Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : So Long As The Employee Is A Probationer, The Employer Would Be Justified And Would Be Well Within His Right In Acting In Accordance With The ........
JUDGEMENT TITLE : Sandeep Kumar Vs. Union Of India Thru. Prin .Sec. And 3 Others On 25/11/2014 By Allahabad High Court
CASE NO : SPECIAL APPEAL DEFECTIVE NO. 970 OF 2014
CORAM : Hon'ble Dhananjaya Yeshwant Chandrachud,Chief Justice And Hon'ble Pradeep Kumar Singh Baghel,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Chief Justice's Court AFR

Case :- SPECIAL APPEAL DEFECTIVE No. - 970 Of 2014

Appellant :- Sandeep Kumar
Respondent :- Union Of India Thru. Prin .Sec. And 3 Others
Counsel For Appellant :- Shiv Kant Pandey,Amit Chaudhary
Counsel For Respondent :- A.S.G.I.,Piyush Bhargava

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Pradeep Kumar Singh Baghel,J.

The Appellant, Who Was The Petitioner Before The Learned Single Judge In Proceedings Under Article 226 Of The Constitution, Has Challenged The Judgement And Order Dated 17 September 2014 By Which His Petition Has Been Dismissed. The Writ Petition Was Instituted In Order To Challenge An Order By Which The Services Of The Appellant Were Terminated On 11 June 2013 By An Order Of Termination Simpliciter.
The Power Grid Corporation Of India1 Which Is Represented In These Proceedings By The Second, Third And Fourth Respondents, Issued An Advertisement On 14 January 2009 Inviting Applications Inter Alia For The Post Of Diploma Trainee (Electrical). Of The Thirteen Posts For Diploma Trainee (Electrical) That Were Advertised, Eight Were In The General Category While Five Were Reserved; Two For OBC Candidates (non Creamy Layer)2, Two For SC Candidates And One For ST Candidates. The Appellant Applied In Response To The Advertisement. Before This Court, It Is Not In Dispute That In His Application, The Appellant Claimed That He Was An OBC Candidate, Which Was Assigned Category Code 03. The Corporation Conducted A Written Test. Since There Were Eight Posts For Candidates Of The General Category, A List Of Twenty Four Candidates Was Drawn Up In Accordance With The Order Of Merit In The Written Test. The Last General Category Candidate Had Secured 47.06% Marks. Hence, Candidates In The Reserved Category, Who Had Marks Equal To Or Higher Than The Cut Off Of The Last Candidate In General Category, Were Also Treated In The General Category Since Such Candidates Had Sufficient Marks, Above The Cut Off For The General Category Candidates.
The Appellant, Sandeep Kumar Was Shown In The List Of OBC (NCL) Candidates. Since There Were Two Posts For OBC Candidates, A List Of Six Candidates Was Drawn Up On The Basis Of The Percentage Of Marks Obtained In The Written Test And In Which The Appellant Was Placed At Serial No. 3. The Final Evaluation Sheet For The Post Of Diploma Trainee (Electrical) Indicated That The Appellant Was, On The Basis Of His Being An OBC Candidate, Granted A Relaxation In The Minimum Qualifying Marks In The Written Test. One Of The OBC Candidates, Manish Kumar Saini Who Had Secured 56.18% Marks In The Written Test Did Not Obtain The Minimum Qualifying Marks In The Interview And Was Also Accordingly Granted A Relaxation As Contemplated. A Select List Of Candidates Was Drawn Up In Which The Name Of The Appellant Was Shown In The OBC (NCL) Category At Serial No. 3. Since The First Selected Candidate From The OBC Category, Manish Kumar Saini Did Not Join Despite The Issuance Of An Offer, The Appellant Was Selected For The Position.
The Appellant Was Deputed For "on The Job Of Training" On 6 August 2009 For A Period Of One Year On Stipend. By An Order Dated 13 August 2010, On The Successful Completion Of The Period Of Training, The Appellant Was Placed In The Regular Establishment Of The Corporation As Junior Engineer Grade-IV (S1) On Probation For A Period Of One Year. On 11 June 2013, The Services Of The Appellant Were Dispensed With By An Order Of Termination Simpliciter. That Led To The Institution Of Writ Proceedings By The Appellant Challenging The Order Of Termination.
A Counter Affidavit Was Filed On Behalf Of The Corporation In Which It Was Stated That The Appellant Had Obtained Employment By Misrepresenting That He Belonged To An OBC Category, Namely The Jat Community And Was Initially Recruited As A Diploma Trainee (Electrical) In The OBC (NCL) Category For A Period Of One Year And Thereafter Placed As A Junior Engineer Grade-IV (S1) On Probation On The Basis That He Was A Reserved Category Candidate. On Verification Of The Caste Certificate From The District Authorities, It Was Found That The Jat Community Did Not Fall Within The Purview Of OBC Category In The Central Services And The Appellant Was Not Entitled To The Benefit Of Reservation. Accordingly, Invoking The Provisions Of Clause 7 And Clause 17 (f) Of The Terms And Conditions Of The Letter Of Appointment, The Services Of The Appellant Were Terminated. The Submission Of The Corporation Was That The Appellant Had Remained A Probationer All Along And That In The Absence Of An Order Of Confirmation, He Had Not Become A Permanent Employee Of The Corporation. Hence, The Termination Of Service During The Period Of Probation Was Sought To Be Justified.
The Learned Single Judge, Upon Being Moved In Writ Proceedings Under Article 226 Of The Constitution, Has Come To The Conclusion That (i) The Appellant Declared That He Belonged To The OBC Category In His Application Form; (ii) The Appointment Of The Appellant As A Diploma Trainee (Electrical) Was Subject To The Condition That If The Declaration Was Found To Be Incorrect, His Services Would Be Liable To Be Terminated; (iii) The Undisputed Position Is That Persons Belonging To Jat Community Were Not Entitled To The Benefit Of Reservation In Appointments To Public Sector Undertakings Falling Within The Domain Of The Government Of India; (iv) The Appellant Was Given The Benefit Of Relaxation On The Basis That He Belonged To A Reserved Category Which Was Founded On The Declaration Made By Him In His Form To The Effect That He Was An OBC Candidate; (v) The Appellant Was A Probationer, And Unless A Specific Order Of Confirmation Was Issued (and Which Was Not Shown To Have Been Issued), There Was No Automatic Confirmation Or Deemed Confirmation, As Submitted By The Appellant. The Petition Has Hence Been Dismissed.
In Assailing The Judgement Of The Learned Single Judge, The Following Submissions Have Been Urged On Behalf Of The Appellant:
(i) Though The Appellant Had Disclosed In His Application Form That He Belonged To The OBC Category (Category Code 03), As A Matter Of Fact, He Was Appointed As A General Category Candidate And Hence, No Benefit Was Extended To Him Of Belonging To An OBC Category;
(ii) Under The Service Rules, The Maximum Period Of Probation Could Have Been Two Years And In The Present Case, The Period Of Probation Of Two Years Had Expired. Hence The Appellant Must Be Deemed To Have Been Confirmed;
(iii) The Appellant Had Been Placed In The Regular Establishment Of The Corporation As Junior Engineer Grade-IV (S1) After Completion Of His Training;
(iv) The Order Of Termination Is Vitiated In The Absence Of An Inquiry To Establish A Charge Of Misconduct; And
(v) A Notice Of Three Months Is Required To Be Furnished To A Regular Employee Under Clause 24.2.4 Of The Service Rules Which Was Not Furnished.
On The Other Hand, It Has Been Urged On Behalf Of The Second, Third And Fourth Respondents That :
(i) Not Only Did The Appellant Claim The Benefit Of Belonging To The OBC Category, But As The Documentary Material On The Record Would Indicate, He Was Granted A Relaxation In The Matter Of Selection, Not Having Qualified With The Requisite Minimum Marks In The Written Test On The Basis That He Belonged To The OBC Category;
(ii) Admittedly, And It Is Not In Dispute, The Appellant Did Not Belong To The OBC Category;
(iii) The Service Rules Specifically Require An Order For Confirmation In Service And There Is No Provision For Deemed Or Automatic Confirmation;
(iv) The Corporation Was, In These Circumstances, Justified In Discharging The Appellant By An Order Of Termination Simpliciter Which Does Not Cast Any Stigma And Hence No Disciplinary Inquiry Was Instituted;
(v) In The Alternative, And In Any Event, Once The Material Facts Are Not In Dispute, There Was No Occasion To Hold An Inquiry; And
(vi) The Requirement Of A Three Months' Notice Is Attracted Only In The Case Of A Regular Employee Which The Appellant Was Not.
The Rival Submissions Fall For Consideration.
At The Outset, The Admitted Position On Record Must Be Adverted To. There Are Two Admitted Facts Which Have Been Conceded At The Hearing. The First Is That The Appellant, When He Submitted His Application For Employment, Claimed That He Belonged To The OBC Category (with Category Code Of 03). Second, At The Material Point Of Time, The Appellant Was Not Entitled To The Benefit Of Appointment As An OBC Candidate. The Corporation, In The Course Of The Proceedings Before The Learned Single Judge, Placed On The Record The Material Facts Relating To The Process Of Selection. The Record Would Indicate That Since There Were Eight Open Posts For General Category Candidates, Twenty Four Candidates Who Had Qualified In The Written Test Were Called For Interview. In Drawing Up The List Of Candidates Who Were Called For The Interview, The Corporation Took Into Account All Candidates Who Were Above The Cut Off Of 47.06 % Marks Obtained By The Last General Category Candidate Irrespective Of Whether Or Not A Candidate Belonged To A Reserved Or General Category. In Other Words, Once A Candidate Had Secured Marks In Excess Of The Applicable Cut Off, All The Twenty Four Candidates Were Called For The Interview On The Basis Of The Marks Obtained In The Written Test Irrespective Of Category. There Were Two Posts Which Were Reserved For OBC Candidates For Which Six Candidates With The Requisite Percentage Of Marks Were Called For Interview.
The Appellant Was Called For The Interview, Specifically By Granting Him A Relaxation In The Marks Obtained In The Written Test. This Benefit Was Admittedly Available To An OBC Candidate. The Candidate Who Was Placed First In Order Of Merit In The OBC Category Did Not Join Service Despite The Offer Which Was Issued To Him And Hence The Second And The Third Candidates Were Offered Appointments Specifically As OBC Candidates. The Appellant Was The Third Candidate In The List Of OBC Candidates And Was Offered Appointment As An OBC Candidate. The Record Would, Therefore, Clearly Support The Contention Of The Corporation That The Appellant Was Assessed On The Basis Of His Claim As An OBC Candidate And Was Offered An Appointment On That Basis.
The Position Of The Appellant After He Completed His Training Of One Year Was Of A Probationer. On 13 August 2010, The Corporation Informed Him That He Was Being Placed In The Regular Establishment As A Junior Engineer Grade-IV (S1) And That He Would Be On Probation For A Period Of One Year Which, It Was Stated, May Be Extended At The Discretion Of The Management.
The Power Grid Corporation Of India Ltd. Service Rules3 Define The Expressions "probationer" And "regular Employee" In Clause 2 (k) And Clause 2 (l) As Follows:
(k) "Probationer" Means An Employee Who Is Provisionally Employed With A View To Being Considered For Appointment On The Regular Establishment Of The Corporation.
(l) "Regular Employee" Means An Employee Who Has Been Engaged In A Vacancy On The Regular Establishment Of The Corporation And, Except In The Cases Of Those Who Are Exempted From Probation As Laid Down Hereunder, Has Been Declared In Writing To Have Satisfactorily Completed His Probation Period In One Or The Other Post."
The Expression "probationer" Is Defined By Clause 2 (k) Of The Service Rules As A Person Who Is Provisionally Employed For Being Considered For Appointment On The Regular Establishment Of The Corporation. A Regular Employee Is Defined In Clause 2 (l) To Mean An Employee Who Is Engaged In A Vacancy On The Regular Establishment And Has Been Declared In Writing To Have Satisfactorily Completed His Probation Period, Unless He Is Exempted From Probation. This Indicates That There Is No Automatic Confirmation In Service Of A Probationer Since The Service Rules Expressly Contemplate That There Has To Be A Declaration In Writing Of A Probationer Having Satisfactorily Completed His Probation Before He Or She Can Be Treated As A Regular Employee Of The Corporation. Under Rule 9.1.1, The Period Of Probation Is To Be For One Year During Which The Performance Of The Employee Will Be Watched With A View To Determining His Or Her Suitability For Confirmation Against The Regular Post. Rule 9.1.4 Specifies That The Period Of Probation May Be Extended At The Discretion Of The Competent Authority But Will Not Be Extended By More Than One Year Save For Exceptional Reasons To Be Recorded In Writing. Clause 9.1.5 Shows That Every Employee Who Is Appointed In The Service Is To Be Issued A Formal Order Of Confirmation On Satisfactory Completion Of The Probationary Period Or The Extended Period Of Probation. Clause 9.1.5 Also States That The Employee Will Be Deemed To Be On Probation Until So Confirmed In Writing. Under Clause 9.1.6, An Order For Confirmation Or Extension Of Probation Will Normally Be Communicated Within One Month From The Date Of Completion Of The Probationary Period Or Extended Period Of Probation. However, It Is Clarified That Non Compliance Of This Stipulation Will Not Result In Automatic Confirmation Of The Employee.
The Plain Consequence Of The Service Rules, Is That An Order In Writing Confirming The Services Of A Probationer On The Satisfactory Completion Of The Probationary Period Is Required Before An Employee Can Be Regarded As A Regular Employee Of The Corporation. It Is Clear From Clause 2 (l), Clause 9.1.5 And Clause 9.1.6 That An Employee Is Deemed To Be On Probation Until Confirmed In Service In Writing. Moreover, Non Compliance Of The Stipulation In Regard To The Communication Of An Order Of Confirmation Or Extension Within One Month From The Date Of Completion Of The Probationary Period Or Extended Period Will Not Result In Automatic Confirmation Of An Employee.
Having Regard To These Stipulations, There Can Be Absolutely No Doubt About The Position That The Appellant Was Only A Probationer And Did Not Attain The Status Of A Regular Employee Of The Corporation. Since The Appellant Was A Probationary Employee, It Was Open To The Corporation To Discharge Him From Service By An Order Of Termination Simpliciter. The Appellant Had Claimed The Benefit Of Belonging To The OBC Category. As The Admitted Facts Indicate, He Did Not Belong To The OBC Category. The Claim Of The Appellant Was Processed On The Basis That He Was An OBC Candidate And The Documents Pertaining To The Selection Process Also Indicate The Same Position. No Contrary Inference Can Be Drawn Merely On The Basis Of A Stray Or Isolated Communication To The Contrary.
The Learned Single Judge Was Hence Justified In Coming To The Conclusion That This Was Not A Case Where There Was A Deemed Or Automatic Confirmation. The Services Of The Appellant Were Terminated By An Order Of Discharge Simpliciter Which The Employer Was Entitled To Issue. If A Probationer Has Made A Claim Of Belonging To A Reserved Category And Does Not, In Fact, Belong To The Reserved Category As The Admitted Facts So Indicate, It Is Not Necessary, In Such A Case, To Compel The Employer To Hold A Disciplinary Inquiry On A Charge Of Misconduct And Thereafter To Stigmatize The Probationer By Terminating His/her Services For Misconduct. So Long As The Employee Is A Probationer, The Employer Would Be Justified And Would Be Well Within His Right In Acting In Accordance With The Authority To Discharge A Probationer Simpliciter On The Basis That The Employee Does Not Belong To A Reserved Category.
Even If The Matter Is Looked At From Another Perspective, It Is Evident That, In The Present Case, The Fact That The Appellant Had Claimed To Belong To The OBC Category And That He Did Not So Belong, Is Not In Dispute. The Material On The Record In Relation To The Selection Process Has Been Duly And Correctly Appreciated By The Learned Single Judge.
In A Special Appeal Arising From The Judgement Of The Learned Single Judge, We See No Reason To Take A Different View. The Requirement Of Three Months' Notice, Under Clause 24.2.4 Applies In The Case Of A Regular Employee And Is, Therefore, Plainly Not Attracted. In The Case Of A Probationer, Clause 24.2.3 Contemplates A Termination Without Assigning Any Reason By Giving One Month's Notice Or Payment Of Salary In Lieu Thereof. At The Highest, The Appellant Would Be Entitled To His Salary For A Period Of One Month In Lieu Of The Period Of Notice, Which We Order And Direct The Corporation To Pay To The Appellant Forthwith.
For These Reasons And Subject To The Direction That The Appellant Would Be Paid His Salary For A Period Of One Month Together With All Pay And Allowances For One Month As Stipulated In Clause 24.2.3 Of The Service Rules, We See No Reason To Differ With The View Which Has Been Taken By The Learned Single Judge.
The Special Appeal Is, Accordingly, Disposed Of. There Shall Be No Order As To Costs.
Order Date :- 25.11.2014 (Dr.D.Y.Chandrachud,C.J.)
RK
(P.K.S. Baghel,J.)




C.M. Delay Condonation Application No. 382619 Of 2014
Case :- SPECIAL APPEAL DEFECTIVE No. - 970 Of 2014
***
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Pradeep Kumar Singh Baghel,J.

The Special Appeal Is Delayed By 25 Days As Reported By The Registry.
The Application For Condonation Of Delay Is Allowed, Sufficient Cause Having Been Shown In The Affidavit In Support.
There Shall Be No Order As To Costs.

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