- (1.) G. P. Mathur, J. The petitioner Parvesh Kumar Gupta was engaged as an apprentice Development Officer with effect from 6-10-1986 for a period of one year and he was given training in Divisional Office Meerut and in a Rural Branch Office. An appointment order was issued appointing the petitioner as Development Officer on probation for a period of one year and the period of probation was to commence from 1-9-1987. The period of probation was further extended by the order dated 28-12-1988 and fresh targets were fixed which had to be achieved by him during the extended period of probation. The services of the petitioner were terminated on 7-10-1989 as he failed to fulfil the conditions mentioned in his letter of appointment dated 18-8-1987 and subsequent letter dated 28-12-1988. Feeling aggrieved, the petitioner raised an industrial dispute on 13-3-1990 and a case was registered before the Central Government, Industrial Tribunal, Deharadun, which was dismissed on 5-8-1997. He preferred Civil Misc. Writ Petition No. 39360 of 1997 challenging the order of termination which too was dismissed on 24-11- 1997 on the ground of alternative remedy. The petitioner then preferred an appeal on 8-12-1997 which was dismissed by the Zonal Manager, Kanpur on 26-3-1998. Thereafter he filed the present writ petition challenging the order dated 7-10-1989 terminating his service and the appellate order dated 26-3-1998.
(2.) THE only submission made by the learned Counsel for the petitioner is that the petitioner was appointed on probation for a period of one year on 1-9-1987 and under the rules, the period of probation could be extended for one more year and thus the extended period of probation expired on 1-9-1989 whereafter he acquired the status of a confirmed employee. THE services of the petitioner have been terminated subsequent thereto on 7-10-1989 by passing a simple order of termination which in law was not possible. Learned Counsel has submitted that once the petitioner became a confirmed employee, his services could only be terminated on establishment of some charge after holding a proper departmental enquiry wherein an opportunity of hearing was afforded to him. Neither any show cause notice was given to the petitioner nor he was given any opportunity to defend himself and in these circumstances, the impugned termination order dated 7-10-1989 is clearly illegal. Learned Counsel for the respondents has submitted that no order of confirmation was passed in favour of the petitioner and as such he did not acquire the status of a confirmed employees and he continued to remain a probationer. He has further submitted that the mere fact that the extended period of probation expired on 1-9-1989 would not mean that the petitioner had acquired status of a confirmed employee and as such in terms of his appointment order, his services could validly be terminated. Learned Counsel has also submitted that it was not necessary to hold any departmental enquiry and to give any opportunity of hearing to the petitioner and his services have not been terminated on the basis of any misconduct but the same have been terminated in terms of the appointment order and the order by which the period of probation was extended and since it was a termination of service during the period of probation, in law, there was no requirement of giving him any notice. The first question which requires consideration is whether an employee acquires status of a confirmed employee merely on the ground that the period of probation on which he had been appointed has expired. The question was considered by a Full Bench of this Court in Umesh Chand Bhilwar v. State of U. P. and others, 1999 (1) LBESR 195 (All) (FB) : 1999 (1) UPLBEC 27, where one of us (G. P. Mathur, J.) speaking for majority held as under: (6) Under Service Jurisprudence, it is settled principle that if a person appointed on probation for a specific period is allowed to continue in service after expiry of period of probation, he does not acquire that status of a confirmed employee unless a specific order to that effect is passed. The question has been examined in considerable detail by a Constitution Bench in State of Punjab v. Dharm Singh, AIR 1968 SC 1210, where after noticing several earlier decisions, it was held as follows in para 3 of the reports: "this Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation he should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules. In such a case, an express order of confirmation is necessary to give the employee a substantive right to the post, and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation it is not possible to hold that he should be deemed to have been confirmed. " This has been reiterated in State of Maharashtra v. V. R. Soboji Mahraj, AIR 1980 SC 42; Dhanji Bhai v. State of Gujarat, AIR 1986 SC 603 and Kedar Nath, Bahal v. State of Punjab, AIR 1972 SC 873. In Satya Narain Athiya v. High Court of M. P. , AIR 1996 SC 750, the services of the appellant who had been appointed on probation on 16-2-1980 were terminated on 5-8-1983. The service rule provided appointment on probation for a period of two years which could be extended for a further period not exceeding two years. While considering the question whether the appellant will be deemed to have been confirmed, it was held as follows: ". . . . . It is seen that though there is no order of extension, it must be deemed that he was continued in probation for an extended period of two years. On completion of two years he must not be deemed to be confirmed automatically. There is no order of confirmation. Until the order is passed, he must be deemed to continue on probation. " Therefore, the law is well settled that a probationer does not acquire the status of confirmed employee merely because he has completed the period of probation. The function of confirmation is an exercise of judgment by the confirming authority on the over all suitability of the employee for this permanent absorption in service and until that is done he continues to be on probation. An employee does not enjoy any greater right to confirmation if he is allowed to continue beyond the initial period of probation. " The next question which arises for consideration is whether in the facts and circumstances of the case, the petitioner can be deemed to have been confirmed on account of the fact that the extended period of probation had also expired on 1-9-1989. Clause 1 of Regulation 14 of Section 2 of Life Insurance Corporation of India (Staff) Regulations, 1960 (hereinafter referred to as the Regulations) provides that the persons appointed to posts belonging to Classes I and II shall, on the first appointment in the Corporation's services, be required to be on probation for a period of one year from the date of appointment. Clause 3 of the same Regulation lays down that subject to the provisions of any law for the time being in force, the appointing authority may, at its discretion, dispense with, reduce or extend the probationary period, but in no case shall the total period of probation exceed two years in the case of employees belonging to Classes I and II. It is necessary here to take note of the terms and conditions contained in the appointment order dated 18-8-1987 and the relevant portion thereof are being reproduced below: "with reference to your application for the post of a Development Officer in the Corporation and the subsequent training you had with us as an Appr. Development Officer, we hereby offer you appointment as a Prob. Dev. Officer on the following terms and conditions: xxx xxx xxx xxx xxx 2. Probationary Period You shall be on probation initially for a period twelve months from the date of your joining duties as as probationer, but the Corporation may, in its sole discretion, extend your probationary period provided that the total probationary period, shall not exceed 24 months counted from the commencement of the probationary appointment. During the probationary period (which includes extended probationary period, if applicable) your shall be liable to be discharged from service of the Corporation without any notice and without any cause assigned including the extended probationary period. xxx xxx xxx xxx xxx 10. Minimum Business (i) During the probationary period, you shall secure, through the agents recruited at your instance, minimum completed life business of Rs. 35 lacs yielding a first year's scheduled premium income of not less than Rs. 1 lac provided, however, that in case the pay and/or allowance admissible to you under Clause I are increased during the period, the minimum business and the premium income which you should secure shall be increased proportionately. (ii) The minimum business out or in (i) above shall be spread over not less than 150 lives and shall be secured regularly through a net work of dependable agencies. (iii) At least 12 of the agents appointed on your recommendation during the period should have become active and 10 agents should individually have put in during that period the minimum business required of (L. I. C. of India (Agents) Rules, 1972. (iv) If your probationary period is extended, you shall secure during the extended period such business as may be intimated to you. 11. Confirmation and Increments (i) On your satisfactory completing the period of probation and your observance and compliance with all conditions set out in this letter of appointment you will be confirmed in the services of the Corporation in Class II. Your confirmation will depend inter-alia upon the fulfilment of the minimum business guarantee set in para 10 above and upon your record of post-sales service to the Corporation's policy holders and other functions performed by you in the area allowed to you to the satisfaction of the competent authority. " xxx xxx xxx xxx xxx
(3.) IT appears that the appointing authority reviewed the performance of the petitioner and thereafter decided to extend his probationary period from 1-9-1988 to 31-7-1989. This was intimated to him by the communication sent from the Divisional Office on 28-12-1988 and the relevant part is being reproduced below: "ref : Your confirmation The competent authority, on review of your performance for the period from 1-9-1987 to 31-8-1988 has decided to extend your probation from 1-9-1988 to 31-7-1989. Your confirmation termination shall now be considered on the business of your performance during the extended probation period from 1-9- 1988 to 31-7-1989. The target for the extended probationary period has also been modified as under: Lives: 150 Sum Assured: Rs. 40 lacs SFYPT: Rs. 1,10,000/- No. of Newly recruited agents: 15 No. of qualified agents: 10 In case of any hike in your salary, the SFYPT target shall also increase proportionately. " The services of the petitioner were terminated and a communication was sent to him from the Divisional Office on 7-10-1989. The relevant portion thereof is being reproduced below: "reg. : Your termination We have reviewed the performance of your extended probationary period from 1-9-1988 to 31-7-1989 and observe that you have not been able to complete the norms fixed vide your appointment letter dated 18-8-1987 and subsequent letter dated 28-12-1988. Since you have failed to fulfil the conditions as laid down in your appointment letter dated 18-8-1987 and subsequent letter dated 28-12-1988 the competent authority had decided to terminate your services as probationary Dev. Officer with immediate effect. ";