Post Expiration Of Probation Period, Automatic Confirmation Cannot Be Claimed As Matter Of Right: Madhya Pradesh High Court

The Madhya Pradesh High Court has recently observed that automatic confirmation cannot be claimed as a matter of right after the expiry of probation period, unless there is a vacancy for the same job. While modifying the order related to discontinuation of services dated January 2, 2018 ("impugned order") Single Judge bench of Justice GS Ahluwalia remarked that, "Expiry of the probation period does not necessarily mean confirmation and at the end/ expiry of the period of probation, normally an order confirming the officer is required to be passed and if no such order is passed, he shall be deemed to have continued on probation unless the terms of appointment or the relevant rules governing the service conditions provide otherwise." Facts of the Case The petitioner was appointed to the post of Constable for two years and after due medical and character verification was granted by an appointment order dated January 1, 2014. One of the conditions of the appointment order was that in the light of Rule 12 of the Madhya Pradesh Government Servants (Temporary and Quasi-permanent Service) Rules, 1960 (''the Rules,1960''), the petitioner's services could be discontinued by giving one month's notice or one month's advance salary in lieu thereof. On account of sickness of the petitioner's father, he remained absent from his duties with effect from April 15, 2017, and did not submit his joining thereafter and as a result, his services were discontinued by order dated January 2, 2018, as per the provisions of Regulation 59 of the Madhya Pradesh Police Regulations. Against the order dated January 2, 2018, the petitioner had preferred an appeal before the Inspector General of Police, SAF, Gwalior Range, Gwalior which was dismissed on April 9, 2018. The petitioner had also preferred a mercy appeal which too was dismissed by the impugned order dated August 30, 2018. The petitioner had thereafter approached the High Court challenging the order dated January 2, 2018. Contentions Placed By Counsel(s) The petitioner's counsel contended that the order dated January 2, 2018, did not disclose the reasons for putting an end to the petitioner's services but it was specifically mentioned in the appeal that the petitioner was in habit of remaining on unauthorized absence and on one occasion a minor penalty was also imposed on him. The petitioner's counsel further submitted that the reasons assigned by the Appellate Authority were stigmatic in nature and therefore a Departmental Enquiry should have been conducted against the petitioner. It was also submitted that the original period of probation was for two years and according to Regulation 59 of Madhya Pradesh Police Regulations, the period of probation could be extended by a further period of six months for two times. "Since the petitioner was appointed in the year 2014 and although no specific order was issued thereby confirming him in service but as the probation period of the petitioner was not extended after completion of his three years (including the extension period), therefore, it had to be presumed that the petitioner was confirmed in the service and accordingly, his services could not have been terminated without holding a Departmental Enquiry," petitioner's counsel also submitted. Opposing the petition vehemently, State's counsel submitted that no reasons were assigned in the impugned order and therefore it was a discontinuation simpliciter without any allegation/ stigma. Since the petitioner had only in the memo of appeal raised the question of absence of reasons, in order to consider the grounds raised in the appeals, the Appellate Authority had considered the previous conduct of the petitioner which couldn't be said to be stigmatic in nature, the State's counsel submitted. It was also his contention that there was no provision of law which provided that if order of extension of probation was not passed after completion of probation period, then an employee should be treated to be confirmed in the service. Court's Observations Taking note of the fact that the petitioner did not file any medical prescriptions of his father to show that his father was seriously sick and petitioner's failure to point out any legal provision of law which authorized an employee to remain on unauthorised absence without informing and seeking leave from the Department on any ground, the Court noted that the Government employee could not be permitted to remain on unauthorized absence without informing the Department and specifically when he was a Constable in SAF, being a part of a uniform disciplined force. The Bench also took into account the failure of the petitioner's counsel to point out any provision of law which provided that in case the probation period was not extended after the period of three years (including two extensions) from the date of appointment, the petitioner was to be...

Post Expiration Of Probation Period, Automatic Confirmation Cannot Be Claimed As Matter Of Right: Madhya Pradesh High Court

Shruti Kakkar

The court noted that a government employee could not be permitted to remain on unauthorized absence without informing the Department and specifically when he was a Constable in SAF.

Tags