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Narendra Kumar Singh & Raj Kumar Jain vs. MPSEB & Ano.
W.P No.7666/2010 (S) &
W.P No.7146/2010 (S)
22.07.2010
Shri D. K. Dixit, learned counsel for the petitioners.
Shri P. S. Nair, learned Senior Counsel with Shri Rajas
Pohankar for the respondents.
With the consent of the learned counsel for the parties, the
matter is heard finally.
The issue involved in both the petitions, i.e. W.P
Nos.7666/2010(S) and 7146/2010(S), being identical, they are
heard together and decided by a common order.
The facts, in brief, are that the petitioners in both the
aforesaid petitions were initially appointed as Assistant Engineer in
the establishment of the respondent Board and were subsequently
promoted on probation as Executive Engineer by order dated
7.2.2005. By impugned order dated 12.5.2010 they have been
reverted back on the post of Assistant Engineer on the ground that
they have not successfully completed their period of probation.
It is submitted by the learned counsel for the petitioners that
the petitioners, having been continued on probation for such a long
time, should have been confirmed as no adverse remarks or entries
have been communicated to them. The learned counsel for the
petitioners further submits that the respondent authorities have
issued the impugned order by misinterpreting the circular dated
1.7.2005 issued by the respondent Board wherein necessary
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Narendra Kumar Singh & Raj Kumar Jain vs. MPSEB & Ano.
criteria for confirmation has been prescribed by restricting the
consideration of the ACR’s to the first three years of probation. It is
submitted that in view of the aforesaid misinterpretation of the
circular, the respondent authorities have deprived the petitioners of
their right to continue on the promotional post which is contrary to
law.
The learned Senior Counsel for the respondent Board
submits that in accordance with the order of promotion of the
petitioners as Executive Engineer and in view of the circular dated
1.7.2005, they were promoted on probation for a period of two
years which was extendable by a further period of one year and the
confirmation was was subject to issuance of a specific order of
confirmation by the Board as prescribed by Clause-E of the circular
dated 21.4.1990. It is submitted that as no order of confirmation in
respect of the petitioners was passed, they have been and are
deemed to have been continued on probation from 7.2.2005. It is
further submitted that the petitioners’ service record in respect of
the years 2006, 2007 and 2008 indicates that they were not
awarded 2 “B” grades during that period which is an essential
requirement as prescribed by circular dated 1.7.2005 by the
respondent Board and in such circumstances the respondent
authorities by the impugned order dated 12.5.2010 have reverted
the petitioners on the post of Assistant Engineer.
The learned counsel for the respondents has relied upon the
judgment of the Supreme Court rendered in the cases of High
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Narendra Kumar Singh & Raj Kumar Jain vs. MPSEB & Ano.
Court of M.P. Through Registrar and Others (2001) 7 SCC 161
and Commissioner of Police, Hubli and Another vs. R. S. More
(2003) 2 SCC 408 in support of his contention that in cases where
a specific order of confirmation is required, the employee is
deemed to have been continued under probation and cannot be
deemed to have been confirmed on the lapse of the prescribed
period of probation.
The aforesaid legal position is not disputed or controverted
by the learned counsel for the petitioners. He however submits that
as the petitioners continued on probation from 7.2.2005 till
12.5.2010, the service record of the entire period of probation
should be taken into account for considering their cases for
confirmation. It is further submitted that the circular dated 1.7.2005
prescribing the criteria for confirmation was issued by the Board
subsequent to the petitioners’ promotion on the post of Executive
Engineer on 7.2.2005 and, therefore, the criteria of being awarded
2 “B” grades has no applicability to the petitioners’ case and as no
adverse remarks or entry has been communicated to them, they
should be confirmed on the post of Executive Engineer without
further scrutiny.
I have heard the learned counsel for the parties at length.
From a perusal of the promotion order dated 7.2.2005 and the
circular dated 21.4.1990 and 1.7.2005, I am of the considered
opinion that the criteria for confirmation prescribed by circular dated
1.7.2005 is applicable to the cases of confirmation of the petitioners
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Narendra Kumar Singh & Raj Kumar Jain vs. MPSEB & Ano.
also as the circular does not prescribe or alter any essential
eligibility qualification prescribed by the rules for promotion. Had
that been the case the situation would have been different. In the
instant case as the respondent Board has only prescribed the basic
yard-stick and criteria to be adopted while considering and
scrutinizing cases for confirmation so as to bring in uniformity, no
fault can be found with the act of the respondents in applying the
same to the cases of the petitioners as that does not effect any
vested or other right of the petitioners. The contention of the
learned counsel for the petitioners that the respondent authorities
have changed the criteria for confirmation by prescribing 2 “B”
grades whereas only satisfactory service was required for
confirmation also warrants no consideration in view of the fact that
the respondent authorities by circular dated 1.7.2005 have only
prescribed the criteria of satisfactory service i.e. obtaining 2 “B”
grades during the period of probation. In the circumstances the
aforesaid submission of the learned counsel for the petitioners,
being meritless, is rejected.
It is next contended by the learned counsel for the
petitioners that the service record of the petitioners for the entire
period of probation should have been considered by the respondent
authorities before issuing the impugned order dated 12.5.2010
whereas the respondent authorities have only considered the
service record of the petitioners for the period 2005, 2006 & 2007.
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Narendra Kumar Singh & Raj Kumar Jain vs. MPSEB & Ano.
A perusal of the circular dated 1.7.2005, a copy of which has
been filed by the learned counsel for the petitioners alongwith the
petition, clearly indicates that the employee must have 2 “B” grade
ACR’s in two years of the period of probation. Clause (iii) of para
(a) of the aforesaid circular further prescribes that if an
officer/employee fails to get 2 “B” grade out of three years ACRs,
he should be reverted. Apparently the circular is dealing with
normal and regular cases of confirmation of probationers which are
duly considered within the period prescribed by the Rules, i.e
completion of two years probationary service or the extended
period of three years. The circular does not cater to cases like the
present one where the petitioners have been continued on
probation for 5 years. As the very object of keeping an employee
on probation is to examine the performance and suitability of the
individual on the promoted post during the period of probation, the
respondent authorities must consider the service record of the
petitioners for the entire period of probation which includes the
extended period of probation as well as the period of service
rendered on probation by the employee, on which he has no
control, till the date a positive or negative order of confirmation is
passed by the respondent authorities.
In the instant case, while the maximum period of probation
including the extended period as prescribed by the circulars is three
years, the circulars specifically prescribe that the employee shall
remain on probation till a specific order of confirmation is passed by
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Narendra Kumar Singh & Raj Kumar Jain vs. MPSEB & Ano.
the authorities. In such circumstance, the period of probation of the
petitioners includes the entire period of service rendered by them
on probation on the promotional post of Executive Engineer i.e.
from 7.2.2005 till 12.5.2010. It is to be noted that the respondent
authorities are themselves responsible for continuing the petitioners
on probation and not considering their cases for confirmation within
the prescribed period. In such circumstances, I am of the
considered opinion that the respondent authorities are required to
consider the entire service record of the period of probation for the
purpose of considering the case of the petitioners for confirmation
on the post of Executive Engineer.
The learned counsel for the petitioners has relied upon the
judgment of the Supreme Court rendered in the case of State of
Punjab vs. Baldev Singh Khosla AIR 1996 SC 2093, wherein in
para-5 the Supreme Court has held as under:-
“The rule also envisages that during the period
of probation, the appointing authority is required to the
performance of the work done by the probationer to
the satisfaction of the appointing authority. It is seen
that for the year 1991 and 1992 there were adverse
remarks made upon the performance of the
respondent. Obvious for that reason, his confirmation
was not made. On the other hand, the period of
probation was further extended as admitted by the
respondent. Under these circumstances, he cannot
be deemed to have been confirmed. However, since
the authorities had extended the period of probation
and given him chance to improve his performance
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Narendra Kumar Singh & Raj Kumar Jain vs. MPSEB & Ano.
during the year 1993-94, that period was not taken
into consideration before reverting the respondent
from service. The appointing authority is, therefore,
directed to consider whether he is fit to be confirmed,
on the basis of his performance for the subsequent
period and in case it considers that he may be
confirmed, it would be open to them to pass
appropriate orders. In case, even after consideration
of the performance for the year 1993-94, his record is
not found satisfactory, appropriate orders may be
passed and communicated to the respondents. “
The conclusion recorded by me is in conformity with the law
laid down by the Supreme Court in the aforesaid judgment.
In the facts and circumstances as aforesaid, the petitions filed
by the petitioners are allowed to the extent that the impugned order
of reversion dated 12.5.2010 is hereby quashed. The matter is
reverted back to the authorities for reconsideration of the cases of the
petitioners for confirmation on the post of Executive Engineer by
taking into consideration the entire period of service rendered by
them on probation i.e. from 7.2.2005 to 12.5.2010. The aforesaid
exercise be undertaken and completed by the respondent authorities
as expeditiously as possible, preferably within a period of three
months from the date of receipt of a copy of the order passed today.
With the aforesaid direction, the petition stands disposed of.
C.C as per rules.
( R. S. JHA )
JUDGE
mms/-