ARCHANA DAYAL Vs. UNION OF INDIA

JUDGEMENT

(1.) In this Petition it has been prayed that the Order dated 4.4.2005 whereby the Petitioner's services have been terminated should be quashed and the Respondents should be directed to immediately confirm the Petitioner in service. The Husband of the Petitioner, Dr. D.B. Dyal, joined the service of Respondent No.2, namely, National Board of Examinations, in September, 2001 as the Controller of Examinations. In February, 2002 the Petitioner was appointed as Assistant Controller of Examinations by Memorandum dated 4.2.2002 which stated, inter alia, that the said post was temporary but likely to continue; and that the Petitioner would be on probation for a period of two years from the date of appointment which may be extended at the discretion of the competent authority. It has been asseverated by the Petitioner that she had addressed a letter to the erstwhile President on 5.2.2004, bringing it to his notice that she had completed two years of probation and that her 'posting' should be confirmed. Receipt of this letter has been vehemently denied by the Respondents, on whose behalf learned Additional Solicitor General, Mr. P.P. Malhotra, has appeared and has produced Dak Register. Mr. Malhotra has contended that although this letter bears the handwriting of the erstwhile President, it has been manufactured for the purposes of the Petitioner. It is his submission that the Petitioner has not been confirmed and, therefore, the Writ Petition deserves to be dismissed. Mr. Madan Bhatia, learned Senior Counsel appearing on behalf of Respondents No.2-3, has drawn attention to the fact that the Petitioner has herself pleaded her non- confirmation even after the completion of the probation period.

(2.) The Constitution Bench has opined in S. Sukhbans Singh vs. The State of Punjab, AIR 1962 SC 1711 that a probationer cannot, after the expiry of probationary period, automatically acquire the status of a permanent member of a service the rules under which he is appointed expressly provide for such a result. In State of Punjab vs. Dharam Singh, 1968 3 SCR 1 the Constitution Bench has enunciated that - where on the completion of the specified period of probation an employee is allowed to continue in the post without an order of confirmation, in the absence of anything to the contrary in the original order of appointment or promotion or the Service Rules, the initial period of probation is deemed to be extended by necessary implication. In Partap Singh v. Union Territory of Chandigarh and another, AIR 1980 SC 57 it has been held that the concerned officer cannot be deemed to have been confirmed in the absence of an order of confirmation even at the end of the probation of three years. Similar views have been expressed in Chandra Prakash Shahi vs. State of U.P. and others, AIR 2000 SC 1706 where Regulation 541 of the U.P. Police Regulations had come up for consideration. The Court observed that the period of probation was for two years and the Regulation was silent as to the maximum period beyond which it could not be extended. The Apex Court held that in the absence of any such prohibition, even if the appellant had completed two years of probationary period successfully and without any blemish, his period of probation must be treated as having been extended, as a permanent status can be acquired only by means of a specific order of confirmation. The same conclusion has been arrived at in High Court of M.P. through Registrar and others vs. Satya Narayan Jhavar, (2001) 7 SCC 161.

(3.) The impugned Termination Order reads as follows: Subject : Discharge Letter Madam, By virtue of Appointment Letter dated 04.02.2002, you were appointed to the temporary post of Assistant Controller of Examinations with the National Board of Examinations initially on probation for a period of two years. The probation period was extendable at the discretion of the Competent Authority. During your probation period, which still continues, your services have not been found to be satisfactory by the Competent Authority, therefore, your services in terms of the Appointment Letter dated 04.02.2002 are hereby discharged forthwith. You are requested to handover the charge to Shri M. Srinivasan, Deputy Director (Administration), National Board of Examinations forthwith. This order shall come in effect forthwith. Orders for release of your dues have been issued separately. This order is issued with the approval of the Competent Authority i.e. President, National Board of Examinations. Sd/- Dr. A.K. Sood Executive Director