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Judgment
B.S. Raikote, J
This Writ Petition is filed for quashing the G.O.Ms.No.97 Law (L.A. & J- Courts.C) Department dated 01-06-1998, issued by the Government of Andhra Pradesh, with a further prayer for reinstatement.
The case of the Petitioner is that he was recruited in the Andhra Pradesh State Judicial Service as District Munsif, being duly selected by the competent authority. On appointment, he joined to his duty on 1.6.1995 and as directed, he joined in Andhra Pradesh Judicial Academy for training and after training, he was posted as Munsif Magistrate at Tekkali in Srikakulam District and accordingly, he discharged his duties from 4-10-1995 to the end of 8-5-1997. Meanwhile, he was transferred to Markapur, where he worked upto 6-9-1997 and then proceeded on medical leave upto 19-12-1997. His further case is that he discharged his duties to the satisfaction of his superiors. He stated that he proceeded on leave on medical grounds from 7-9-1997, since he was suffering from Infective Hepetitis and he extended his leave on medical grounds from 28-9-1997 to 24-11-1997. Therefore, he further extended his medical leave for 60 days with effect from 25-11-1997 to the end of 23-1-1998 and on the basis of the Medical Fitness Certificate dated 19-12-1997, he applied for posting orders through respondent No.3, i.e. the District Judge, Ongple Prakasam District. But neither the leave was sanctioned, nor any posting orders were issued to him in spite of several reminders. He stated that he had passed the Accounts Test and Telugu was his second language. This information was furnished to the Registrar (Administration), of the High Court of Andhra Pradesh through the District Judge, Ongolc. He further stated that instead of giving posting orders, he was discharged from service by passing the impugned order, which the petitioner is challenging in this writ petition. He further submitted that no adverse entries were made against him, nor the same were communicated to him during his stay at Tekkali. But the same were pointed out to him, after the probation period of two years and within a continuous period of three years. The communications of the alleged reviews during the period from 4-10-1995 to 31-12-1995 and from 1-1-1996 to 30-9-1996 by respondent No.2, Registrar (Vigilance), High Court of Andhra Pradesh, were without jurisdiction and competency. The same being made on the statistical statements or any data had no relevance in respect of the performance or any lapses on his part. He further submitted that the adverse remark of "poor performance" during the period from 4-10-1995 to 8-5-1997 at Tekkali had no relevance for issuing the impugned order dated 1-6-1998. He further alleged that there was no extention of probation and the probation period of two years had been completed and as such formal orders had to be issued under the statute. But instead of that, the impugned order has been issued for the extraneous reasons and as such the same suffers from mala fides and arbitrariness and hence it is liable to be set aside.
Heard the learned Counsel for the petitioner and the Counsel for the respondents.
The learned Counsel for the petitioner submitted that the petitioner joined on 1-6-1995 as Munsif Magistrate and as such he has completed two years as on 31-5-1997 and three years as on 31-5-1998 and therefore, the petitioner could not have been discharged from service. He relied upon Rules 14 and 16 of the Andhra Pradesh State Judicial Service Rules (in short ''the Rules). On the other hand, the Counsel appearing for the respondents submitted that the petitioner is on trial during probation period and if it is found that the petitioner''s work is not satisfactory, he could be discharged from service. He further submitted that in the instant case, the officer has to undergo a probation for a period of four years from the date of appointment and even according to the showing of the petitioner himself, the petitioner has completed in all only three years. It is also a fact that so far the probation of the petitioner has not been declared. Therefore, he cannot maintain this writ petition. He further submitted that unless, a Judicial Officer completed four years of probation, there cannot be any deemed confirmation or declaration in terms of Rule 16(d) of the Rules and as such, petitioner could be discharged under Rule 16(e) and (f) of the Rules. Under Rule 16(f), at any time before a declaration is issued to the effect that an officer has satisfactorily completed his period of probation, the appointing authority shall in its discretion by order terminate his probation, and discharge from service after giving him a month''s notice or pay in lieu of such notice. In the instant case, the High Court has exercised the discretion in terms of the Rules and discharged him from service by giving him one mouth''s pay in lieu of one month''s notice and, therefore, absolutely there are no merits in the writ petition and the writ petition is consequently liable to be dismissed.
We have given very anxious consideration to the case. In order to appreciate the rival contentions, it is necessary for us to note relevant portions of Rules 14 and 16 of the Rules. The relevant portion of Rule 14 reads as under :
"Rule 14. Probation :--(a) Every person appointed to any category shall, from the date on which he joins duty or reports for training, whichever is earlier be on probation for a total period of two years on duty in that category within a continuous period of three years.''''
From this Rule, it follows that an officer is on probation initially for two years, within a continuous period of three years. Under Rule 16(c), the High Court in its discretion may extend the period of probation of a probationer, for the period, double the period of probation, prescribed in Rule 14. For immediate reference, the relevant portion of Rule 16 (c) we arc extracting hereunder :
"(c) Extention of Probation :--The Court may, in its discretion in deserving cases, extend the period of probation of a probationer. In cases where the probation of a probationer is extended under this sub-rule a condition shall be attached to the order of extension of probation that the probationer''s increment be stopped until he is declared to have satifactorily completed his probation. Such stoppage of increment shall not be treated as a penalty but only as a condition of extension of probation and shall not have the effect of postponing future increments after he is declared to have satisfactorily completed his probation:
Provided that no probationer shall be continued on probation for more than double the period of probation prescribed in Rule 14."
Rule 16(d) further provides for deemed confirmation in the following words :
Approved probationer :--If, at the end of the probation or the period of probation as extended by the High Court, the High Court considers that probationer to be suitable for full membership, it shall issue an order declaring the probationer to have satisfactorily completed his period of probation:
Provided that in respect of a probationer who is otherwise qualified for a declaration of probation if no orders are passed regarding his probation within one year from the date of his completion of the prescribed or extended period of probation, his probation, subject to other provisions of these rules, shall be deemed to have been automatically declared with retrospective effect from the date of completion of the prescribed or extended period of probation and a format order to that effect may be issued for the purpose of record:"
From the above proviso to Rule 16(d), it is clear that in respect of a probationer, if no orders are passed regarding his probation within one year from the date of his completion of the prescribed or extended period of probation, his probation shall be deemed to have been automatically declared with retrospective effect from the date of completion of the prescribed or extended period of probation and a formal order to that effect may be issued for the purpose of record. In the instant case, according to the case set up by the petitioner himself, the petitioner has completed in all three years of probation and his probation is not yet declared and there is no order extending his probation. From this it follows that he has not completed the total period of probation, which is "more than double the period of probation prescribed in Rule 14". Rule 14 prescribes an initial probation of two years within a period of three years and the double the probation of that period comes to four years. In the first proviso to Rule 16(d), in respect of a probationer, if no orders are passed regarding his probation within one year, from the date of his completion of the prescribed or extended period of probation, his probation shall be deemed to have been automatically declared. In other words, by fiction, a person shall be deemed to have been confirmed if his probation is not declared within a period of one year from the double the period of probation prescribed under the Rules, i.e. within four years plus one year, if the probation is not declared, such probation shall be deemed to have been automatically declared with retrospective effect from the date of completion of the prescribed or extended period of probation. In the instant case, the petitioner has not completed "double the period of probation" yet, i.e. probation of four years in all. After completing initial period of probation of two years, even if there is no formal order extending the period of probation, the probation shall be deemed to have been extended for the balance of two years of probation. A deemed confirmation or declaration would result only after the completion of four years, if a formal order is not passed within a period of one year after that four years. In other words, if a probation is not declared within five years from the date of appointment, there shall be deemed confirmation in terms of these Rules. If that is so, within the probation period or within the extended period, the appointing authority considers that the probationer has failed to give satisfaction, such authority shall discharge him from service after giving him one month''s notice or pay in lieu of such notice in terms of Rule 16(e) of the Rules, which reads as under:
"Discharge of unsuitable probationers:--If at the end of the period of probation or of the period of probation as extended by the High Court the appointing authority considers that the probationer has failed to give satisfaction, such authority shall, by order discharge him from service after giving him one Month''s notice or pay in lieu of such notice:
Provided that if the discharge of the probationer is as a measure of punishment on the ground of misconduct, negligence or any specific fault on the part of the probationer, the procedure prescribed in sub-rule (2) of Rule 19 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules shall be followed and it shall not be necessary to give him one month''s pay in lieu of such notice.
Explanation I :-- The decision of the appointing authority that the probationer has failed to give satisfaction shall be based also on his work and conduct till the date of the decision inclusive of the period subsequent to the prescribed or extended period of probation."
Under the Explanation I to Rule 16(e), as extracted above, the decision of the appointing authority that the probationer has failed to give satisfaction shall be based also on his work and conduct till the date of the decision inclusive of the period subsequent to the prescribed or extended period of probation. If that is so, the contention of the petitioner that the authority could not have relied upon the remarks of "poor performance" during the inspection and on the basis of the statistical statements of his work review, cannot be accepted. His further contention that such remarks are irrelevant for the purpose of declaring probation also cannot be accepted. The word "also" found in the Explanation I of Rule 16(e) makes it obligatory on the part of the appointing authority to consider not only the work done and other factors of his suitability to the post and on the totality of the circumstances. If the competent authority finds that the probationer has not completed his probation period "satisfactorily", such authority is entitled to discharge him from service or terminate from service. Rule 16(f) further provides as under :
"Termination of probation :--At any time before a declaration is issued to the effect that probationer has satisfactorily completed his period of probation referred to in Rule 14, the appointing authority shall in its discretion by order terminate his probation and discharge him from service after giving him a month''s notice or pay in lieu of such notice."
In the impugned order, the petitioner''s services have been terminated by exercising the discretion vested in the High Court under Clauses (e) and (f) of Rule 16 of the Rules. Having regard to the Rules that we have referred to above, we find absolutely no irregularities or illegalities in the impugned proceedings. In fact, the similar circumstances, the Hon''ble Supreme Court in the decision reported in Dr. T.C. Pillai Vs. The Indian Institute of Technology, Guindy, Madras, ruled as under :
"7. It is well settled that a probationer ora temporary servant can be discharged if it is found that he is not suitable for the post which he is holding. This can be done without complying with the provisions of Article 311(2) unless the services are terminated by way of punishment. Suitability does not depend merely on the excellence or proficiency in work. There are many factors which enter into consideration for confirming a person who is on probation. A particular attitude or tendency displayed by an employee can well influence the decision of the confirming authority while judging his suitability or fitness for confirmation.
In the present case the Board of Governors consisted of a number of distinguished and well known academicians and teachers. Although there is a mention in the resolution about the confidential reports by the head of the department and the Director, they have not been placed on the record. Even assuming that those reports were favourable so far as the academic work of the appellant was concerned the Board was entitled to take into consideration the other matters which have already been mentioned for the purpose of deciding whether he should be confirmed or whether he should be given a notice of one month as per the terms of the letter of appointment. The Board decided to adopt the latter course. By no stretch of reasoning can it be said that the appellant had been punished and that his services had been dispensed with as a penal measure."
In view of the above law declared by the Supreme Court, we find that if the High Court has taken into account the "poor performance'''' of the petitioner on the basis of the work review assessment and ultimately decided him to discharge from service, such a decision cannot be found fault with, as being based on irrelevant factors, as contended by the petitioner''s Counsel nor can such a decision be termed as one based on bias. No material is placed on record in support of the allegation of bias, if any. In these circumstances, all the contentions urged by the learned Counsel for the petitioner cannot be accepted. However, the learned Counsel for the petitioner relied upon the decision reported in Shri Kedar Nath Bahl v. State of Punjab, 1972 SLR (SC) 320. But in our opinion, the said judgment of the Supreme Court does not support the case of the petitioner. The Hon''ble Supreme Court in this case held as under:
"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 rules 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 to his post as a probationer. See: Narain Singh Ahluwalia v. the State of Punjab and another, (Civil Appeal No.492 of 1963 decided on 29.1.1964), the Accountant General Madhya Pradesh, Gwalior v. Beni Prasad Bhatnagar, (Civil Appeal No. 548 of 1962 decided On 23.1.1964) and G.S. Ramaswamy and others v. the Inspector General of Police Mysore State, (Civil Appeal Nos. 972 to 977 of 1963 decided on 21.1.1964). 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 . term 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 had 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."
The Hon''ble Supreme Court in the above judgment has made it clear that where a person is appointed as a probationer and where a probation is specified, it does not follow that at the end of the specified probation, he obtains confirmation automatically, even if no order is passed in that behalf Their Lordships has pointed out that there cannot be automatic confirmation unless, the terms of the appointment indicate to the effect or the rules provide to that effect. As we have already noted above, according to the Rules, the initial period of probation is two years and the same may be extended upto four years and within one year after that four years, if the probation is not declared the same shall be deemed to have been declared, hi the instant case, it is not in dispute that probation of the petitioner is not declared at any time and he had completed only three years out of the total period of four years. In these circumstances, there cannot be any automatic confirmation as per the law declared by the Supreme Court in the above case. The other judgment of the Hon''ble Supreme Court relied upon by the petitioner''s Counsel do not apply to the facts of this case. The judgment reported in Shiva Kumar v. H.S.E.B. Chandigarh, AIR 1988 SC 1673, is a case in which the probation of the officer was declared after one year of the declaration of probation of his juniors. The Hon''ble Supreme Court pointed out that once his probation is declared, such a declaration would have the retrospective effect, on the basis of the respective date of appointment of the employee, therefore, the petitioner in that case would not have been shown below to his juniors in the seniority. From this fact it follows that this judgment docs not assist the case of the petitioner.
For the above reasons, we do not find any merits in the writ petition and accordingly, we pass the order as under:
The writ petition is dismissed, but in the circumstances without costs.