CWP No. 4922 of 1994 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 4.3.2010 Dr. Jagdish Singh Vs. State of Haryana CORAM: HON'BLE MR.JUSTICE PERMOD KOHLI Present: Mr.RK Malik, Senior,Advocate, with Ms. Renu Chaudhary, Advocate,for the petitioner. Mr.RKS Brar, Additional Advocate General, Haryana, for respondents. PERMOD KOHLI, J. (Oral): The petitioner was appointed as Doctor under the Haryana Civil Medical Services Class-II, Rules 1978 (hereinafter referred to “the HCMS-II Rules”) on ad hoc basis on 20.1.1990. Thereafter, the petitioner was selected by the Haryana Public Service Commission for regular appointment where he joined on 27.9.1990. The petitioner was on probation for a period of two years. The probation period expired on 26.9.1992. However, the probation period was extended for one year with effect from 26.9.1992 vide communication dated 31.3.1993 (Annexure P-2). The extended period of probation also came to expire on 26.9.1993 when the petitioner completed three years of total probation period prescribed under the rules. The respondents did not pass any order confirming the petitioner. The petitioner continued to serve till the passing of the impugned order dated CWP No. 4922 of 1994 2 31.3.1994 (Annexure P-10) which was conveyed to him on 8.4.1994 whereby the services of the petitioner were terminated. The petitioner has challenged his termination of services in the present writ petition. At the time of issuance of notice of motion, vide order dated 21.4.1994, operation of the order of termination was stayed. Resultantly, the petitioner continued to remain in service. The sole contention of the learned counsel for the petitioner is that the impugned order passed by the respondents terminating the services of the petitioner is contrary to the statutory rules governing the service conditions of the petitioner. It is admitted case of the parties that the service conditions of the petitioner are governed by HCMS-II Rules. Rule 11 deals with the probation of a government employee appointed under the rules, which reads as under:- “ 11. Probation:- (1) Persons appointed to the posts in the service shall remain on probation for a period of two years:- provided that- (a) any period after such appointment spent on deputation on a corresponding or a higher post shall count towards the period of probation: (b) any period of officiating appointment shall be reckoned as period spent on probation, but no person who has so officiated shall, on the CWP No. 4922 of 1994 3 completion of the prescribed period of probation, be entitled to be confirmed, unless he is appointed against a permanent vacancy. (2) If, in the opinion of the appointing authority, the work and conduct of a person during the period of probation is not satisfactory, it may dispense with his services or extend his period of probation and thereafter pass such orders as it could have passed on the expiry of the first period of probation: Provided that the total period of probation, including extension, if any shall not exceed three years. (3) On the completion of the period of probation of a person, the appointing authority may, if his work or conduct has, in its opinion, been satisfactory:- (i) confirm such person from the date of his appointment, if appointed against a permanent vacancy; (ii) confirm such person from the date from which a permanent vacancy occurs, if appointed against a temporary vacancy: or (iii) declare that he has completed his probation CWP No. 4922 of 1994 4 period satisfactorily if there is no permanent vacancy. Provided that if neither of the above three decisions is taken within six months of the expiry of the original or extended period of probation, if any, then at the expiry of the aforesaid six months' period the officer concerned would be deemed to have satisfactorily completed his period of probation.” Under sub rule (1) of Rule 11 of the Rules, the period of probation is provided as two years. However, the said period of two years is extendable under sub clause (2). The total probation period, however, can be extended only up to three years under proviso to sub rule (2) of Rule 11. On expiry of the period of probation, the appointing authority is required to pass a specific order either for confirmation if the appointment is against the permanent vacancy, confirmation on availability of permanent vacancy if the employee is working against a temporary vacancy or declare the probation period if the probation period is satisfactory completed. Proviso to sub rule (3) of Rule 11, however, specifically deals with a situation where no order is passed by the appointing authority within six months from the date of expiry of the original order or extended period of probation. Under this proviso, if no order is passed by the appointing authority at CWP No. 4922 of 1994 5 the expiry of the extended period of probation, then employee would be deemed to have satisfactorily completed the probation period- meaning thereby that the employee shall be deemed to have been confirmed in service. It is contended on behalf of the petitioner that the appointing authority has not passed any order within six months from the date of expiry of the extended period of probation. The following factual position is admitted on record. The petitioner was appointed on 26.9.1990. His two years probation period expired on 26.9.1992. Even though no order was passed on expiry of six months from 26.9.1992, however, the probation period was extended vide communication dated 31.3.1993 (Annexure P-2). The maximum extendable probation period is three years. Three years period expired on 26.9.1993. Six months period on completion of the probation expired on 26.3.1994. Within these six months, no order whatsoever was passed by the appointing authority. It was only on 31.3.1994 (Annexure P-10) when the impugned order came to be passed. Thus, under proviso to sub rule (3) of Rule 11 of the Rules, the petitioner is deemed to have been confirmed in service on expiry of six months of the extended period of probation i.e. 26.3.1994. These factual positions have not been rebutted in the reply filed by the respondents. The rule governing the service conditions is clear and unambiguous in its terms. The aforesaid rule also came up for consideration before this Court in the case of Dr. Jagdish Chander CWP No. 4922 of 1994 6 Gondley and others Vs. State of Haryana, 1991 (5) SLR, 473, wherein it has been held as follows:- “8. There is a force in the contention of the learned counsel for the petitioner. No order after six months of the extended period of probation was necessary regarding the satisfactory completion of period of probation, as according to proviso to Rule 11 (iii), if no such order is passed within six months of the initial period of probation or the extended period of probation, the office would be deemed to have satisfactorily completed the period of probation. Once it is held so, then it follows that the officer's services cannot be terminated as he would be deemed to be confirmed. His services could only be terminated on the ground of misconduct etc., if any, after following the due procedure. The special report, to which reference has been made in the written statement, was never conveyed to the petitioner and in any case in view of the proviso to Rule 11 (iii), the petitioner would be deemed to have successfully completed the period of probation. CWP No. 4922 of 1994 7 The view I am taking finds support from the authority of this Court referred to above.” There is another important aspect of the matter. The impugned termination order was stayed by this Court vide order dated 21.4.1994. The petitioner continued in service for the last 20 years. There is nothing on record to indicate that the work and conduct of the petitioner was not satisfactory. In view of clear mandate of the rules and above mentioned factual position, the present writ petition is allowed. The impugned order dated 7.4.1994 (Annexure P-9) terminating the services of the petitioner is not sustainable in law and the same is hereby quashed and set aside. The petitioner shall be entitled to all service benefits. No costs. 04.03.2010 (PERMOD KOHLI) BLS JUDGE