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Judgment
Jaishree Thakur, J.—The present writ petition has been filed under Article 226 of the Constitution of India challenging the order dated 20.10.1999 seeking a writ in the nature of certiorari to quash the order dated 20.10.1999 by which the petitioner has been reverted to the post of Development Officer by invoking regulation 16(2) of the Life Insurance Corporation of India (Staff) Regulations, 1960 (for short ''the Regulations of 1960'').
In response to an advertisement, the petitioner applied to the post of Development Officer with Life Insurance Corporation and as per the procedure prescribed, he sat for a written test and on clearing the same, he was interviewed. After being declared successful in both the written test and the interview, the petitioner was temporarily appointed on the post of Development Officer (Apprentice) in the year 1986. He was confirmed on the said post in the year 1988. In the year 1998, there were certain vacancies in the cadre of Assistant Branch Manager (Sales). Respondent-LIC issued a policy for promotion of Development Officer to the cadre of Assistant Branch Manager (Sales). The petitioner was considered by the Department for promotion and in this respect he was also interviewed. His confidential reports were also considered at the time of the interview and, thereafter, a panel was prepared and as per the order dated 6.10.1998, he was promoted on the post of Assistant Branch Manager (Sales) and he was given posting order as Assistant Branch Manager (Sales), Jaitaran. In pursuance to the order dated 14.10.1998, the petitioner joined as Assistant Branch Manager (Sales) at Jaitaran on 24.10.1998.
The petitioner continued to work on the post of assistant branch manager when he was served with a communication dated 20.10.1999 in exercise of powers conferred in regulation 16(2) of the Regulations 1960 reverting him to the post of Development Officer from the post of Assistant Branch Manager (Sales). Aggrieved against the said order of reversion, the present writ petition has been filed.
In reply thereto, the respondent had submitted that when an employee is promoted to higher post, he is treated on probation for a period of one year and the competent authority may in its discretion, extend such probation upto one year. The regulation provides that the employer can revert an employee on probation without giving any notice and such reversion by invoking 16(2) of the Regulations of 1960 cannot be termed as imposing punishment. Is is also contended that two half yearly confidential reports were called from the Reporting and Reviewing Officers of the petitioner for the period from 24.10.1998 to 23.4.1999 and 24.4.1999 to 23.10.1999 because his performance and conduct as Assistant Branch Manager (Sales) was not satisfactory.
I have heard learned counsel for the parties and have perused the record of the case.
Mr. Anil Bhandari, counsel for the petitioner has argued that the reversion of the petitioner from the post of Assistant Branch Manager (Sales) by invoking regulation 16(2) of the Regulations, 1960 is illegal unjust against the principles of natural justice and deserves to be set aside. It is further submitted that the petitioner was promoted vide order dated 6.10.1998 and posting order was issued on 14.10.1998. As per regulation 16, the probation period was only for a period of one year which expired on 5.10.1999 and on the expiry of the probation period, he attains the status of a substantive employee on the post of Assistant Branch Manager (Sales). By invoking regulation 16(2), the respondents had acted illegally and without jurisdiction since on 24.10.1999, the day he was reverted he was no longer a probationer. Moreover, it is contended by the counsel appearing for the petitioner that the respondents had acted unfairly Since as per their own stand, they had taken the annual annual confidential reports pertaining to the period 24.10.1998 to 23.4.1999 and 24.4.1999 to 23.10.1999, whereas the order of reversion had already been passed on 20.10.1999.
It is further argued that reversion of an employee by invoking regulation 16(2) amounts to imposition of major penalty and such penalty cannot be imposed without affording the petitioner an opportunity of hearing and thus, the order dated 20.10.1999 is unsustainable in the eyes of law.
The counsel for the petitioner has relied upon the judgment rendered in the State of Punjab Vs. Dharam Singh, AIR 1968 SC 1210 : (1968) 17 FLR 9 : (1968) LabIC 1409 : (1968) 3 SCR 1 to contend that where service rules fixed a certain period of time beyond which the probationary period cannot be extended and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication.
Reliance has also been placed on Suraj Prasad Chaturvedi Vs. State of Rajasthan, (1992) 1 WLC 107 : (1991) WLN 516 , to contend that after the completion of the period of probation, if any orders of confirmations are not passed, an employee would stand automatically confirmed and would be entitled for all the consequential benefits that arise.
Further the counsel for the petitioner has placed relied upon V.P. Ahuja v. State of Punjab and Ors., JT 2000 (3) SC 1 to contend that if an employee who is a probationer, his services are terminated during probation period without holding an enquiry nor giving an opportunity of being heard, the order passed would be stigmatic and punitive and such order would be liable to be set aside.
Placing reliance upon the aforesaid judgments, the counsel for the petitioner has contended that the order passed by invoking regulation 16 (2) of the Regulation, 1960, did not afford any opportunity of hearing to the petitioner and the said order is de hors the principles of natural justice and thus, should be set aside. Further reliance has been placed upon (1) Chandra Prakash Shahi Vs. State of U.P. and Others, AIR 2000 SC 1706 : (2000) 5 JT 181 : (2000) 4 SCALE 209 : (2000) 5 SCC 152 : (2000) SCC(L&S) 613 : (2000) 2 UPLBEC 1661 : (2000) AIRSCW 1816 : (2000) 4 Supreme 510 , (2) Devendra Bansal v. Board of School Education, Haryana and Anr. 1991 (1) SLR 703 and (3) K. Sehgal v. The Chairman, State Bank of India and Ors., 1987 (1) SLR 440.
Per contra, the counsel for the respondents has argued that the provisions of regulation 16(2) of Regulations, 1960 were rightly invoked since the petitioner''s work was found unsatisfactory. It is further contended that the petitioner was promoted on the post of Assistant Branch Manager (Sales) vide order dated 5.10.1998 and the said order clearly specifies that the "promotions shall take effect from the date of taking charge in the higher cadre." It is contended that the petitioner joined as Assistant Branch Manager (Sales), Jaitaran on 24.10.1998 and as such his probation period would be counted from the date when he took charge and not from the date when the office order dated 6.9.1998 was issued. The probation period of the petitioner was to expire on 23.10.1999, whereas the office order reverting the petitioner was issued on 20.10.1999 before the expiry of period of one year.
It has been further argued that the order of reversion cannot be deemed to be punitive in nature and it was not necessary to hold an inquiry as such before reverting him. His annual performance reports were taken into account while deciding whether or not to confirm the petitioner on the post and since his performance on the said post was found unsatisfactory, the order of reversion was duly passed.
The counsel for the respondents has placed reliance upon State of Punjab and Others Vs. Sukhwinder Singh, AIR 2005 SC 2960 : (2005) 6 JT 170 : (2005) 141 PLR 402 : (2005) 5 SCC 569 : (2005) SCC(L&S) 705 : (2005) 2 SCR 580 Supp : (2005) 3 SLJ 186 : (2005) AIRSCW 3477 : (2005) 5 Supreme 68 to contend that period of probation gives time and opportunity to the employer to watch the work, ability, efficiency, sincerity and competence of the employee and if he is not found suitable for the post, such employee can be terminated or discharged without holding of a preliminary inquiry. It was held in this case that:
"It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any thyme or reasons. Where a superior officer, in order to satisfy himself whether the employee concerned should be continue in service or not makes inquiries for this purpose, it would be wrong to hold that a the inquiry which was held, was really intended for the purpose of imposing punishment. If in every case where some kind of fact-finding inquiry is made, wherein the employee is either given an opportunity to explain or the inquiry is held behind his back, it is held that the order of discharge or termination from service is punitive in nature, even a bona fide attempt by the superior officer to decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The decision to discharge a probationer during the period of probation or the order to terminate the service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry "for the purpose of imposing punishment" and an order of discharge or termination of service as a result thereof "punitive in character", the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong."
Further reliance has been placed on Municipal Corporation, Raipur Vs. Ashok Kumar Misra, AIR 1991 SC 1402 : (1991) 2 JT 599 : (1991) 2 LLJ 343 : (1991) 3 SCC 325 : (1991) 2 SCR 320 : (1991) 2 UJ 170 to contend that on expiry of period of probation, the probationer cannot be deemed to have been confirmed and an express order is required for confirmation.
Rule 16 of the Regulations of 1960 reads as under:
Probation on Promotion:
(1) An employee promoted to a higher post shall be treated as on probation in the higher post for a period of one year in the case of promotions to posts belonging to Classes I and II and 6 months in other cases. Provided, however, that the competent authority may in its discretion extend the period of probation, but in no case shall the total period of probation exceed- (a) in the case of promotions to posts belonging to Classes I and II 2 Years, (b) in other cases 1 year.
(2) An employee on probation shall be liable to be reverted without notice at any time.
(3) During the period of probation an employee retains his lien on his lower post and the period shall count as permanent service for all purposes.
The contention raised by Mr. Anil Bhandari counsel for the petitioner is that after expiry of the maximum period of probation of one year, the petitioner will be deemed to have been confirmed and his services could not have been terminated without holding a regular departmental inquiry. In my opinion, the submission of the learned counsel is wholly untenable and deserves to be rejected. In the present case, Regulation 16(2) of the said regulations provides a minimum period of one year from the date of assumption of charge as the probation period which is extend able, in the discretion of the Competent authority, to a further period not exceeding one year. It is further discernible from the aforesaid provision that the employee promoted to the higher post may be reverted to the lower post without notice and without assigning any reason during the period of probation. The confirmation is a positive act of the competent authority which is a declaration of satisfactory performance of an employee during the period of probation and, therefore, it is not a case where the principle of deemed confirmation can be applied. The use of word ''may'' in clearly indicates that satisfactory completion of probation does not lead to automatic confirmation. The authorities have a right to extend the probation to a maximum period of one year and only on being satisfied would confirmation ensue. Therefore, deemed confirmation as propounded in State of Punjab v. Dharm Singh, Suraj Prasad Chaturvedi vs. State of Rajasthan, Supra, cannot be invoked in the present case and the petitioner cannot be deemed as confirmed simply because period of his one year probation had expired on 5.10.1999 i.e. taking the date of 6.10.1998 as the date of promotion when letter was issued. The question whether the period of one years probation would expire on 5.10.1999 or 23.10.199 is really not relevant since there is no deemed confirmation.
The contention of the counsel for the petitioner that the authorities were prejudiced against him since the annual confidential report pertaining to the period 24.10.1998 to 23.4.1999, 24.4.1999 to 23.10.1999, has been looked into while the order reverting him was passed on 20.10.1999. This too is without basis as the respondent were maintaining biannual six monthly reports. The petitioner joined as Assistant Branch Manager on 24.10.1998 and so the reports were prepared for the period 24.10.1998 to 23.4.1999, 24.4.1999 to 23.10.1999. Even though the order of reversion was passed on 20.10.1999, the competent looking into his overall performance authorities came to revert him rather than extend the probation period. It can not be said that the authorities were prejudiced.
The contention raised by the counsel for the petitioner that the reversion is bad in the eyes of law since no domestic inquiry was held is also not sustainable. In Union of India (UOI) and Others Vs. P.S. Bhatt, AIR 1981 SC 957(2) : (1981) 42 FLR 359 : (1981) 1 LLJ 485 : (1981) 1 SCALE 626 : (1981) 2 SCC 761 : (1981) 1 SLJ 212 : (1981) 13 UJ 219 it has been held that:
"7. The law in relation to termination of service of an employee on probation is well-settled. If any order terminating the service of a probationer being order of termination simpliciter without attaching any stigma to the employee and if the said order is not an order by way of punishment, there, will be no question of the provisions of Article 311 being attracted.". In the present case the reversion order dated 20.10.1999 is an innocuous order and does not cast any stigma."
Therefore in view of the above, I am of the opinion that the petitioner was not confirmed on the higher post as claimed by him and respondents were well within the right to revert the petitioner by invoking 16(2) of the regulations of 1960 since his performance was not up to the mark.
The above noted writ petition is devoid of any merit and is hereby dismissed.