0

The probationer cannot be deemed to have been confirmed, merely because the probation period has ended by efflux of time: High Court of Delhi

If in a rule or an order of appointment a probation period is specified with power to extend probation and the probationer is allowed to continue beyond the prescribed period of probation, he cannot be deemed to be confirmed and at the end of the probation period, he merely becomes qualified or eligible for substantive appointment. The exception to the rule is where there is a provision for initial probation and extension thereof but a maximum period of extension is provided, in which case the presumption about continuation beyond the probation period as the probationer stands negatived. This was held in PRADEEP KUMAR SINGH v. UNION OF INDIA & ANR[W.P. (C) 1010/2019] in the High Court of Delhi by single bench consisting of JUSTICE JYOTI SINGH.

Facts are that the petitioner  Petitioner had applied for a job in CEL through proper channel and furnished NOC, as required. On receiving the offer letter from CEL, he undertook various projects with dedication, he had also flagged many inconsistencies which led to hostility from the CMD towards the Petitioner. Petitioner was served with a termination letter,  and when he represented against the illegal termination to the CMD and Board of Directors of CEL, on getting no response he filed the present petition.

The counsel for the petitioner submitted the appointment of the Petitioner was on a permanent absorption basis and his services could not be terminated abruptly by a simple order of termination, without following the due process of law. The termination is malafide and a result of the personal vendetta of the CMD, on account of the fact that Petitioner pointed out several statutory and procedural violations in CEL.

The counsel for the respondent submitted that it is a settled law that an assessment of an employee based on his performance during probation cannot be reviewed in judicial proceedings. Petitioner was liable to be terminated during the probationary period, without notice and without assigning any reason. The allegations of bias and malafides leveled by the Petitioner against the CMD are completely baseless.

The court made reference to the judgement by the Supreme Court in the case of  G.S. Ramaswamy vs. The Inspector General of Police, Mysore State, Bangalore, wherein the following observations were made, “It has been held in that case that a probationer cannot after the expiry of the probationary period automatically acquire the status of a permanent member of a service unless of course, the Rules under which he is appointed expressly provide for such a result. Therefore even though a probationer may have continued to act in the post to which he is appointed on probation for more than the initial period of probation, he cannot become a permanent servant merely because of efflux of time, unless the Rules of service which govern him specifically lay down that the probationer will be automatically confirmed after the initial period of probation is over.”

The court also made reference to the case of  V.K. Mittal and Ors. vs. Registrar General, High Court of Delhi and Ors., from which the court had drawn the following observations, “ if in a rule or an order of appointment a probation period is specified with power to extend probation and the probationer is allowed to continue beyond the prescribed period of probation, he cannot be deemed to be confirmed and at the end of the probation period he merely becomes qualified or eligible for substantive appointment.”

Considering the facts of the case and keeping in mind the provisions of law applicable the Court held that, It was elaborately explained that the Petitioner delayed preparation of the rosters for carrying out promotions, failed to perform his duties as regards the work related to online ACRs delayed the deadlines to meet the MOU targets, etc., which are shortcomings related to work and thus the termination cannot be held to be actuated by malice. Thus dismissing the petition.

Click here to read judgement

Leave a Reply

Your email address will not be published. Required fields are marked *

Open chat