V.K. Majotra, Member (A)
1. The applicant was appointed as Education Officer on probation in the Kendriya Vidyalaya Sangathan (for short KVS) vide order dated 3.11.95 (Annexure A/2). He joined as such on 22.11,95. Vide Order No. F. 3-16/95KVS (Estt. -1), dated 15.4,99 (Annexure A/1), his services have been terminated with immediate effect. The applicant has assailed this order stating that the maximum period of probation prescribed in the Rules is 3 years after the expiry of which he is deemed to have been confirmed. As per procedure, 2 reports should have been written during his probation, one Annual Report and the other a Special Report on his work and conduct. On joining as Eduction Officer on 22.11.95, he was given officiating charge of Asstt. Commissioner, Regional Office, Silchar and since there was no superior officer posted on regular basis at Silchar, his report for the period November, 96 to July, 97 could not have been written by any one. During first 2 years no shortcoming were conveyed to him regarding his work and conduct i.e. his work was satisfactory. He was transferred lo Chandigarh on 10.7.1997 where he had performed his assigned duties satisfactorily. The Commissioner, KVS, who is the competent authority has used his executive powers arbitrarily and in colourable exercise in terminating his services. The 2 years probationary period was over on 21.11.97. It was extended upto 31.5.98. It was further extended vide order dated 15.9.98 retrospectively upto 21.11.98. On receiving order dated 15.9.98, he made two representations dated 16.10.98 and 15.3.99 regarding his second extension. He has alleged malafide intention of the respondents in passing the order Annexure A/1. The following reliefs have been sought by the applicant in this OA :-
“Annexure A-1 dated 15.4.99 be declared as illegal, unconstitutional, violative of principles of natural justice. It be declared that services of the applicant cannot be terminated in violation of the law and the rules. It be further declared that after the expiry of probation period i.e. 21.11.98 the applicant is deemed to be confirmed employee whose services cannot be dispensed with in this manner. The applicant as such be held entitled for all consequential benefits.
2. Vide order dated 3.5.99, this Bench of the Tribunal had directed the respondents to maintain status quo the applicant as it existed that day.
3. In their written statement Respondents No. 1, 2 and 4 have taken a preliminary objection that the applicant had made a false statement in para 6 of the OA to the effect that no remedy is available to him under the rules. He has concealed a vital fact that he had infact submitted a representation dated 22.4.1999 to Respondent No. 2 asking for reinstatement in service. Thus, the OA is premature. The services of the applicant have been terminated in terms of Condition No. 5 in his appointment letter dated 3.11.95 (Annexure A/2). His probationary period was extended on two occasions. At first vide order dated 20.11.97 (Annexure A/15) upto the period 31.5.98 and then vide order dated 15.9.98 (Annexure A/ 18) upto the period 21.11.98. The competent authority passed Annexure A/1, dated 15.4.99 on finding that the applicant was not fit for confirmation despite two extensions. The officiating Asstt. Commissioner, KVS, Regional Office, Silchar had recorded in his probation report dated 19.9.97, that “applicant was not suitable for retention in KVS service”, yet his probation period may be extended for a period of one year. It was mentioned in the report that several defects of the applicant were brought to his notice verbally and in writing and were reported to the KVS Headquarters as well. Against the recommendations of the officiating Asstt. Commissioner, the superior authorities extended applicant’s probation for a period of six months instead of one year. The second probation report dated 9.7.98 was recorded by the Asstt. Commissioner, Regional Office, Chandigarh stating that the applicant is slow and careless which defects have been brought to his notice verbally many a time but he has shown no improvement. However, his probation may be extended upto the period 21.11.98. Vide letter dated 29.12.98, the applicant was advised to pay adequate attention to his work and bring about the required improvement in his overall work and performance (Annexure R/2). Respondent No. 4 submitted his probation report dated 25.3.99 reporting that the work and conduct of the applicant was not upto the mark and despite bringing various defects in his work and conduct to his notice he did not show any improvement. Annexure A/1 has been passed on the basis of assessment made by the competent authority against whom the applicant has not levelled any allegation. Summing up, these respondents have sought dismissal of the instant OA.
4. Respondent No. 3 in his written statement has stated that the probation report was recorded by him in July, 98 on the work and conduct of the applicant which was adjudged by him to be unsatisfactory. The applicant had not shown any improvement despite several notices about various defects in his functioning. The representation dated 16.10.98 of the applicant was rejected by Respondent No. 2 on 29.12.98 whereby the applicant was advised to pay adequate attention to his work. Another probation report dated 25.3.99 was submitted by this respondent indicating that the applicant had not shown any improvement and his work and conduct was not found upto the mark despite giving enough opportunity to him to improve. The allegation of malafide against him is vague and vehemently denied.
5. Applicant has filed rejoinder to the written statements of the respondents.
6. We have heard the learned Counsel for the parties and have perused the records placed before us.
7. The learned Counsel for the applicant has stated that the applicant had performed his duties at Silchar and Chandigarh satisfactorily. The Asstt. Commissioner i.e. the Reporting Officer on the probationary Education Officer should have written two reports, first, on the completion of six months of service after the date of appointment and the second report on the completion of 11 months of service after the date of appointment as per instructions on the subject. However, the first probation report was recorded by Dr. M.M. Swamy on 19.9.97 i.e. not immediately after six months of service of the applicant. Further Dr. Swamy held the same rank of Education Officer and was holding only the officiating charge of the post of Asstt. Commissioner at Silchar. The second probation report of the applicant was written in July, 98 by Respondent No. 3 which was also highly belated. There were no adverse entries against the applicant and no explanations were ever called for any defect in his work and conduct, whereas, as per Govt. instructions either to confirm or to extend the period of probation, they should be taken and indicated within 6-8 weeks before expiry of the probationer’s period. The extension on both occasions in the present case was accorded with inordinate delay.
8. The learned Counsel for the applicant drew our attention to the decision of Hon’ble Supreme Court in Dayaram Dayal v. State of M.P. and Anr., AIR 1997 SC 3269, The learned Counsel for the applicant contended that since the maximum period of probation i.e. 3 years including the extended period in the present case had expired, the applicant should be deemed to have been confirmed automatically and, therefore, his termination without any enquiry is violative of Article 311 of the Constitution.
9. The learned Counsel for the respondents reiterated the points made in the written statement of the respondents and added that termination of the services of the applicant is in order as per the terms and conditions prescribed in his appointment order. The applicant has made allegations of malafide against the officiating Asstt. Commissioner of Silchar who had recorded applicant’s first probation report without impleading him as a party in the case. The probation reports have pointed out defects in the work and conduct of the applicant which were brought to his notice verbally and sometimes in writing but no improvement in his work and conduct was noticed. Respondent No. 2 i.e. the competent authority against whom no malafide intention has been alleged by the applicant had taken into cognizance the various probation reports/special reports before passing the impugned order. The applicant had served at Silchar, complained against the officiating Asstt. Commissioner to the higher authorities and created a bad environment in the region. The Commissioner, KVS thought about putting the applicant under a senior Asstt. Commissioner in order to bring about a salutary effect upon the applicant. In this background he was transferred to Chandigarh and put under the supervision of a very senior Asstt. Commissioner. However, the applicant did not effect any improvement in his work and conduct.
10. Rules 10, 11 and 12 of Kendriya Vidyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971 are relevant for consideration of the present case and the same are reproduced below :-
10. Probation:
1. Every direct recruit shall initially be appointed on probation, the period of probation being two years from the date of appointment, which may be extended to three years by the competent authority for reasons to be recorded in writing.
2. Every person other than a probationer shall, when first appointed to any post, be on probation for a period of two years from the date of such appointment, which may be extended to three years by the competent authority for reasons to be recorded in writing.
11. Confirmation of Probationers :
When an employee appointed to a post on probation or on trial has completed his/her probation/trial to the satisfaction of the appointing authority, he/she shall be eligible for substantive appointment or continuance therein, as the case may be, and such substantive appointment shall be made in the order of seniority as indicated in the relevant select panel.
12. Discharge or Reversion of Probationers:
1. An employee appointed to any post in the Kendriya Vidyalaya Sangathan, specified in the Schedule, who has no lien on any post under the Central Government or any State Government or the Kendriya Vidyalaya Sangathan, shall, while on probation, be liable to be discharged from the post at any time with one month’s notice or pay in lieu thereof, if
(i) on the basis of his/her performance or conduct during the probation he/she is considered unit for further retention in the post concerned; or
(ii) on the receipt of any information relating to his/her nationality, age, health or antecedents, the appointing authority has satisfied that he/she is ineligible or otherwise unfit for being an employee of the Kendriya Vidyalaya Sangathan.
2. An employee who holds a lien on a post under the Central Government or any State Government or in the Kendriya Vidyalaya Sangathan may while on probation be reverted to such post at any time in any of the circumstances specified in Sub-rule (1).
3. An employee appointed to any post specified in the Schedule, who is not considered suitable for confirmation or continuance in that post during the or at the end of the period of probation specified in Rule 10 or at the end of the extended period of probation, if any, shall be discharged or reverted in accordance with the Sub-rule (1).
4. An employee of the Kendriya Vidyalaya Sangathan or “trial” in any of the posts specified in the Schedule who is not considered suitable for continuance in that post during or at the end of the period of trial
specified in Sub-rule (1) or (2) of Rule 10 or the extended period, if any, shall be reverted to the next lower grade.”
Under Rule 10, the period of probation of a direct recruit is two years from the date of appointment. It is extendable to 3 years by the competent authority. Under Rule 11, an employee on probation is eligible for substantive appointment or continuance therein when he has completed his probation to the satisfaction of the appointing authority. Under Rule 12, he is liable to be discharged any time with one month’s notice or pay in lieu thereof if on the basis of his performance/conduct during the probation he is considered unfit for further retention in the post. The Scheme of these rules does not contemplate automatic confirmation on the expiry of the period/extended period of probation. It appears that the competent authority can consider the probation reports and other relevant material even after the expiry of the probation/extended period of probation and consider confirmation/ discontinuance of the probationer. In other words there is no clear provision in the rules that if confirmation/discontinuance is not decided upon and communicated before expiry of the probation/extended probation period, the officer would be deemed to have been confirmed.
11. Paras 4 and 5 of the appointment letter dated 3.11.95 (Annexure A/2) are also relevant for consideration of the case. They read as follows :-
“4. He will be on probation for a period of two years which may be extended. Upon successful completion of probation he/she will be confirmed in his/her turn as per Kendriya Vidyalaya Sangathan rules on the availability of permanent vacancies.
5. During the probation and thereafter, until he is confirmed, the services of the appointee are terminable by one month’s notice on either side without any reason being assigned, therefor. The appointing authority, however, reserves the right to terminate the services of the appointee before expiry of the stipulated period of notice by making payment of sum equivalent to the pay and allowances for the period of notice or the unexpired portion thereof.”
Rule 11 contemplates completion of the probation to the satisfaction of the appointing authority. Para 4 quoted above, talks of “successful completion of probation.” As a matter of fact both mean the same thing and without passing an order on the subject whether a probationer has completed his probation to the satisfaction of the appointing authority or has successfully completed the probation or not, the termination of the probation and continuance of the probationer cannot be presumed. The above conditions also gave an impression that the confirmation of probationer can take place even after the expiry of the period of probation and the services of the probationer are terminable by one month’s notice on either side without assignment of any reason until he is confirmed. In State of Punjab v. Dharam Singh, 1968 SLR 247(SC), the termination after expiry of 4 years i.e. after the maximum period for which probation could be extended was held to be invalid by the Apex Court. In the relevant rules, the maximum period for extension of probation was provided for beyond which it was not permissible to extend probation. In the case of Municipal Corporation, Raipur v. Ashok Kumar Misra, (1991 )3 SCC 325, it was held that after the expiry of the period of probation and before his confirmation, an employee would be deemed to have been continued in service as a probationer. Confirmation of probation would be subject to satisfactory completion of probation. Expiry of the period of probation does not entitle him with a right of deemed confirmation. The rule contemplates an express order of confirmation in that regard. By issue of notice of one calendar month in writing by either side, the tenure could be put to an end. In M. Nathaniel v. New India Insurance Co. Ltd. and Ors., 1997(2) SLR 547, the view taken by the Apex Court in the case of ‘A.K. Mishra’ (supra) was accepted and the plea of the petitioner that after the expiry of the maximum period of probation in the absence of an order extending the period of probation, he is deemed to have been confirmed and, therefore the question of determination of probation does not arise, was not accepted. It was held that if no order of confirmation is passed after the probationery period or extended period of probation, a probationer is deemed to be in probation and he does not get the status of confirmation. Expiry of the period of probation does not entitle him with a right to a deemed confirmation. Thus, the termination of the probationer’s services was held to be in order. In Dayaram Dayal (supra) the maximum period of probation/extended probation was fixed under the rules. Thus, it was held that after the expiry of that period, the probationer would be deemed to be confirmed. The facts of the present case are distinguishable from Dayaram Dayal’s case because the rules and the conditions incorporated in the appointment letter which are quite in consonance with the spirit of the rules do not prescribe a maximum period. It also appears obligatory that until a decision about confirmation of the probationer or his continuance is taken, he would be on probation and no presumption of automatic confirmation/ continuance can be drawn.
12. We find a great deal of force in the case of the respondents that the acting Asstt. Commissioner of Silchar against whom allegation of malafide has been levelled by the applicant has not been impleaded as a party in this OA. No rule/instructions have been brought to our notice prohibiting an officiating Asstt. Commissioner from writing the probation report of the subordinate/junior officer placed under his charge. No infirmity can, thus, be discovered in the report recorded by the officiating Asstt. Commissioner, Silchar. In any case the extension of period of probation granted on the basis of the report of the officiating Asstt. Commissioner, Silchar was never challenged by the applicant. The intentions of the respondents in transferring the applicant from Silchar to Chandigarh were absolutely bonafide. From the records, it is apparent that in his transfer to Chandigarh it was contemplated that bringing the applicant under the charge of a very Senior Asstl. Commissioner will have a salutary effect in the shaping of the officer and bring about improvement in his work and conduct. However, unfortunately that does not appear to have happened. The applicant has made vague allegations against Respondent No. 4 i.e. the then Asstt. Commissioner, Chandigarh which are held to be insignificant and cannot be given any weightage. The records placed before us also indicate an attitude and habit of the applicant in making complaints/writing letters directly and not through proper channel to the superior authorities.
13. We also find that Respondent No. 2 who is the competent authority has taken into consideration probation reports and special reports and other relevant material on record while according extension in applicant’s probation as well as while passing the impugned order terminating the services of the applicant. It may be mentioned that no allegation of malafides has been levelled against Respondent No. 2 i.e. appointing authority.
14. In the light of what has been staled and discussed above, we do not find any merit in the O.A. and the same is dismissed accordingly.
No order as to costs.