Laloo Yadav vs Union Of India & Ors. on 15 September, 2011

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Date of decision:   15th September, 2011

+      W.P.(C) 1744/2001

LALOO YADAV                                       .....Petitioner
                    Through:    None.

              -versus-

UNION OF INDIA & ORS.                             .....Respondents

Through: None.

HON’BLE MR. JUSTICE A.K. SIKRI
HON’BLE MR. JUSTICE SIDDHARTH MRIDUL

1. Whether reporters of local papers may be allowed to see
the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in
the Digest?

A.K.SIKRI, J (ORAL)

1. Aggrieved by the order of termination from service by the

Respondent-Navodya Vidyalaya Samiti invoking Clause 2 of the

appointment letter, the Petitioner had filed application under

Section 19 of the Administrative Tribunal Act before the Central

Administrative Tribunal, Principal Bench, New Delhi. The said

O.A. has been dismissed vide impugned judgment dated 14th

November, 2000 and this Writ Petition has been filed under

W.P.(C) 1744/2001 Page 1 of 15
Articles 226 and 227 of the Constitution of India wherein the

said judgment is assailed.

2. During the pendency of this Writ Petition, Petitioner had

passed away and his LRs were brought on record. Further, at

the time of arguments in the case, nobody appeared on behalf of

any of the parties.

3. The Petitioner was removed from service by the

Respondent No.2 w.e.f. 11.2.1999. The Petitioner was

appointed as PGT (Biology) on probation for a period of two

years which was stipulated in the appointment letter dated

12.09.1996:-

“2. You will be on probation for a period of two
years from the date of appointment extenable as
permissible under the rules at the discretion of the
Competent Authority. Failure to complete the
period of probation to the satisfaction of the
Competent Authority or found unsuitable for the
post of during probation period, will render you
liable to be discharged/terminated from services
without assigning any reasons thereto.”

4. Initial posting of the Petitioner was at Leh Laddakh. He

was thereafter transferred to Poonch and then to Sangroor in

Punjab. On 24.08.1997 the Petitioner joined at Sangroor,

Punjab. The Petitioner had applied for Casual Leave for 5 days

from 13.03.1998 to 17.03.1998 on the ground that his mother in

W.P.(C) 1744/2001 Page 2 of 15
his hometown in Ajamgarh, UP was sick and he had to attend to

her. He, however, did not return after the expiry of the said

leave and kept on sending the application for extension of the

leave from time to time. The application for extension for leave

was, however, rejected and he was specifically asked to join the

duties. Various notices were sent in this behalf from time to

time but the Petitioner did not join back the duties. Ultimately,

order dated 11.02.1999 was passed invoking Clause 2 of the

appointment letter and the petitioner was terminated. This

order was challenged by the Petitioner before the Tribunal and

the said O.A. had been dismissed vide order dated 14.11.2000

as already stated.

5. The Tribunal has held that since the Petitioner was on

probation and his work and conduct was not satisfactory, it was

open to the Respondents to take recourse to Clause 2 of the

appointment letter. It is also held that the order of termination

which was simplicitor order of termination which is quite

innocuous and no stigma was attached to it and, therefore, the

contention of the Petitioner that the impugned order of

termination was punitive is not correct. We may record that

specific plea was taken by the Petitioner that the order came to

W.P.(C) 1744/2001 Page 3 of 15
be passed because of the reason that the Petitioner continued to

remain absent and such absence could be treated, if at all, his

misconduct and without holding an enquiry, the Petitioner could

not have been terminated from service. This contention of the

Petitioner was neglected by the Tribunal referring to the

judgment of a Co-ordinate Bench in the case of Kendriya

Vidyalaya Sangathan vs. Madan Lal in TA 41/99 which was

decided on 31.8.2000. The Tribunal has noted that in the

aforesaid judgment the Co-ordinate Bench had referred to the

various judgments of the Supreme Court and had come to the

conclusion that the reason of absence of the Petitioner was not

punitive in passing of the termination order and it would only be

a case of motive and on that ground the order is not bad in law.

Apart from the other judgments, the Tribunal had taken note of

judgment of Supreme Court in Radhey Shyam Gupta -vs- U.P.

State Agro Industries Cooperation Ltd. & Anr., AIR 1999

SC 609, Chandra Prakash Sahi -vs- State of U.P., AIR 2000

SC 1706, Purushottam Lal Dhingra -vs- UOI, AIR 1958 SC

38.

6. After going through the record, we find ourselves in

agreement in the aforesaid view taken by the Tribunal.

W.P.(C) 1744/2001 Page 4 of 15

7. Therefore, we do not find any merit in the contention of

the Petitioner that the impugned order was grossly arbitrary,

illegal and bad in law.

8. Another contention raised by the Petitioner in the Writ

Petition is that two years period of probation had expired and,

therefore, it was not permissible for the Respondents to take

recourse to Para 2 of the appointment letter. Reading of the

aforesaid Para, however, clearly shows that two years period

was the initial period which was extenable as permissible under

the Rules at the discretion of the Competent Authority. It is not

in dispute that no order was passed by the Respondent stating

that the Petitioner had completed probation period satisfactorily

or confirming him in service. It is settled law that in the

absence of any specific order, the Petitioner could not be

treated as having become permanent and he would be deemed

to be on probation.

9. In somewhat similar circumstances, the Supreme Court in

the case of Jai Kishan -vs- Commissioner of Police and Anr.,

AIR 1996 SC 660 held such a probationer would not be treated

as confirmed. That was a case where the services of temporary

Constable were terminated under Rule 5(e) of the Central

W.P.(C) 1744/2001 Page 5 of 15
Services Temporary (Service) Rules, 1966. The Court was not

convinced that the incumbent should be treated as confirmed as

he had rendered five years of services as against maximum

period of three years of probation. The Court held that the

successful completion of probation is a condition precedent for

confirmation as envisaged in the Rules. The governing rule

therein and the discussion in this behalf reads as under:

“3………………….

Rule 5(e) of the Rules reads as follows:

(e) (i) All direct appointments of employees
shall be made initially on purely temporary
basis. All employees appointed to the Delhi
Police shall be on probation for a period of two
years. WP(C) No.6318 of 2010 Provided that
the competent authority may extent the period
of probation but in no case shall the period of
probation extend beyond three years in all.

(ii) The services of an employee appointed on
probation are liable to be terminated without
assigning any reason.

(iii) After successful completion of period of
probation, the employee shall be confirmed in
the Delhi Police by the competent authority,
subject to the availability of permanent post.

4. A reading thereof clearly indicates that all direct
recruits are required to be on probation for a period of
two years and in no case the probation would extend
beyond the period of three years. During the period of
probation the probationer is required to complete
successfully the probation complying with the conditions
of passing the test etc. Thereafter, they need be confirmed

W.P.(C) 1744/2001 Page 6 of 15
in the Delhi Police service. The confirmation into the
service, therefore, is a condition precedent, to continue as
a member of Delhi Police Service. In spite of giving
repeated opportunities to improve himself he failed to
improve his performance. So he was given notice on 14-9-
1988 terminating his service by the impugned order.

5. It is contended by the learned Counsel for the
appellant, placing reliance on State of Punjab v. Dharam
Singh [1968] 3 SCR 1 , that even if the appellant was not
confirmed by passing any order, on expiry of three years
he must be deemed to have been confirmed as a member
of the Service. Thereafter, the respondents had no
jurisdiction to terminate his service. It is difficult to accept
the contention. Dharam Singh’s case bears no relevance,
as similar provision was not there in the concerned rule.
Successful completion of probation is a condition
precedent for confirmation as envisaged in Clause (iii) of
Rule 5(e) of the Rules. The authorities have power to allow
maximum period of 3 years of probation. In this case
instead of giving him three years, they have giving long 5
years period so as to see whether the appellant would
improve his performance in the service. Since they found
that there was no satisfactory improvement, his probation
was terminated and was removed from service as a
probationer. Under these circumstances, we do not find
any illegality in the action taken by the respondents
warranting interference.

6. The appeal is accordingly dismissed. No costs.”

10. The same issue has been discussed at much greater length

by a recent judgment dated 16.08.2010 of the Division Bench of

this Court in LPA No.342 of 2010 in the case entitled Dy.

Director of Education & Anr. -vs- Veena Sharma. The

position in law based on various judgments of the Supreme

Court was discussed holding that there was no automatic

W.P.(C) 1744/2001 Page 7 of 15
confirmation even after the maximum period of probation and

the Rule stipulates that the employee shall be confirmed only on

satisfactory completion of probation period. The entire gamut of

discussion contained in the said judgment is relevant for us and

we reproduce the same:

“12. In this context, we may refer with profit to a
three-Judge Bench decision in High Court of
Madhya Pradesh through Registrar and Others
v. Satya Narayan Jhavar, AIR 2001 SC 3234 =
(2001) 7 SCC 161. In the said case, the Apex Court
was considering the effect and impact of Rule 24 of
the Madhya Pradesh Judicial Service (Classification,
Recruitment and Conditions of Service) Rules, 1955.
Be it noted, their Lordships were considering the
correctness of the decision in Dayaram Dayal v.
State of M.P. & Another, AIR 1997 SC 3269,
which was also a case under Rule 24 of the Rules
wherein it was laid down that as no order of
confirmation was passed within the maximum period
of probation, the probationer judicial officer could
be deemed to have been confirmed after the expiry
of four years period of probation. Their Lordships,
after referring to the decisions rendered by the
Constitution Bench in Dharam Singh (supra) and
Samsher Singh v. State of Punjab & Another,
AIR 1974 SC 2192 = (1974) 2 SCC 831 and after
scanning the anatomy of Rule 24, came to hold as
follows:

“11. The question of deemed confirmation in
service Jurisprudence, which is dependent
upon the language of the relevant service
rules, has been the subject matter of
consideration before this Court, times without
number in various decisions and there are
three lines of cases on this point. One line of
cases is where in the service rules or in the

W.P.(C) 1744/2001 Page 8 of 15
letter of appointment a period of probation is
specified and power to extend the same is also
conferred upon the authority without
prescribing any maximum period of probation
and if the officer is continued beyond the
prescribed or extended period, he cannot be
deemed to be confirmed. In such cases there is
no bar against termination at any point of time
after expiry of the period of probation. The
other line of cases is that where while there is
a provision in the rules for initial probation
and extension thereof, a maximum period for
such extension is also provided beyond which
it is not permissible to extend probation. The
inference in such cases is that the officer
concerned is deemed to have been confirmed
upon expiry of the maximum period of
probation in case before its expiry the order of
termination has not been passed. The last line
of cases is where, though under the rules
maximum period of probation is prescribed,
but the same requires a specific act on the
part of the employer by issuing an order of
confirmation and of passing a test for the
purposes of confirmation. In such cases, even
if the maximum period of probation has
expired and neither any order of confirmation
has been passed nor has the person concerned
passed the requisite test, he cannot be
deemed to have been confirmed merely
because the said period has expired.”

13. After so holding, their Lordships referred to the
decision in Sukhbans Singh v. State of Punjab
(supra) wherein the Constitution Bench was
considering the question of confirmation under Rule
22 of the Punjab Civil Service (Executive Branch)
Rules, 1930 which provided that a candidate on first
appointment to the service shall remain on
probation for a period of 18 months and the proviso
thereto enabled the respondents not to extend the

W.P.(C) 1744/2001 Page 9 of 15
period of probation. Rule 24 of the said Rules
provided that on completion of the period of
probation prescribed or extended, a member of the
service would be qualified for substantive
appointment. The three-Judge Bench observed that
the fact that a person is a probationer implies that
he has to prove his worth and suitability for the
higher post in which he is officiating and if his work
is not found to be satisfactory, he is liable to be
reverted to his original post even without assigning
any reason.

14. Thereafter, their Lordships referred to the
decision in G.S. Ramaswamy & Ors. (supra),
another Constitution Bench decision which was
considering a case of promotion of Sub-Inspector of
Police under Rule 486 of the Hyderabad District
Police Manual which provided that all officers who
are promoted will be on probation for a period of
two years and they would be reverted at any time
during the aforesaid period if their work and
conduct were not found to be satisfactory or they
were found unsuitable for the appointment to which
they had been promoted. The three-Judge Bench
while discussing the ratio of the Constitution Bench
came to hold that the Constitution Bench had
repelled the contention and held that such a Rule
does not contemplate automatic confirmation after
the probationary period of two years, as a promoted
officer can be confirmed under the Rules only if he
has given satisfaction, which conduct of giving
satisfaction must be fulfilled before a promoted
officer can be confirmed under the Rules and the
same obviously means that the authority competent
to confirm an officer must pass an order to the effect
that the probationer has given satisfaction.

15. After dealing with the ratio of the aforesaid two
Constitution Benches, their Lordships proceeded to
deal with the view expressed in Akbar Ali Khan
(supra) wherein the Constitution Bench has held
thus:

W.P.(C) 1744/2001 Page 10 of 15

“The law on the point is now well settled.
Where a person is appointed as a probationer
in any post and a period of probation is
specified, it does not follow that at the end of
the said specified period of probation he
obtains confirmation automatically even if no
order is passed in that behalf. Unless the
terms of appointment clearly indicate that
confirmation would automatically follow at the
end of the specified period, or there is a
specific service rule to that effect, the
expiration of the probationary period does not
necessarily lead to confirmation. At the end of
the period of probation an order confirming
the officer is required to be passed and if no
such order is passed and he is not reverted to
his substantive post, the result merely is that
he continues in his post as a probationer.
…The terms of appointment do not show that
the appellant would be automatically
confirmed on the expiry of the first six months
of probation nor is any rule brought to our
notice which has the effect of confirming him
in the post after six months of probation. The
position of the appellant, therefore, till the
abolition of the post on 4.11.1958, was that he
continued to be a probationer and has no right
to the post. It, therefore, follows that when the
tenure of the post came to an end, he was
automatically reverted to his original post as
an Inspector on which he had the lien.”

16. At this juncture, we may state with profit that in
Satya Narayan Jhavar (supra), their Lordships
distinguished the decision in Dharam Singh
(supra). After noting Rule 6(3) of the relevant Rules
and reproducing a passage from the decision, their
Lordships opined thus:

“19. From the aforesaid passage, it would be
clear that as Rule 6 did not require a person to
pass any test or to fulfill any other condition

W.P.(C) 1744/2001 Page 11 of 15
before confirmation, this Court was of the view
that upon the expiry of maximum period of
probation the probationer could be deemed to
have been confirmed which goes to show that
if such provision would have been there in the
Rules, the conclusion might have been
otherwise.”

17. Be it noted, the decision rendered in Wasim
Beg (supra) was pressed into service which has also
been heavily relied upon by Mr. Khan in the case at
hand. While dealing with the ratio in the said case,
their Lordships referred to the relevant Rule
relating to confirmation, which is as follows:

“Confirmation – An employee directly
appointed or promoted to any post in the
Corporation shall be deemed to have become a
confirmed employee in that grade after he has
successfully completed the period of
probation.”

18. After referring to the said Rule, their Lordships
referred to the facts and eventually came to hold as
follows:

“21. In the said case no maximum period of
probation was prescribed either by the letter
of appointment or the rules. The Rules laid
down that an employee shall be deemed to
have become a confirmed employee after he
has successfully completed the period of
probation. From the affidavit filed by the
Corporation as well as from the report of the
Managing Director, it was clear that the
incumbent was considered by the Board as
having satisfactorily completed his period of
probation on 9.1.1979 i.e. before expiry of one
year period of probation and was considered
as a regular employee from 10.1.1979. From
the affidavit filed by the Corporation it was
clear that the services of the incumbent were
satisfactory for the first few years and work
was very good and only thereafter his work

W.P.(C) 1744/2001 Page 12 of 15
deteriorated as a result of which the
Corporation suffered losses. Thus in view of
the stand taken that the incumbent had
successfully completed the period of
probation, he was deemed to have become a
confirmed employee, as enumerated in the
Rules referred to above.”

19. After distinguishing the said case, the three-
Judge Bench referred to Samsher Singh (supra),
Municipal Corporation, Raipur v. Ashok Kumar
Misra, (1991) 3 SCC 325, Jai Kishan v.

Commissioner of Police, 1995 Supp (3) SCC 364,
State of Punjab v. Baldev Singh Khosla, (1996) 9
SCC 190 and Chief General Manager, State Bank
of India v. Bijoy Kumar Mishra, (1997) 7 SCC 550
and expressed the view as follows:

“37. Ordinarily a deemed confirmation of a
probationer arises when the letter of
appointment so stipulates or the Rules
governing service conditions so indicate. In
the absence of such term in the letter of
appointment or in the relevant Rules, it can be
inferred on the basis of the relevant Rules by
implication, as was the case in Dharam Singh
(supra). But it cannot be said that merely
because a maximum period of probation has
been provided in the Service Rules,
continuance of the probationer thereafter
would ipso facto must be held to be a deemed
confirmation which would certainly run
contrary to the seven-Judge Bench judgment
of this Court in the case of Shamsher Singh
(supra) and the Constitution Bench decisions
in the cases of Sukhbans Singh (supra), G.S.
Ramaswamy (supra) and Akbar Ali Khan
(supra).

20. In this context, it is apposite to refer to
Commissioner of Police, Hubli & Another v.
R.S. More, AIR 2003 SC 983 wherein the Apex
Court was addressing itself to the question whether
the continuance of the probationer on the post

W.P.(C) 1744/2001 Page 13 of 15
beyond the probation period or extended period, as
the case may be, entitled him to have any claim to
deemed confirmation in the absence of any specific
order passed by the competent authority to that
effect. Their Lordships referred to the decision in
Satya Narayan Jhavar (supra) and held as follows:

“8. In our view, the case at hand falls under
category 3. As noticed, Sub-rule (2) of Rule 5
requires that a probationer shall not be
considered to have satisfactorily completed
the probation unless a specific order to that
effect is passed. No specific order having been
passed by any authority, certifying the
satisfactory completion of probation period of
the respondent, has been brought to our
notice. Mr. Hegde, learned counsel, submitted
that no order as contemplated under Sub-rule
(2) of Rule 5 has been passed by the
competent authority. Admittedly, the order
discharging the respondent, in exercise of
powers under Rule 6, has been passed after
the extended period of probation was over. In
our view, however, that itself would not entitle
the respondent to have claimed deemed
confirmation in absence of the specific order
to that effect. In service jurisprudence,
confirmation of service on a particular post is
preceded by satisfactory performance of the
incumbent unless service rules otherwise
prescribe. In the instant case, Sub-rule (2) of
Rule 5 of the Rules provides that unless there
is a specific order that the probationer has
satisfactorily completed the period of
probation, he shall not be entitled to be
deemed to have satisfactorily completed the
probation by reason of his being continued in
service beyond the extended period of
probation. The High Court has failed to
consider this important aspect of the matter,
resulting in miscarriage of justice. In our view,

W.P.(C) 1744/2001 Page 14 of 15
the High Court fell into error resulting in
miscarriage of justice.”

11. As a consequence of the aforesaid discussion, the petition

is devoid of merits.

12. The Petition is dismissed.

A.K. SIKRI, J.

SIDDHARTH MRIDUL, J.

SEPTEMBER 15, 2011
dn

W.P.(C) 1744/2001 Page 15 of 15