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The Issues

4. During the course of submissions by both the parties in the OA, the following issues emerged for consideration:

(i) Would the Applicant be deemed to be automatically confirmed after one year of her appointment as Assistant Professor, TS on 30.03.2006, in the absence of any order extending her period of probation?

(ii) Would it be necessary to confirm the Applicant for the second time in her service after she had been confirmed in the Non-Teaching Sub-cadre (NTS) of the CHS, in which she was working before joining the Teaching Sub-cadre (TS) of the CHS and in which she had been confirmed by the first Respondent on 23.12.2005? Is there any need for repeated confirmation, even though she had only tendered technical resignation from that post? Would she be `on probation in the post in the Teaching Sub-cadre or a `probationer in that Sub-cadre?

Reliance has also been placed on Registrar High Court of Gujarat and another V. C.G.Sharma, (2005) 1 SCC 132. The Honourable Supreme Court has observed thus in paragraphs 26 and 43 of the judgement:

26. A large number of authorities were cited before us by both the parties. However, it is not necessary to go into the details of all those cases for the simple reason that sub-rule (4) of Rule 5 of the Rules is in pari materia with the Rule which was under consideration in the case of State of Maharashtra v. Veerappa R. Saboji and we find that even if the period of two years expires and the probationer is allowed to continue after a period of two years, automatic confirmation cannot be claimed as a matter of right because in terms of the Rules, work has to be satisfactory which is a prerequisite or precondition for confirmation and, therefore, even if the probationer is allowed to continue beyond the period of two years as mentioned in the Rule, there is no question of deemed confirmation. The language of the Rule itself excludes any chance of giving deemed or automatic confirmation because the confirmation is to be ordered if there is a vacancy and if the work is found to be satisfactory. There is no question of confirmation and, therefore, deemed confirmation, in the light of the language of this Rule, is ruled out. We are, therefore, of the opinion that the argument advanced by learned counsel for the respondent on this aspect has no merits and no leg to stand. The learned Single Judge and the learned Judges of the Division Bench have rightly come to the conclusion that there is no automatic confirmation on the expiry of the period of two years and on the expiry of the said period of two years, the confirmation order can be passed only if there is vacancy and the work is found to be satisfactory. The Rule also does not say that the two years' period of probation, as mentioned in the Rule, is the maximum period of probation and the probation cannot be extended beyond the period of two years. We are, therefore, of the opinion that there is no question of automatic or deemed confirmation, as contended by the learned counsel for the respondent. We, therefore, answer this issue in the negative and against the respondent. xxxx xxxx xxxx xxxx 43. But the facts and circumstances in the case on hand are entirely different and the administrative side of the High Court and the Full Court were right in taking the decision to terminate the services of the respondent, rightly so, on the basis of the records placed before them. We are also satisfied, after perusing the confidential reports and other relevant vigilance files, etc. that the respondent is not entitled to continue as a judicial officer. The order of termination is termination simpliciter and not punitive in nature and, therefore, no opportunity needs to be given to the respondent herein. Since the overall performance of the respondent was found to be unsatisfactory by the High Court during the period of probation, it was decided by the High Court that the services of the respondent during the period of probation of the respondent be terminated because of his unsuitability for the post. In this view of the matter, order of termination simpliciter cannot be said to be violative of Articles 14, 16 and 311 of the Constitution. The law on the point is crystallised that the probationer remains a probationer unless he has been confirmed on the basis of the work evaluation. Under the relevant Rules under which the respondent was appointed as a Civil Judge, there is no provision for automatic or deemed confirmation and/or deemed appointment on regular establishment or post, and in that view of the matter, the contentions of the respondent that the respondent's services were deemed to have been continued on the expiry of the probation period, are misconceived. (emphasis added).

18. The Applicant has also sought to distinguish the judgement of Honourable Delhi High Court in Union of India and others V. Tarseem Lal Verma in W.P. (Civil) number 3450/1998 decided on 18.08.2009. This is also one of the judgements relied upon by the Respondents. It has been held thus in this judgement:

19. Even otherwise, law on this point is well settled. The mere stipulation of a specific period of probation by itself cannot lead to the inference that upon its expiry, the employee would be deemed confirmed. The condition or stipulation has to be more categorical about intention to treat the employee as a confirmed employee on expiry of period of probation. The employee would remain on probation even after expiry of probation period until and unless an order of confirmation is passed. Merely because probationer continued to work on the post even after expiry of probation period by itself would not be sufficient to infer that such an employee had been confirmed. A probationer would continue to remain on probation even after the expiry of probation period unless a maximum probation period is prescribed in the rules. We cannot accept the Applicants contention that it would not apply in her case merely because she is a Group `A officer and the said Tarseem Lal Verma was a Group `B officer. The principle would apply universally. It would also not be correct to distinguish it on the ground that while Tarseem Lal Verma had adverse A.C.Rs. and that was the reason for extension of his probation, the Applicants A.C.Rs. are categorized as `good and there is no reason to extend her probation. It is also not acceptable that Tarseem Lal Verma was given notice regarding extension of his extension, whereas no notice was given to her or that the Director of the institution where she was working had not given any such recommendation. It is also sought to be projected that she was not a probationer but was `on probation whereas Tarseem Lal Verma was a probationer. We shall deal with the argument regarding the status of an employee `on probation and as `probationer. However, the judgement is not distinguished by any of the arguments of the Applicant. We hold that there cannot be any deemed or automatic confirmation in service if the maximum period of probation is not prescribed and if the rules give the power of extension of probation to the competent authority. In view of this, the Applicant cannot be considered to have been automatically confirmed one year after her appointment by order dated 30.03.2006.

25. On the basis of the above discussion, we hold that the Applicant would continue to be a probationer till her probation is confirmed by the competent authority and in view of the provisions of Rule 10 of CHS Rules, 1996, she would not he considered to have been automatically confirmed in the post in Teaching Sub-cadre. The Applicants confirmation in the earlier post in Non-teaching Sub-cadre would not be carried to the fresh post in the Teaching Sub-cadre and she would have to be confirmed afresh in the new post. The Respondents could extend the period of her probation in spite of `good Annual Confidential Reports and in spite of her good research work according to herself because the confirmation in probation also depends on her conduct, behaviour, character, aptitude and inter-personal relationships.