Central Administrative Tribunal - Delhi
Sh. Suresh Chander Gahlawat vs National Technical Research ... on 13 January, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2998/2012
Reserved on : 20.12.2013.
Pronounced on : 13.01.2014.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sh. Suresh Chander Gahlawat,
S/o sh. Bhale Ram,
R/o H.No. 1114, Sector-12,
R.K. Puram, New Delhi-22. .Applicant
(through Sh. M.K. Bhardwaj, Advocate)
Versus
National Technical Research Organisation & Ors. through
1. The Chairman,
National Technical Research Organisation
(Prime Ministers Office),
Block-III, Old Jawaharlal Nehru
University Campus,
New Delhi-67.
2. Director (Estt.-I),
National Technical Research Organisation
(Prime Ministers Office),
Block-III, Old Jawaharlal Nehru
University Campus,
New Delhi-67. ..Respondents
(through Sh. Rajesh Katyal, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) Following relief has been sought in this O.A.:-
(i) To quash and set aside the impugned order dated 4.9.2012 (Annexure A-1).
to declare the action of the respondents in reverting the applicant from the post of Sr. Security Officer to Security Officer as illegal and arbitrary.
To allow the OA with costs.
To pass any other further orders as this Honble Tribunal may deem fit and proper.
2. Facts of the case are that the applicant retired from the Indian Air Force in September, 2006. W.e.f. 20.12.2007 the applicant was appointed as Security Officer, National Technical Research Organisation (NTRO) against quota of ex-serviceman on re-employment basis after going through the selection process. In the year 2009 the respondents initiated process for appointment to the post of Administrative Officer/Senior Security Officer. The applicant also applied for the same. In his application he also gave the necessary details of his academic as well as educational qualification. He stated that he is B.Com., PG Diploma in Industrial Relation and Personal Management, LLB, MBA in HRD and Marketing, MA English, Diploma in Electronics and Communication Engineering, Diploma in Computer Hardware and Software Technology, Post Graduate Diploma in Computer Application and M.Sc in Computer Science. Vide letter dated 12.02.2009 he was asked to appear for interview for the said post. After being rescheduled, the interview was finally held on 06.03.2009 in which the applicant was selected along with the three other candidates and was subjected to medical examination. The applicant resigned from his post of Security Officer and his technical resignation was accepted by the respondents vide their letter dated 19.03.2009. He was appointed as Senior Security Officer vide order dated 19.03.2009 w.e.f. 17.03.2009. However, on 04.09.2012 the applicant received the impugned order by which he was informed that his appointment had been found to be erroneous and was, therefore, being cancelled. The applicant was brought down to the post of Security Officer which he was holding prior to his appointment as Senior Security Officer. Aggrieved by the aforesaid order, the applicant has filed this O.A. before us.
3. The applicant has challenged the aforesaid order mainly on the following grounds:-
(i) The aforesaid order has been issued in violation of the principles of natural justice and Article 311 of the Constitution of India inasmuch as the applicant has not been issued a show cause notice before passing of this order.
(ii) The order has not been issued by the competent authority as only President of India was competent to do so.
(iii) It is incorrect to say that he was appointed to the post of Senior Security Officer erroneously.
(iv) The respondents have not taken any action against the three other candidates who were selected through the same process.
(v) The reversion order has been issued after the applicant had served as Senior Security Officer fore more than three years. Such an order is not justified as has been held by the Honble Supreme Court in the case of M.A. Hameed Vs. State of AP, 2001(9) SCC 261.
(vi) In terms of DoP&T O.M. dated 08.09.2011 the applicant should be deemed to have been confirmed after expiry of his probation period which could be deemed to be of two years.
(vii) Use of FR-31-A for terminating the appointment of the applicant is erroneous as this Rule basically deals with fixation of pay and not for issuing reversion orders.
(viii) It has been held by Honble Supreme Court in the case of Purshottam Lal Dingra Vs. UOI, 1958 SCR 828 that reduction in rank is a punishment carrying penal consequences. It must, therefore, have protection of Article 311(2) of the Constitution.
(ix) This order is stigmatic and has been issued presumably on the basis of frivolous complaint made by Sh. Mukesh Soni who could not be selected for higher post himself.
4. The respondents in their reply have stated that NTRO vide their confidential letter dated 13.08.2008 requested eight security agencies, namely, Delhi Police, Assam Rifles, Sashashtra Seema Bal, Border Security Force, Central Industrial Security Force, Central Reserve Police Force, Indo Tibetan Border Police & Addl. DGP Karnataka Police to send nominations of willing officers for the post of Senior Security Officer on deputation basis. Officers holding analogous post i.e. in the pay scale of Rs.8000-13500 or holding post in the rank of Inspector with five years regular service in the pay scale of Rs.6500-10500 and who should not be more than 54 years of age were eligible to apply. This letter was followed by another letter dated 14.11.2008 to the same organizations. In this, it was intimated that it had been decided to consider names of willing officers who were at the verge of retirement in the rank of Assistant Commandant/Dy. Supdt. Of Police and who have performed security duties in addition to internal security so that they could be considered for re-employment in NTRO. This was because the retirement age for Asstt. Commandant/Dy. Supdt. of Police in CPOs was 57 years whereas in NTRO their age of retirement would have got extended to 60 years. The respondents have further stated that both these letters were confidential and were not circulated internally. Consequently, employees of NTRO i.e. departmental candidates were not eligible to apply for the post.
4.1 Further, the respondents have stated that the application of the applicant was forwarded by his superior i.e. Director (S&CI) on 21.11.2008 directly to the Director (Estt.I) bypassing the administrative section which was dealing with the service matters of the applicant and was custodian of his personal files/records. Further, the application was also not accompanied with the mandatory vigilance clearance and ACRs of past five years. Thus, the respondents have stated that the application of the applicant was not routed through proper channel. The Selection Committee which was headed by Director (S&CI) met on 25.02.2009 and selected the following four candidates for the post of Senior Security Officer:-
(i) Shri Rajesh Kumar Parida On deputation
(ii) Shri Alel Singh Kunwar On contract
(iii) Shri Suresh Chander Gahlawat On Re-employment
(iv) Shri S.V. Singh On Re-employment 4.2 The respondents have not denied that the technical resignation of the applicant was accepted but they have stated that even this acceptance was not in accordance with the provisions of Rule-26 of the CCS (Pension) Rules, 1972 as the application for employment to the post of Senior Security Officer of the applicant was not rooted through proper channel.
4.3 The respondents have further stated that since there were irregularities as mentioned above in the appointment of the applicant his appointment was found to be erroneous and therefore terminated by the impugned order. The applicant was brought down to the post of Security Officer which he was holding prior to the aforesaid appointment.
5. We have heard both sides and have perused the material on record. The issues for our determination are :-
(i) Whether the respondents were at all justified in terminating the appointment of the applicant as Senior Security Officer?; and
(ii) Whether they could have done it in the manner in which they have passed the impugned order?
6. We deal with first issue first.
6.1 The learned counsel for the respondents stated that a special audit conducted by C&AG had pointed out irregularities in the appointments of several employees of NTRO and decided that NTRO may comprehensively review all appointments to ascertain cases of selection of ineligible candidates. Following this, NTRO has reviewed several cases as a result of which five employees have been terminated and another five employees have been issued chargesheets for major penalty. Disciplinary proceedings have also been initiated against some senior officers who facilitated these irregular appointments. Honble Supreme Court in its order dated 11.12.2012 in SLP No.21289 of 2011 in the matter of V.K. Mittal vs. Union of India, in which NTRO was one of the respondents, observed that After going through the status report, we are fully satisfied that the respondents Organisation (NTRO) is taking all necessary steps to correct the mistakes/irregularities pointed out by the CAG in its report, therefore, in our opinion, it may not be necessary for the Court to further monitor this case and disposed of the said SLP. While the case of the applicant did not figure in the cases highlighted in the report, in view of the above observations of the Honble Supreme Court, it had become necessary for the respondents to take further action on their own. Thus, the case of the applicant came to light as a consequence of such review and after finding that there were irregularities in his appointment as Senior Security Officer, the same was terminated.
6.2 The respondents have pointed out following irregularities in the appointment of the applicant as Senior Security Officer:-
(i) The application of the applicant was not rooted through proper channel. It was also not accompanied with mandatory vigilance clearance and ACRs for the past five years;
(ii) The applicant was not meeting the prescribed qualification, as he was not holding the post in the rank of Inspector in the pay scale of Rs.6500-10500 for five years. His pay scale as Security Officer was Rs.6500-10500 but he had been appointed to that post only w.e.f. 17.12.2007 whereas he submitted his application for Senior Security Officer on 12.11.2008. Thus, at the time of submission of his application, the applicant had not even rendered one year regular service in the pay scale of Rs.6500-10500.
(iii) The post was circulated only to Central Police Organisations and candidates from NTRO were not eligible to apply for the said post.
(iv) The applicant had already been re-employed once after discharge from service, when he was appointed as Security Officer in NTRO. He was not eligible for re-employment for the second time.
6.3 The applicant in his OA has stated that it is incorrect to say that he was appointed to the post of Senior Security Officer erroneously. The applicant had submitted his application to Chairman, NTRO through proper channel. Even otherwise also the Selection Committee itself consisted of officers of NTRO and the said Selection Committee selected the applicant and the Chairman, NTRO, accepted his technical resignation without any demur. The objection of the respondents regarding his application not being rooted through proper channel has no basis. Vigilance clearance and ACRs were also available with the Head of the department. Regarding circulation of vacancies to Central Police Organisations only, the applicant has pointed out that NTRO never issued an open advertisement and vacancies were always circulated as per the methodology decided by the Chairman, NTRO. As regards meeting the eligibility requirement is concerned, he has stated that no Recruitment Rules for the post in question had been notified and, therefore, the Selection Committee was competent to determine the eligibility of the officers for appointment in NTRO. As regards re-employment for the second time is concerned, the applicant has stated that there is no bar on appointment of Ex-serviceman twice or even thrice. The nomenclature, i.e., re-employment has been misconstrued by the respondents. In fact, whenever appointment is given to Ex-serviceman or any other individual after rendering service in the same department or any other department, the same is called re-employment. Re-employment may be more than once as is clear from DOP&Ts OM No.36034/90-Estt. Dated 02.04.1992. The relevant portion of the said OM reads as under:-
NOTE:- ex-servicemen who have already secured regular employment under the Central Govt. in a Civil Post are permitted the benefit of age relaxation as admissible for Ex- servicemen for securing another employment in any higher grade or service under the Central Govt. However, such candidates will not be eligible for the benefit of reservation, if any, for Ex-servicemen in Central Govt. jobs. Thus, it is provided that even benefit of age relaxation is available to Ex-serviceman for securing another employment in higher grade. There is no bar in securing appointment twice or thrice. The only restriction is that the candidate will not be eligible for benefit of reservation, if any, for Ex-serviceman in Central Government jobs. In the instant case, the applicant was not selected under the post reserved for Ex. serviceman.
6.4 We have considered the arguments advanced by both the sides. In our opinion, the applicant is right when he says that there is no bar on Ex-serviceman securing appointment twice or thrice under the Central Government as long as they are not selected under the post reserved for Ex-serviceman. Since the post of Senior Security Officer was open to all categories and not reserved for Ex- serviceman and since as admitted by both sides, the applicant was not selected under the Ex-serviceman quota, this ground taken by the respondents to terminate his appointment is untenable.
6.5 As regards other grounds as raised by the respondents, the applicant has not disputed that the post was circulated only to Central Police Organisations and not to internal candidates of NTRO. He has merely stated that it was the practice in NTRO to never issue an open advertisement and circulate vacancies only as per the methodology decided by the Chairman, NTRO. However, we do not find this argument of the applicant convincing. In the instant case, NTRO had clearly decided to circulate vacancies only to Central Police Organiastions and the post was not kept open for internal candidates of NTRO. As such NTRO candidates could not have been considered for the selection till this post was thrown open for internal candidates of the NTRO as well. Thus, to this extent, there has been irregularity in considering the applicant for appointment to the post of Senior Security Officer.
6.6 We are also not convinced by the argument of the applicant that since no Recruitment Rules had been notified, it was open to the Selection Committee to change the eligibility criteria. It is common knowledge that in the absence of Recruitment Rules, the appointments are regulated by executive instructions issued after approval of the competent authority. In the instant case, the competent authority had decided to have a condition of five years service as Inspector in the grade of Rs.6500-10500, as a necessary eligibility condition. In our opinion, it was not open to the Selection Committee to relax this criteria at their level. This would have been unfair to all other desirous candidates, who did not apply for this post because they were not meeting this criteria. As such, we hold that even this was an irregularity committed in the selection process.
6.7 Further the applicant has admitted that he had applied through his superior, i.e., Director (S&CI). He has stated that vigilance clearance and ACRs were available with the department itself and were considered by the Selection Committee. The respondents on the other hand have stated that the Administrative Division, which was the custodian of the records of the applicant, was completely bypassed. While it is not clear whether the Selection Committee did consider the ACRs and vigilance clearance of the applicant or not, in our opinion, since the respondents have not taken the plea that the ACRs of the applicant were not upto the mark or that the applicant was not clear from the vigilance angle, this is not material and cannot be a ground for quashing the appointment.
6.8 Thus, we find that while other grounds were not valid, the respondents were right in terminating the appointment of the applicant as Senior Security Officer on the grounds that he had been appointed to a post which was not open to internal candidates of NTRO and that he also did not meet the prescribed eligibility criteria of having five years of service in the pay scale of Rs.6500-10500 at the time of his appointment.
6.9 The applicant has also stated that the respondents have not taken any action to terminate the appointment of three other candidates who were selected through the same selection. However, in our opinion, this also cannot be a ground for quashing the impugned order of the respondents. It is not the case of the respondents that the entire selection process was vitiated. According to them, irregularities were noticed only in the appointment of the applicant because he was internal candidate of the NTRO and not meeting the prescribed qualification. The applicant has not been able to establish that the appointment of three other candidates also suffered from these infirmities. Hence, there was no necessity to quash those appointments as well.
6.10 To support their claim that appointment in which irregularities have been noticed can be terminated, the respondents have relied on DOP&Ts OM No.11012/7/91- Estt.(A) dated 19.5.1993 which reads as follows:-
A question has been arisen as to whether a Government servant can be discharged from service where it is discovered later that the Government servant was not qualified or eligible for his initial recruitment in service. The Supreme Court in its judgment in the District Collector, Vizianagaram V. M. Tripura Sundari Devi (1990 (4) SLR 237) went into this issue and observed as under:-
It must further be realized by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the Appointing Authority and the appointee concerned. The aggrieved are all those who had similar or better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint a person with inferior qualifications in such circumstances unless it is clearly stated that the qualifications, are relaxable. No court should be a party to the perpetuation of fraudulent practice. On the basis of above OM, we hold that the respondents were well within their rights to terminate the appointment of the applicant as Senior Security Officer on discovering the above mentioned irregularities in his appointment.
7. The next issue to be decided by us is whether the appointment of the applicant can be terminated without as much as giving him a show cause notice. In this regard, the applicants counsel has stated that the aforesaid order has been issued in violation of principles of natural justice and Article 311 of the Constitution of India. This order is stigmatic in nature and the applicant should have been afforded an opportunity to defend his case before issue of the impugned order.
7.1 The applicant has further contended that his appointment was terminated after more than three years of his appointment as a Senior Security Officer. In terms of DOP&Ts OM dated 8.9.2011, the applicant should have been deemed to have been confirmed after expiry of his probation period of two years.
7.2 For deciding this issue, it is necessary for us to first decide what the status of the applicant was as a Senior Security Officer, i.e., whether he was a probationer or whether he can be deemed to have been confirmed as such. In this regard, we have seen the appointment letter issued to the applicant on page 38 of the paperbook. In the aforesaid letter of appointment, it is nowhere mentioned that the applicant would be on probation on appointment as Senior Security Officer. However, learned counsel for the respondents argued that in the OM No.44/1/59-Esst(A) of MHA dated 15.4.1959, the following has been provided:-
(3) Period of Probation in various Central Services 1. Para.1 (vii) of M.H.A., O.M. No.44/1/59-Esst(A) dated the 15th April, 1959 (General Principles Order (1) above stipulates that the fresh entrants as well as the promoted should be kept on probation for a period of two years to judge the potentials of an officer for a higher service. On review, it has now been decided that
(i) Save as provided in Clause (ii) below, direct recruits to a post/service shall be on probation for a period of two years.
(iii) Persons who are inducted into a new service through promotion shall also be placed on probation for two years; but there will be no probation for a person promoted from one grade to another within the same service, except where the promotion involves a change in the Group of posts in the same service, e.g., promotion from Group B to Group A in which case the probation shall be for two years.
(v) In the case of those who are re-employed before the age of superannuation, e.g., Ex-Military personnel, there will be a probation of two years on their appointment/ re-employment to civil posts except in respect of cases covered by Clause (ii) above; and
(vi) there will be no probation in the case of officers appointed to various posts on -
contract basis;
deputation;
tenure basis;
re-employed after superannuation; and permanent transfer In terms of this OM, the applicant was clearly on probation. Moreover, the applicant himself has not disputed that he was initially appointed on probation as is clear from Ground H. taken in his OA. He has merely stated that the probation period should have come to an end after expiry of two years and after that he should be deemed to have been confirmed as Senior Security Officer.
7.3 From the above, it is clear that both sides have admitted that initial appointment of the applicant as Senior Security Officer was on probation. The only issue to be decided is whether after expiry of two years, the applicant can be deemed to have been confirmed or not. In this regard, we turn to various pronouncement of the Apex Court for guidance. The Apex Court in the case of State of Punjab vs. Dharam Singh, AIR 1968 SC 1210, has held as follows:-
8. The initial period of probation of the respondents ended on October 1, 1958. By allowing the respondents to continue in their posts thereafter without any express order of confirmation, the competent authority must be taken to have Extended the period of probation up to October 1, 1960 by implication. But under the proviso to r. 6(3), the probationary period could not extend beyond October 1, 1960. In view of the proviso to R. 6(3), it is not possible to presume that the competent authority extended the probationary period after October 1, 1960, or that thereafter the respondents continued to hold their posts as probationers.
9. Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct during-the period of probation was in the opinion of the authority unsatisfactory. Instead of dispensing with their services on completion of the extended period of probation, the authority continued them in their posts until sometime in 1963, and allowed them to draw annual increments of salary including the increment which fell due on October 1, 1962. The rules did not require them to pass any test or to fulfill any other condition before confirmation. There was no compelling reason for dispensing with their services and re-employing them as temporary employees on October 1, 1960, and the High Court rightly refused to draw the inference that they were so discharged from service and re-employed. In these circumstances, the High Court rightly held that the respondents must be deemed to have been confirmed in their posts. Though the appointing authority did not pass formal orders of confirmation in writing, it should be presumed to have passed orders of confirmation by so allowing them to continue in their posts after October 1, 1960. After such confirmation, the, authority had no power to dispense with their services under r. 6(3) on the ground that their work or conduct during the period of probation was unsatisfactory. It follows that on the dates of the impugned orders, the respondents had the right to hold their posts. The impugned orders deprived them of this right and amounted to removal from service by way of punishment. Theremoval from service could not be made without following the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and without conforming to the constitutional requirements of Art. 311 of the Constitution. As the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 was not followed and as the constitutional protection of Art. 311 was violated, the impugned orders were rightly set aside by the High Court. In the case of Kazia Mohammed Muzzamil vs. State of Karnataka and another, (2010) 8 SCC 155, the Apex Court has held as follows:-
46. On a clear analysis of the above enunciated law, particularly, the Seven Judge Bench judgment of this Court in Samsher Singh (supra) and three-Judge Bench judgments, which are certainly the larger Benches and are binding on us, the courts have taken the view with reference to the facts and relevant rules involved in those cases that the principle of automatic or deemed confirmation would not be attracted. The pith and substance of the stated principles of law is that it will be the facts and the rules, which will have to be examined by the courts as a condition precedent to the application of the dictum stated in any of the line of the cases afore noticed.
47. There can be cases where the rules require a definite act on the part of the employer before an officer on probation can be confirmed. In other words, there may a rule or regulation requiring the competent authority to examine the suitability of the probationer and then upon recording its satisfaction issue an order of confirmation. Where the rules are of this nature the question of automatic confirmation would not even arise. Of course, every authority is expected to act properly and expeditiously. It cannot and ought not to keep issuance of such order in abeyance without any reason or justification. While there could be some other cases where the Rules do not contemplate issuance of such a specific order in writing but merely require that there will not be any automatic confirmation or some acts, other than issuance of specific orders, are required to be performed by the parties, even in those cases it is difficult to attract the application of this doctrine.
48. However, there will be cases where not only such specific Rules, as noticed above, are absent but the Rules specifically prohibit extension of the period of probation or even specifically provide that upon expiry of that period he shall attain the status of a temporary or a confirmed employee. In such cases, again, two situations would rise: one, that he would attain the status of an employee being eligible for confirmation and second, that actually he will attain the status of a confirmed employee. The Courts have repeatedly held that it may not be possible to prescribe a straightjacket formula of universal implementation for all cases involving such questions. It will always depend upon the facts of a case and the relevant rules applicable to that service. Further the Apex Court in the case of Headmaster Lawrence School Lovedabel vs. Jayanthi Raghu and Anr., 2012 (4) SCC 793, has held as follows:-
27. After referring to the decisions in Dharam Singh (supra), Sukhbans Singh (supra) and Shamsher Singh (supra) and other authorities, the three-Judge Bench expressed thus:-
11. The question of deemed confirmation in service Jurisprudence, which is dependent upon language of the relevant service rules, has been 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 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. 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 officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry 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 require a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor the person concerned has passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired. In the case of Sukhbans Singh vs. State of Punjab, AIR 1962 SC 1711, the Constitutional Bench had opined that a probationer cannot after the expiry of a probationary period, automatically acquire the status of a permanent member of the service, unless of course, the Rules under which he is appointed expressly provide for such a result. In the case of U.P. vs. Akbar Ali Khan, AIR 1966 SC 1842, the Constitutional Bench of the Apex Court held that :
6If the order of appointment itself states that at the end of the period of probation.in the absence of any order to the contrary, the appointee will acquire a substantive right to the post even without an order of confirmation. In all other case, in the absence of such an order or in the absence of such a service rule, an express order of confirmation is necessary to give him such a right. Where after the period of probation an appointee is allowed to continue in the post without an order of confirmation, the only possible view to take is that by implication the period of probation has been extended, and it is not a correct proposition to state that an appointee should be deemed to be confirmed from the mere fact that he is allowed to continue after the end of the period of probation. Further, in the case of Lawrence School Vs. Jayanthi Raghu, (2012) 4 SCC 793 the following has been held:-
38. Had the rule-making authority intended that there would be automatic confirmation, Rule 4.9 would have been couched in a different language. That being not so, the wider interpretation cannot be placed on the Rule to infer that the probationer gets the status of a deemed confirmed employee after expiry of three years of probationary period as that would defeat the basic purpose and intent of the Rule which clearly postulates :if confirmed. A confirmation, as is demonstrable from the language employed in the Rule, does not occur with efflux of time. As it is hedged by a condition, an affirmative or positive act is the requisite by the employer. In our considered opinion, an order of confirmation is required to be passed. Further the Apex Court in the case of Mohd. Salman vs. Committee of Management, (2011) 12 SCC 308, has held as follows:-
16. The correspondences which are on record also indicate That the service of the appellant was also found to be not satisfactory by the respondent and the said fact was also brought to the notice of the appellant continuously and repeatedly so as to give him an opportunity to improve his performance. However, despite the said opportunity granted and also extension, his performance and service were not improved and, therefore, the service was terminated under the aforesaid letter dated 3-4-1993.
17. In the case of Kedar Nath Bahl Vs. The State of Punjab and Others reported in 1974 (3) SCC 21, this Court clearly laid down the proposition of law 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 on that behalf. It was also held in that decision that unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period or that there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. This Court went on to hold 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 if he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer. 7.4 We have analyzed the various citations given above. The first citation is of State of Punjab Vs. Dharam Singh (supra). Going through the facts of this case we find that in that case it was provided under the proviso to Rule-6(3) that the probationary period could not extend beyond October 1, 1960. In view of this position of the Rules the Apex Court had ruled that even though appointing authority did not pass any formal orders of confirmation, it should be presumed to have passed orders of confirmation by so allowing the petitioners to continue in their posts after October 1,1960.
7.5 From the case of Headmaster Lawrence School Lovedabel (super), we find that the Apex Court has quoted the ruling of three Judge Bench expressed in Dharam Singh (supra), Sukhbans Singh (supra) and Shamsher Singh (supra) to state that depending upon the position of the Rule there could be different types of cases and deemed confirmation in service-jurisprudence would be dependent on the language of the Service Rules. They have stated that deemed confirmation would take place only in cases where a maximum period of probation has been prescribed and beyond which no extension is permissible. In the case of Kazia Mohammed Muzzamil (supra), the view taken by the Apex Court is that it may not be possible to prescribe a straightjacket formula of universal implementation for all cases as far as deemed confirmation is concerned. The Apex Court has stated that it will always depend upon the facts of a case and the relevant rules applicable to that service.
7.6 Thus, the position that emerges is that no straightjacket formula for deemed confirmation can be prescribed and the facts and service rules of each case have to be seen for deciding this issue. However, if the rules provide for maximum period of confirmation beyond which probation cannot be extended and if the officer concerned is continued beyond such period, then he will be deemed to have been confirmed.
7.7 In the instant case, we find that no Recruitment Rules for the post have been framed. Thus, this post will be governed by the general executive instructions prevalent at that time. Both the parties have admitted that the case of the applicant would be covered by the DOP&Ts OM dated 15.4.1959. This OM prescribes for a period of probation of two years. However, no maximum period beyond which probation cannot be extended has been prescribed. Therefore, based on the above citations, it would follow that till an order of confirmation had been issued by the respondents, it will be presumed that the period of probation of the applicant has been extended. The applicants contention that he may be deemed to have been confirmed cannot be sustained as deemed confirmation in absence of confirmation order would have come into effect only if the applicable instructions provided for maximum period of two years of probation beyond which no extension was possible. On the basis of the above, we come to the conclusion that the applicant was a probationer on the post of Senior Security Officer at the time his appointment was terminated.
7.8 Now we proceed to decide whether there was requirement of issue of show cause notice to the applicant in consonance with the principles of natural justice before terminating his appointment as Senior Security Officer. The respondents in this regard have relied on the judgment of this Tribunal dated 22.08.2012 in OA-1334/2012 wherein it was held as follows:-
The termination of temporary service on the grounds of ineligibility does not require to issue notice or to grant opportunity to the applicant. The action of the respondents in terminating temporary service of the applicant, in our opinion, does not violate the principles of natural justice..the respondents detected the illegal appointment of the applicant to the post of Linguist (French) which they corrected first by extending his probation and later on terminating his services. The selection of the applicant for the post having been found to the illegal, termination of applicants service was the only cure available in the hands of the respondents. 7.9 We have also looked at pronouncements of Apex Court in this regard. In the case of Rajesh Kumar Srivastava Vs. State of Jharkhand, (2011) 4 SCC 447 the Apex Court has held as under:-
9. A person is placed on probation so as to enable the employer to adjudge his suitability for continuation in the service and also for confirmation in service. There are various criteria for adjudging suitability of a person to hold the post on permanent basis and by way of confirmation. At that stage and during the period of probation the action and activities of the appellant are generally under scrutiny and on the basis of his overall performance a decision is generally taken as to whether his services should be continued and that he should be confirmed, or he should be released from service. In the present case, in the course of adjudging such suitability it was found by the respondents that the performance of the appellant was not satisfactory and therefore he was no suitable for the job.
10. The aforesaid decision to release him from service was taken by the respondents considering his overall performance, conduct and suitability for the job. While taking a decision in this regard neither any notice is required to be given to the appellant nor he is required to be given any opportunity of hearing. Strictly speaking, it is not a case of removal as sought to be made out by the appellant, but was a case of simple discharge from service. It is, therefore, only a termination simpliciter and not removal from service on the grounds of indiscipline or misconduct. While adjudging his performance, conduct and overall suitability, his performance record as also the report from the higher authorities were called for and they were looked into before any decision was taken as to whether the officer concerned should be continued in service or not. Further, Apex Court in the case of H.F. Sangati Vs. Registrar General, High Court of Karnataka, (2001) 3 SCC 117 has laid down as follows:-
There was, thus, no requirement to comply with the principles of natural justice, much less to be preceded by any formal proceedings of inquiry before making the order. Apex Court also in the case of High Court of Judicature at Patna Vs. Pandey Madan Mohan Prasad Sinha, (1997) 10 SCC 409 has laid down as follows:-
As regards a probationer, the law is well settled that he does not have a right to hold the post during the period of probation. The position of a probationer cannot be equated with that of an employee who has been substantively appointed on a post and has a right to hold that post. An order terminating the services of a probationer can be questioned only if it is shown that it has been passed arbitrarily or has been passed by way of punishment without complying with the requirements of Article 311(2) of the Constitution. Since a probationer has no right to hold the post on which he has been appointed on probation, he cannot claim a right to be heard before an order terminating his services is passed. The obligation to communicate the adverse material to a person before taking action against him on the basis of the said material is a facet of the principles of natural justice. But principles of natural justice have no application in the case of termination of the services of a probationer during the period of probation since he has no right to hold the post. It is, therefore, not possible to hold that there is an obligation to communicate the adverse material to a probationer before a decision is taken on the basis of the said material that he is not fit for being retained in service. Such material can be relied upon to show that such a decision does not suffer from the vice of arbitrariness and is not capricious. 7.10 On the basis of above rulings the conclusion that can be drawn is that a probationer has no right to hold the post during the period of probation and, therefore, there is no requirement of following principles of natural justice while terminating his appointment provided termination has not been done by way of punishment without complying with the requirement of Article-311(2) of the Constitution. In the instant case, it is evident that the order of termination has not been passed by way of punishment. No misconduct has been alleged on the part of the applicant. It has also not been held that the applicant secured appointment as Senior Security Officer by fraud or misrepresentation of facts. No adverse material regarding the applicants conduct during three years service as Senior Security Officer has been taken into account. Even the order of termination only says that the appointment of the applicant is cancelled as it has been found to be erroneous. Thus, we cannot agree with the applicants contention that this order is stigmatic or has been passed by way of punishment. We, therefore, come to the conclusion that there was no requirement of following principles of natural justice in this case. Nor was this order in violation of Article 311 of the Constitution.
8. The applicant has also contended that the order was not issued with the approval of the competent authority who happens to be President of India in this case. In this regard, the respondents have clearly stated in Para-2 of their additional affidavit that this order was issued after approval of the competent authority i.e. Honble Prime Minister as Minister in-charge of this department. We have also verified this from the official records made available by the department. Hence, this ground of the applicant is also not tenable.
8.1 The applicant has also alleged that reduction in rank is a punishment with penal consequences. He has relied on the judgment of Honble Supreme Court in the case of Purshottam Lal Dingra (supra) saying that he was entitled to protection of Article 311(2) of the Constitution. He has also quoted in his written submissions the following plethora of cases to press the same point:-
Ms.Usmani & Ors. Vs. UOI decided on 14.12.1994 (Para 9 of the Judgment), Ram Ujarey Vs. UOI 1999 1 SCC 685 (Para 18 of the judgment), UOI Vs. Narender Singh 2008 1 SCC 547 (Para 30 of the judgment), State of Punjab Vs. Chaman Lal Goyal 1995 2 SCC 570 (Para 13 of the judgment), N.K. Durga Devi Vs. Commissioner of Commercial Taxes, Hyderabad 1997 11 SCC 91 (Para 3 of the judgment), Jagdish Prasad Shastri Vs. State of UP & Ors. 1970 3 SCC 631 (Para 8 to 10 of the judgment), Ashok Kumar Vs. UOI WP(C) No. 6799/1999 (SLP dismissed on 19.08.2002) (copy of judgment annexed as per index), Ram Binay Sharma Vs. Chairman, Coal India Ltd. & Ors. WP(C) No.4047/2007, K.S. Shankaranarayan Vs. IG of Police & Superintendent of Police decided on 01.04.2010, Dunichand Vs. State of H.P., CWP No. 36/1973, Akbar Ali Vs. UOI WP No. 238/2006 (High Court of Guwahati), Laxmi Chand Vs. UOI, OA No. 2569/1992 decided on 31.12.1997. 8.2 We have gone through the above citations. In our opinion, they are not relevant to this case because the impugned order in this case was not an order reverting to the applicant to a lower rank. In the first place the applicant had never been promoted as Senior Security Officer as that post was not a promotional post in the hierarchy of the department. He had been appointed as such by selection through a Selection Committee as direct recruit and was, therefore, admittedly placed on probation. On being found that there were irregularities in this selection, his appointment was cancelled and he was allowed to join the post which he was holding prior to such appointment. Since this was not a case of an employee being reduced in rank but of cancellation of fresh appointment, the question of application of the citations mentioned above will not arise.
8.3 Lastly, the applicant has alleged that his appointment has been terminated under FR 31-A. This is erroneous because this Rule basically deals with fixation of pay and not for issuing reversion orders.
8.4 In this regard the respondents have stated in their written submissions that just below FR 31-A Government of India O.M. No. F-1(2)-Estt.III/59 dated 14.03.1963 lays down as follows:-
The orders of notification of Promotion or appointment of a Government Servant should be cancelled as soon as it is brought to the notice of the Appointing Authority that such a promotion or appointment has resulted from a factual error and the Government servant concerned should, immediately on such cancellation, be brought to the position which he would have held but for the incorrect order of promotion or appointment.
Except where the Appointing Authority is the President, the question whether promotion/appointment of the particular Government servant to a post was erroneous or not should be decided by an authority next higher than the Appointing Authority in accordance with the established principles governing promotions/appointments. Where the Appointing Authority is the President, the decision should rest with the President and should be final. The Ministry of Home Affairs should be consulted in respect of promotions/appointment in the Service administratively controlled by that Ministry. In other cases also, the Ministry of Home Affairs may be consulted, if any point is doubtful. 8.5 According to the respondents, the appointment of the applicant has been cancelled on the basis of these instructions and not under FR-31.
9. We have seen the impugned order. Para-2 of this order reads as follows:-
Approval of the competent authority, in terms of Govt. of Indias Orders under FR 31-A is hereby conveyed to cancel the erroneous appointment of Sh. S.C. Gehlawat to the post of Sr. Secruity Officer (Grade-A, PB-3 with Grade Pay of Rs.5400) and bring him down to the post of Security Officer (Gr.B, PB-2 with Grade Pay of Rs.4600) with immediate effect, which he was holding prior to his appointment as Senior Security Officer. 9.1 A mere reading of this would make it clear that the respondents have used Government of India orders under FR 31-A for terminating his appointment and not FR 31-A by itself. While we feel that the order could have been better worded yet we do not find infirmity in this necessitating quashing of this order.
10. On the basis of above analysis, we come to the conclusion that none of the grounds taken by the applicant is tenable. O.A. is dismissed being devoid of merit. No costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
vinita/ravi