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Probation cannot be Extended beyond the Maximum Period

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/LETTERS PATENT APPEAL NO. 1780 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 13652 of 2008

STATE OF GUJARAT

Versus

R J MANSURI

Appearance:MR CHINTAN DAVE, ASST. GOVERNMENT PLEADER(1) for the Appellant(s) No. 1
MR TR MISHRA(483) for the Respondent(s) No. 1

CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA and HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

Date : 06/07/2021

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. This appeal under Clause 15 of the Letters Patent is at the instance of the State of Gujarat, being dissatisfied with the judgment and order passed by the learned Single Judge of this Court dated 23.08.2016 in the Special Civil Application No.13652 of 2008, by which, the learned Single Judge allowed the writ application filed by the respondent herein (original writ applicant).

2. The facts giving rise to this appeal may be summerised as under;

The writ applicant was appointed in Class II vide order dated 12.02.2002 issued by the Social Justice and Empowerment Department, State of Gujarat, initially on a probation of two years as prescribed by Rule 10A of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 (for short ‘the Rules, 1967’).

2.1 It appears that in view of the terms and conditions of the appointment, the writ applicant was required to clear the departmental examination within a period of probation and in the event of non clearance of the departmental examination within the period of two years as provided in the 2 nd proviso to Rule 10A of the Rules, 1967.

2.2 It is not in dispute that the writ applicant was not able to clear the departmental examination in the first attempt. The period of probation was extended by an order dated 16.03.2004.

2.3 The writ applicant thereafter cleared the departmental examination, indisputably within the permissible chances. However, it appears that vide different orders passed from time to time, his probation was extended till the time the impugned order of termination dated 20.09.2008 came to be passed.

2.4 Being dissatisfied and aggrieved by the order of termination dated 20.09.2008, the writ applicant came before this Court by filing Special Civil Application No.13652 of 2008.

3. The learned Single Judge adjudicated the writ application and vide impugned order allowed the same. The learned Single Judge quashed and set aside the order of termination dated 20.09.2008. The learned Single Judge, while allowing the writ application held as under;

” 9. In the opinion of this Court, the issue stands resolved by the judgment in the case of CM Rathod (Supra). Rule 10A has been interpreted by the Division Bench and it has been held that as the rule relating to probation provides for extension for a maximum period of two years, beyond which probation cannot be extended, there will be deemed confirmation because the rule does not provide to the contrary. It is therefore fallacious to contend that Rule 10A of 1967 Rules does not restrict the Government from extending the period of probation beyond the period of two years. That seems to be incorrect reading of the rule. Moreover, the circular relied upon by the learned AGP principally refers to the manner and method of writing confidential remarks and it also points out that if service of the employees is not found satisfactory during the period of probation or if the terms and conditions of appointment on probation are not complied with, the appropriate decision for dispensing with the services of the probationer shall be taken promptly. Thus, the circular does not control the rule and it could not in as much as it is settled legal position that the statutory rules cannot be controlled by a mere administrative fiat.

10. Learned AGP relied upon paragraph No.9 of the affidavit as well which reads as under:

” 9. I say and submit that the petitioner’s conduct and his behavior was not good. He was punished by withholding two increments for two years without future effect vide order dated 03102007 for the irregularities made by him during probation period. More over he avoided to appear before inquiry officer during the said inquiry. A copy of the order passed dated 03- 102007 is annexed to petition as Annexure K. I further say and submit that one Criminal case was also registered against the petitioner. The petitioner has been acquitted. Moreover several irregularities were also found against the petitioner, in pursuance of the payment made by the petitioner. For there irregularities he was warned by the authority vide order datted 05032008 Annexure R.II. Moreover the evaluation of working during the probation period was also average good, except one year. ”
10.1 In the opinion of this Court, even if the averments made in paragraph No.9 above are correct, the only course open for the employer to get rid of a confirmed employee is to follow necessary procedure under the relevant rules. The averments made in paragraph No.9 would not justify the respondent to extend the period of probation and circumvent the procedure necessary for getting rid of the confirmed employee.

10.2 Attention of this Court was also invited to paragraph No.8 of the affidavitinreply which reads as under:

” 8. I respectfully say and submit that there is no such order in existence, providing that the probation period would be treated as deemed completed at the end of probation period, even if the probation period is not extended. In fact the Rule provide that the period of probation can be extended beyond the maximum probation period. There is no provision for deemed confirmation. Hence, I say and submit that the respondent authority has extended the probation period time to time, and no specific order issued to confirm the petitioner. Moreover, if is to state that the petitioner had not objected for the extension of probation period when the probation period was extended vide orders dt. 29112007, 2622008 and 1672008, but has raised such objection when his services are discontinued. Such contention ought to have been raised by the petitioner at the time when his probation period was extended.”

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10.3 It is argued that the period of probation was extended on 29/11/2007, 26/02/2008 and 16/07/2008 without any objection from the petitioner. It was contended that when objection was raised by the petitioner against extension of the period of probation, no such objection was permissible when services were terminated. This Court is unable to accept the said contention for the simple reason that the extension of period of probation without authority of law is non- est and merely because no objections were raised in past by the employee, the waiver would not invest an authority in employer to extent the period of probation when non – exists.”

4. The State Government, being dissatisfied with the impugned order passed by the learned Single Judge, has come up with the present appeal.

5. We have heard Mr. Chintan Dave, the learned Assistant Government Pleader for the appellant – State and Mr. T. R. Mishra, the learned counsel appearing for the respondent (original writ applicant).

6. The question of law that fell for the consideration of the learned Single Judge was as under;

“2. The question raised in this petition is as to whether after having completed the prescribed period of probation and in absence of the rule prescribing for confirmation of the employee, the petitioner was deemed to have been confirmed and whether under such circumstances, his services could have been terminated fro his having not completed the probation satisfactorily”
7. The first two years of the probation period was between 12.02.2002 and 12.02.2004. The extended period of probation was between 12.02.2004 and 12.02.2006. The order of termination came to be passed in the year 2008. The learned Single Judge, while allowing the writ application took the view that once the second part of the period of probation is over and the services of the employee are not terminated during the period of probation, then the employee is deemed to have been confirmed. The learned Single Judge took support of the Division Bench decision of this Court in case of Gujarat Maritime Board vs. C. M. Rathod in Letters Patent Appeal No.855 of 1998 in Special Civil Application No.1913 of 1998 decided on 14.08.1998. We quote the relevant observations of the Division Bench;

“3. Learned Counsel for the appellant submitted that no order confirming the respondent in the post of Port Officer Grade-II was passed by the appellant and as the respondent continued as probationer in the said post,his services as probationer were liable to be terminated because of unsatisfactory work. It was claimed that the period of probation stood extended beyond 4 years until and unless the respondent was confirmed by a specific order and, therefore, order passed by the learned Single Judge deserves to be set aside. In support of her contention, learned Counsel for the appellant placed reliance on the decisions rendered in the cases of (1) Kedar Nath Bahl vs. The State of Punjab and others, AIR 1972 S.C. 873 and (2) Pratap Singh vs. Union Territory of Chandigarh, (1979)4 SCC 263. Learned Counsel for the respondent, who appeared on caveat, pleaded that the Gujarat Civil Services Classification and Recruitment (General) (Amendment) Rules, 1994, which govern the service conditions of the respondent provide for a maximum period of probation beyond which probation cannot be extended and, therefore, at the end of maximum probationary period, the respondent must be deemed to have been confirmed in the post and therefore, the appeal should not be entertained.
4. In order to resolve the controversy raised in the appeal, it would be relevant to notice the provisions regarding period of probation made in Gujarat Civil Service Classification and Recruitment (General) Rules, 1967 as amended in 1994.

“10-A. Period of Probation : Notwithstanding anything contained in these rules or any rules or orders relating to the recruitment to any service or post included in the State Service or subordinate service, a candidate appointed to Class I or Class II service or post by direct selection, shall be on probation for a period of two years and in case of his appointment to Class III service or post for a period of one year:
Provided that the appointing authority may, if it thinks fit in any case, extend the period of probation for a further period not exceeding two years in case of class I and Class II service or post and one year in case of Class III service or post : Provided further that if in any case passing of a departmental examination during the period of probation is stipulated as a prerequisite condition for completion of such probation period and where the probationer could not pass the same within the prescribed chances admissible to him under the rules for reasons beyond his control, the above ceiling on the period of probation shall not be applicable.”
5. A bare reading of the above-referred to Rule makes it abundantly clear that the probation period can be extended for a maximum period of two years beyond which probation cannot be extended. As noticed earlier, probation period of the respondent was over on January 9, 1996, which was extended till July 9, 1997 by order dated March 20, 1997 i.e. after expiry of period of probation. Again, the probation period of the respondent was extended till January 9, 1998 by order dated July 8, 1997 and thereafter it was extended till March 9, 1998 by an order dated January 8, 1998. As the rule relating to probation provides for extension for a maximum period of two years, beyond which probation cannot be extended, we are of the view that at the end of maximum extended probationary period, there will be deemed confirmation of the respondent because Rule does not provide to the contrary. In Kedar Nath Bahl (Supra), the Supreme Court has held that where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed in that behalf. The Apex Court has emphasised in the said case that at the end of period of probation, an order confirming the officer is required to be passed and if no such order is passed and he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer. Similarly, in the case of Pratap Singh (Supra), the Apex Court has held that after expiry of the period of probation, the probationer does not automatically get confirmed unless rules specifically so provide and termination, therefore, of a probationer after expiry of such period, is not improper.

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6. In our view, the principle laid down in the above-referred two decisions would not be applicable to the facts of the present case. In the case of WASIM BEG (Supra), the Supreme Court has reviewed the whole law on the subject. After taking into consideration almost all the decisions rendered by Supreme Court earlier on this point, the Apex Court has ruled that where the rules provide for a maximum period of probation beyond which probation cannot be extended, at the end of the maximum probationary period, there will be a deemed confirmation of the employee, unless the rules provide to the contrary. Whether an employee at the end of the probationary period automatically gets confirmation in the post or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary, will depend upon the provisions in the relevant service rules relating to probation and confirmation. In the case of WASIM BEG, the appellant was selected and appointed as Divisional Manager in the respondent-Corporation on January 10, 1978. The appointment letter was as under :

“……His appointment will be on probation for a period of one year which can be extended at the discretion of the Managing Director. His services are liable to be terminated on one month’s notice or salary in lieu thereof. He will be governed by the Service Rules of the Corporation.”
The appellant continued to work as Divisional Manager of the respondent-Corporation till April 1981. In April, 1983 he was even allowed to cross efficiency bar. However, by an order dated March 1985 his services were terminated, validity of which subject matter of examination before the Apex Court. service rules which were in force at the time appellant’s appointment, were as under :-

“Any employee regularly appointed for the first time or promoted to any post in the corporation shall be placed on probation for a period of one year from the date of joining the new post.
The performance of the employee in the new post will be watched during the probation and the appointing authority will issue a certificate of having satisfactorily completed the probation at the end of the period. The appointing authority has discretion to extend the period of probation without assigning any reason therefor.”
7.In the said case, the relevant Rule relating to confirmation was as follows:

“Confirmation- An employee directly appointed or promoted to any post in the corporation shall be deemed to have become a confirmed employee in that grade after he has successfully completed the period of probation.”
On review of the law on the Court has held as under :-
“15.Whether an employee at the end of the probationary period, automatically gets confirmation in the post or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary, will depend upon the provisions in the relevant services Rules relating to probation and confirmation. There are broadly two sets of authorities of this Court dealing with this this question. In those cases, where the Rules provide for a maximum period of probation beyound which probation cannot be extended, this Court has held that at the end of the maximum probationary period there will be a deemed confirmation of the employee unless Rules provide to the contrary. This is the line of cases starting with State of Punjab v. Dharam Singh,M.K. Agarwal v. Gurgaon Gramin Bank, Om Prakash Maurya v. U.P. coop.Sugar Factories Federation, State of Gujarat v. Akhilesh C.Bhargav.
16.However, even when the Rules prescribe a maximum period of probation, if there is a further provision in the Rules for continuation of such probation beyond the maximum period, the courts have made an exception and said that there will be no deemed confirmation in such cases and the probation period will be deemed to be extended. In this category of cases we can place Samsher Singh v. State of Punjab which was the decision of a Bench of seven Judges, where the principle of probation not going beyond the maximum period fixed was reiterated,but on the basis of the Rules which were before the Court, this Court said that the probation was deemed to have been extended. A similar view was taken in the case of Municipal Corpn. v. Ashok Kumar Misra. In Satya Narayan Athya v. High Court of M.P. although the Rules prescribed that the probationary period should not exceed two years, and an order of confirmation was also necessary, the termiation order was issued within the extended period of probation. Hence, the termination was upheld.

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17.The other line of cases deals with Rules where there is no maximum period prescribed for probation and either there is a Rule providing for extension of probation or there is a Rule which requires a specific act on the part of the employer (either by issuing an order of confirmation or any similar act) which would result in confirmation of the employee. In these cases unless there is such an order of confirmation, the period of probation would continue and there would be no deemed confirmation at the end of the prescribed probationary period. In this line of cases, one can put Sukhbans Singh v. State of Punjab, State of U.P. v. Akbar Ali Khan, Kedars Nath Bhl v. State of Punjab, Dhanjibhai Ramjibhai v. State of Gujarat and Tarsem Lal Verma v. Union of India, Municipal Corpn. v. Ashok Kumar Misra and State of Punjab v. Baldev Singh Khosla. In the recent case of Dayaram Dayal v. State of M.P. (to which one of us was a party) all these cases have been analysed and it has been held that where the Rules provide that the period of probation cannot be extended beyond the maximum period there will be a deemed confirmation at the end of the maximum probationary period unless there is anything to the contrary in the Rules.”

8.Applying the ratio laid down in the said decision to the facts of the present case, we find that the relevant Service Rules of the respondent provide for extension of probation period for a maximum period of two years byond which probation cannot be extended and, therefore, the ratio laid down in Para-15 of the reported judgment of the Supreme Court would be applicable to the facts of the present case. This is not a case, wherein rule prescribes a maximum period of probation which can be continued beyond the maximum period. Under the circumstances, the principles laid down by the Apex Court in Para-16 of the WASIM BEG’s case will not apply to the facts of the present case.

9.In Gujarat Mineral Development Corporation Ltd. vs. B.B.Sinha and another, Letters Patent Appeal No. 918/95 decided on October 24, 1997 by Court (Coram: Mr.Justice C.K.Thakker and Miss Justice R.M.Doshit) petitioner was appointed as Mines Manager at Lignite Project, Panondhro in February, 1987. He was appointed as Mines Manager in March, 1987 on probation for a period of one year. His services were, however, terminated in exercise of power under Rule 27 of the Rules by offering him a sum equivalent to three months’ salary. The said action was challenged by the petitioner in Special Civil Application no. 10679/94. The petition was allowed by the learned Single Judge. Rule-14 of the Rules provided that the first appointment to a post shall be made on probation for a period not exceeding one year provided that the appointing authority may from time to time extend such period of probation as may be considered necessary, so that the total period of probation does not exceed two years. Rule-20 provided for confirmation of an employee and it empowered the appointing authority to confirm an employee in the service of the Corporation on satisfactory completion of the period of probation. The Division Bench after considering the Rules has held as under in Para-10 of the judgment:-

“In our opinion, the ratio laid down in Dharamsingh would apply with equal force to the facts of the instant case. Though a specific and express order of confirmation was not passed in favour of the petitioner, Rule 14 of the Rules provides for maximum period of probation and as the said period was over, as per the law laid down by the Apex Court, the petitioner could be deemed to have been confirmed. He, therefore, cannot be treated as a probationer and no action can be taken on that basis.”
Applying the principle laid down by the Division Bench, with which we agree, to the facts of the present case, we are of the view that the respondent must be deemed to have been confirmed after expiry of the maximum extended period of probation.

10.On the facts and in the circumstances of the case, we are of the view that the extension of probation period of the respondent beyond January 9, 1998 was without authority of law. The respondent on expiry of the extended period of probation must be deemed to have been confirmed in the post on January 9, 1998 and, therefore, his services could not have been terminated on March 7, 1998 on the footing that his work as a probationer was not satisfactory. We do not find any infirmity in the judgment rendered by the learned Single Judge and, therefore, the appeal is liable to be rejected.”

8. Thus the dictum as laid in the above referred decision of the Division Bench is that as the rule relating to probation provides for extension of a maximum period of two years, beyond which the probation cannot be extended, at the end of the maximum probationary period, there would be deemed confirmation because the rule does not provide to the contrary. The very same rule which fell for the consideration of the Division Bench is the subject matter of the present litigation.

9. In the aforesaid view of the matter, we are convinced that no error, not to speak any error of law could be said to have committed by the learned Single Judge in passing the impugned order. In the result, the appeal fails and is hereby dismissed.

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