mm H1200 31mm (Wu) mmm WW$WW $WW W.P. No. 14681 1999 ram, son of late Shri Ratiam, ag€d 28 years, R/o Haxijan Mohalla, PETITIONERS . 1 . , R/o Kainabhata, Madanpur, Tehsil 1a Dismct Raigarh 5. Ra ngh Rathia, son of Shri Bastiram, aged about 28 yearS, R/o. Village Nagoi, The. Khar gia, Distt. Rajgarh. RESPONDENTS 1. Nagar Panchavat Khamia through its Chief MuniJéipal oftice; Khmia, DistLRajgarh; MP; Add nal Commissioner, Bilaspur Division, 2. i o SB: HON. SHRI DHIRENDR" MISHRA, J. 23-1-2009 Ms. Shannjla Singhai, counsel for the petitioners. Mr. Sanjay K. Agrawal With Shri Sudeep Agrawal, Advocate for ‘ respondent No. 1. Head. m‘ i ’XLHC 78 WWWW mm E1200 emm (Wu) mmf‘a’aiar WWW WW @m %31'F<m311%¥r mmm were passed without issuance of any show-cause notice to the titioners and without observing the prinaples of natural Justlc m contravention of Rule 49 of the Employees Recruitment and Condmons of Servxce Rules, 1968 (for short the ‘Rules of 1968’) a the major penalty of termination has been imposed Without any otice. She further submits that in the ’ meating of Nagar Panchay 2. The peh'tioners have filed this petition being aggrieved by the order of Annexures P—6 to P- 10 dated 1.6.1998 and also against the order of the Collector, Raig arh dated 25.8.1998 of Annexure 13—12 and the order of Additional Commissioner, Bilaspur Division, Bilaspur dated 18.2.1999 of Annexure P-14, whexeby, Municipal Council disoharged the petitionem mm the post of Peon and the Appeal preferred by the petitioners against their removal from sewioes has been subsequently dismissed by the Collector and Additional Commissioner. 3. Ms. Sharmila Singhz i, learned counsel appearing for the petitioners submits that petitioners were appointed as Peon hy the Nagar Panchayat, Kharsiarvade order of A'nnexures P-l to P—5 dated 5.12.1995 on probation for a- period of two years from the date of their appointment. However, they were discharged from services vide order dated 1.6.1998 with a tip that the establishment expenses of the Nagar Panchayat exceeded the prescribed limit and the services of the petitioners are no m required. She vehemently argued that the above termination ord ithe removal of the petitioners from o e e e , XI-HC—7 8 mm E200 mm (Wu) ammfa‘wiaa‘ - mmm ‘ WW wW ammm =i§aifcmm ssrvices was not in agenda, however, the same was taken—up at the last moment and resolution was passed by the Nagar Panchayat coutraxy to Se‘éiion 56 (3) of the Chhattisgarh Municipalities, Act 1961 (for short the ‘Act ‘of 1961’). The ground that establishment expenses exceeded from permissible limit is factually incorrect, as after removal of the pe 'tioners from establishment, 17 Shiksha Karmis were appointed b respondent-Nagar Panchayat. ’4. On the other hand, hri Sanjay K. Agrawal with Shn' Sudeep Agrawal, learned counsel for the respondent—Nagar Panchayat submit that the appoimm nt orders (Annexur$ P-l to P—5) of the petitioners reveals that y were appointed on probation for a e (3) of Rule '13 of the Rules of 1968, provides that “on the s ocessjhl completion of probation the probationer shall be oonf ' d in the service or posi to which he has been appointed”. 5. It is clear dom the above provision that express Order of confirmation is to be period of two years. Sub sed after successful completion of probation period. ln the absence of any express order of confirmation, the services of the petitioners could not be deemed to be confirmed and thns, express order of connrmation is required to l be passed after completion 3f the probation period of two years. 6. Repelling the argument of learned counsel for the petitioners that noAbusiness other than speciiied in the notice relating thereto y e e I ; i' e s mm. I E200 amt W (Wu) Wmfaia? mmm ‘ WW§WW 3211mm %311"?rq311%¥1 could be nansacted in the meeting of Nagar Panchayat, Shri Agrawal cont€nded that su b-secticm (3) of Section 61 of the Act of 1961 empowers the Nagar Panchyat to transact any business with the ‘consent of two-thirds‘of the elected (Councillors) present in the ‘/ meeting. Reliance is placed in the matters of Regstrar, High Court of Gujarat and another Vs. C.G. Sharmal $5 ' C.V. atheeshchandran ra! Man er UGO Bank and others” . 7. It was argued that s -section (3) of Section 61 of the Act of 1961 empowers the Nagar Danchayat to transact any business with the consent of two—thirds oi the (elected) Councillors pmsent. 8. I have heard learned counsel for the parties. 9. From the documents tiled by the petitioners, it is evident that the petitioners were appolnted on proban'on for a period of two years, whereas, the order of their removal has been passed after completion of probation period of 2 years 8t. S months. It is also not in dispute that no formal order of conhrmation was issued by the respondent—Nagar Panchayzlt to the petitioners. 10. So far as the argume at that the respondent-Nagar Panchayat could not take-up any new agenda in its meeting is concerned, sub- section (3)? of Section 61 cf the Act of 1961 empowers the Nagar I l @005) I, 1 sec. 132 2 (2008) V 2 s.c.c.' 653 S Vs. Ge e 1 b 1% XI-HC—7 8 mm I E1200 amm (Wu) Wwm $Wm Panchayat to transact any business with The consent of twO-thirds of the (elected) Councillors present in the maeting. It is not in dispute that-'the resolution} was passed with the consent of two— th1rds of the (elected) Coun “lllors of the Nagar Panchayat present in the meeting 11. Coming to the next submission that after completion of 2 yeeus of successful pro n period, services of the petitioners is deemed to be connrmed therefore, their removal from the post constitutes major penalty s defined under Rule 49 of the Rules of 1968 and, therefore, majo penalty could not be imposed without following the principles of atural justice and Without issuing any show-cause notice is conce ed, sub-rule, (3) of Rule 13 of the Rules of 1968 provides as unde “13. (3) On the succes ful completion of probation, the probationer sh be confirmed in the service or post to which e has been appointed.” 12. The above provisi clearlv mdlcates that express order coniirmmg the services of the probationer after successful complenon of probauon p nod is required to be issued and the probationer does not at automatically the status of condimed employee after completion probation period. ‘ “w v ba o d r: o t ‘ mm (Wu) mam ammm mm , E1200 WW§fs€rm $aifcma1w mmm 13. Th6 Hon’ble Supreme Court in the matter of Regstrar, High Court of Gujarat and anutherl (supra) while deaHng with the identical situau‘on has held n para 26 as under: A large numbéI vof authorities wem cited. before us by both the pal11'es._ However, it is not necessary to go into the details of all those cases for the simple reason that Sub—rule (4) of ule 5 of the Rules is in pari materia with the Rule hich was umier consideration in the case of State o Maharashtra V Veerappa R.Saboji4 and we nnd that ev if the pen'od of two years expires and the pmbationer is allowed to continue after a period of two years, auto an'c conhnnation cannot be claimed as a matter of rig t because in terms of the Rules, work has to be sa 'sfactoxy which is a prerequisite or precondition fo confirmation and, therefore, even if the probationer is owed to continue beyond the period of two years as me utioned in the Rule; there is no question of deemed confi rmation. The language of the Rule itself excludes any ance of giving deemed or automatic conhxmation be ause the conhrmation is to be ordered if there is a'v cancy and if the work is found to be satisfactory. Th re is no question of coniirmation and, therefore, dee ed confirmation, in the light of the language of this Rule, is ruled out. We are, therefore, of the opinion th t the argument advanced by learned counsel for the spondent on this aspect has no merits v and no leg to s nd. The learned Single Judge and the l learned Judges f the Division Bench have rightly-come is no automatic woonfmnation o the expiry of the period of two years . and on the ex “26. there ’ to " the concl sion that of the said period of two years, the confirmation o der can be passed only if there is vacancy and th work is found to be satisfactory. The Ruie also does not say that the two years’ period of p XI—‘HC 78 311%?!m (Wu) mm I E1200 mwm mmm mmm Wen W§f€ém ém‘Wlm entioncd in the Rule, is the maximum ation and the, probation camlot be d the paxiod of two years. We arc, opimon that thsrc ls no quesuon of Similar vim has satheeshchandran9 (Sup held in Para— 13 as under: probation, as §eriod of pro 6xtended beyo th’erefore of automauc or de med confirmauon, as contcnded by the learned couns 1 for the respondent We thereforc answer th1s xs ue m the nsgauve and against ths mspondant.” on taken in the matter of C.V. and the Hon’ble Supreme Court has “13. Under Clause 3 8.2,, on promotion to the ooioexs’ cadre, the employee w uld be on probation for a period of one year and the period of yrobation may, if necessary, be extended to a tc tal period of two years at the discretion of the Bank.- of one ayear.‘ automatically Clause 8.8;2 does not provide for automatic CODE mation of the probationer after a period The confmnation would not occur by emux of time. The order of appointment albo does not clearly indicate that the condimation of the appellant on the ofdcer’s post would automatically follow at the end/expiry of the period of one year. The semce rules, which we have mentioned do not specific ally prowde for such eventuality The expiry of the lly an order confirming the emcer is required to be p ssed and if no such order is passed, he to have continued on'probah'on unless appointment or the relevant? {rules obation period does not necessarily mean connrma on. At the end/expiry of the period of probation, n 7. shall be deeme the terms of r é Le r a o w XI—Hc 7s I; w” mm ‘ H1200 mmmww) WW WW' twm mwm 14. If the ratio of law laid down in the aforesaid judgments is applied to the facts of the resent case, it is seen that there ie no stipulation in the appointm nt orders {Annexures P—l to P—S) of the " petitioners that their gavi to be dismissed and is, dmgly, dismlssed There shall be no ’ ordar as to cost. g vSinha Shell automancally be cox£rmed after then“ ouccessful completion of probatlon penod Rule 13 (3) of the Rule of 1968 applicable the petltloners makes provlslon for passing of sepmate order 0‘ coniirmation in the sewice or post to which the probationer Wa appointed. Since :10 such order of confumaoon has been a they caunot be considered to be deemed to be con§1med afier completion of probatioo period. Their removal is discharge simplictor without any s ‘gma and, therefore, there was no requirement of law to obse e pxinciples of natural justice before removal of the petitioners m services There is no illegality or infirmity in the impugned o ers warranting interference in exercise of the jurisdiction under le 226/227 of the Constitution of India. 15. In the result, the peti on being devoid of substance deserves a r é t d o 'c