The probationer will only resume his duties if the job is vacant and acceptable: Madhya Pradesh High Court

 THE HIGH COURT OF MADHYA PRADESH 1 WP 218118 Sinnam Singh vs. State of MP and Ors. Gwalior Dated :23 03 2021 Shri Prashant Sharma Counsel for the petitioner. Shri Varun Kaushik Govt. Advocate for the respondents This petition under Article 226 of the Constitution of India has been filed against the order dated 02 01 2018 passed by Commandant 2nd Battalion SAF Gwalior thereby putting the services of the petitioner to an end under Regulation 59 of the Madhya Pradesh Police Regulations. 2) Against the said order the petitioner had preferred an appeal which has been dismissed by order dated 09 04 2018 passed by Inspector General of Police SAF Gwalior Range Gwalior. Thereafter the petitioner preferred a mercy appeal which too has been dismissed by the respondents by the impugned order dated 30 08 2018. It is the case of the petitioner that an advertisement was issued in the year 2014 for recruitment on the post of Constable and after due medical and character verification the petitioner was granted appointment by appointment order dated 01 01 2014 Annexure P4). The petitioner was appointed on probation of two years. One of the conditions of the appointment order was that in the light of Rule 12 of the Madhya Pradesh Government Servants THE HIGH COURT OF MADHYA PRADESH 2 WP 218118 Sinnam Singh vs. State of MP and Ors. Temporary and Quasi permanent Service) Rules 1960the services of the petitioner can be discontinued by giving one month s notice or one month s advance salary in lieu thereof. It is submitted that on account of sickness of the father of the petitioner he remained absent from his duties w.e.f 15 04 2017 and did not submit his joining thereafter. Therefore the services of the petitioner were discontinued by order dated 02 01 2018 as per the provisions of Regulation 59 of the Madhya Pradesh Police Regulations. It is the case of the petitioner that since the father of the petitioner was of old age and had fallen sick which was in the knowledge of the Department yet the services of the petitioner were put to an end. The petitioner preferred an appeal along with medical documents of the sickness of the father of the petitioner but the same was not taken into consideration and the appeal was rejected. The copy of the medical certificates of the sickness of the father of the petitioner have been filed as Annexure P5. Thereafter the mercy appeal has also been dismissed. It is submitted by the Counsel for the petitioner that in the impugned order dated 02 01 2018 the respondent No.4 did not disclose the reasons for putting the services of the petitioner to an THE HIGH COURT OF MADHYA PRADESH 3 WP 218118 Sinnam Singh vs. State of MP and Ors. end but in the appeal it was specifically mentioned that the petitioner was in habit of remaining on unauthorized absence and on one occasion one minor penalty was also imposed. Multiple opportunities were given to the petitioner to improve his conduct but he did not improve. The petitioner had remained on unauthorized absence for 102 days from his Training Institute and when he was sent back to his original Unit then again he remained on unauthorized absence for 54 days and accordingly it was held that from 15 04 2017 the petitioner remained on unauthorized absence till passing of the impugned order dated 02 01 2018. It is submitted that the reason assigned by the Appellate Authority is stigmatic in nature and therefore a Departmental Enquiry should have been conducted against the petitioner. It is further submitted that the original period of probation was for two years and according to Regulation 59 of Madhya Pradesh Police Regulations the period of probation can be extended by further period of six months for two times. It is submitted that since the petitioner was appointed in the year 2014 and although no specific order was issued thereby confirming him in service but as the probation period of the petitioner was not extended after completion of his three years therefore it has to be presumed that the THE HIGH COURT OF MADHYA PRADESH 4 WP 218118 Sinnam Singh vs. State of MP and Ors. petitioner was confirmed in the service and accordingly his services could not have been terminated without holding a 5) Per contra the petition is vehemently opposed by the Counsel for the State. It is submitted that in the impugned order dated 02 01 2018 no reasons were assigned therefore it was a discontinuation simplictor without any allegation stigma. Only in the memo of appeal as the petitioner had raised a question of absence of reasons therefore in order to consider the grounds raised in the appeal the Appellate Authority has considered the previous conduct of the petitioner which cannot be said to be stigmatic in nature. It is further submitted that there is no provision of law which provides that if order of extension of probation is not passed after completion of probation period then an employee shall be treated to be confirmed in the service Heard the learned Counsel for the parties. So far as the factual aspects are concerned it has not disputed by the petitioner that he remained on unauthorized absence for a period of 102 days in the Training Institute. When he was sent back he also did not attend in his Unit for a period of 54 days and from 15 04 2017 till passing of the impugned order dated 02 01 2018 the petitioner was on unauthorized absence THE HIGH COURT OF MADHYA PRADESH 5 WP 218118 Sinnam Singh vs. State of MP and Ors. The only explanation which he has given for his unauthorized absence is that the father of the petitioner was sick. The petitioner has filed the medical certificates purportedly issued by Medical OfficerThe counsel for the petitioner could not point out any provision of law which provides that in case if the probation period is not extended after the period of three yearsfrom the date of appointment then the petitioner has to be treated as a confirmed employee. 10) The Supreme Court in the case of Tarsem Lal Verma vs Union of India and Others reported in 9 SCC 243 has held that mere expiry of one year beyond the original two year period of probation would not result in automatic confirmation. 11) The Supreme Court in the case of Registrar High Court of Gujarat vs. C.G. Sharma reported in1 SCC 132 has held that even if the period of two years of probation expires and the probationer is allowed to continue after a period of two years automatic confirmation cannot be claimed as a matter of right because in terms of the Rules the confirmation order can be passed only if there is vacancy and the work is found to be satisfactory which are the prerequisites or preconditions for 12) The Supreme Court in the case of C. V. Satheeshchandran vs. General Manager UCO Bank and Others reported in THE HIGH COURT OF MADHYA PRADESH 7 WP 218118 Sinnam Singh vs. State of MP and Ors. 2008) 2 SCC 653 has held that expiry of the probation period does not necessarily mean confirmation and at the end expiry of the period of probation normally an order confirming the officer is required to be passed and if no such order is passed he shall be deemed to have continued on probation unless the terms of appointment or the relevant rules governing the service conditions provide otherwise. 13) Under these circumstances it would be appropriate to consider the Service Rules governing the service conditions of the employees of the State Government. Rule 8 of Madhya Pradesh Civil Services Rules 1961A person appointed to a service or post by direct recruitment shall ordinarily be placed on probation for such period as may be 2) The appointing authority may for sufficient reasons extend the period of probation by a further period not exceeding one year 3) A probationer shall undergo such training and pass such departmental examination during the period of his probation as may be 4) The services of a probationer may be terminated during the period of probation if in the opinion of the appointing authority he is not likely to shape into a suitable Government servant 5) The services of a probationer who has not passed the departmental examination or who is found unsuitable for the service or post may be THE HIGH COURT OF MADHYA PRADESH 8 WP 218118 Sinnam Singh vs. State of MP and Ors. terminated at the end of the period of his probation 6) On the successful completion of probation: and passing of the prescribed departmental examination if any the probationer shall if there is a permanent post available be confirmed in the service or post to which he has been appointed either a certificate shall be issued in his favour by the appointing authority to the effect that the probationer would have been confirmed but for the non availability of the permanent post and that as soon as a permanent post becomes available he will be 7) A probationer who has neither been confirmed nor a certificate issued in his favour under sub rulenor discharged from service under sub ruleshall be deemed to have been appointed as a temporary Government servant with effect from the date of expiry of probation and his conditions of service shall be governed by the Madhya Pradesh Government Servants Rules 1960 Rule 2(d) and Rule 12 of Rules 1960 read as under: In these rules unless there is anything repugnant in the subject or context d) "Temporary service" means officiating or substantive service in a temporary post and officiating service in a permanent post under State Government and also includes the period of leave with allowance taken while on temporary service and complete years of approved war service which have been counted for fixation of pay and seniority 12.(a) Subject to any provision contained in the order of appointment or in any agreement between the Government and the temporary Government servant who is not in quasi permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the THE HIGH COURT OF MADHYA PRADESH 9 WP 218118 Sinnam Singh vs. State of MP and Ors. Provided that the services of any such Government servant may be terminated forthwith and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before such termination or as the case may be for the period by which such notice falls short of one month Provided further that the payment of allowances shall be subject to the conditions under which such allowances are admissible b) The period of such notice shall be one month unless otherwise agreed between the Government and the Government servant. Rules 8(7) of the Rules 1961 provides that a Probationer who has neither been confirmed nor a certificate issued in his favour under sub rulenor discharged from service under sub rule(4) shall be deemed to have been appointed as a temporary Government servant with effect from the date of expiry of probation and his conditions of service shall be governed by the Rules 1960. 16) From the plain reading of Rule 12 of the Rules 1960 it is clear that the services of a temporary Government employee are liable to be terminated at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant. Provided that the services of any Government servant may be terminated forthwith and on such termination the Government servant shall THE HIGH COURT OF MADHYA PRADESH 10 WP 218118 Sinnam Singh vs. State of MP and Ors. be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before such termination or as the case may be for the period by which such notice falls short of one month. Thus it is clear that the services of temporary employee can be terminated by issuing one month s notice or by making payment of one month s advance salary in lieu of notice. If the order dated 02 01 2018 is tested in the light of Rule 12 of the Rules 1960 then it is clear that neither one month s notice has been given nor one month s salary in advance has been paid in lieu of the notice as required under Rule 12 of the Rules 1960. As per Rule 12(b) of the Rules 1960 the period of notice shall be one month notice unless otherwise agreed between the Government and Government servant. Now the next question for consideration is as to whether the order dated 02 01 2018 is bad in law in absence of one month s notice or advance salary of one month or not Rule 12 of the Rules 1960 provides that in case of immediate termination an employee can claim a sum equivalent to the amount of his pay of one month. The use of words “ is entitled to claim clearly indicates that the instant termination THE HIGH COURT OF MADHYA PRADESH 11 WP 218118 Sinnam Singh vs. State of MP and Ors. without one month s salary would be an irregularity and can be rectified by directing the respondents to pay one month s salary in lieu of one month s notice. Under these circumstances this Court is of the considered opinion that the impugned order dated 02 01 2018of the Rules 1960. Let one month s salary be paid to the petitioner within a period of three months from today. With aforesaid observations this petition is finally (G.S. Ahluwalia Judge 

Summary: If the probationer can resume after the two-year duration has expired, automatic certification cannot be asserted as a matter of right because, according to the Rules, the confirmation request will be passed only if there is a vacancy and the job is considered to be acceptable, such are the prerequisites or preconditions for confirmation. The judgment was passed by the High Court of Madhya Pradesh in the case of Sinnam Singh vs. State of MP and Ors. [Writ Petition 21814 of 2018] by Single bench consisting of Hon’ble Shri Justice Gurpal Singh Ahluwalia. The facts of the case are the petitioner was appointed on probation of two years. One of the conditions of the appointment order was that in the light of Rule 12 of the Madhya Pradesh Government Servants the services of the petitioner can be discontinued by giving one month’s notice or one month’s advance salary. He remained absent from his duties and did not submit his joining thereafter, petitioner under Article 226 of the Constitution of India has filed a petition thereby putting the services of the petitioner to an end under Regulation 59 of the Madhya Pradesh Police Regulations. The learned Counsel for the petitioner argued that since the father of the petitioner was old and had fallen sick which was in the knowledge of the Department, yet the services of the petitioner were put to an end. It is further submitted that the original period of probation was for two years and according to Regulation 59 of Madhya Pradesh Police Regulations, the period of probation can be extended by a further period of six months two times. Therefore, it has to be presumed that the petitioner was confirmed in the service and accordingly, his services could not have been terminated without holding a Departmental Enquiry. The learned Counsel for the respondent submitted that in the impugned order, were assigned for no reason, therefore, it was a discontinuation simplicity without any allegation/stigma. Only in the memo of appeal, as the petitioner had raised a question of absence of reasons, therefore, to consider the grounds raised in the appeal, the Appellate Authority has considered the previous conduct of the petitioner, which cannot be said to be stigmatic. It is further submitted that there is no provision of law that provides that if an order of extension of probation is not passed after completion of the probation period, then an employee shall be treated to be confirmed in the service The court relied on the judgment of the Supreme Court in the case of Registrar, High Court of Gujarat vs. C.G. Sharma, “it was  held that even if the period of two years of probation expires and the probationer is allowed to continue after two years, automatic confirmation cannot be claimed as a matter of right because, in terms of the Rules, the confirmation order can be passed only if there is a vacancy and the work is found to be satisfactory, which are the prerequisites or preconditions for confirmation.”