the State Government could not reopen the matter and direct a departmental enquiry to be held. In this connection he further urged that no new material has been brought before the State Government which could have even justified th: order of departmental enquiry, the second contention is that the power to decide, whether a departmental enquiry should or should not be held had once been exercised by the State Government and therefore, that power stood exhausted. Thereafter the State Government could not have exercised the same again and the third contention is that the departmental enquiry has been directed to be held at a very belated stage, inasmuch as the alleged mis-conduct relates to the period between the year 1978-81, whereas the Departmental enquiry has started 1985. In this connection the learned Counsel further urged that the direction to hold departmental enquiry also appears to be malafide in as much as, once the petitioner had already been confirmed as Deputy Director, Industries and his further promotion had also become due. On the other hand, the learned Additional Government Advocate has supported the order directing departmental enquiry against the petitioner.
8. I have given my careful consideration to the contentions raised by the learned Counsel and I shall deal with them one by one.
9. So far as the first contention of the learned Counsel goes, he urges that under Appendix II to the CCA Rules, the State Government has prescribed the procedure for holding a preliminary enquiry and after that enquiry is over and a report has been submitted the disciplinary authority is to apply its mind to it and if it comes to the conclusion that no departmental enquiry need be instituted against the delinquent, it may drop the proceedings. On the other hand if it comes to the conclusion that a regular departmental enquiry has to be held, then it has to resort to the procedure laid down in Rule 16(2) of the CCA Rules. Therefore, when the disciplinary authority after taking into account the report of the preliminary enquiry had come to the conclusion that no departmental enquiry was envisaged or necessary the order passed by the disciplinary authority or the appointing authority became final, and as there is no power of review under the CCA Rules the said order cannot be reviewed and a fresh departmental enquiry cannot be directed to be held. In this connection the learned Counsel placed reliance upon Dwarka Chand v. State of Rajasthan, 1957 RLW 587; Haridaya Narayan Prasad v. State of Bihar and Ors. 1975 (1) SLR 232; and State of Assam and Anr. v. J.N. Roy Biswas . Mr. Dave on the other hand urged that the order directing that no departmental enquiry need be held against the petitioner is not a final order debarring the disciplinary authority from reconsidering the same and the petitioner cannot claim that once the proceedings had been dropped after the preliminary enquiry no departmental enquiry can be held against him. In this connection he relied upon Om Prakash Joshi v. State of Rojasthan and Ors. 1984 RLR 392; R.C. Sharma v. Union of India and a decision of this Court in Tejpal Shah v. State S.B. Civil Writ Petition No. 1513/85 decided on January 24, 1986.
10. Having considered the rival contentions and Raving perused the authorities relied upon by either side, I am of the opinion that the order directing that no departmental enquiry was necessary passed on April 22, 1981 cannot be said to be a final order closing the matter for all times to come and it is upon to the disciplinary authority even thereafter to hold a departmental enquiry. As has been held in Champaklal Chimanlal Shah v. Union of India AIR 1960 SC 1854, the purpose of holding a preliminary enquiry is only to ascertain, whether there was a prima facie case calling for a regular departmental enquiry. It is a matter of fact that an enquiry only is for the satisfaction of the disciplinary authority so that before he directs a regular enquiry it may come to a conclusion that there was a prima facie case and if a proper departmental enquiry is held, there are chances of delinqency being proved and on the other hand if he feels that according to the preliminary enquiry no case even prima facie was made out, the unnecessary botheration of holding a departmental enquiry can be avoided. During the course of preliminary enquiry the disciplinary authority may even afford a hearing to the alleged delinquent, but that also is only with a view to making up the mind whether to hold a departmental enquiry or not. The mere fact that the delinquent has been heard would not make it a complete and full-fledged enquiry debarring any further necessity of a regular departmental enquiry. Looked at this point of view, it would clearly appear that the order passed by the disciplinary authority to the effect that no departmental enquiry appears to be necessary is not a final order debarring it from taking another view of the matter if on a proper scrutiny of the facts and circumstances or on further circumstances being brought to its notice it comes to the conclusion that the departmental enquiry would be necessary. The authorities relied upon by the learned Counsel for the petitioner do not relate to a mere preliminary enquiry, but they are cases where once a departmental enquiry has been held, a second departmental enquiry on the same facts is deemed to be barred on the ground that once the matter has finaly been decided by the disciplinary authority, there was no power left with it to review that order. In Dwarkachand's case (supra), it was found that a departmental enquiry was held by the Collector and it was found that the charge of taking illegal gratification had not been proved against the delinquent. He thereupon refused to grant sanction for the prosecution of the same delinquent when a request was made by the Deputy Superintendent of Police, Anti Corruption. It further appears that the Anti Corruption Department did not rest contend at that and thereafter the Collector was asked for various reasons, into which the Court did not go, to reopen the matter and hold a fresh departmental enquiry. The Collector, thereupon framed a charge upon the delinquent and asked for his explanation and to cross-examine the witnesses and to produce defence. The delinquent thereupon approached the court and the court held that once the departmental enquiry had already been held, the Collector could not have started a second departmental enquiry. Learned Counsel for the petitioner however wants to distinguish that case on the ground that the enquiry was held in accordance with the circular No. F. 1 (6)/18/Home-l/53 dated 24-6-1953 and not according to the CCA Rules. I am of the opinion that this contention of the learned Counsel does not hold good. The enquiry was held according to the CCA Rules as they then existed. The circular referred to above was only a circular to the effect that a departmental enquiry has to be held as expeditiously as possible and after such enquiry only such cases were to be put in court in which there were reasonable chances of conviction. I am supported in this view by a later authority of this Court in Jagdish Kumar Sinha v. State of Rajasthan 1980 WLN 1, wherein a learned Single Judge, before whom Dwarka Chand's case (supra) was cited, observed:
In that case, the Collector held a departmental enquiry and came to the conclusion that no case had been made out against the applicant. He therefore, reinstated the applicant and refused to sanction prosecution. This was in accordance with the Circular of 1953. Thereafter, the matter was taken up by the Anti-Corruption Officer and the Collector was asked to reopen the matter and to hold a fresh departmental enquiry. Thereupon the Collector framed a charge against the applicant under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 and asked the applicant to give the explanation and to cross-examine witnesses and to produce defence. The applicant filed a writ petition after the charge was served on him and his contention was that a fresh departmental enquiry under Rule 16 cannot be held against him when a similar enquiry had already been held by the Collector previously, resulting in his exoneration. In these facts, it was held that on principles of justice equity and good conscience it is wrong in the absence of provision in the Service Rules to permit such a second departmental enquiry.
Therefore, Dwarka Chand's case is of no avail to the petitioner.
11. In Hariduya Narain Prasad's case (supra) their Lordships of the Supreme Court were also concerned with a case in which after the conclusion of one departmental enquiry, another departmental enquiry was held on the same facts and their Lordships observed:
The only point, therefore, which falls for consideration in the instant case is as to whether or not the holding of a second enquiry on the same charges of which the petitioner had been exonerated in the first enquiry is legally permissible and valid. In the case of Ajodhya Prasad Pandey v. Union of India 1971 Patna Law Journal Reports 515, a Bench of this Court had quashed a second departmental proceedings in which a railway servant had been charge-sheeted for the second time on the same allegations of facts which formed the basis of the charge sheet in the previous departmental proceedings and he had been exonerated of those charges. In case of Dwarka Chand v. State of Rajasthan High Court held that once a departmental enquiry is over and a public servant has been exonerated, no second departmental enquiry on the same facts can be ordered unless there is a specific provision for reviewing an order of exoneration in the Service Rules or any law. In the case of Davendra Pratap Narayan Rai Sharma v. State of Uttar Pradesh , the Bench decision in Dwarka Chand (supra) was noticed by their Lordships of the Supreme Court, but the view taken in that case was not dissented from. No decision was cited at the bar in which a contrary view has been taken. It must therefore be held that, in absence of a specific rule, once a departmental enquiry is over and a public servant is exonerated of the charges on merits by the appointing authority, no second departmental enquiry on the same facts can be ordered. In the instant case, no rule was brought to our notice in course of the hearing of this application under which a second enquiry as permissible on the very same charges of which the petitioner had been exonerated in the previous departmental proceedings.
That case is therefore, also of no help to the petitioner. So also in the State of Assam and Anr. case their Lordships of the Supreme Court were view of that once a Government servant is exonerated in a departmental enquiry the Government cannot restart the exercise in absence of specific power to review or revise. As already stated above, this case also relates to a second departmental enquiry when the first formal departmental enquiry had already resulted in the exoneration of the Government servant. There was no provision for review in the concerned rules. Thus these cases are distinguishable. They are no authority for the proposition that when even after a preliminary enquiry, it is decided that no departmental enquiry be held the authority concerned is debarred from directing a departmental enquiry (hereafter. The conclusion, therefore is that the Government is not debarred from directing a departmental enquiry at a later stage even after at an earlier stage it has decided not to hold at departmental enquiry. The authorities cited by the learned Additional Government Advocate are to the effect that if an earlier departmental enquiry is vitiated on account of some technical flaw or defect, a second departmental enquiry can be held. I need not refer to them all, in as much as the case in hand is not one where earlier full-fledged departmental enquiry had been held and which had resulted in the exoneration of the petitioner on account of some technical flaw or defect.
12. For the reasons stated above, the first contention of the learned Counsel for the petitioner is without any substance and deserves to be rejected.
13. Incidentally, the learned Counsel for the petitioner had also urged that there was no fresh material justifying the order for departmental enquiry after once the Government had come to the conclusion that no departmental enquiry need be held. It may only be mentioned here that the record has been placed before me by the learned Additional Government Advocate and it does appear that some further grounds came to the notice of the learned Chief Minister on account of which he was inclined to direct a proper formal departmental enquiry on August 1, 1981. I need not state those grounds here. It may also be stated here that on account of the alleged complaints against the petitioner while he was posted at Jhalawar an uproar appear to have been raised before the Assembly. Thereupon, an assurance was given by the Government to hold an enquiry and this also may be one of the reasons which may have resulted into the order for a proper departmental enquiry.
14. The second contention of the learned Counsel is that once the disciplinary authority had exercised its power declining to hold a departmental enquiry the power stood exhausted and thereafter the same power could not have been exercised. As a matter of fact this contention only appears to hi the same as the first, of course in different phraseology. As already stated above, the preliminary enquiry is held for the specific purpose of ascertaining, whether a prima facie case is made out and whether a departmental enquiry would be fruitful. Now, when the matter is placed before the disciplinary authority, may at that stage come to the conclusion that a departmental enquiry need not be held but in doing so the disciplinary authority cannot be said to have exhausted its power to hold an enquiry under Rule 16 or 17 of the CCA Rules. The authority may still further probe into the matter and may come*to a different conclusion. In support of this contention the learned Counsel for the petitioner relied upon Mukan Chand v. State of Rajas than 1971 WLN 616, but in my opinion this case is not applicable to the facts of the present case. In Mukan Chand's case (supra) the matter was with regard to grant of sanction for prosecution and when once the authority concerned had granted or refused to grant sanction, the power to grant sanction was deemed to have come to an end and got exhausted. This is not the case here.
15. The third contention of the learned Counsel for the petitioner also in my opinion does not hold much water. After the earlier preliminary enquiry it was on April 22, 1981 that a decision was taken that no departmental enquiry need be held and thereafter it was on August 4, 1981 itself that the Chief Minister had directed that an independent departmental enquiry may be held. The period between April 22, 1981 cannot amount to an inordinate delay. The later proceedings of course in compliance with the order dated August 4, 1981 have taken an unduly time and it was only in January, 1985 that the charge-sheet was served upon the petitioner. But on account of this later delay it cannot be said that the order directing a departmental enquiry had been passed after undue delay. It would have been much better if after the direction dated August 4, 1981 immediate steps had been taken for starting the departmental enquiry as such and the charge sheet should have been handed over within a reasonable time to the petitioner. But the delay in these proceedings in the circumstances can also not be said to be fatal, in as much as looking to the nature and the number of the charges, some time must have been taken by the authorities concerned in preparing the charges and serving the same. The petitioner also was to some extent responsible for the delay. I am, therefore, of the opinion that the departmental enquiry does not deserve to be cancelled on the ground of delay.
16. It is of course a matter of consideration that the departmental enquiry has been started by framing charges at a time when the confirmation and the expected promotion of the petitioner had become due. But in these circumstances, it cannot be said that the enquiry was started with malafide intention of obstructing the petitioner's confirmation or promotion, when the process had already started since August, 1981.
17. Tn these circumstances, this writ petition is without force and is liable to be dismissed.
18. This brings me to the other writ petition regarding the confirmation of the petitioner. From the facts already stated above, it would be clear that the petitioner had been working as Assistant Director since December 10, 1975 and has been promoted as Deputy Director, Industries on adhoc basis in 1978. From the year 1978 till August 4, 1981 the petitioner was posted at Jhalawar and it was with regard to this period that certain complaints had been received against him on the basis of which the earlier preliminary enquiry was held and was decided to be dropped on April 22, 1981 and later a departmental enquiry with regard to the same directed to be held by the order dated August 4, 1981. Despite this order dated August 4, 1981 it appears that the petitioner had been confirmed as Assistant Director by the order dated Sept. 27, 1982 and thereafter the matter of his confirmation as Dy. Director was to come up for consideration. It was at that stage that while the names of the Dy. Directors for confirmation were being considered, it was that by order dated June 26, 1984 the petitioner was also ordered to be confirmed. However by another order dated June 27, 1984 his name was withdrawn from the list of the confirmed Deputy Directors. The petitioner's case is that once having been confirmed he could not be de confirmed or, the confirmation could not have been recalled. So far as this aspect of the matter is concerned, I have gone through the relevant notings and the orders passed thereon. It does appear that as a matter of fact while considering the name of Deputy Directors for confirmation it was decided that since a departmental enquiry is proposed to be initiated against the petitioner, his matter may be considered only after the decision of that departmental. However, on account of some mistake the order Ex. 3 was issued in which the name of the petitioner appeared in the list of persons who had been confirmed as Deputy Directors. When this mistake came to light, another order Annexure 4 dated June 27, 1984 came to be passed by which the name of the petitioner was deleted from the order dated June 26 1984. In these circumstances it cannot be said that the petitioner had once been confirmed and later de-confirmation or the order of confirmation had been recalled or withdrawn. It will have to be taken that as a matter of fact the petitioner had not been confirmed by the order dated June 26, 1984 and the question of his confirmation as Deputy Director was postponed till the decision of the departmental enquiry which was proposed to be initiated against him. The next question which then arises is, whether even though the petitioner had not been confirmed by the order dated June 26, 1984 he must be deemed to have been automatically confirmed as has been urged by the learned Counsel for the petitioner.
19. The contention of the learned Counsel for the petitioner is that the petitioner had been appointed as Deputy Director on probation by the order dated November 4, 1982 (Annexure 2). The Rajasthan Industries Service Rules, 1960 lay down a clear procedure for appointment on probation and later confirmation. The relevant Rules are Rules 27, 27-A, 28 and 29 which run as under:
27. Period of Probation: (1) Every person appointed against a substantive vacancy in the service by direct recruitment shall be placed on probation for a period of two years and those appointed by promotion (special selection) to any post against such a vacancy shall be on probation for a period of one year:
Provided that:
(i) Such of them as have previous to their appointment by promotion (special selection) or by direct recruitment against a substantive vacancy, officiated temporarily on the post which is followed by regular selection may be permitted by the Appointing Authority to count such officiating or temporary service towards the period of probation. This shall, however, not amount to involve supersession of any senior person or disturb the order of their preference in respective quota or reservation in recruitment;
(ii) any period after such appointment during which a person has been on deputation on a corresponding or higher post shall count towards the period of probation;
(2) During the period of probation specified in Sub-rule (1) each probationer may be required to pass such Departmental Examination and to undergo such training as the Government may, from time to time, specify.
Explanation: In case of person who dies or is due to retire on attaining the age of superannuation the period of probation shall be reduced so as to end one day earlier on the date immediately preceding the date of his death or retirement from Government Service. The condition of passing the Departmental Examination in the rule regarding confirmation shall be deemed to have been waived in case of death or retirement."
27-A. "(a) Not with standing anything contained in the rule if no order of confirmation is issued by the Appointing Authority within a period of six months, an employee appointed on temporary or officiating basis who has after the date of his regular recruitment by either method of recruitment completed a period of two years service, or less in the case of those appointed by promotion where the period of promotion prescribed is less, on the post or a higher post under the same Appointing Authority or would have so worked but for his deputation or training, shall on the occurrence of permanent vacancies be entitled to be treated as confirmed if the same conditions as are prescribed under the Rules for the confirmation of a probationer are fulfilled subject to the quota prescribed under the Rules and in accordance with his seniority;
Provided that if the employee has failed to give satisfaction or has not fulfilled any of the conditions prescribed for confirmation such as passing of Departmental Examination, training or promotion cadre course etc., the aforesaid period may be extended as prescribed for the probation or under the Rajasthan Civil Services Departmental Examination Rules, 1959 and any other rules, or by one year, which ever is longer. If the employee still fails to fulfil the prescribed conditions or fails to give satisfaction, he will be liable to be discharged from such post in the same manner as a probationer or reverted to his substantive or lower post, if any, to which he may be entitled:
Provided further that no person shall be debarred from confirmation after the said period of service if no reasons to the contrary about the satisfactory performance of his work are communicated to him within the said period;
(b) The reasons for not confirming an employee referred to in the second proviso to Clause (a) shall, in the case of a non-gazetted employee, be also immediately recorded by the Appointing Authority in his Service Book and C.R. File and in the case of Gazetted Officer Communication to the Accountant General, Rajasthan and in his Confidential Report file. A written acknowledgement shall be kept on record in all these case."
Explanation: (1) "Regular recruitment for the purpose of this rule shall mean appointment after either of the methods of recruitment or on initial constitution of service in accordance with any of the Service Rules promulgated under proviso to Article 309 of the Constitution of India, or for posts for which no Service Rules exist, if the posts are within purview of the Rajasthan Public Service Commission recruitment in consultation with them but it shall not include an urgent temporary appointment ad-hoc appointment or officiating promotion against temporary or lien vacancies which are liable to review and revision from year to year. In case where the Service Rules specifically permit appointment by transfer such appointment shall be treated Regular recruitment if the appointment to the post from which the official was transferred was after regular recruitment. Persons who have been made eligible for substantive appointment to a post under the rules shall be treated as having been regularly recruited.
(ii) Persons who hold lien on another cadre shall be eligible to be confirmed under this rule and they will be eligible to exercise an option whether they do not elect to be confirmed on the expiry of two years of their temporary appointment under this rule. In the absence of any option to the contrary, they shall be deemed to have exercised option in favour of confirmation under this rule and their lien on the previous post shall cease."
28. Unsatisfactory Progress during Probation:
(i) If it appears to the Appointing Authority, at any time, during or at the end of the period of probation, that a member of the service has not made sufficient use of his opportunities or that he has failed to give satisfaction, the Appointing Authority may revert him to the post held substantively by him immediately preceding his appointment provided he holds a lien thereon or in other cases may discharge or terminate him from service:
Provided that the Appointing Authority may, if it so thinks fit in any case or class of cases extend the period of probation of any member of service by a specified period not exceeding two years in case of a person appointed to a post in the Service by direct recruitment and one year in the case of person appointed by promotion (special selection) to such post:
Provided further that the Appointing Authority may, if it so thinks fit in the case of persons belonging to the Scheduled Tribes, as the case may be, extend the period of probation by a period not exceeding one year at a time and a total extension not exceeding three years.
(2) Not with standing anything contained in the above proviso, during the period of probation, if a probationer is placed under suspension, or disciplinary proceedings are contemplated or started against him, the period of his probation may be extended till such period the Appointing Authority thinks fit in the circumstances;
(3) A probationer reverted or discharged from service during or at the end of the probation under Sub-rule (1) shall not be entitled to any compensation."
29. Confirmation: A probationer shall be confirmed in his appointment at the end of his period of probation if-
(a) he has passed the prescribed departmental examination, if any completely;
(b) the Government are satisfied that his integrity is unquestionable and that he is otherwise fit for confirmation, and Provided that the probationer who have already passed Matriculation, Intermediate or B.A. Examination with Hindi as one of the subjects, and also those who have passed M.A. Examination in Hindi, shall be exempted, from appearing in proficiency test in Hindi, by the Principal Officers Training School, Jaipur.
(c) he has passed the departmental test of proficiency in Hindi.
As the appointment of the petitioner as Deputy Director had been made on November 4, 1982, the probation already came to an end on the expiry of one year i.e. November 3, 1983. Before the expiry of that period or soon thereafter within six months recourse should have been made to Rule 28 read with 27A. If the Appointing Authority was of the opinion that the probationer did not make sufficient use of the opportunities or that he failed to give satisfaction, it should have directed his reservation or if it so thought proper, it could have made an order extending the period of probation, in the case of the petitioner for a specified period not exceeding one year, but nothing of this sort was done. Sub-rule (2) of Rule 28 also does not appear to have been called into service, because no order appears to have been passed extending the period of probation of the petitioner. A bare reading of Sub-rule (2) of Rule 28 would leave no room for doubt that the mere pendency or a proposal to hold a departmental enquiry by itself does not extend the period of probation. The Appointing Authority has a discretion to extend the period of probation and that also till such period as it thinks fit in the circumstances. In the present case not only no order under Sub-rule (2) of Rule 28 was passed after the expiry of one year of the petitioner's probation but if further appears that earlier the petitioner who was at the time only an unconfirmed Assistant Director was confirmed as Assistant Director by order dated September 27, 1982 and he was promoted as Deputy Director on November 4, 1982. This further goes to show that the order dated August 4, 1981 by which departmental enquiry was directed to be started was not taken as a ground for withholding the confirmation of the petitioner as Assistant Director or his promotion as Deputy Director. Thereafter, the question came up for his confirmation as Deputy Director and the proceedings show that the only ground on which he was left out of consideration was that a departmental enquiry was proposed to be initiated against him. There again although it was observed that his matter may be considered after the decision of the departmental enquiry, no specific order appears to have been passed under Sub-rule (2) of Rule 28. It will not be out of place here to mention that when the departmental enquiry sought to be initiated against the petitioner did not come in the way of his confirmation as Assistant Director ox promotion as Deputy Director there was no special reason why it should have come in the way of the confirmation of the petitioner as Deputy Director. Nothing has been shown in the proceedings as to why a different criteria had been resorted to at this stage. The matter does not rest here. Now more than two years after the promotion of the petitioner as Deputy Director on probation have already passed and still no specific order extending his probation appears to have been passed. In the sepeculiar circumstances the inference should be that the petitioner must be deemed to have be;n confirmed, although no specific order for his confirmation has been passed.
20. It has been urged by the learned Additional Government Advocate that merely on the expiry of the period of probation a person cannot claim confirmation as a matter of right and he has cited a few authorities in support of it. He also contended that under Rule 29 of the aforesaid Rules apart from the completion of the period of probation, the probationer must satisfy the Appointing Authority that his integrity is unquestionable & that he is otherwise lit for confirmation. So far as the authorities are concerned, there appears to be a clear divergence of opinion as a few authorities have also been cited on behalf of the petitioner. I shall come to them later. But so far as the second argument of the learned Additional Government Advocate goes, it deserves to be rejected on the ground that apart from the fact that a departmental enquiry was sought to be initiated against the petitioner there is nothing.m the proceedings regarding the confirmation of the Deputy Directors which may go to show that the work of the petitioner was not satisfactory or that his integrity was questionable. As a/ready started above, if the integrity of the petitioner was to be suspected or deemed to be questionable, he could not have been confirmed as Assistant Director because even at that stage the directions for holding a departmental enquiry had already been issued. The stage thereafter does not appear to have undergone any material change because till the order dated 26-5-1986 had been passed the charge sheet had not been served upon the petitioner and the proceedings also do not suggest that the authority concerned had examined the departmental enquiry file and was satisfied that the period of probation be extended. In these circumstances, 1 am clearly of the opinion that the petitioner must be deemed to have been confirmed on the expiry of the period of probation and the proposed departmental enquiry could not have come in his way.
21. So far as the authorities are concerned, the learned Additional i Government Advocate has placed reliance on Kedar Nath Bahl v. The State of Punjab and Ors. , and Dhanji Bhai Ramji Bhai v. State of Gujarat . I have carefully gone through these authorities and in my opinion they do not appear to be applicable to the facts and circumstances of the present case. In Kedarnath Bahl's case (supra) all that has been held by the Hon'ble Supreme Court is 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 if no order is passed in that behalf. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period, or there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. 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.
The case in hand is not of that type. There is a clear provision under Rule 27-A that if no order is passed within 6 months of the expiry of probation, the probationer will be deemed to have been confirmed. Further there is provision indicating that the probation cannot be extended beyond a period of two years as would be clear from a bare perusal of Rule 28, except as directed by Sub-rule (2). In the present case Sub-rule (2) has not been resorted to and, therefore on the expiry of the period of one year from the date of appointment as Deputy Director the petitioner must be deemed to have been confirmed. So far as Dhanjibhai Ramjibhai's case is concerned, it also appears to be almost in same terms. Their Lordships have observed:
A distinction is sought to be drawn between a probationer whose services are terminated on the expiry of the period of two years and a probationer, who has completed the normal span of two years and whose services are terminated some time later after he has put in a further period of service. We are unable to see any distinction. It is perfectly possible that during the initial period of probation the confirming Authority may be unable to reach a definite conclusion on whether the candidate should be confirmed or his services should be terminated. Such candidate may be allowed to continue beyond the initial period of two years in order to allow the confirming authority to arrive at a definite opinion. It seems to us difficult to hold that a candidate enjoys any greater right to confirmation if he is allowed to continue beyond the initial period of probation.
This is also, therefore, not a case where provisions like Rule 27-A, 28 apply. In the other hand, there are cases which do support the petitioner's claim. Without multiplying the authorities I may only refer to Om Prakash Maurya v. U.P. Co-operative Sugar Factories Federation, Lucknow and Ors. . In that case their Lordships were considering the U.P. Co-operative 'Societies Act, in which a similar provision existed in relation to probation and confirmation. The order of the appointment of the petitioner in that case indicated that the probation period can be extended and he could be reverted to the post of Office Superintendent without any notice. There was Regulation 17(1) under the said Act which provided that the probationary period could be extended for a period of one year more. Undisputedly on the expiry of |he appellant's initial probationary period of one year, the Appointing Authority extended the same for another period of one year which also exp red on September 4, 1982. During the period of his probation his services were neither terminated nor was he reverted to his substantive post instead he was allowed to continue on the post of Commercial Officer. On the expiry of probationary period of two years the appellant could not be deemed to continue on probation instead he, stood confirmed on the post by implication. The appellant acquired the status of a confirmed employee on the post of Commercial Officer and the Appointing Authority could not legally revert him to the lower post of Superintendent. Their Lordships observed:
Since under those regulations appellant's probationary period could not be extended beyond the maximum period of two years, he stood confirmed on the expiry of maximum probationary period and thereafter he could not be reverted to a lower post treating him on probation.
22. It will also not be out of place to mention here that while the disciplinary proceedings directed to be initiated by order dated August 4, 1981 were pending the petitioner, as already stated above, had been confirmed as Assistant Director. Then the question for his confirmation as a Deputy Director also arose & it is also urged by the learned Counsel for the petitioner that his further promotion has become due. More than three years had already passed before the order dated June 26, 1984 and if in these circumstances the pendency of the departmental enquiry was to come in the way of the petitioner he would have stuck up at the stage of an Assistant Director and the chances of his promotion would have been unnecessarily delayed Further, the departmental enquiry has also not made much progress between 1981 and 1985 when the charge-sheet hat been served and even after the service of the charge sheet. The very nature of the enquiry in this case is likely to take considerable time and, therefore also, I am convinced that the correct view to take is that the petitioner stands confirmed.
23. The result, therefore, is that the Writ Petition No. 73 of 1986 is dismissed, whereas Writ Petition No. 1806 of 1984 is allowed and it is declared that the petitioner stands confirmed on the post of Deputy Director. Looking to the facts and circumstances, I shall make no order as to costs.