A.K. Vasudeva vs The State of Himachal Pradesh and Others

R.S. Pathak, C.J.—The Petitioner is a trained graduate teacher who was appointed on June 30, 1956 as Headmaster in the Lower Middle School, Deothi, Solan. According to the letter of appointment, he was to be on probation for one year and his confirmation was to be subject to his work and conduct being found satisfactory. It appears that the Petitioner, like a large number of other teachers similarly situated, was not confirmed upon the expiry of the period of probation mentioned in the letter of appointment. Subsequently, a Departmental Promotion Committee was constituted by the Government for the examination of the cases of the teachers, and it seems that on May 17, 1966, the Committee recommended that a number of teachers should be confirmed with effect from April 1, 1961 and a number of others, including the Petitioner, should be confirmed with effect from April 1, 1963. It is urged that the Petitioner should also have been confirmed with effect from April 1, 1961, as in the case of other teachers, and there was no reason why his claim in that respect should have been overlooked while teachers who were junior to him should have found favour with the Committee and confirmed with effect from April 1, 1961. Reference has been made to an integrated seniority list of trained graduates in which the Petitioner was shown at serial No. 137 and to a subsequent seniority list of trained graduate teachers, where the Petitioner was brought down to serial No. 343. Another contention on behalf of the Petitioner is that he should rightly have been confirmed with effect from June 30, 1957, on the expiry of the period of one year for which, according to the terms of his appointment, he was to be on probation. My attention has been drawn to a list (Annexure ''C to the writ petition) which sets out the names of a number of similar teachers who were confirmed immediately on the expiry of the period mentioned in their terms of appointment. It is urged that there is no ground for not confirming the Petitioner similarly on the expiry of his period of probation, and in omitting to do so the Respondents have discriminated against the Petitioner. Upon these contentions, the Petitioner prays for relief against his confirmation with effect from April 1, 1963. He also claims that he should be considered for the Selection Grade of Rs. 250-10-350.

As regards the first contention, reliance has been placed upon the view taken by Tatachari J. in Krishan Chand Aggarwal v. The Government of Union Territory (Civil Writ Petition No. 107 of 1968, decided on July 24, 1970). The Petitioner in that case was shown in the same list as that impugned in the present writ petition and his grievance proceeded upon similar lines, that is to say, that the Departmental Promotion Committee should have recommended his confirmation with effect from April 1, 1961 and not later. The learned Judge held that there was no valid basis for the Committee holding that the Petitioner there was entitled to confirmation with effect from a date subsequent to April 1, 1961. Proceeding on the reasoning adopted by the learned Judge in that case, and in the absence of any material on the record to show why a different view should be taken, I hold that the Petitioner is similarly entitled to have his name considered for confirmation with effect from April 1, 1961. Learned Counsel for the Respondents has failed to refer to any material showing why a distinction should be drawn between those recommended by the Departmental Promotion Committee for confirmation with effect from April 1, 1961 and the Petitioner. If the Petitioner was considered fit for confirmation by the Committee, then in the absence of anything to indicate to the contrary, the Petitioner should also have been considered fit for confirmation with effect from April 1, 1961.

On behalf of the Respondents reliance was placed on the proviso to Rule 9 of the Himachal Pradesh Education Department Class III Services, Recruitment, Promotion and Certain Conditions of Service Rules, 1962. The proviso declares that the total period of probation including extension if any, shall not exceed three years. In my opinion, the proviso cannot be employed at all in this case. It must be read as part of Rule 9, and when so read it appears clearly to refer to only those members of the service who were appointed pursuant to and under those rules.

The other contention raised on behalf of the Petitioner is that inasmuch as a number of teachers were actually confirmed on the expiry of the period of probation of one year, the Petitioner should also have been confirmed with effect from June 30, 1957. That plea, it appears, has not been taken by the Petitioner in the writ petition and therefore he is not entitled to raise it. The case set up by the Petitioner is that upon the expiry of the period of probation he stood confirmed automatically. That position is not maintainable in view of the law laid down by the Supreme Court in The State of Punjab v. Dharam Singh AIR 1968 S.C. 12101. On behalf of the Petitioner reliance is placed on The Chief Conservator of Forests v. D.A. Lyall AIR 1961 All. 4502. It was laid down by the Allahabad High Court in that case that a Government servant on probation was not to be deemed to be confirmed on the expiry of the period of his probation if no order confirming him in a substantive post or extending his period of probation was passed by the competent authority. It seems to me that the observations made by the Allahabad High Court in that case do not carry the case of the Petitioner any further. The law laid down merely provides that upon the expiry of the period of probation, the employee cannot claim that he stands confirmed automatically. It is urged that there is scope for contending, on the basis of that decision, that the Petitioner should be considered for confirmation on the expiry of one year on the merits of his case having regard to his conduct and the quality of his work during the initial period of his probation. That again is a plea which is not open to the Petitioner as the question does not arise when his entire case is that he stood automatically confirmed on the expiry of his period of probation.

Accordingly, the writ petition is allowed. The confirmation of the Petitioner with effect from April 1, 1963 is quashed. The Respondents are directed to redetermine the date of confirmation in respect of the Petitioner and to place the Petitioner at the appropriate place in the seniority list of Trained Graduate Teachers pursuant to such determination. The Respondents are also directed consequently to consider the Petitioner for the award of the Selection Grade of Rs. 250-10-350, if the Petitioner is found qualified and eligible. In the circumstances of the case, there is no order as to costs.