Anilaben Vinayakbhai Solanki vs State of Gujarat and Others

Rajesh H. Shukla, J.—The present petition has been filed by the petitioner under Article 226 of the Constitution of India praying that the order dated 20.9.1993 at Annexure-M passed by the Respondent No. 3 and also the order dated 21.9.1993 terminating the services of the petitioner may be quashed and set aside on the grounds stated in the memo of the petition.

The facts of the case briefly stated are that the petitioner was appointed on probation to the post of Demonstrator (Female) by the Agricultural Department as per order at Annexure-A for a period of one year subject to the conditions mentioned therein. One of the conditions was that the candidate like the petitioner was required to pass the departmental exam within the stipulated period. The petitioner could not pass the exam and the services were discontinued as probationer, which is challenged in the petition on the ground mentioned in the petition inter alia that the petitioner had made an application but was not permitted to appear in the examination. Though the permission was granted vide letter dated 7.6.1991 the same was withdrawn. The petitioner is said to have applied for permission and according to the petitioner it was canceled as per communication dated 19.6.1991 (Annxure-E). Thereafter again the petitioner is said to have applied and she had not passed the examination within the stipulated period. The contentions raised in the petition are therefore focused only on the aspect of passing of the departmental exam to suggest that only because she has failed to pass the exam, her services are terminated. Further, it is also sought to be contended that she was not at fault as she had applied but permission was canceled and thereafter without granting any further opportunity or chance, the services are terminated.

Affidavit in reply is filed, a copy of which is placed on record though the original copy is not traceable. As contended in the affidavit in reply, the petitioner was appointed as a probationer during which the petitioner was required to pass departmental exam as prescribed under the Rules within the stipulated period. It is also contended that the petitioner was informed by communications dated 7.3.1991, 19.6.1991, 19.8.1991 and 7.5.1992 regarding the schedule of her examination and for making arrangement for appearing in the examination. However, the petitioner did not care to appear in the examination and therefore would not clear the exam. At the same time it is also stated that as per the condition mentioned in the appointment order at Annexure-A, clause 7 specifically provides that her appointment was on probation for a period of one year subject to satisfactory work. Similarly, condition No. 8 provided for passing the departmental exam. Therefore, in the affidavit in reply it has been contended in paragraph 7 that though she was informed to appear in the examination, she failed to make the arrangement to appear in the exam. Moreover, it is also stated that as stated in the impugned order of termination (Annexure-M) that her performance did not improve and therefore it was not found to be satisfactory and therefore she was discontinued/terminated.

Learned advocate Mr. J.D. Ajmera for the petitioner submitted that the petitioner was appointed vide order dated 6.11.1990 on probation for a period of one year and was required to pass the exam. However, after six months, she had applied for permission, but after the permission was granted as per communication dated 7.6.1991, the same was canceled as per the communication dated 19.6.1991. Mr. Ajmera also submitted that thereafter again she had applied as it is reflected from Annexure-F dated 22.3.1992 that she had applied but decision could not be taken for six months for which she cannot be said to be at fault. Learned advocate Mr. Ajmera submitted that the communication at Annexure-J dated 6.2.1993 was addressed to the petitioner but as she has not passed the exam within the stipulated period, for additional chance she may make an application addressed to the Director of Agriculture. However, when she applied as per communication dated 22.3.1993 (at Annexure-K) it was forwarded after six months vide communication dated 10.9.1993 at Annexure-L and instead of granting the additional chance, the services came to be terminated. Therefore, learned advocate Mr. Ajmera referred to the averments made in the petition and submitted that if there was nothing adverse and merely because she had not appeared in the examination, additional chance could have been given to her. He further submitted that infact immediately after her appointment within six months, she applied seeking permission to appear in the examination which was granted and thereafter canceled. Therefore, learned advocate Mr. Ajmera submitted that the order at Annexure-M requires to be quashed and set aside. He further submitted that if the services of the petitioner were not found to be satisfactory, it should have been brought to her notice, and therefore the action is arbitrary and illegal.

Learned AGP Mr. Amit Patel referred to the affidavit in reply and submitted that the passing of exam is one of the conditions. However, her services have been discontinued as stated in the order at Annexure-M on the ground that her services were not found satisfactory. Learned AGP referred to the order at Annexure-M dated 20.9.1993 and submitted that as reflected in this order, on the appreciation of material and confidential reports, her services were found satisfactory and therefore as per condition No. 7 her services were discontinued, which provide for discontinuity or terminating the services during the period of probation. Learned AGP on instructions produced the papers with regard to the confidential reports of the petitioner for the period from March 1991 to November, 1991, April 1992 to March 1993 which were written by different officers and there were adverse remarks and still her probation was recommended for extension. Therefore, non-passing of the departmental exam was not the only ground. Thereafter again the remarks for subsequent period from 1.4.1992 to 31.3.1993 were also adverse and were communicated to her. Moreover, as it transpired from the record produced before the court for perusal, the petitioner had even after her maternity leave remained irregular and even on the days when she had attended she did not remain present in the office throughout. There are communications addressed to her with regard to her attendance and improving her work and the attitude. It is also required to be mentioned that she was working as a Demonstrator (Female) for the purpose of attending the rural female folks to train them for the purpose of agriculture and as reflected in the various communications dated 23.10.1992 as well as 2.11.1992, she has not properly attended the work and for about one year she had not attended the programme, requiring touring for the official work. All this aspect has been brought to her notice and she had also made a representation. Therefore, it would be evident that she had not remained regular and her work was not found to be satisfactory. Therefore as her work has not been found to be satisfactory and she did not improve inspite of reminders and also communications of adverse confidential reports, the respondents have thought it desirable to discontinue the services as a probationer.

Therefore, the moot question which is required to be considered whether the impugned order can be said to be arbitrary and illegal as sought to be canvassed. The appointment order at Annexure-A as discussed above stipulates that her appointment was on probation for a period of one year and there was a specific stipulation that if her services are not found satisfactory during the period of probation she could be discontinued or her services could be terminated. The condition No. 8 also stipulated about passing of the departmental exam. Therefore, non-passing of the departmental exam is not the only reason or the ground as sought to be focused by learned advocate Mr. Ajmera, but her services during the probation was not found to be satisfactory. It is required to be mentioned that she did not improve even after the communication of adverse remarks and other communications. It is also required to be mentioned that initially inspite of the adverse remarks and her not paying the attention, her probation was extended. This on the contrary reflects that there is no bias or grudge as sought to be canvassed by learned advocate Mr. Ajmera.

It is also accepted that the services of the probationer can be terminated if it is not found to be satisfactory and the suitability is required to be considered based on the performance during the period of probation. The very basis or the idea of keeping the person on probation is that the person is required to perform and her performance is required to be assessed during this period, and if found suitable, would be confirmed. In the facts of the present case, sufficient opportunity has been granted to her and as discussed hereinabove, her performance during the probation was not found satisfactory, the impugned order came to be passed. Therefore, though the contention is sought to be raised that her services has been discontinued or terminated only on the ground that she has not passed the departmental exam, is misconceived. Her appointment order at Annexure-A clearly stipulates in condition No. 7 that she was appointed on probation for a period of one year and if her performance is not found satisfactory, her services could be discontinued. The order at Annexure-M also refers to this aspect that her performance as per stipulation No. 7 of the appointment order was assessed and after considering the record and her performance it was thought desirable to discontinue, and therefore, the impugned order came to be passed.

Moreover, it is also required to be mentioned that though learned advocate Mr. Ajmera has submitted that sufficient opportunity of appearing in the exam has not been given and even if the chance was given, one additional chance could have been given, is also misconceived. A close look on the record, particularly the Annexures referred to by learned advocate Mr. Ajmera is concerned, it would reveal the attitude of the petitioner. Reference is made to Annexure-D, which is a communication to the candidates, including the petitioner. Further, when the permission referred to in Annexure-D was sought to be canceled by letter / communication at Annexure-E, it is stated in the communication at Annexure-E that she had made the wrong application and therefore the form was canceled. Thereafter also again she had made an application but as reflected in communication at Annexure-H dated 16.11.1992, she had not filled in the form with complete details and therefore, it was required to be be returned. It was specifically communicated at Annexure-H dated 16.11.1992 that as it is incomplete, it has not been accepted and she was required to fill in the form and if she delays the office would not be responsible. It if further required to be noted that as per communication dated 22.3.1993 at Annexure-K addressed by the petitioner to the Director of Agriculture, Gujarat State, routed through Deputy Director, she has stated the reasons due to which she could not appear in the departmental exam in a stipulated period. She has stated that, in her appointment order, within how much period and how many chances she is required to pass the departmental exam, is not specifically mentioned and there is no time limit prescribed. Further, she has stated that according to which Rule the departmental exam is required to be cleared, is also not mentioned and therefore she could not appear in the exam. Thereafter, further reasons are stated that she has erroneously made an application in an incorrect form as well as that she was on maternity leave, she could not clear the exam. The first two grounds clearly reflect the attitude that though her appointment order at Anenxure-A clearly states about passing the department exam, she has stated that she is not aware as to within how many chance and what period she is required to clear the exam, it is not mentioned. It is clearly mentioned in condition No. 8 in the order that she is required to clear the examination according to the rules, which the employee like the petitioner is required to ascertain and do the needful. Every detail is not required to be mentioned in the appointment order. Further, referring to Annexure-K, it is submitted that according to which examination rules, was not clear and therefore she could not appear again, reflects the attitude that after joining the services and during the period of probation, which was extended in 1993 also, she also states that according to which Rule exam is required to be passed was not clear and therefore she could not appear.

Therefore, the department has considered all these aspects and inspite of adverse remarks, the probation was extended, opportunity was given and still her performance did not improve inspite of repeated communications and requests made to her, the impugned order came to be passed, which cannot be said to be arbitrary or illegal in any manner. Therefore, the submission made by learned advocate Mr. Ajmera cannot be accepted and the present petition deserves to be dismissed and accordingly stands dismissed. Rule discharged. No order as to costs.