Full Judgment Text
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PETITIONER:
THE DIRECTORMINISTRY OF COAL & ORS.
Vs.
RESPONDENT:
BIMLENDU KUMAR
DATE OF JUDGMENT: 28/10/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted
We have heard learned counsel for the parties .
This appeal by special leave arise from the order of
the Division Bench of the Patna High Court made on
24.11.1994 in LPA No.35/91 and the order of the learned
single Judge made on 26.2.1991 in CWJC No.1111/89.
The admitted position is that the respondent was
appointed on probation to a temporary post under Rule 7(1)
of the coal Mine Provident fund (Employees Recruitment)
Rules, 1982 (for short , the ’Rule’). His appointment was
terminated on May 14 ,1989 which was challenged by
contending that since his probation was not extended beyond
three years under Rule 7(6) of the Rule, the order of
termination is bad in law. The learned single Judge has held
that he is a temporary appointee; therefore, his termination
is bad in law. He is accordingly entitled to the payment of
the salary for the period of three year and three months. On
appeal the Division Bench set aside the order of the learned
single Judge and held that the respondent should be deemed
to have been confirmed and directed payment of wages
amounting to six years salary. Thus, this appeal by special
leave.
The question is: whether the view taken by the
Division Bench and the learned single Judge is correct in
law? Rule 7(1) contemplates that the person appointed to a
post by direct recruitment, with a view to his eventual
substantive appointment to that post shall be on probation
for a period of two years. For an eventual substantive
appointment, on successful completion of probation, Rule
7(6) contemplates thus:
"(6) The appointing authority may
in suitable case extend the
period of probation by not more
than one year, but no person in any
case be kept on probation for a
total period exceeding three years
in any post. In the case of
extension of probationary period
the employee shall be informed of
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his short coming well in advance to
enable him to make special effort
for improvement."
Sub-rule (7) of Rule 7 speaks of confirmation
of the probationer after completion of the period of
probation. It envisages thus:
"(7) Confirmation of a probationer
after completion of the period of
probation shall not be automatic.
As long as no specific order of
confirmation or satisfactory
completion of probation is issued
to a probationer such probationer
such probationer shall be deemed to
have continue on probation
notwithstanding sub-rule(6)."
A conjoint reading of Rule 7(1), 7(6) and 7(7) would
show that Rule 7(6) is subject to the operation of Rule
7(1). It is, no doubt, true, as contended by Mr. P.P.
Malhotra, learned senior counsel for the appellants, that
after the expiry of the period of two year, the appellant
has power to extend the period of probation for more than
three years to enable the probationer to improve his
efficiency in the service so that he could improve his
efficiency as may be pointed out, and improve his quality of
service for confirmation. However, in view of the language
in sub-rule (7) of Rule 7, the operation of Rule 7(6) is
subject to the confirmation on satisfactory completion of
the probation. In this case, there is no express order of
confirmation of probation and substantive appointment, after
completion of the probation. It must be deemed that after
the expiry of three years, he remained to be a probationer.
Therefore, the declaration that he was a confirmed
probationer is bad in law. Learned counsel seeks to place
reliance on the judgement of this Court in Om Prakash Maurya
vs. U.P. Cooperative Sugar Factories Federation, Lucknow &
Ors.[1986 Supp. SSC 95] in particular, in paragraph 3
thereof. In that case, there was no provision similar to
sub-rule (7) of Rule 7. That relates to appointment by
promotion and the period of probation was prescribed for two
year. Under this situation, this Court had held that after
the expiry of two years, he cannot be reverted to the
substantive post but deemed to be confirmed. The ratio
therein has no application to the fact situation and the
rule position in this case. The probationer appointed under
Rule 7(1) requires to be appointed eventually to a
substantive appointment by separate order. Therefore,
satisfactory completion of the probation and the
declaration of the probation are two condition precedent to
eventual substantive appointment to the post in which he was
recruited and appointed on probation.
In the above legal position, the eventual substantive
appointment to the post in which he was appointed on
probation .
In the above legal position, the view taken by the
Division Bench is clearly in error. The learned single Judge
also was not right in directing to pay compensation for the
period of three years and three months in view of the fact
that probation was terminated in term of Rule 7(7) of the
Rules.
The appeal is accordingly allowed. The writ petition
and the LPA stand dismissed. No cost.