Jagannath Prasad vs Director (Production) Heavy Engineering Corporation and Others

S.B. Sinha and Narayan Roy, JJ.—This application is directed against an order dated 30.9.1992 passed by Respondent No. 3 as contained in Annexure 4 to the writ application whereby and whereunder the Petitioner has been reverted to the post of Deputy Manager in the scale of pay of Rs. 4600-6790 from the post of Manager in the scale of pay of Rs. 5100-6850/ -.

The Petitioner was appointed by the Heavy Engineering Corporation on 12.2.1964 In 1969 he was designated as Assistant Engineer. He was appointed as Junior Manager (Mechanical) in 1972 and was again promoted as Assistant Manager (Mechanical) on 10.4.1979. He was thereafter transferred to the Personnel Division. On 6.3.1985 the Petitioner was appointed as Deputy Manager (Vigilance). According to the Petitioner, Departmental Promotion Committee considered his case for promotion to the post of Manager in the revised scale of Rs. 5100-6850/ - and recommendations were made in his favour. Pursuant to the said recommendation, the Petitioner was promoted by office order dated 11.12.1990 as contained in Annexure 3 to the writ application. By reason of the said order of promotion dated 31.12.1990, the Petitioner was to remain on probation for a period of 12 months or the date of his superannuation whichever is earlier. According to the Petitioner as he completed his period of probation on 31.12.1991 and as during the said period nothing was communicated to him with regard to his deficiency or inefficiency, he would be deemed to have been confirmed and absorbed permanently in the post of Manager. However, by reason of the impugned order dated 30.9.1992, as contained in Annexure 4 to the writ application he was reverted to the post of Deputy Manager.

The Respondents have filed a counter affidavit wherein it has been contended that upon completion of the period of probation, the employee concerned does not automatically stands confirmed. It was submitted that as his performance was not found satisfactory during the period of probation, the impugned order has been passed.

Mr. P.K. Sinha, learned Counsel appearing on behalf of the Petitioner has drawn our attention to Rule 1.8.1.1. and Clause 1.8.1.2 of the H.E.C. Establishment Manual and submitted that from a perusal thereof it would appear that if the Petitioner''s performance during the period of probation was not found satisfactory the same could have been extended for 12 months but upon the expiry of the said period, he could not have been reverted Learned Counsel in support of his contention has relied upon a decision of the Supreme Court in State of Punjab Vs. Dharam Singh, and State of Gujarat Vs. Akhilesh C. Bhargav and Others, .

Mr. Kameshwar Prasad, learned Counsel appearing for the Respondent -- Corporation, on the other hand, submitted that a period of probation did not come to an end only because the period of 12 months expired. According to learned Counsel as the Petitioner was not confirmed in the post of Manager, he could have been reverted to the post of Deputy Manager as his performance was not found satisfactory. Learned Counsel in support of his contention has relied upon a decision of the Supreme Court in Shri Kedar Nath Bahl Vs. The State of Punjab and Others, .

Rule 1.8.1.1 Act 1.8.1.2 of the H.E.C. Establishment Manual read thus:

1.8.1.1.

The period of probation on

promotion is one year.

The period of probation can be

extended upto 12 months for

reasons to be recorded in writing.

18.1.2.

The decision on successful

completion/extension of probation

should be in time and order issued.

It is true that normally an employee is not automatically confirmed on completion of his period of probation but the question as to whether he would be so confirmed or not, depends upon the phraseology used in the rules. In State of Gujarat v. Akhilesh C. Bhargav (supra) the Supreme Court following the decision of Dharma Singh''s case (supra) held that there was a maximum period of 3 years beyond which the said period could not be extended.

In Kedar Nath Bahl''s case (supra) upon which reliance has been placed by Mr. Prasad, the relevant rules read thus:

The period of probation will be six months for candidates already in service and one year for direct recruits.

In that case, evidently, like the case at hand, there was no question of extending the period of 12 months by passing a reasoned order.

Clause 1.8.1.1. categorically specifics that the period of probation can be extended only upto 12 months for reasons to be recorded in writing. It is, therefore, clear that even for the purpose of extension of period of 12 months, not only the same has to be done by a specific order but also reasons therefore have to be recorded. Rule 1.6.1.2. also puts an obligation upon the employer to communicate the decision of successful completion 12 months probation period in time. Thus, a combined reading of the aforementioned rules clearly shows that the Respondents were bound to issue specific orders extending the period of probation before it expired. It is not the case of the Respondents that any such orders had been passed. If no such order had been passed, in our opinion, by necessary implication, the Petitioner would be deemed to have been confirmed as his period of probation was not extended by a reasoned order.

For the reasons aforementioned, this application is allowed and the impugned order as contained in annexure 4 to the writ application is quashed But in the facts and circumstances of the case, there will be no order as to costs.