Order on Board

01 .03.2021

1. The challenge made in this writ petition is to the order dated 01st August 2011 passed by Respondent No.l whereby the petitioner was removed from service of establishment of the High Court as per Condition no.2 of the appointment order dated 27th September, 2005 (Annexure P-1).

2. Learned counsel for the petitioner would submit that the petitioner was initially appointed on 27.09.2005 to the post of Peon on probation of two years and subsequently after expiry of two years, by order dated 04th December, 2007 the probation period was further extended for one more year with effect from 29.09.2007 which automatically came to be ended on 28.08.2008. Thereafter the petitioner continued in the establishment and worked till the date of order of removal i.e., 01st August, 2011. He further submits that as per Rule 10(1) of the Chhattisgarh High Court Establishment (Appointment and Conditions of Service) Rules 2003 the period of capping for probation is 3 years and if some one worked beyond the probation period of 3 years, then in such a case, as per the law laid down by the Supreme Court in the State of Punjab versus Dharam Singh AIR 1968 SC 1210, the deeming fiction of continuing in the probation will not be applicable and the employee would be considered as a permanent one. Therefore, the termination of service of like nature without holding any enquiry or giving an opportunity of hearing to the petitioner would be bad in law and it requires to be set aside.

3. Per contra, learned counsel appearing for respondents 1 & 2 would submit that Rule 10(1)(2) of High Court Establishment Rules does contemplate that the confirmation is automatic on expiry of two/three years of probation, therefore, if the the confirmation was subject to certain norms, then even after expiry of period of probation she would continue to be a probationer and there is no deemed or automatic confirmation on expiry of period of probation and the act of confirmation was required to be certified by the department and as such the confirmation order can be passed only after following the mandatory requirements. Therefore, having not been done so as per Rule 10(1)(2), the deeming confirmation cannot be set into motion. He further placed reliance in (1974) 2 SCC 831 and (1998) 3 SCC 321, and would submit the petitioner is not entitled to any relief as claimed for.

4. Heard learned counsel for the parties and also perused the records.

The record would show that on 27th Sept. 2005 (Annexure P-1) the petitioner was appointed on probation and Clause (2) of the appointment letter reads as under:

“2. Their services shall liable to be terminated without any intimation during the probation period.”

5. Subsequently the petitioner's service was continued and on 04th December 2007 (Annexure P-2) her probation period of two years was further extended for another one year which came to be ended on 28.09.2007 thereby the period of probation continued up-till 28.8.2008. Subsequently the removal order dated 01st August 2011 would show that the petitioner continued in service till the year 2011. In respect of probation, Rule 10(1) of the Chhattisgarh High Court Establishment (Appointment and Conditions of Service) Rules, 2003 would be relevant here and reads as under:

10(1) Probation -

(a) A person appointed to a post by direct recruitment shall, from the date on which he joins his duties, be on probation for a period of two years.

(b) A person appointed to a post by promotion shall, from the date on which he joins his duties, be appointed in officiating capacity for a period of two years.

(c) The Chief Justice may, at any time, extend the period of probation of officiation as the case may be, but the total period of probation or officiation as the case may be, shall not ordinarily exceed three years.

(d) The Chief Justice may, at any time, during or at the end of period of probation or officiation as the case may be, terminate the services of a direct recruit, or revert