IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No.: 502 of 2011 Date of decision: 18.10.2017
[ENTITY] Petitioner.
Vs. [ENTITY] Respondent. Coram:
The Hon'ble Mr. Justice [ENTITY], Judge Whether approved for reporting?1 Yes.
For the petitioner: Mr. [ENTITY], Senior Advocate, with Mr. [ENTITY], Advocate.
For the respondent: Mr. [ENTITY], Central Government Counsel.
[ENTITY], Judge(Oral) :
By way of writ petition, the petitioner has prayed for the following reliefs:
"(i) The order dated 07.10.2010 passed by the respondent may kindly be held wrong, illegal, violative of [SECTION], [SECTION] of the [ACT] and may kindly be set aside, quashed.
Petitioner may kindly be held to be in continuous service of respondent as Sanitary Inspector/Male Whether the reporters of the local papers may be allowed to see the Judgment?
Health Supervisor and may kindly be held entitled to all benefits.
(ii) Records of the case may kindly be called for.
(iii) Costs of this petition may kindly be awarded in favour of the petitioner.
(iv) Any other writ, order or direction, which this Hon'ble Court deems just and proper may also be passed in favour of the petitioner and against the respondents."
2. Case of the petitioner is that he was appointed as a Class-IV employee in the respondent-Board in the year 2004 and he resumed his duties w.e.f. 14.07.2004. In the year 2007, the said Board advertised the post of Sanitary Inspector/Male Health Supervisor, for which the minimum qualification prescribed was Diploma in Sanitation.
As the petitioner was duly qualified for being appointed to the said post, he applied for the same. He was selected and thereafter appointed as Sanitary Inspector/Male Health Supervisor, which post he joined in the year 2007. In the year 2010, a complaint was made qua his appointment as such on the ground that the petitioner did not possess the minimum requisite qualification, i.e., Diploma in Sanitation. An FIR was also registered against him at Police Station SPE Branch, CBI Shimla.
Pursuant to the registration of the said FIR, the petitioner was dismissed from service vide letter, dated 07.10.2010. As per the petitioner, letter dated 07.10.2010, vide which his services have been terminated is not .
sustainable in law, as the same is violative of [SECTION] of the [ACT] and, therefore, the same is liable to be set aside. It is further the case of the petitioner that before his services were terminated, no proper inquiry was conducted under the [ACT], which Rules govern the service conditions of the petitioner. It is further the contention of the petitioner that a perusal of the impugned order demonstrates that what weighed with the employer while terminating his services was the factum of the registration of a case against him by CBI, Shimla, which case was still to be adjudicated upon by the Court of competent jurisdiction and as the guilt of the petitioner was not yet established, therefore also, the impugned order was bad in law.
3. No other point is urged.
4. On the other hand, respondent-Board in its reply has stated that in the year 2007, process was initiated by way of direct recruitment for appointment of Sanitary Inspector/Male Health Supervisor, for which essential qualification was 10+2 with Diploma in Sanitation from recognized institution. Five candidates were sponsored for the said post by the Employment Exchange and fourteen candidates directly applied for the same. Candidates were initially subjected to a written test and thereafter five candidates were short listed and interviewed on 5th March, .
2008 including the petitioner. Vide appointment letter dated 13th March, 2008 (Annexure R-1), petitioner was offered appointment purely on temporary basis on the terms and conditions contained therein. Petitioner accepted the appointment vide his letter dated 14th March, 2008 (Annexure R-2) on the terms and conditions as were contained in the appointment letter. In order to ascertain the genuineness of the diploma certificate which was submitted by the petitioner, necessary verification was done by the respondent on 7th October, 2009 from (1) Vice Chancellor, Magadh University, Bodh Gaya (Bihar) (2) Director, Health Services Bihar, Patna; and (3) Director, Health Services Himachal Pradesh, Shimla. The relevant certificate which was submitted by the petitioner was issued by the Indian Institute of Health and Research, Health Institute Road, Beur (Near Central Jail) Patna-2. Replying respondent on 2nd August, 2010 took up the matter with Chairman and Director of Medical Education, India Institute of Health and Research, Health Institute Road, Beur (Near Central Jail) Patna-2 and Administrative Officer of the said Institute vide letter, dated 11th August, 2010 (Annexure R-6) informed that course of Sanitary Inspector was not conducted by their Institute nor they had issued any certificate in favour of the petitioner for having done Diploma in Sanitary Inspector. In the meanwhile, CBI examined the records of [ENTITY], Khas Yol .
and the original record pertaining to the appointment of the petitioner as Male Health Supervisor was seized on 3rd August, 2010. Before this, CBI had already registered a case against him on 31st July, 2010 under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT] and [SECTION] of the [ACT]. It was in this background that a resolution was passed by the Board on 5th October, 2010, which ultimately led to the dismissal of the services of the petitioner vide communication dated 7th October, 2010 during the period when the engagement of the petitioner with the respondent-Board was only on temporary basis.
5. No rejoinder has been filed by the petitioner to the reply filed by the respondent.
6. Learned counsel for the parties have relied upon the following judgments:
"1. The [PRECEDENT].
2. High Court of M.P. through Registrar and others Vs. [ENTITY], (2001) 7 Supreme Court Cases [SECTION]1.
3. [PRECEDENT] .
Cases 179.
7. During the course of arguments, learned Senior Counsel appearing for the petitioner had apprised this Court that the petitioner stood convicted in the criminal case which was registered against him and an appeal filed by the petitioner against the judgment of conviction is pending adjudication.
8. I have heard the learned counsel for the parties and have also gone through the records of the case.
9. Petitioner has not appended with the petition either a copy of his appointment letter, nor the petitioner in so any words has spelled out as to what was the genesis of the registration of CBI case against him. Be that as it may, the appointment letter of the petitioner stands appended with the reply as Annexure R-1 and a perusal of the same demonstrates that the appointment of the petitioner inter se was subject to the terms and conditions that he was to be on probation for a period of two years and in the event of any declaration given by him being found to be incorrect at any point after appointment, his services were liable to be dismissed by the Board.
10. A perusal of the dismissal letter of the petitioner .
demonstrates that he was dismissed, during the period of probation while he was still working on temporary basis while no confirmation order stood issued in his favour, on the ground that the diploma certificate which was submitted by him for the purpose of obtaining employment was not found to be a genuine certificate, as the Administrative Officer of the Institute from which the petitioner claimed to have had obtained the diploma certificate, had informed that the Institute neither conducts diploma course of Sanitary Inspector nor they have issued any certificate in favour of the petitioner for having done diploma in Sanitary Inspector.
Though there is also a reference of the registration of a criminal case against him by the CBI, but this alone is not the reason as to why his services were terminated, as the same was only an additional reason as can be easily made out from the order of dismissal from service.
11. Now, undoubtedly, the period of probation, as contained in the appointment letter, dated 13th March, 2008, is two years and the order of dismissal of service of the petitioner is dated 7th October, 2010, but during the course of arguments, this fact was not disputed by the learned Senior Counsel appearing for the petitioner that as on 7th October, 2010, the services of the petitioner had not yet been confirmed.
As per the learned Senior Counsel for the petitioner, because the period of two years of probation had elapsed, therefore, there was an automatic .
confirmation of the service of the petitioner.
12. In my considered view, there is no infirmity with the order of dismissal, which has been passed by the respondent-Board against the petitioner. Undoubtedly, the order of dismissal was passed two years after the petitioner was appointed as Sanitary Inspector/Male Health Supervisor, but still, it remains a fact that his services were not confirmed as on 7th October, 2010 and there cannot be an automatic confirmation after the expiry of two years, as has been contended by the learned Senior Counsel for the petitioner, in the facts of this case. It is a matter of record that the appointment of the petitioner was subject to the condition that in case the declaration given by him was found to be incorrect at any time after his appointment, then his services were liable to dismissed on this count by the Board. Petitioner had accepted the terms and conditions so contemplated in the appointment letter without any objection. Now, here is a case where the Administrative Officer of the Institute from which the petitioner alleges to have had obtained his diploma in Sanitary Inspector has informed the respondent-Board that the said institution neither conducts any course of Sanitary Inspector nor it has issued any certificate in favour of the petitioner for Diploma in Sanitary Inspector. As I have already mentioned above, the petition is conspicuously silent with regard to the genesis which led to the .
registration of a criminal case against the petitioner by CBI. Not only this, there is no whisper in the entire petition that the diploma on the strength of which the petitioner had obtained the job, was duly obtained by him after undergoing the said diploma course, nor during the course of arguments learned Senior Counsel for the petitioner could convince the Court to this effect. It is also not in dispute that during the pendency of the petition, petitioner also stands convicted of the offences alleged against him by the CBI, though an appeal filed by him is pending adjudication.
13. [SECTION] of the [ACT], on which reliance has been placed by the learned Senior Counsel for the petitioner reads as under:
"8(5). A temporary servant or a servant on probation shall not, in the absence of a written contract authorizing him so to do and without reasonable cause resign his employment or absent himself from his duties without giving at least one month's notice to the Board and no other servant shall, without reasonable cause resign his employment or absent himself from his duties without giving three months' notice to the Board; and if notice as aforesaid is not given, the servant shall be liable to forfeit such sum not exceeding one month's or three months' salary, as the case may be, as the Board .
may, by general or special order, direct. The Board may recover such salary from any sum due from the Board to the servant or from the amount of subscription made by the servant to his Provident Fund account:
Provided that a servant may, at any time after attaining the age of fifty-five years or completing thirty years of qualifying service, leave the service of the Board on giving three months' notice to the Board.
Provided further that the service of a temporary servant shall be liable to termination at any time by a notice given by the appointing authority to the servant. The period of such notice shall be one month but notwithstanding the same the service of any such servant may be terminated forthwith. On such termination that servant shall be entitled to claim a sum equivalent to the amount of pay plus allowances for the period of the notice, at the same rates at which he was drawing immediately before the termination of service or as the case may be for the period by which such notice falls short of one month."
14. Though there is a reference of the said Rule in the impugned order, but the fact of the matter still remains that the services of the petitioner have not been terminated but he has been dismissed from service for the reason that he has obtained the service by submitting a .
fake certificate. In fact, [SECTION] contemplates two situations, i.e., (a) a situation under which a temporary servant or a servant on probation can leave his duties and (b) as to how the services of a temporary servant can be terminated by the Board. In the present case, petitioner was dismissed from service as it was found that he had gained service on the strength of a fake certificate. In my considered view, the act of the employer is protected by the terms and conditions of the appointment letter of the petitioner, wherein it was clearly contemplated that in case the declaration given by him was found to be incorrect at any time after his appointment, then his services were liable to dismissed on this count by the Board. In fact, reference of [SECTION] of the said Rules is nothing but a misnomer and the same will not render the dismissal of the petitioner bad in law. No inquiry in fact was required to be conducted before dismissing the petitioner.
15. Now, I will refer to the judgments cited by the learned counsel for the parties. The Hon'ble Supreme Court in the [PRECEDENT] has held as under:
"(5) In the present case, [SECTION] forbids extension of the period of probation beyond three years. Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an .
employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication."
[SECTION]. In High Court of M.P. through Registrar and others Vs. [ENTITY], (2001) 7 Supreme Court Cases [SECTION]1 has held as under:
"11. The question of deemed confirmation in service Jurisprudence, which is dependent upon language of the relevant service rules, has been subject matter of consideration before this Court times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is .
continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. Other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry order of termination has not been passed. The last line of cases is where though under the rules maximum period of probation is prescribed, but the same require a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor the person concerned has passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."
17. In [PRECEDENT], the Hon'ble Supreme Court has held as under:
"11. The stand of the respondents was that the appellants were not confirmed employees. The .
appointment order of each of the appellants contains the stipulations which are as follows:
"1. Your appointment as Sales man is purely temporary.2. During the period of probation, your services are liable to be terminated without giving any notice or assigning any reason.3. You shall be governed by the terms and conditions contained in the Staff Service Rules of the Federation, amended from time to time."
This is a case where the period of probation is fixed having regard to [SECTION] as quoted above. [SECTION] no doubt provides that no employee shall be deemed to have been confirmed in the service unless specific order in this regard is issued. Relying on this provision, learned counsel for the fourth respondent submitted that there was no specific orders of confirmation and, therefore, the appellants should be deemed to have continued as probationers till the date of termination of their services. A similar stand was considered in [ENTITY] Maurya v. U.P. Co- operative Sugar Factories Federation, Lucknow and Ors. (AIR 1986 SC 1844). A Constitution Bench of this Court in The State of Punjab v. [PRECEDENT] (AIR 1968 SC 1210) noted as follows:
"Where as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended and an employee appointed or promoted to a post on probation is allowed to continue in the post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication."
12. In High Court of M.P. through Registrar and Ors. v. [ENTITY] (2001 (7) SCC
[SECTION]1), this Court categorised the provisions for probation as follows:
"11. The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is .
where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."
In above view of the matter, the stand of the appellants that they were deemed to have been confirmed at the end of 24 months and they were permanent employees is in terra firma. 'Salesmen' belong to Class III of the category of permanent employees. The definition of "Probationer" given in [SECTION] fully supports the appellants' stand that the probation period shall not exceed 24 months in all. Therefore as was held in [ENTITY]'s case, [ENTITY]'s case and [PRECEDENT]'s case (supra) the appellants inferentially have to be treated as permanent employees, and consequently the benefits under [SECTION] were available to them. But the same shall not be in addition to what is payable under [SECTION] The amount which is higher of the two i.e. of [SECTION] or [SECTION] shall be paid to the appellants. If any amount has already been paid in terms of[SECTION] the same shall be adjusted while making the payment under [SECTION], which shall be made within three months. The appeal is allowed to the aforesaid extent. No costs."
18. Coming to the facts of the present case, [SECTION] of the [ACT] (hereinafter referred to as "the 1937 Rules") provides that all first appointments under the Cantonment .
Board shall be made on probation for a period of six months in the cases of lower grade servants and two years in the case of others. This Rule further provides that no person shall be confirmed in his first appointment till the appointing authority is satisfied that he is fit to hold such appointment and further that the appointing authority may extend the period of probation by a further period not exceeding one year for reasons to be recorded in writing. [SECTION] reads as under:
"6. All first appointments under the [ENTITY] shall be made on probation for a period of six months in the cases of lower grade servants and two years in the case of others:
Provided that no person shall be confirmed in his first appointment till the appointing authority is satisfied that he is fit to hold such appointment:
Provided further that the appointing authority may extend the period of probation by a further period not exceeding one year for reasons to be recorded in writing."
19. Admittedly, in the present case, no confirmation order was issued to the petitioner in his first appointment by the competent authority, as is envisaged in the first proviso to [SECTION]. Now, the second proviso to this Rule, which further provides that the appointing authority may extend the period of probation by a further period not exceeding one .
year for reasons to be recorded in writing cannot be so construed that in case after completion of two years of probation, no such order of extension of probation is passed, then the same shall be construed to be deemed confirmation.
20. The Hon'ble Supreme Court in High Court of M.P. through Registrar and others Vs. [ENTITY] (supra) has held that in cases where power to extend the period of probation is conferred upon the authority, and if the officer is continued beyond the prescribed or extended period, then he cannot be deemed to be confirmed. In the present case, the discharge of the petitioner has taken place though beyond the period of two years, but before the expiry of three years, as is envisaged in [SECTION] (supra) and therefore also, in my considered view, there is no infirmity with the order of dismissal of the petitioner.
21. Therefore, the judgments cited by the learned Senior Counsel for the petitioner thus do not further the cause of the petitioner. In the present case, it is not as if the petitioner was discharged from service beyond the maximum period of probation, as envisaged in [SECTION] (supra), though no order of confirmation stood issued in his favour.
22. At this stage, it is pertinent to refer to a judgment of the Hon'ble Supreme Court in University of Rajasthan and another Vs. Prem Lata Agarwal, (2013) 3 Supreme Court Cases 705, in which the .
Hon'ble Supreme Court has held as under:
"43. The High Court, as has been stated earlier, has pressed into service [SECTION] and relying on the same, it has held that the services of the respondents shall be deemed to have been confirmed as in the instant cases the University has never opined that their services were not satisfactory. The language of [SECTION] is couched in a different manner. It fundamentally deals with the computation of the period of service of an employee.
That apart, [SECTION] uses the words "if he is confirmed". It is a conditional one and it relates to officiating services. Both the concepts have their own significance in service jurisprudence. The respondents were not in the officiating service and by no stretch of imagination, they could have been treated to be confirmed because the words "if he is confirmed" required an affirmative fact to be done by the University. The High Court, as we find, has applied the doctrine of deemed confirmation to the case at hand which is impermissible. In this context, we may, with profit, refer to the decision inHead Master, Lawrence School, Lovedale v. Jayanthi Raghu and another[11] wherein it has been ruled thus: -"38 A confirmation, as is demonstrable from the language employed in the Rule, does not occur with efflux of time. As it is hedged by a condition, an .
affirmative or positive act is the requisite by the employer. In our considered opinion, an order of confirmation is required to be passed." Thus analyzed, the conclusion of the High Court which also rests on the interpretation of the regulations does not commend acceptation."
23. In view of above discussion and law discussed above, as there is no merit in the petition, the same is accordingly dismissed, so also miscellaneous applications, if any. No order as to costs.
([ENTITY]) Judge October 18, 2017 (bhupender)