- (1.) I. M. Quddusi, J. By means of the present writ petition the petitioners have challenged the order of their reversion dated 3- 5-1995, which were passed before the expiry of their probationary period from the post of Assistant Branch Manager (Sales) in the Life Insurance Corporation to their substantive post of Development Officers.
(2.) THE facts giving rise to this petition are that the petitioners (except petition No. 4) were initially appointed as Development Officers in the Life In surance Corporation in the year 1984. Later on they were confirmed on that post in the year 1985. Petitioner No. 4 was ap pointed as Development Officer in the year 1986 and was confirmed in the year 1987. Later on vide order dated 3rd May, 1994, 55 persons, including the petitioners, were given promotion to the post of Assistant Branch Manager (Sales) on probation. Later on vide order dated 3-5-1995 which is impugned in the resent writ petition, in so far as it relates to the petitioners, 28 persons, who were given promotions as Assistant Branch Manager (Sales) were ordered to be reverted on their substantive post of Development Of ficers and were posted in the same Branch in which they had been working prior to their promotion as Assistant Branch Manager (Sales), which is a Class I post. Against the impugned order of reversion the petitioners earlier filed writ petition in the Lucknow Bench of this Court which was registered as Writ Peti tion No. 375 (S/b) but later on the petitioners moved an application for withdrawal of the writ petition with the permission to file a fresh petition, inter alia, stating Chat certain other persons, who were similarly situated, have filed writ petition at Allahabad which are ripe for hearing and considering those writ peti tions filed at Allahabad the petitioners of the writ petition filed at Lucknow feel that the writ petition needs to be amended drastically which may cause inordinate delay in the disposal of the writ petition and in those circumstances the petitioners have been advised to withdraw the writ petition and to file fresh writ petition, if necessary, on which the Division Bench vide its order dated 1-11- 1995 dismissed the writ petition as withdrawn subject to liberty to file fresh writ petition, if so ad vised. ' It was thereafter that the present writ petition was filed on 6-12-1995. 4, Heard Sri V. P. Singh, learned Counsel for the applicant and Sri R. P. Goyal, learned Counsel for the Life In surance Corporation. 5. Sri V. B. Singh, learned Counsel has vehemently argued that Regulation 16 of the LIC of India (Staff) Regulations, 1960 provides that an employee promoted to a higher post shall be treated as on proba tion in the higher post for a period of one year in case of promotions- to the posts belonging to Class I and II and six months in other cases but there is a difference between the probationary period when an incumbent enters in service and an employee promoted on a higher post is put on probation. During the period from the date of their promotion the petitioners have not been informed any insufficiency in their work and no warning was ever issued or any thing adverse in the perfor mance of their duty was ever pointed out. ' The work and conduct of the petitioners was rather appreciated and, as such, there was no justification to end the period of probation abruptly and to revert them from class I post to class II post. There has to be difference in both the above categories and a guideline has to be indi cated in such matter and in the absence of guidelines the Regulation incapable of its abuse and the probation can be denied by not extending probationary period on whimsical reasons and this is the reason that more than 50 per cent persons have been reverted without any reason. His fur ther contention is that the work and con duct of the petitioners on the post of Assis tant Branch Manager (Sales) was to be evaluated by the concerned authorities and the past work and conduct for promotion was not required to be judged, as the theory of washing away applies in the mat ter according to which once a person is promoted the earlier adversity washes away and reversion cannot be done on the ground of alleged illegal promotion or al leged earlier bad performance. However, in the past also the work and the conduct of the petitioners remained satisfactory. Some of the petitioners, who have com pleted one year's period of probation were not informed ab0ut the extension of the period of their probation and, as such, it would be deemed that they had been con firmed on the post of Assistant Branch Manager (Sales) in the absence of any ex tension order of i jrc ' vn period. He has further urged that Fl Nation 16 (2) of the aforesaid Regulation is ultra vires and violative of Articles 14 and 16 of the Con stitution and the reversion order passed is thus conkary to Regulation 39 (2) of the Staff Regulations as no procedure prescribed under the said Regulation has been followed by the opposite parties. One of the contentions of the learned Counsel for the petitioners is that the im pugned order of reversion has been passed as a measure of punishment and oppor tunity should have been given and the en quiry should have been held before pass ing the impugned order of reversion. He has also urged that probation period can not be extended in the absence of unsatis factory performance and reversion order is arbitrary one. He has also cited a large number of cases in support of his conten tion which shall be dealt with later on. 6, Sri R. P. Goyal, learned Counsel for the Life Insurance Corporation lias urged that it is the admitted case of the petitioners that the order of reversion has been passed in the exercise of the powers under Regulation 16 of the LIC of India (Staff) Regulations. He has further urged that the validity of Regulation 14 of the Regulations had been challenged in the case of in Venugopal v. Life Insurance Corporation of India, 1994 (2) SCC 313, where-in the Hon'ble Supreme Court has upheld the validity of Regulation 14. It has been contended by Sri Goyal that Chapter II of the Regulations deals with the provisions of Probation. Regulations 14 and 16 are the relevant regulation regard ing keeping the direct recruits and promotees on probation respectively. He has contended that the validity of Regula tion 14 of the Staff Regulations having been upheld by the Hon'ble Supreme Court, the provisions of Regulation 16 being peari materia, could also not be held to be unconstitutional. He has further contended that the reversion order or ter mination during the period of probation does not result in any civil consequences and does not amount to punishment and the petitioners' plea that they were en titled to an opportunity before passing the impugned reversion order is wholly ill-founded. He has further argued that the material be on the Corporation was that the petitioners at the time of their promo tion were not eligible to appear in the selection and applying the test of subjec tive satisfaction, if there is material and the material is relevant then the action cannot be vitiated, He has drawn our at tention towards paragraph 3 (i), (j) and (k) and paragraph 8 of the counter-affidavit, which are reproduced below as under: " (i) That the Central Office of the Life Insurance Corporation of India initiated the process of promotion of Development Officers ' to the cadre of Assistant Branch Manager (Sales ). On 2na November, 1983 an November, 1993 notifications were issued ining applications. A true copy of the notification dated 8-11- 1993 is being filed herewith and is marked as Annexure C. A. "1". l n$t trff first time tioned notification provides, eligibility conditions which, inter alia, provide that the Development Officers who have completed 5 years' service in their cadre as on 31-12-1992 but less than 10 years in their cadreand have the lapse ratio less than 15 per cent, are eligible and could apply. " (k) That it was the minimum duty of the petitioners to certify in their application forms that they were eligible and all the candidates including the petitioners had certified that they were eligible. However, during the period of probation it was discovered that fairly large number of Development Officers had been promoted on the basis of false certification regarding their eligibility. All the delinquent of ficers, including the petitioners, maneouvred false certification or false information regarding their eligibility justifying a decision not to con firm them on the promoted post of Assistant Branch Manager (Sales ). In the case of the petitioners their actual lapse ratio found on verification was as follows: Name of petitioners: Lapse ratio shown by the petitioners Lapse ratio actually discovered Mr. Neeraj Kumar Soti 13% 38. 11% Sri S. K. Tripathi 13. 97% 47. 25% Sri Q. H. Khan 13. 38% 21. 55% Sri R. N. Rawat 12. 00% 23. 10% (8) That the contents of paragraph 6 of the writ petition are wholly incorrect and are denied. It is submitted that the petitioners had manipu lated a false certification of their lapse ratio in order to get promotion to the higher cadre. The actual lapse ratio found on verification with regard to the petitioners is as under: Name of the candidate: Lapse ratio communicated at the time of interview Actual lapse ratio found on verification Mr. Neeraj Kr. Soti 13% 38. 11% Mr. S. K. Tripathi 13. 87% 47. 25% Mr. Q. H. Khan 13. 38% 21. 10% Mr. R. N. Rawat 12. 00% 23. 10%. On enquiry it revealed that they were not entitled for promotion. The impugned order has been passed exercising powers under Regula tion 16 (2) of the (Staff) Regulations and the petitioners were not entitled to any opportunity before passing the order as it does not amount to punishment. The deponent has been advised to state that the impugned order is just and legal and has been passed in accordance with law in public interest. " He has also cited the following case law in support of his contention: (i) Unit Trust of India and others v. T. Bijoy Kumar and another, 1992 (6) JT 82; (ii) State of Orissa v. Ram Narayan Doss, AIR 1961sc177and (iii) Shrimati Ravinder Sharma and another v. State of Rajasthan and others, 1995 (1) SCC138. These cases shall also be dealt with later on. First of all the provisions regarding keeping the employees on probation ap pointed directly or by promotion in a post is necessary to be perused. Regulation 14 of the LIC of India (Staff) Regulations deals with the persons appointed directly while Regulation 16 deals with the employees promoted to a higher post. The provisions of Regulations 14 and 16 are quoted below: "14. (1) Persons appointed to posts belonging to Classes I and II shall, on the first appointment in the Corporation's service, be required to be on probation for a period of one year from the date of appointment. (2) Persons appointed to posts belonging to Classes III and IV shall, on the first appoint ment in the Corporation's service be required to be on probation for 6 months. (3) 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 - (a) In case of employees belonging to clas ses I and II. . . . . . . two yrs. (b) In other cases. . . . . . . One year (4) During the period of probation an employee shall be liable to be discharged from service without any notice. 16. (1) An employee promoted to a higher post shall be treated as on proba tion in the higher post for a period of one year in the case of promotions to posts belonging to Class I and II and 6 months in other cases. Provided, however, that the competent authority may in its discretion extend the period of probation, but in no case snail the total period of probation exceed - (a) in the case of promotions to posts belonging to class I and II2 years (b) in other cases. . . . . . . 1 year (2) An employee on probation shall be liable to be reverted without notice at any time. (3) During the period of probation an employee retains his lien on his lower post and the period shall count as permanent service for all purposes. " A perusal of Regulation 14 (1) shows that it has been provided therein that the persons appointed to posts belonging lo Class I and II shall on the Apartment in the Corporation's Service shall DC required to be on probation for a period of one year from the date of appointment. With regard to classes I and II posts the Regulation 16 (1) provides that an employee promoted to a higher post shall be treated on probation for a period of one year. Further Regulation 14 (3) provides that the appointing authority at its discre tion dispense with, reduce or extend the probationary period but in no case shall the total period of probation shall exceed two years. In Regulation 16 (1) itself it has further been provided that the competent authority may in its discretion extend the period of probation but in no case shall be the total period of probation exceed two years in case of promotions to the posts belonging to classes I and II. A compara tive study of Regulations 14 and 16 shows that there is no difference between the two with regard to the period of probation and its extension upto a certain period by the competent authority in the matter of direct appointment or by promotion and hence, as the Hon'ble Supreme Court has upheld the constitutional validity of Regulation 14 in the matter of M. Venugopal v. Divisional Manager LIC of India Machhlipatnam (A. P.), 1994 (2) SCC 323 the validity of Regulation 16 is also liable to be upheld the provisions of Regulation 16 be mgaparimateria. 7. The first contention of Sri V. P. Singh, learned Counsel for the petitioners that the impugned order of reversion has been passed as a measure of punishment and is punitive in nature and adequate opportunity to defend having not been given, the action of the respondents is il legal, has been supported, inter alia, by the following decisions: (1) Jamail Singh and others etc. v. State of Punjab, AIR 1986 SC1626; (2)Anoopjaiswal v. Government of India and another, AIR 1984 SC 636; (3) State of Bihar v. S. B. Misra, AIR 1971 S. C. 1011; (4) Kidwai Memorial Institute v. P. Godwalkar, AIR 1993 SC 392and (5) Management of Utkar Machinery v. Workman Shanti Patnaik, 1966 (12) FLR 45. In all these cases it has been held that the services of a temporary servant or a probationer can be terminated under the rules of his employment and, such termination would not in any manner attract the operation of Article 311 of the Constitution and if the order visits the public servant with any evil consequences or casts aspersion against his character and in tegrity, it must be considered to be one by way of punishment no matter whether he was a mere probationer or a temporary servant. In the instant matter, the im pugned order of reversion does not case any stigma and aspersion against the char acter of the petitioners or their integrity. The impugned order of reversion has been passed under the provisions of the Staff Regulations. Hence it does not attract the principle envisaged under Article 311 of the Constitution. As such, it cannot be said that the impugned order of reversion has been passed as a measure of punishment. All the case laws, referred to above and relied upon by the learned Counsel for the petitioners are of no benefit to the petitioners as they do not lay down the principle involved in the present case. 8. Further the learned Counsel for the petitioners Sri V. P. Singh relied upon the cases of Mrs. P. Sumiti v. Union of India and others, AIR 1989 SC 1431and Sam-sher Singh v. State of Punjab and another, AIR 1974 SC 2192, in support of his con tention that opportunity should have been provided and enquiry should have been held before passing the impugned rever sion order and substance of the order has to be seen and not the form of the order would be decisive. It has been laid down in these cases that if the facts and circumstan ces of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to the protection of Article 311. But in the instant matter the petitioners have failed to show that the order of rever sion was passed by way of punishment though on the face of it, the order was simpliciter order. Hence it cannot be said that the substance of the impugned order was punitive, or the impugned order was passed as a measure of punishment. 9. In support of his contention that the theory (sic) of washing away appliesand the reversion cannot be done on the ground of alleged illegal promotion or for alleged earlier bad-performance, Sri VB. Singh has cited cases in State of Punjab v. Dewar Chuni Lal, AIR 1970 SC 2096, D. Ramaswamy v. State of Tamilnadu, AIR 1982 SC 793 and Dr. Girish Bihari v. State of UP, 1982ijr1500. In the above cases it has been held that the adverse entry recorded in the character role of an employee prior to grant him selection grade or allowing him to cross the efficien cy bar cannot be taken into consideration while considering his further promotion subsequentlyand in that case the doctrine of washing off the adverse entries becomes applicable. But in the instant matter no adverse entry has been taken into con sideration while passing the impugned order of reversion during the continuance of the period of probation. It may also be noted here that the instant matter is not the matter of further promotion rather it is the matter of reversion on the ground that the petitioners were not eligible for promotion to the post of Assistant Branch Manager, (Sales) from the post of Development Officers as they did not fulfil the minimum requirement for being con sidered for promotion. 10. Lastly, Sri VP. Singh has cited the case law Management of Express Newspapers v. Presidency Officers, Labour Court, Madurai, 1964 (8) FLR 289 and Ram Samp v. State of Haryana and others, AIR 1978 SC 1536, in support of his con tention that probation period cannot be curtailed in the absence of unsatisfactory performance and also that if the appoint ment had been held irregular but not void and the employee must be deemed to have been validly appointed on completion of necessary period of experience. Both the cases relied upon are not applicable in the instant case as the period of probation has not been curtailed but during the period of probation the impugned order of rever sion has been passed considering that the petitioners could not have been con sidered even for promotion due to their ineligibility and they have been benefitted for certain time due to the reason that they were wrongly considered while they did not fulfil the target which was the compul sory condition for being considered for promotion to the post of Assistant Branch Manager (Sales) and, as such they did not fulfil the criteria of minimum requisite qualification fixed for promotion. There is no question of irregularity in promotion due to the reason that at the initial stage the petitioners were not liable to be con sidered for promotion. The object in this regard raised on behalf of the respondents is that it was the minimum duty of the petitioners to certify in their application forms that they were eligible and all the candidates, including the petitioners, had certified that they were eligible. However, during the period of probation it was dis covered that fairly a large number of Development Officers had been promoted on the basis of false certification regarding their eligibility and many of the officers including the petitioners moneouvred false certification or false certificate regarding their eligibility justifying a decision not to confirm them on the promoted post of Assistant Branch Manager (Sales ). In the cases of the petitioners, as indicated above, their lapse ratio found on verification was much more than required. In view of the above it has been mentioned in paragraph 16 of the counter-affidavit that 29 officers were found in- eligible for promotion as their lapse ratio was more than 15 per cent. One person died before the order could be passed and hence action was taken against 28 officers. Only those persons were reverted who were, in fact, not eligible and their cases are different from those who were eligible and were rightly promoted. The impugned order of reversion is strictly according to Regulation 16 (2 ). 11. In the case of Unit Trust of India and others v. T. Vijay Kumar and another (supra), the Hon'ble Supreme Court, inter alia, held that discharge of an employee during the period of probation does not amount to punishment. Hon'ble Supreme Court has referred to several earlier decisions of the Supreme Court on the point including the decision in the case of State of Orissa v. Ram Narain Das, (supra), in which it has been held that appointment of a person who was not eligible at the time of appointment was a nullity. However, since in the instant matter the impugned order of reversion is under challenge and a specific order has been passed and, as such, it cannot be said that the petitioners were, infact, not given promotion. How ever, it was within the scope of the Staff Regulation 16 to revert them at any point of time before the expiry at the maximum period of probation. 12. The period of probation is not necessary to be extended in writing. How ever, in the instant matter the order of promotion had been passed on 12-5-1994 and the impugned order of reversion was passed on 3-5-1995 before the expiry of probation period of one year. It may be noticed that the order of promotion as well as reversion both are composite or ders respectively promoting 55 persons and reverting 29 officers including the petitioners and hence the contention of learned Counsel for the petitioners that some of the petitioners completed their initial period of probation does not appear to be correct. 13. In view of the above discussion, we are of the opinion that there is no illegality or infirmity in the impugned order of reversion passed against the petitioners and it also cannot be said that the impugned order of reversion is either arbitrary or passed with mala fide inten tion. Accordingly the writ petition fails and is dismissed. There shall, however, be no order as to costs. Petition dismissed. .;