Probation not automatically confirmed if recruitment process tainted; discharge valid pending inquiry outcome.

ORDER (ORAL)

PER: RAKESH KUMAR GUPTA, MEMBER (A)

1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:

a) To quash and set aside the impugned discharge Order No. P/1/7/16/2022-23/2016 dated 02.02.2023 (Annexure A1) passed by the 3^rd Respondent vide which the applicant has been discharged from the services of the council with immediate effect.

b) To quash and set aside the impugned discharge Order No. ROHCS/2864/22-23/1261 dated 06.02.2023 (Annexure A2) passed by 4^th Respondent vide which the applicant has been relieved from the duties of Regional Occupational Health Centre with immediate effect.

c) To issue a consequential direction to the Respondents No.2 and 3 to reinstate the applicant to his original post forthwith with continuity of service, back wages from the date of discharge i.e., 06.02.2023, till the date of reinstatement.

d) To grant such other relief/s as this Tribunal deems fit to grant to the applicant in the interests of justice.

2. The facts of the case as averred by the applicant in his pleadings, are as follows:

a) The 3^rd Respondent published a vacancy circular vide Ref No. 1/Recruit./Admn./NIOH/2018-19 dated 21.08.2018 (Annexure-A4). Three categories of posts were advertised including four posts of Office Assistant. The applicant fulfilled all the eligible criteria and, therefore, submitted his application in the prescribed format for the post of Office Assistant. A written test was held for the applicant on 10.03.2019, followed by a skill test held on 23.03.2019. On 26.04.2019 Annexure- A5), the 3^rd Respondent issued a Memorandum No. 1/RCT/OA/UR/2019-20/339 offering the applicant ‘provisional appointment to the post of Office Assistant’ under UR category. As per clause 1 on page 1 of the said memorandum ‘the appointment is temporary but likely to continue’.

b) The applicant joined the post of Office Assistant on 01.05.2019 and was working in the said post diligently, honestly and to the best of his ability and to the satisfaction of his superiors. The applicant has been graded very highly in the two APARs for the period from 01.05.2019 to 31.03.2020 and 01.04.2020 to 31.03.2021.

c) In terms of clause 2 of the Memorandum dated 26.04.2019, the applicant was to be on probation for a period of two years from the date of joining duty. His probation period could be extended at the discretion of competent authority and during the probationary period, the services of the applicant could be terminated at any time without giving any notice and without assigning any reason. The applicant completed the mandatory probationary period of two years by 30.04.2021.

d) The applicant brings to the notice of this Tribunal the instructions of Ministry of Home Affairs dated 15-04-1959 relating to confirmation of probationers. The said instructions are extracted below :

“Confirmation of probationers - A person appointed against a permanent post as a direct recruit with definite conditions of probation is to be confirmed in the grade with effect from the date on which he successfully completes the period of probation. The decision whether he should be confirmed or his probation extended should be taken soon after the expiry of the initial probationary period, i.e., ordinarily within 6 to 8 weeks and communicated to the employee together with the reasons in case of extension. Even though the meetings of the DPC may be held after the termination of the period of probation of direct recruits, a person appointed against a permanent post with definite conditions of probation is to be confirmed in the grade with effect from the date on which he successful