- (1.) The petitioner is an employee of this Court. He joined the service as Routine Grade Assistant on 19.11.1996. He was promoted to the post of Lower Division Assistant in December, 1999 and was placed on probation. In the year 2005, he was considered for confirmation, but was not found suitable and consequently, the matter relating thereto was deferred. Again in October, 2007 a Committee constituted by the Registrar General considered the petitioner as well as other employees working on probation for their services being confirmed. The service of the petitioner was again not found to be satisfactory and the matter relating thereto was again deferred. The petitioner filed representation before the Registrar General, who is Appointing Authority of the petitioner. On 15.10.2008, the Registrar General rejected the representation holding that overall conduct of the petitioner is not satisfactory. For such purpose, he interalia took into consideration a warning entry issued to him on 19.7.2007 on the basis of a departmental inquiry. Its communication to the petitioner by the Joint Registrar (Establishment) on 22.10.2008 is subject matter of challenge in the instant petition. The petitioner has also prayed for a mandamus commanding the respondents to confirm his services since December 2000 and to promote him from 31.8.2007, the date from which his juniors were promoted, with all consequential benefits. During the pendency of the writ petition, by an office order dated 17.4.2009, the service of the petitioner was confirmed on the post of Assistant Review Officer from the date of the order, subject to decision of the instant writ petition. The aforesaid order, in so far as it denies confirmation of service of the petitioner since December, 2000, is also under challenge, by getting the petition amended. Following the order of confirmation, by another order dated 31.5.2010 passed by Registrar General, the petitioner was promoted to the post of Review Officer, subject to seniority being fixed as per decision in the instant writ petition.
(2.) The case of the petitioner is that under the Service Rules the period of probation prescribed is one year and since no order was passed extending the period of probation and consequently, he would be deemed to have been confirmed in December, 2000. It is urged that the probation could be extended by a maximum period of three years, which expired in December, 2003. Thereafter, his services would be deemed to have been confirmed. There was no justification in not confirming him in the year 2005 or in postponing the issue relating to confirmation on the ground that his services had not been found to be satisfactory. It is urged that the same mistake was committed when the respondent refused to confirm the petitioner in October, 2007. It is further submitted that at the relevant time there was no adverse entry in preceding five years. The solitary adverse entry of the year 2001-02, being an entry more than five years old, could not be made basis for not confirming the petitioner and in denying promotion to him. The warning issued by the Registrar General by order dated 12.6.2007 also could not form basis for withholding confirmation or denying promotion to the petitioner inasmuch as a warning is neither an adverse entry nor a punishment under the Service Rules. It is pointed out that a preliminary inquiry in another matter which also formed the basis for denying confirmation, has culminated in favour of the petitioner and thus, the same could not have been the basis for denying confirmation in service. It is urged that the respondent had acted in a discriminatory manner in promoting since 31.8.2007, a number of persons junior to the petitioner, even though in respect of two of the employees namely Pankaj Mishra and Pankaj Kushwaha adverse entries were also there.
(3.) The writ petition was opposed by learned counsel for the respondent by contending that under the Service Rules, although a maximum period of probation as well as extended period of probation are prescribed, yet there is no provision of deemed confirmation. It is submitted that the Appointing Authority is enjoined with the duty to assess the suitability of a candidate and he is confirmed only if he is found fit and his integrity is certified. It is urged that in the case of the petitioner, his work and conduct was not found to be satisfactory. It is submitted that in the year 2001-02 there was an adverse entry against the petitioner followed by another adverse entry in the year 2004-05, which though was expunged later on. It is submitted that in the year 2005 the case of the petitioner was considered for confirmation of his services but it was found to be unsatisfactory. Consequently, the matter was deferred. It is pointed out that in a departmental proceeding held against the petitioner, he was found guilty of indiscipline and misbehavior with his superiors. However, the respondent, taking into consideration the unconditional apology submitted by the petitioner as well as the fact that it was first such instance, took a lenient view and instead of awarding any severe punishment, he was let off with a warning to be careful in future and be a disciplined employee. It is submitted that it amounts to a censure entry within the meaning of Service Rules and consequently, the respondent was justified in denying confirmation to the petitioner in the year 2007 when his case was considered for confirmation alongwith other employees. It is further submitted that under the Service Rules only a permanent employee in the cadre is to be considered for promotion. In August 2007, when other employees were granted promotion since 31.8.2007, the petitioner was not a confirmed employee but was on probation. He was, therefore, not within the zone of consideration for promotion to the post of Review Officer. It is thus sought to be suggested that the relief claimed by the petitioner seeking promotion since 31.8.2007 has no rational basis. It is further submitted that Registrar General in his order dated 15.10.2008 has given detailed reasons for rejecting the representation filed by the petitioner against denial of confirmation to him in October, 2007. He further submitted that later on the respondent again assessed the suitability of the petitioner for confirmation of his services and upon being satisfied, issued office order confirming his service w.e.f. 16.4.2009 and also granted promotion to him since 31.5.2010 and thus, no discrimination has been practiced against the petitioner. It is submitted that the alleged adverse entries against Pankaj Mishra and Pankaj Kushwaha were advisory in nature, for future guidance, and since they had shown fast improvement, consequently, they were confirmed, whereas in case of the petitioner, instead of there being any improvement, he was found guilty in the disciplinary proceedings resulting in issuance of warning on 12.6.2007. It is thus sought to be suggested that no discrimination has been practiced against the petitioner as alleged. It is further submitted that the instant writ petition seeking confirmation and promotion from a back date will adversely affect those senior to him, thus, without impleading such persons, the writ petition is not maintainable.;