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Arugments of the Applicant

5. The Applicant, who appears in person, has in her manifold arguments, contended at the outset that she had joined in the Teaching Sub-cadre of CHS as Assistant Professor on 1.03.2007. She was placed under probation for one year by the offer of appointment and logically her probation should have come to an end on 28.02.2008. Even if the extension by 78 days were to be considered to be legal, though the matter was under challenge in OA 1905/2007, her probation would end on 17.05.2008. The Applicant would be deemed to have completed her probation, at the most, by 17.05.2008. As per the instructions issued by the Department of Personnel & Training (DoP&T), the period of probation of an employee cannot be extended beyond twice the length of period of probation. The Applicant had completed more than two years of service, even if extension by 78 days were to be reckoned to be legal, on 15.07.2009, when the order of termination was passed. The Respondent  MH&FW has not been able to cite any instruction from the Government in this regard. The Applicant had taken leave validly, as per the rules. However, in both the scenarios, the Applicants probation would have been completed and she would be deemed to have been confirmed before the order of termination dated 15.07.2009. It is contended by the Applicant that the decision to extend the probation should be taken soon after the expiry of the initial probationary period, that is within six to eight weeks, giving reasons for extension. Rule 10 of the Central Health Services Rules, 1996 reads thus:

(vi) It would be desirable to have uniformity as regards the period of probation in different services and it is therefore recommended that the period of probation should normally be two years, but where there are any special reasons for prescribing a longer or shorter period, a suitable period may be fixed in consultation with the Cabinet Secretariat (Dept. of Personnel).

In some services, those appointed thereto by promotion are not kept on probation. Since performance in a lower service can only indicate an employees potentialities for a higher service, it is necessary that his suitability should be judged before he is confirmed in the higher service. It is, therefore, recommended that those promoted as well as the fresh entrants to a service should be kept on probation for a period of two years. The controlling authority may, however, have the discretion to count the period of successful officiation in the service as probationary period.

While the normal probation may certainly be extended in suitable cases, it is not desirable that an employee should be kept on probation for years as happened occasionally at present. It is, therefore, suggested that, save for exceptional reasons, probation should not be extended for more than a year and no employee should be kept on probation for more than double the normal period.

The decision whether an employee should be confirmed or his probation extended should be taken soon after the expiry of the initial probationary period, that is originally within six to eight weeks, and communicated to the employee together with the reasons in case of extension. A probationer who is not making satisfactory progress or who shows himself to be inadequate for the service in any way should be informed of his shortcomings well before the expiry of the original probationary period so that he can make special efforts at self-improvement. (emphasis supplied)

(c) The status of a probationer is to be considered as having the attributes of a substantive status except where the rules prescribe otherwise. Attention has also been drawn to DoP&Ts reply to the OA. Para 4 of the reply reads thus:
Para.4 (7 to 18) : Matter of records concerning Ministry of Health and Family Welfare. However, as per guidelines laid down on `Probation it is clearly stipulated in para 1 (9) of the O.M. No. F-44/1/59-Estt.(A) dated 15.04.1959 (Annexure-RR-II) that the decision whether an employee should be confirmed or probation extended should be taken soon after the expiry of the initial probationary period, that is, ordinarily within six to eight weeks and communicated to the employee together with the reasons in case of extension. A probationer who is not making satisfactory progress or who shows himself to be inadequate for the service in any way should be informed of this shortcomings well before the expiry of the original probationary period so that he/she can make severe efforts at self-improvement. A copy of Audit instructions under FR-9 is annexed (Annexure-RR-III) which indicates the distinction between appointment `on probation and a probationer. A copy of G.I.M.H.A. O.M. No.4/10/66-Estt. `C dated 26.08.1967 is annexed at Annexure-RR-IV which indicates that Rule 5 of Temporary Service Rules is not to be invoked in cases of termination in terms of specific conditions in the offer of appointment. xxxx xxxx xxxx xxxx