Narendra Kumar Singh and another vs MPSEB and another

R.S. Jha, J.—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 criteria for confirmation has been prescribed by restricting the consideration of 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 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 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 petitionerson 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 Court of M.P. Through Registrar and others 2001 (91) FLR 626 (SC), and Commissioner of Police, Hubli and another v. R.S. More 2002 (96) FLR 600 (88), 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 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 warrants no consideration in view of the fact that the respondent authorities circular dated 1.7.2005 have only prescribed the criteria of satisfactory service obtaining 2 "B" grades during the period of probation. In the circumstances aforesaid submission of the learned Counsel for the petitioners, being meritle is rejected.

It is next contended by the learned Counsel for the petitioners that service record of the petitioners for the entire period of probation should has been considered by the respondent authorities before issuing the impugned order dated 12.5.2010 whereas the respondent authorities have only considered service record of the petitioners for the period 2005, 2006 and 2007.

A perusal of the circular dated 1.7.2005, a copy of which has been file by the learned Counsel for the petitioners along with the petition, clear 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 with 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 case like the present one where the petitioners have been continued on probation for 3 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 trips 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 specifics order of confirmation is passed by 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 add not considering their cases for confirmation within the prescribed period. In such circumstances, I am of the considered opinion that the respondent authorities area 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, 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 confirmations 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 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.