Narendra Singh vs State of Rajasthan and Others

N.C. Kochhar, J.—The petitioner Narendra Singh Surana was appointed as a temporary Excise Inspector under the State of Rajasthan (Respondent No. 1) in pursuance of the order dated 24th October, 1973 (Ex. 5) issued by the Excise Commissioner, Rajasthan, Udaipur (Respondent No. 2). The said order of appointment was issued considering that the post available for appointment was a temporary one. He joined his duties on 31st October, 1973. Later on it was found that permanent posts were available and as such vide order dated 22nd November, 1974 (Ex. 6), order dated 24th October, 1973 was amended and the petitioner was ordered to be deemed to have been appointed against a permanent vacancy on probation for a period of two years with effect from the date he assumed charge of his duty. It was made clear in the said order that he would be confirmed on the post of the Excise Inspector on satisfactory completion of the period of probation and passing the departmental examination as per the rules. Thereafter certain remarks entered in his Annual Confidential Reports for the years 1973-74 and 1974-75 were communicated to the petitioner, who was also awarded the punishments of stoppage of grade increments thrice during the period 1974 to 1976. The petitioner appeared in the departmental examination held on 1-12-1975 but failed to pass the same. Vide order dated 6th December, 1975 (Ex. 9) the period of probation of the appellant was extended till 22nd August, 1976. Vide order Ex. 10 bearing the date of 30th September, 1976, and served on the petitioner on 2nd Aug., 1976, the petitioner was discharged from his service with immediate effect. Thereafter order dated 31st July, 1976 (Ex.11) was issued by the District Excise Officer, Ajmer, who directed an another Excise Inspector to assume charge of the duties of the petitioner immediately as the petitioner had been discharged from his service vide Ex. 10.

The petitioner filed an appeal before the Rajasthan Civil Service Appellate Tribunal (the Tribunal), who vide order dated 31st March, 1978 (Ex. 12) dismissed the same. Feeling aggrieved, the petitioner has filed this writ petition for quashing the afore said orders passed by the Excise Commissioner as well as by the Tribunal.

We have heard the learned Counsel for the parties and have also perused the record of the case.

It has been contended by Mr. Kala that the two years period of probation of the petitioner expired on 21st October, 1975 and no order extending the period of probation having been passed, by that time, the petitioner should be deemed to have been confirmed on the expiry of the said period of two years. It has further been contended that even if it be taken that vide Ex. 9, the period of probation had been validly extended till 22nd August, 1976, the petitioner should be deemed to have been confirmed after the expiry of the said extended period of probation. Reliance has been placed on the decision of the Supreme Court in State of Punjab v. Dharam Singh 1968 SLR 247.

The petitioner has also relied on Rules 30 and 31 of the Rajasthan Excise Subordinate Services (General Branch) Rules, 1974 (the Rules), which read as under:

Unsatisfactory progress during probation-(1) It appears to the Appointing Authority at any time during or at the end of the period of probation that a member of the Service has not made sufficient use of his opportunity or that he has failed to give satisfaction, the Appointing Authority may revert him to the post held substantively by him immediately preceding his appointment, provided he holds a lien thereon or in other cases, may discharge him from service:

Provided further that the Appointing Authority may extend the period of probation of any member of Service by a specified period not exceeding one year;

(2) A probationer reverted or discharged from service during or at the end of the period of probation under Sub-rule (1) shall not be entitled to any compensation.

Confirmation-A probationer shall be confirmed in his appointment at the end of his period of probation if:

(a) he has passed the departmental examination and has successfully undergone such training as is referred to in Sub-rule (2) of Rule 28;

(b) he has passed the departmental test of proficiency in Hindi; and

(c) the Appointing Authority is satisfied that his integrity is unquestionable and that he is otherwise fit for confirmation.

(2) Persons adjudged suitable under proviso (3) of Rule 6 shall be confirmed by the Appointing Authority on permanent vacancies as they occur in the order in which their names appear in the list provided that no person shall be confirmed in his appointment before the expiry of two years period from the date of his initial ad-hoc/officiating/temporary appointment.

The mere persual of these rules shows that the Appointing Authority has the power to extend the period of probation of an employee for a period of one year that if at any time during or at the end of the period of probation, the employee is found to be unfit, he can be discharged from his service without any compensation and it is only when an employee under goes the prescribed training, passes departmental test and is otherwise found suitable that he can be confirmed at the end of the period of probation. This position is not disputed and as such the maximum period for which the petitioner could be kept on probation was three years.

The case of the State is that the order Ex. 10 was wrongly bearing the date as 30th September, 1976 due to typographical mistake and that a clarification dated 2nd August, 1976 (Ex R. 1) was issued stating that its correct date was 30th July, 1976. The learned Govt. Advocate has contended that the petitioner was discharged from his service on 2nd August, 1976. According to the learned Government Advocate, therefore, the petitioner was discharged from his service during the extended period of his probation. The petitioner has disputed this fact in the rejoinder affidavit and has stated that he has been paid salary upto 30th September, 1976 and he was discharged on that date. In the impugned order Ex. 12, the learned Tribunal has held that order Ex. 10 was served on the petitioner on 2nd August. 1976. This finding has not been challenged either in the grounds taken in the writ petition or at the Bar. The contention of the learned State Counsel finds support from the fact that letter dated 31st July, 1976 (Ex. 11) issued by the District Excise Officer and filed by the petitioner himself along with the writ petition, makes mention of Ex. 10 and directs another Excise Inspector to take charge of the petitioner immediately as the petitioner had been discharged from his service vide Ex. 10. Even if it be taken that the petitioner was not discharged from his service on 2nd August, 1976 but was in fact discharged on 30th September, 1976, the case of the petitioner is not on better footing.

It is now well settled that when an appointment is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of such period without any specific order of confirmation, he should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of the appointment or the service rules, and that in such a case an express order of confirmation is necessary to give the employee a substantive right to the post and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation it is not possible to hold that he should be deemed to have been confirmed. See the decision of the Supreme Court in cases Sukhbans Singh Vs. State of Punjab, . G.S. Ramaswamy and Others Vs. Inspector-general of Police, Mysore, and the State of Uttar Pradesh Vs. Akbar Ali Khan,

According to the rules applicable to the petitioner, the maximum period for which the petitioner could be kept on probation was three years. It is not disputed that the petitioner was discharged from his service before the expiry of the period of three years with effect from 31st October, 1973, when he took charge. Even if it be taken that the petitioner was discharged from his service on 30th September, 1976, in absence of specific order of confirmation, the petitioner could not be deemed to have been confirmed and he can be deemed to have continued in his post as a probationer till the time that he was discharged from his service. In State of Punjab v. Dharam Singh (supra) the maximum period of probation prescribed under the Rules was three years. The employee concerned was allowed to continue in service beyond the period of three years and his services were terminated thereafter and it was held that the maximum period of probation having been prescribed in the Rules, the employee should be deemed to have been confirmed after the expiry of the said period, even in absence of specific order of confirmation. The decision relied upon by the petitioner is thus of no help to him.

It has next been contended that seniority list of permanent employees (Ex. 7) was issued by the respondent on 30th November, 1974 and the name of the petitioner has been shown there in at S.No. 75 and as such it should be taken that the petitioner stood confirmed on that date. This argument is without force in view of the fact that foot note of the said seniority list itself shows that persons mentioned at S.Nos. 59 to 82 were on probation. The petitioner had not even passed the departmental test by the time the seniority list was issued and even after 6th December, 1975 when his probation period was extended till 22nd August, 1976 vide Ex. 9, the petitioner never disputed that he was on probation. We have, therefore, no hesitation in rejecting this argument also.

It has next been contended that the petitioner was initially appointed on temporary basis and services of a temporary employee could not be terminated except by giving one month''s notice or the salary in lieu thereof in view of Rule 23 A of the Rules and that the terms of this appointment vide Ex. 6 dated 22nd November, 1974 bad been changed without his consent and as such order terminating his service without giving him the benefit or Rule 23(A) is invalid. In our view this argument is without any substance. The order treating the petitioner on probation from the date of his joining the service was to the advantage of the petitioner who never challenged that order till he was discharged from service. He thus remained a probationer and was governed by the Rules 30 and 31 quoted above. This argument is also thus rejected.

The last point urged on behalf of the petitioner is that the petitioner having been appointed to the post, his services could not be terminated without notice and without an opportunity of being heard. Reliance has been placed on a decision of the learned Single Judge of this Court in Mangilal and Ors. v. Union of India and Ors. 1981 WLN 622. In the case relied upon by the petitioner the facts were that certain employees had been promoted to a senior post and on a representation having been received by the Appointing Authority from the Employees Union against such promotion, the employees were reverted without being heard and without being given the notice of such representation. In these circumstances it was held that the order reverting the employees was illegal. The case of the petitioner is that of a probationer who had acquired no right, to the post and who could be discharged from his service without any notice, in accordance with the Rules governing the terms of his service. This case is also, therefore, of no assistance to the petitioner.

No other point has been raised before us.

The petition is without any merits and dismissed. No costs.