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Sangeeta Pathak Vs. High Court of Judicature for Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No, 404 of 1991
Judge
Reported in1995(3)WLC44; 1995(2)WLN300
AppellantSangeeta Pathak
RespondentHigh Court of Judicature for Rajasthan and ors.
DispositionAppeal dismissed
Cases Referred and State of Orissa v. Ram Narayan Das
Excerpt:
.....stipulates that the appellant was appointed temporary for a period of six months and the term of temporary appointment of the appellant alongwith smt. dropadi parwani was extended upto 31st december, 1990 vide order, dated 13th november, 1990 and again it was extended upto 28th february, 1991 vide order, dated 11th january, 1991. the last order of extension upto 31st march, 1991 was issued on 26th march, 1991. the said order clearly implies that the services of the appellant stood automatically terminated w. 4) in the writ petition filed by the petitioner as well as before us in appeal. the said order as well as the earlier orders were in full knowledge of the appellant and since the work was found to be unsatisfactory, the respondents were totally justified in not granting further..........improve her work and behaviour, failing which it may not be possible to extend the term of her temporary appointment. vide order, dated 26th march, 1991 (annex. 4) it was made explicitely clear that the term of temporary appointment of the appellant stood extended upto 31st march, 1991 only and no further extension was granted to her beyond the said date. consequently the services of the appellant stood automaticallly terminated w.e.f. 1st april, 1991.5. during the course of hearing of appeal it was contended by shri k.k. sharma, learned counsel for the appellant, that since the appellant had been appointed as pbx operator in the high court after due selection and since her services stood extended from time to time, her services could not have been terminated summarily by not.....
Judgment:

Arun Madan, J.

1. This special appeal filed under Section 18 of the Rajasthan High Court Ordinance, 1949, arises out of the order, dated 25th June, 1991, passed by learned Single Judge of this Court in S.B. Civil writ petition No. 1858/1991; whereby learned Single Judge dismissed the writ petition on merits.

2. The facts giving rise to the filling of this appeal briefly stated, are that in pursuance of the Advertisement issued by the Registrar, Rajasthan High Court, Jodhpur vide Notification, dated 12th January, 1990, the petitioner-appellant applied for the post of PBX Operator. She was called for interview which was held at Jodhpur on 3rd March, 1990. Selection Committee interviewd the petitioner alongwith other eligible candidates. The petitioner-appellant was found suitable and appointed as PBX Operator at Jaipur Bench of this Court in the pay-scale of Rs. 950-1680 for period of six months on temporary basis vide order, dated 5th March, 1990 (Annex. 1). It was stated that the appellant was given extention in terms of her appointment upto 31st December, 1990 (first extension) and thereafter upto 28th February, 1991 (second extension) by another order. The appellant continued to work even after the expiry of period of second extension, i.e., after 28th February, 1991 but no formal order of extension was passed. Thereafter an order dated 26th March, 1991 was issued which was served upon her on 27th March, 1991 vide Annexure 4. By the said order of extension it was stipulated that the appellant who had been appointed as PBX Operator vide order, dated 5th March, 1990 has been granted extension in terms of her appointment upto 31st March, 1991 and no further extension would be granted beyond the said date, i.e., 31st March, 1991.

3. In terms of the aforesaid order the service of the appellant automatically stood terminated w.e.f. 1st April, 1991. It was contended that the aforesaid order which provides that no further extension would be granted to her after 31st March, 1991 and which seeks to terminate the servics of the appellant thereafter, is absolutely arbitrary, unreasonable and violative of Aiticles 14, 16 and 21 of the Constitution of India and the appellant had accordingly prayed for quashing of the said order.

4. It has been contended in the appeal that no charge-sheet has ever been served upon the appellant and there was no complaint with regard to her work and conduct except the fact that only in the order, dated 11 January, 1991, last extension order Annexure 3, it was mentioned that she should improve her work and behaviour, failing which it may not be possible to extend the term of her temporary appointment. Vide order, dated 26th March, 1991 (Annex. 4) it was made explicitely clear that the term of temporary appointment of the appellant stood extended upto 31st March, 1991 only and no further extension was granted to her beyond the said date. Consequently the services of the appellant stood automaticallly terminated w.e.f. 1st April, 1991.

5. During the course of hearing of appeal it was contended by Shri K.K. Sharma, learned Counsel for the appellant, that since the appellant had been appointed as PBX Operator in the High Court after due selection and since her services stood extended from time to time, her services could not have been terminated summarily by not extending her services beyond the period of extension already granted to her. It has been further contended by the learned Counsel for the appellant that the post of PBX Operator is a continuing post in the High Court and even after the termination of appellant's services, the work is being done by one Shri Alok Sharma who is only a lower division clerk and who is not even trained as PBX Operator and hence the termination order is totally unjustified inasmuch as no complaint with regard to unsatisfactory performance of her work was ever communicated to the appellant. It has been further contended by Shri K.K. Sharma, learned Counsel for the appellant, that another candidate who was appointed alongwith the appellant is still continuing in service of the High Court; whereas the services of the appellant have been terminated without any notice, complaint or charge-sheet except for what is mentioned in the order, dated 11th January, 1991 as referred to above, that the appellant should improve her work and behaviour. It has been further contended that obviously the aforesaid remark is of general nature and by no means it could be stipulated that the working and the behaviour of the appellant was unsatisfactory. Moreover, since the appellant was allowed to continue on the said post upto 31st March, 1991 obviously implies that there was no complaint in so far her work or the conduct was concerned. It has been further contended by the learned Counsel for the appellant that there was no occasion for the appellant to have challenged the legality of the orders, dated 5th March, 1990, 13th November, 1990 as also 11th January, 1991 since extension was granted to the appellant by the said orders and even assuming the appellant's appointment was only temporary appointment, yet the services of the appellant could not be terminated in the manner in which it has been done, therefore, non-extension of the services of the appellant was arbitrary, unjustified, unreasonable and malicious.

6. In support of his contension Shri K.K. Sharma, learned Counsel for the appellant, has placed reliance upon the judgment of the Apex Court in the matter of The State of Punjab v. Prakash Singh 1975(2) SLR 85, Shri Hira Singh v. The Union of India and Ors. 1970 SLR 223 (Delhi), Jarnail Singh and Ors. v. State of Punjab and Ors. 1986(2) SLR 278, Bishan Lal Gupta v. The State of Haryana and Ors. 1978(1) SLR 404 (SC), P.V. Naydu v. The Andhra Pradesh Mining Corporation, Ltd. and Ors. 1974(2) SLR 66.

7. Shri Ajai Rastogi, learned Counsel appearing for, the respondents stated at the Bar that the appellant was appointed as a probationer on temporary basis and it is well settled law that the services of a probationer may be terminated without any show cause notice or providing any opportunity of hearing. It was further contended by the learned Counsel for the respondents that ther is no foundation for saying that the termination order passed against the appellant is punitive, since the appellant was admittedly a probationer and was granted temporary extensions from time to time for the purpose of watching her conduct and behaviour and since the same were not found satisfactory, the respondents were absolutely justified in terminating the temporary services of the appellant. It was further contended by Shri Rastogi that the order of appointment clearly stipulates that the appellant was appointed temporary for a period of six months and the term of temporary appointment of the appellant alongwith Smt. Dropadi Parwani was extended upto 31st December, 1990 vide order, dated 13th November, 1990 and again it was extended upto 28th February, 1991 vide order, dated 11th January, 1991. The last order of extension upto 31st March, 1991 was issued on 26th March, 1991. The said order clearly implies that the services of the appellant stood automatically terminated w.e.f. 1st April, 1991, since no further extension was granted to the appellant beyond 31st March, 1991. It was contended by the learned Counsel for the respondents that the orders passed on 13th November, 1990 and 11th January, 1991 had not been assailed by the appellant, by which the term of temporary appointment of the appellant was extended upto 31st March, 1991. In the absence of challenge to these orders it must be held that the appointment of the appellant was admittedly on temporary basis, no illegality could be attributed to the respondents in not extending the term of her temporary appointment since the appellant was on probation and the last extension upto 31st March, 1991 was during the probationary period which was not extended beyond 31st March, 1991, no illegality could be attributed to the same.

8. It Was further contended by Shri Rastogi that perusal of the order, dated 11th January, 1991, makes it abundantly clear that the extension of term of temporary appointment of the appellant and one Shri Pukhraj was subject to the condition that they shall improve their working and behaviour, failing which it may not be possible to extend the terms of their temporary appointment. The appellant has assailed the last order, dated 26th March, 1991 (Annex. 4) in the writ petition filed by the petitioner as well as before us in appeal. The said order cannot be read in isolation of the earlier order, dated 11th January, 1991 (Annex. 3) perusal of which makes it explicitely clear that the term of temporary appointment of the appellant alonewith one Shri Pukhraj, reference assistant, was extended upto 28th February, 1991 subject to the condition that they shall improve their work and behaviour, failing which it may not be possible to extend the term of their temporary appointment. The said order as well as the earlier orders were in full knowledge of the appellant and since the work was found to be unsatisfactory, the respondents were totally justified in not granting further extension to the appellant. There is no allegation of malice against any individual authority of the High Court and it is not the case of the appellant that either the Hon'ble Chief Justice or the Registrar had acted on account of any bias or prejudice in not extending the term of temporary appointment of the appellant.

9. In support of his contentions Shri Ajai Rastogi, learned Counsel for the respondents, has placed reliance on the following decisions:

Molnuddin v. State of Rajasthan and Anr. WLR 1992(s) Raj. 25, Narpat Singh Bhati v. State of Rajasthan and Anr. (DB): 1989 (2) RLR 723, Ranendra Chandra Banerjee v. The Union of India and Anr. : [1964]2SCR135 , M. Venugopal v. The Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P. and Anr. : (1994)ILLJ597SC and U.T.I. and Ors. v. T. Bijaya Kumar and Anr. : (1993)ILLJ240SC .

10. In State of Punjab v. Prakash Singh (supra) the Apex Court while dealing with the case of a temporary employee (probationer) held that an order terminating the services of a temporary servant or a prabationer, if it is by way of punishment, will attract, Article 311 of the Constitution, the form of the order is not conclusive but it is a substance of the matter that has to be looked into. It was further held by the Apex Court that whether or not an order of termination is by way of punishment, would depend on the facts and circumstances of each case.

11. In the matter of Hira Singh v. The Union of India and Ors. (Delhi) (supra) the petitioner who was an officer of U.P. Government was selected by the Government of India for appointment on deputation for the post of Asst. Collector in the department of Social Security, Government of India. It was mentioned in the terms of appointment that the appointment would be permanent but the petitioner would be on probation for one year which may be extended or curtailed at the discretion of the competent authority and that failure to complete probation period to the satisfaction of the competent Authority would render him liable to revertion to his substantive post. The petitioner was later on reverted to his parent office stating that his performance during the probationary period had not been found satisfactory. It is this order which was assailed by the petitioner in the writ petition before Delhi High Court. It was held in this context that the order of revertion casts a stigma on the petitioner since the order was not unexceptional in form. Since the said order reverting the petitioner to his original post which admittedly carried lesser emoluments and a lesser rank was coupled with stigma on his work during the probation and it deserved to be quashed. The said order was quashed by the High Court being violative of the principles of natural justice, since the adverse entries recorded in the A.C.Rs. were admittedly not communicated to the petitioner.

12. In our opinion both the above referred judgments are distinguishable and not attracted to the facts of the present case, since in the earlier case, State of Punjab v. Prakash Singh, the respondent was a temporary appointee as Sub Inspector in Excise and Taxation Department and on the formation of State of Punjab he was continued in service in new State, charge-sheet framed against the respondent by the vigilance department and the respondent was accused of direlection of duties and gross negligence. The respondent filed a written statement denying the charges. The Excise Department without waiting for the report of the Chief Minister passed an order terminating his services. It was in this context that the Apex Court held that substance of the order has to be looked into and if it is by way punishment, it attract Aiticle 311 of the Constitution. But this observation of the Apex Court cannot be universally applied to each case of probationer whose services have been terminated by the department concerned, since each Case has to be weighed on its own merits and the case in hand is not one of those from which it can be inferred that the impugned order of termination was by way of punishment, since the petitioner was given several chances to improve her work and conduct and since the same was not found satisfactory no further extension was granted to her and her services stood automatically terminated.

13. In the second case of Heera Singh v. Union of India Delhi High Court was dealing with the case of a probationer who was reverted to his original post, since his performance was not found satisfactory and revertion had been ordered by the competent Authority without recording the reasons for revertion aznd it was in this context it was held by the High Court that the impugned order casts stigma on the petitioner as it was not on the basis of proper inquiry. This case is also distinguishable both on facts as well as on law, since in the said case before the High Court the appointment of the concerned petitioner was on regular and permanent basis but since it was stated in the term of appointment that the petitioner would be on probation for one year which may be extended or curtailed at the discretion of the concerned Authorities, the same was challenged before the High Court and the High Court held that it casts stigma; whereas in the present case the appointment of the appellant as PBX Operator was admittedly temporary and she was given two extensions only to watch her conduct and performance and as the same was not found satisfactory her services were terminated

14. In the case of Bishan Lal Gupta v. The State of Haryana and Ors. (supra) the question which had arisen for consideration before the Apex Court was as to whether the services of a probationer who joined Haryana Civil Services (Judicial Branch) could be extended since he was served with a show cause notice and inquiry was initiated to look into his conduct. As a result of inquiry the conduct of the petitioner was found blameworthy and the High Court then made a recommendation to the state Government to terminate the services of the applicant. Against the decision of the High Court the petitioner had preferred an appeal before the Apex Court and it was held by the Apex Court that it will not interfere under Article 136 of the Constitution on a mere technical plea that the case deserves a fuller inquiry unless it is shown that such an inquiry could serve useful purpose, otherwise the same is not necessary. Consequently the Apex Court dismissed the Special Leave Petition thereby affirming the orders of the High Court. In our opinion this judgment supports the case of the respondent rather than that of the petitioner, since the Apex Court had observed in the aforesaid matter that the findings of petitioner's suitability to continue in service had rightly not been interfered with and it was not a case of punishment but termination of service simplicitor.

15. Likewise the other two references cited by the learned Counsel for the appellant, namely, Jarnail Singh and Ors. v. State of Punjab and Ors. (supra) and P.V. Naydu v. The Andhra Pradesh Mining Corporation Ltd. and Ors. (supra) do not help the appellant in any manner and in our opinion both are distinguishable on facts as well as law. In the matter of Jarnail Singh and Ors. v. The State of Punjab and Ors. the Apex Court was dealing with a case of termination of an employee who was appointed on ad-hoc basis and whose services had not been regularised since the basic conditions contained in a circular issued by the Government of Punjab were not complied with. The crucial question which arose before the Apex Court was as to whether the impugned order of termination could be deemed to be an innocuous of termination simplicitor without attaching any stigma to the petitioner in violation of Article 311(2) of the Constitution. It was in this context that the Apex Court had observed that whether the order of termination is challenged on the ground that it casts stigma on the services career, the court can leave the veil in order to find out the real basis of the impugned order even though on the face of the order it appears to be innocuous. In our considered opinion the said proposition of law as laid down by the Apex Court does not help the appellant in this case in any manner, since the appellant was admittedly an appointee on temporary basis and to give her chance to improve herself, her services were extended twice but since her said performance and behaviour were not found satisfactory, the services were not extended beyond the stipulated period and the same automatically stood terminated and hence the impugned order cannot be said to be innocuous in any manner as it does not attach any stigma on the petitioner-appellant.

16. In P.V. Naydu v. The Andra Pradesh Mining Corporation Ltd. and Ors. (supra) the Andhra Pradesh High Court while dealing with a case of an employee of a Mining Corporation whose services were terminated by the Corporation, held that the declaration regarding termination being void cannot be granted and the remedy is by way of civil suit and the writ petition was dismissed being not maintainable.

17. Now we would like to deal With the cases relied upon by Shri Rastogi, learned Counsel for the respondents. In Moinuddin v. state of Rajasthan and Anr. (supra) this Court while dealing with the case of an Additional District Judge (RHJS cadre) who was appointed on probation, held that since the probationer failed to exhibit satisfactory performance, the employer has a light to discharge the incumbent from service and further that the full Court after comsidering the matter did not feel inclined to confirm the petitioner in service and accordingly recommended to the Government to discharge him from service. It was further held by this Court that simply because the probationary period of the petitioner had been extended, that would not automatically ensure the confirmation, since the confirmation has to be done by a positive order.

18. Applying the ratio of the aforesaid case to the case in hand, we are of the considered opinion that the aforesaid decision is fully attracted to this case as well, since by mere extension of service the petitioner who was appointed temporarily as PBX Operator on probation, could not presume her confirmation and continuance in service beyond the extended period, since there was no confirmation of her service by the High Court by passing any positive order to that effect. We are further of the view that the imcumbent who is a probationer can certainty be discharged at the expiry of probationary period if she has not made sufficient use of opportunities available to her or has not improved her conduct during the said period and it is not incumbent upon the employer to extend the terms of temporary service beyond the probationary period.

19. Likewise in the case pf Narpat Singh Bhati v. State of Rajasthan and Anr. (supra) the Division Bench of this Court while dealing with the case of a probationer whose services were terminated on the ground that his work was 'unsatisfactory', held that it does not amount to stigma on his efficiency or otherwise and as such Article 311 of the Constitution of India is not attracted. It was further held by this Court that if the order of confirmation was not passed within the stipulated period after the expiry of probationary period, deeming provision for automatic confirmation would not attract and would be applicable only where conditions of confirmation are fulfilled.

20. Likewise in the matter or Ranendra Chandra Banerjee v. Union of India and Anr. (supra) the Apex Court while dealing with the case of termination of service of a probationer held that where the termination of service in accordance with the Rules governing the conditions of service was done, it would neither amount to dismissal or removal and the civil servant will not be entitled to protection of Article 311(2) of the Constitution. We are of the view that the aforesaid observation of the Apex Court in the aforesaid case is fully applicable to the facts of this case, since the probationer has no right to hold the post beyond the tennis of his appointment and he is liable to be discharged at any time during the probationary period.

21. In the matter of M. Benugopal v. The Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh and Anr. (supra) the question which had arisen for consideration and determination of the Apex Court was regarding vires of Section 2(oo) and Section 25F of the Industrial Dispute Act, 1947. In the above case the services of the appellant were terminated while he was on probation On the ground that he failed to achieve the target business for the Corporation. The question which arose for consideration was as to whether the termination of services of the appellant amounts to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act. It was held by the Apex Court that even if the provisions of Industrial Disputes Act were applicable, such termination shall not be deemed to be retrenchment within the meaning of Section 2(00) of the Industrial Disputes Act. It was further held by the Apex Court that since the appellant had failed to achieve the fixed target in terms of the performance of the appellant during the probationary period which was extended for two consequtive years, as such the Corporation was within its right in not confirming the appellant in terms of the order of appointment and the termination of the appellant during the probationary period without any notice in terms of Regulation 14(4) was not open to challenge. It was further held that any such termination, even if the provisions of Industrial Disputes Act were applicable, shall not be deemed to be 'retrenchment' within the meaning of Section 2(00) of the Act. Likewise applying the ratio of the aforesaid decision of the Apex Court to the present case, it becomes explicitely clear that this Court was fully Justified in terminating the services of the appellant, since inspite of temporary extentions given to her during the probationary period, she had failed to give better results towards her conduct and performance as PBX Operator and hence this Court was fully justified in not extending the probationary period and terminated her services as it was open to the competent Authority to terminate the services of the appellant even without giving any notice.

22. Likewise in the matter of U.T.I. and Ors. v. T. Bijay Kumar and Anr. (supra) the question which arose before the Apex Court was with regard to the termination of services of a probationer on account of his unsatisfactory performance. The Apex Court while placing reliance upon its earlier decisions in Anoop Jaiswal v. Govt. of India and Anr. : (1984)ILLJ337SC , Ajit Singh and Ors. v. State of Punjab, : (1983)ILLJ410SC , Shamsher Singh and Anr. v. State of Punjab, : (1974)IILLJ465SC , Madan Mohan Prasad v. State of Bihar and Ors., : (1973)ILLJ411bSC and State of Orissa v. Ram Narayan Das, 1961(1) SCR 6G6, held that very purpose of placing a person on probation is to try him during the probation period to assess his suitability for the job in question. It is settled law that an order of discharge is not an order of punishment and, therefore, there was no question of giving a hearing before termination of service. Consequently it was held by the Apex Court that the Management of L.I.C. had acted within framework of the Rules and its decision ought not to have been up-set by the High Court. Consequently the Special Appeal preferred by the U.T.I., against the decision of the High Court was allowed. Applying the ratio of the decision of the Apex Court to the present case, we are of the considered opinion that the appellant was put on probationary period as PBX Operator and the temporary extentions were given to her only to judge her suitability and since her performance was not found satisfactory, her services were terminated.

23. We have heard learned Counsel for the parties and have also examined the propositions of law in the various Authorities cited by the learned Counsel for the parties as referred to above.

24. In our considered opinion the contentions advanced by learned Counsel for the appellant have no merit and no fault can be attributed to the impugned order, dated 25th June, 1991 passed by the learned Single Judge of this Court in S.B. Civil Writ petition No. 1858/91. Since the learned Single Judge, after taking into consideration all aspects of the matter and also after examining the ratio of the decisions as referred to above, has very rightly upheld the validity of the termination order, dated 31.3.1991 terminating the services of the appellant w.e.f. 1.4.1991. We are in agreement with the findings of the learned Single Judge that in the present case the termination of services of the appellant whether she is treated as a temporary appointee or on probation, does not suffer either from malice in fact or malice in law and is neither arbitrary nor unconstitutional.

25. If an employee is on probation and appointment is temporary, the work report is given by the person under whom he is working. No enquiry is contemplated in respect of any observation made in the work report unless it is alleged to be with any malice. If the employer is not satisfied with the work of such an employee who is on probation the services can be terminated without further enquiry or providing further opportunity to him. For a Telephone Operator if it is found that she is not available during duty hours or is hot attending the work with sincerety, the information from any of the Judge to the Addl. Registrar or by the satisfaction of Addl. Registrar otherwise is sufficient to come to the conclusion that she is not performing the service satisfactorily. The employer is entitled to review the suitability of employee during probation and evaluate the performance and if the termination of service of a temporary servant is on the ground of unsatisfactory performance that no judicial review is possible in such a case. The order which has been passed is of termination of service without casting any asperssion on the employee. No attending circumstances exist or could be seen.

26. In the result the appeal of the appellant is dismissed and the impugned order, dated 25th June, 1991, passed by learned Single Judge confirming the termination order of the appellant, dated 31st March, 1991, is upheld. The parties are left to bear their own costs.

27. Before parting with this case, we would like to mention that in order to dispel doubts, if any, and in view of the request made by learned Counsel for the appellant to examine the summoned records, we have examined the files which were brought in the court by the concerned official and we had also gone through the notings in the file. The conduct and performance of the appellant were enquired into and were not found satisfactory.


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