Archana Sharma vs Union Of India & Ors

Amrita Sinha, J

The petitioner was promoted as a Manager of the Garden Reach Shipbuilders Engineers Ltd. by an order dated 30th June 2018. The petitioner was to stay on probation for a period of one year from the date of promotion subject to satisfactory performance. Her promotional post was to be confirmed, in writing, with effect from 1st July 2019 with notional seniority from 16th June 2018.

By a communication dated 17th July 2019 the period of probation of the petitioner in the promotional post as Manager was extended for a further period of six months with effect from 1st July 2019. The reasons mentioned for extension of the probationary period were non-satisfactory performance, inordinate delay in procurement of brought-out materials, regular late coming to office and availing frequent leaves. The petitioner was given another opportunity to improve her performance in her extended period of probation.

The petitioner submits that the performance appraisal report speaks in her favour. The petitioner has been found to be very competent, knowledgeable and experienced. She was found to be hard-working, sincere with good devotion to assigned work. The performance appraisal report mentions that she was found making mistakes in not complying to purchase procedures/rules/guidelines often resulting in delayed receipt of materials. She is over confident of her competency. It was opined that with proper motivation, counselling and guidance the officer can perform better. The petitioner was awarded 73.1 marks by the Review by Normalization/Moderation Committee. The petitioner submits that she is liable to be confirmed in her probationary post with 73.1 marks.

The learned advocate appearing on behalf of the respondents draws attention of the court to the Promotion Rules for Officers. The probationary period as mentioned in the said Rule says that every officer shall be on probation for a period of one year from the date of promotion, which may be extended for a further period of one year in stages of six months at a time. After completion of probation for initial period of one year the performance of the officers will be reviewed as per the prescribed pro-forma. There is also a provision that if a probationary officer is not making satisfactory progress during his extended period of probation he will be reverted to the lower grade from which he was promoted.

The respondents rely upon the performance appraisal discussions wherein in the second quarter of review it was observed that there was a lot of material shortage at the time of despatch and the petitioner was to ensure that there is no shortage of materials for despatch in each and every month. The officer was advised to improve the attendance and the time of attending the office. The officer was also advised to ensure that all the brought-out materials to be in advance stock as per the requirement. The petitioner tendered that the brought-out items has been finalized for two years rate contract till 3rd October 2020 and as per the purchase order the vendors have started work. It was ensured by the petitioner that from November onwards there will be no shortage of brought-out items.

The petitioner accepted that for future requirements the stocks should be maintained and she also accepted that she will try to improve both her attendance and incoming time.

In the fourth quarter review, the petitioner was again directed to ensure that all the brought-out items to be in stock as per the requirement and there is no short fall in future. Regular follow up with the vendors was to be maintained by the petitioner to get the materials on time. The petitioner accepted the comments of the authority. As regards recommendation for promotion the respondents have taken a decision to extend the probationary period of promotion of the petitioner for a further period of six months.

The learned advocate also relies upon a letter dated 18th July 2019 written by the petitioner to the General Manager of the Company wherein she requested for giving her a chance to be a part of other department by which she can acquire multi-dimensional knowledge and skill-development so that she is able to shoulder higher responsibilities.

The respondents submit that as there is no challenge to the Rules for promotion which permits the employer to extend the probationary period of an officer on promotion, accordingly, the writ petition itself will not be maintainable.

The respondents rely upon the judgement delivered by this court in the matter of, Registrar, Appellate Side, High Court, Calcutta & Ors. -vs- Jayanta Kumar Dasgupta & Ors. reported in 2005 (3) CHN 52 para 9 wherein the court observed that it is an accepted proposition that while on probation, an employee cannot claim any right to the post. If the period of probation is not extended, if the probationer is not allowed to continue in service after the period of probation, the probationer cannot question such an action by the employer, unless a stigma is attached. Such right of the employer, if free from any stigma, is unassailable.

The respondents further rely upon the judgement delivered by the Hon'ble Supreme Court in the matter of- State of Punjab & Ors. -vs- Rajesh Kumar reported in (2006) 12 SCC 418 para 5 wherein the court held that a probationer is on test and a temporary employee has no right to the post. The period of probation gives time an opportunity to the employer to watch the work ability, efficiency, sincerity and competence of the servant. In the event, the employee is not found suitable for the post, the employer always reserve a right to dispense with his service in any manner during or at the end of the prescribed period which is call the period of probation.

The respondents also rely upon a judgement delivered by the Hon'ble Supreme Court in the matter of State of Punjab -vs- Constable Avtar Singh reported in 2008 (7) SCC 405 on the self-same principle that the employer has a right to test the performance of an employee during the period of probation.

After hearing the submissions made on behalf of both the parties and upon perusal of the materials placed before this court it appears that the petitioner was on probation upon promotion with effect from 1st July 2018. The probationary period was one year. The promotional policy of the Company provides for extension of the period of probation for a further period of one year, in stages of six months at a time, to judge the performance of the officer.

In the instant case the petitioner's probationary period has been extended by a further period of six months for the purpose of judging her performance. The petitioner has herself admitted that there are certain lapses on her part and she was striving to get over the same. The order by which the probationary period of the petitioner has been extended does not appear to be stigmatic. In the said order it has been clearly mentioned that an opportunity was given to her to show improvement in her performance. The employer certainly has the right to judge the performance of an employee prior to confirming the employee in the promotional post.

A writ of mandamus ought not to be issued directing the employer to confirm the service of an employee whose performance is not satisfactory.

An officer who is on probation does not have any vested right to the promotional post. His/her service is liable to be confirmed only upon satisfactory performance in the promotional post and not otherwise.

In the case at hand the respondents have submitted that they are agreeable to extend all sorts of co-operation to the petitioner to help improve her performance so that she may excel in her duty and consequently be confirmed in her promotional post.

I do not find any reason to interfere in the writ petition.

W.P No. 17695 (W) of 2019 stands dismissed.

No costs.

Urgent photostat certified copy of this order be supplied to the parties, if applied for, as early as possible.