1973 Supreme(Raj) 83

Rajasthan High Court
Shinghal, J.
Kailash Chandra Sethia - Appellant
Versus
Rajasthan State Electricity Board, Jaipur - Respondents
S.B. Civil Writ Petition No. 1577 of 1972
Decided On : April 09, 1973

Headnote:(a) Constitution of India, Art. 311(2)—Appointment on probation—No automatic confirmation on expiry of period, unless same provided in rules—Period of probation may be extended with retrospective effect—Suspension during probation period and later termination of service with-out charge or enquiry, no stigma.(b) Civil Servants—Appointment on probation—No automatic confirmation on expiry of period unless same provided by rules—Period of probation may be extended with retrospective effect— Suspension during probation and later termination of service without charge or enquiry no stigma.

       A probationer cannot, after the expiry of the probationary period, automatically acquire the status of a permanent member of a service, unless of course if rules under which he is appointed expressly provide for. such a result. Therefore even though a probationer may have continued to act on the post to which he was appointed by probation for more than the initial period of probation, he cannot become a permanent servant merely because of the efflux of time.

       Held = Regulation 30 expressly provided that a probationer shall be confirmed in his appointment at the end of the period of his probation, if, inter alia, the Board was satisfied that he was fit for confirmation. It was therefore the requirement of the regulation that an order of confirmation should have been passed by the Board, after examining the question whether the petitioner was fit for confirmation.

       Held = Regulation No. 29 deals with the question of unsatisfactory progress during probation, and while it provides for removal from service in a case where it appears to the Board at any time during or at the end of the period of probation that the employee has not made sufficient use of his opportunities or that he has failed to give satisfaction, it empowered the Board to extend the period of probation up to one year.

       Held = It has been argued that as the initial period of probation expired on 26-9-1971, the Board committed an illegality in extending it by its order dated 26-5-1672. with retrospective effect from 27-9-1971. This argument is futile because, as has been stated, the petitioner continued to be on probation on 26-9-1971, and, in the absence of any order of confirmation under regulation 30, he did not become a permanent employee of the Board.

       Held = The fact therefore remains that the petitioner continued to be on probation when the impugned order was passed by the Board on 26-9-1972 terminating his services. The expression "unsatisfactory" has no doubt been used in the order, but that could not be avoided as it was an express condition of paragraph 3 of the terms and conditions of the petitioners employment that he was liable to be removed from service if his work was found to be "unsatisfactory". The order has therefore been passed in terms of the conditions of service, and is quite unexceptionable, as it served the purpose of making it quite clear that the termination has been ordered only on the ground on which it is permissible under the terms and conditions of the appointment.

       Held = Even if a charge sheet is framed, and a formal departmental inquiry against a temporary or probationary employee is initiated, the disciplinary authority may take the view that it would not be necessary or expedient to terminate the employment by way of penalty, and take recourse to termination in accordance with the terms or the rules of his employment. The disciplinary authoritys motive in doing so would not be material so long as the order is not founded on any earlier inquiry or a finding therein.

       Held = This was a case in which the Board was required to take a decision whether or not to retain the services of the petitioner on a substantive basis when the maximum period of three years probation was to expire. The Board had before it some earlier complaints against the petitioner, as well as the aforesaid monthly reports of his performance. It cannot therefore be blamed if it thought it advisable, under these circumstances, to invoke the condition contained in paragraph 3 of the petitioners order of appointment which provided specifically that if his work was found to be unsatisfactory, he would be liable to be removed from service during or at the end of the probationary period, and passed the impugned order. (Paras 5, 8,9, 11.12, 13, 20 and 23)