IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 237 (SB) of 2005 Old No. 22193 of 1995 Ashwani Kumar Sharma …Petitioner Versus The New India Assurance Co. Ltd. and others …Respondents Mr. Sharad Sharma, learned Sr. Advocate assisted by Smt. Indu Sharma, learned counsel for the petitioner. Mr. R. B. Agarwala, learned counsel for the respondents. Dated: 19th November, 2009 Hon’ble B.C. Kandpal, J. Hon’ble V.K. Bist, J. [Per Hon’ble V.K. Bist,J.] Heard learned counsel for the parties. Present writ petition has been filed by the petitioner for quashing the order-dated 01.03.1995 passed by the Manager, The New India Assurance Co. Ltd. (respondent no. 2) by which the petitioner has been kept on probation from 20.11.1994. Further prayer has also been made for direction to the respondents to make payment of arrears of salary to the petitioner for the month of November 1988 to February 1995 and to pay the regular salary to the petitioner from March 1995 onwards on the basic pay on Rs. 3040 regularly, which is available to the petitioner since March 1995, which other similarly situated colleagues of the petitioner are getting. Further prayer has also been made for a direction to the respondents to accord all benefits, privileges, emoluments and increments of salary to the petitioner available to him in accordance with law. Brief facts of the case are that vide appointment letter dated 20.03.1978, the petitioner was appointed as Probationary Inspector in The New India Assurance Company Limited (hereinafter referred to as the ‘Company’). 2 In pursuance of appointment letter the petitioner joined the service on 05.05.1978. Thereafter on 10.05.1978 Senior Area Manager of the ‘Company’ sent a letter to the petitioner in which the terms and conditions pertaining to the appointment of the petitioner on the post of Probationary Inspector were communicated to the petitioner. In the said letter the petitioner was informed that he will be on probation for a period of 12 months during which he was required to produce a premium of Rs. 75,000/- to be eligible for confirmation and subject to satisfactory performance. It was also mentioned in the said letter that the probation period of the petitioner may be extended by a period of 12 months subject to satisfactory performance. It was also mentioned in the said letter that unless the letter of confirmation of the petitioner’s services is issued by the ‘Company’ before the expiry of the probationary period, or the extended probationary extended period, if any, his services will stand automatically terminated. Confirmation in the said letter of the ‘Company’ on completion of the probationary period will not be automatic unless the petitioner passes the licentiate examination conducted by the Federation of Institute, Bombay. In the said letter dated 10.05.1978 the petitioner was further informed that upon completion of his period of probation to the satisfaction of the ‘Company’, the petitioner would be available to be fitted in the grade of Rs. 250-850/- and would receive allowances as applicable from time to time as per Rules of the ‘Company’. The petitioner completed his probation period and his placement was done in the Inspector Grade-I vide letter dated 24th September 1979 issued by the Senior Area Manager. His placement was done in the cadre of Inspector Grade-I, on starting basic salary of Rs. 250-850/- per month with effect from 01.04.1979. On 18.04.1980 the Divisional Manager of the ‘Company’ wrote to the petitioner informing 3 him the decision taken by the Board or General Insurance Company (G.I.C.) in respect of norms for the confirmation on Probationary Inspector. By this letter, the petitioner was informed that he was required to pass either the licentiate examination or the Inspector examination of the Federation of Assurance Institute of Bombay before being considered as eligible for confirmation. In the year 1983 the petitioner passed the Inspectors’ Examination of the ‘Company’ conducted by the Federation of Institute Bombay and as such he became eligible to be confirmed on the post of Inspector/Development Officer. Thereafter the petitioner was permitted to work on the post of Development Officer. On 15.11.1988 the petitioner was placed under suspension. He remained suspended and charge sheet was issued to him on 16.02.1989 to which the petitioner submitted his reply in the year 1989. The matter remained pending for quite long time and after a period of five years the petitioner filed a writ petition no. 29371 of 1994 before the Allahabad High Court challenging the order of suspension dated 15.11.1988 in which the respondents were directed to file counter affidavit. The respondents filed their counter affidavit in the said writ petition in which an order-dated 20.10.1994 was annexed by which the suspension order against the petitioner was revoked with immediate effect. In paragraph-5 of the counter affidavit, it was mentioned that the petitioner was being reinstated in service. Thereafter on 21.11.1994 the petitioner was called by the Divisional Manager of the ‘Company’ and was asked to submit his joining on the post of Development Officer. The petitioner submitted his joining same day. In spite of the fact that the petitioner’s suspension was revoked on 22.10.1994, payment of full salary was not made to him for the suspended period. Therefore, on 29.12.1994 the petitioner made a representation to the Assistant General Manager of the 4 ‘Company’ for making payment of balance pay to the petitioner for the months of November, December 1994 and also for full salary in future. But, on 01.03.1995 an order was issued from the Regional Office Kanpur under the signature of the Manager by which the petitioner was placed on probation for a period of 12 months from 20.11.1994. By this order the petitioner was also placed in the pay scale of Rs. 1450-3880 applicable to the Probationary Development Officer. Respondents in their counter affidavit stated that after the appointment of the petitioner as Probationary Inspector Grade-I, several complaints were received by the office against the petitioner about his misconduct, negligence, late deposit of the premium in the Company’s account for which several warning letters were issued by the office of the respondents. But the petitioner did not pay any heed and his conduct remained the same. On 28.04.1983, the Divisional Office sent a recommendation for the confirmation of the petitioner, but due to negligence and careless on the part of the petitioner, the confirmation of the petitioner was not considered. Later on, the petitioner was suspended on 10.12.1988. It is further mentioned in the counter affidavit that the petitioner was never confirmed on the post of Inspector Grade-I and after revocation of suspension order another order was passed on 01.03.1995 placing the petitioner on probation for a period of 12 months. Shri Sharad Sharma, learned Sr. Counsel for the petitioner argued that after completion of extended probation period, the petitioner was placed in the Inspector Grade-I in the pay scale of Rs. 250-850 per month with effect from 01.04.1979 and in view of this fact the petitioner could not have been placed under probation again. He further argued that by the order dated 01.03.1995 the petitioner has been given fresh appointment on probation, which cannot legally 5 be done. He also submitted that after the revocation of the suspension order dated 20.02.1994, the petitioner was entitled to be reinstated with all benefits and privileges available to the petitioner for the entire period of 10 years of his service like the other colleagues of the petitioner. On the other hand, Shri R.B. Agarwal, learned counsel for the respondents submitted that since the confirmation of the petitioner in the service of the Company was never done, the petitioner had rightly been placed on probation again and there is no illegality in the order dated 01.03.1995. We have heard learned counsel for the parties and carefully gone through the materials available on record. The appointment order of the petitioner clearly provides a period of 12 months of probation, which is extendable for a further period of 12 months. It also provides that unless a letter of confirmation of petitioner’s services is issued by the ‘Company’ before the expiry of the probationary period, or the extended probationary period, if any, his services will stand automatically terminated. But in the present case, after completion of extended period of probation the petitioner was permitted to continue in service and on 24.09.1979 an order was also passed by which the petitioner’s placement in the Inspector Grade-I in the scale of Rs. 250-850 was done with effect from 01.04.1979. Thus it is clear that such placement of the petitioner was done after finding his performance as satisfactory. In our view, once the petitioner had completed his extended probation period satisfactorily, the respondents cannot again place him on probation after the period of 14 years. This cannot legally be done. In the present case, the petitioner was suspended from 15.11.1988 and after placing the petitioner under suspension a charge sheet was also served on 16.02.1989 in contemplation of inquiry by the Inquiry Officer. The 6 petitioner had submitted his reply to the charge sheet in 1989 itself. Learned counsel for the parties informed the Court that no decision has yet been taken on said departmental proceedings so far. It was open for the respondents to take final decision in the matter of pending inquiry but that was no done. On the other hand, an order was passed by the respondents on 20.11.1994 revoking the suspension order of the petitioner. The consequence of the revocation order was that the petitioner was automatically placed on the position which he was holding on the date of suspension. There was no justification for passing another order on 01.03.1995 keeping the petitioner on probation again. Order dated 01.03.1995 also does not disclose the provision under which the petitioner was again placed under probation. Thus, order passed by respondent no. 2 dated 01.03.1995 is patently illegal and deserves to be set aside. In view of the aforesaid discussion, the writ petition is allowed. Order-dated 01.03.1995 passed by the respondent no. 2 is quashed. The respondents are directed to grant all the benefits to the petitioner by treating him regular in service. No order as to costs. (V.K. Bist, J.) (B.C. Kandpal, J.) VKG 19.11.2009