JUDGMENT M. Katju, J.
1. This writ petition has been filed against the impugned reversion order dated 15.12.2000, Annexure-11 to the writ petition by which the petition has been reverted from the post of Deputy Manager to Assistant Manager in F.C.I. The petitioner has also challenged the consequential order dated 24/28.11.2000, Annexure 13 to the writ petition.
2. We have heard the learned Counsel for the parties.
3. The petitioner was promoted as Assistant Manager in the service of the respondents in 1977. He was promoted as Deputy Manager vide order dated 21/22.4.1999 Annexure-4 to the writ petition. A perusal of this order shows that the promotion was provisional and was on probation for a period of one year with effect from the date he assumes the charge. It could be extended by a further period not exceeding one year and would be subject to any direction given by the Court in the matter referred to in the order dated 31.3.1999 issued by the Head Quarter Office as well as the order by the Regional Manager. F.C.I., Lucknow dated 13/16.4.1999. Copy of the order dated 13/16.4.1999, is Annexure-5 to the writ petition. Copy of the order dated 31.3.1999 is Annexure-6 to the writ petition. The order dated 31.3.1999, states that the provisional promotion of the petitioner to the post of Deputy Manager is subject to the condition that the promotion is subject to the final result of the writ petition against the order dated 12.11.1996 in Writ Petition No. 7979 of 1994, pending in Punjab and Haryana High Court, Writ Petition No. 2409 of 1999, pending before Delhi High Court and S.L.P. No. 8766 of 1998, pending before the Supreme Court. Clause (c) of the order dated 31.3.1999 states that the promotion is also subject to further review once the matter of seniority is decided by the various Courts and reaches its finality.
4. The petitioner joined in pursuance of the promotion order on 4.5.1999 as Deputy Manager vide joining report at Calcutta, Annexure-7 to the writ petition. It is alleged in Paragraph 14 of the writ petition that the petitioner fell ill and hence he had to proceed on leave and came back at Kanpur after applying for medical leave. It is alleged that the petitioner had to undergo surgery vide Annexure-9 to the writ petition and was advised to take rest from 5.12.2000 to 14.1.2001. It is alleged that the petitioner's medical bills were reimbursed by the F.C.I, vide Annexure 10 to the writ petition. The petitioner remained on medical treatment from 28.10.2000 to 28.11.2000, and also extended leave on medical grounds. The petitioner was again advised for operation of prostrate and this was communicated by the petitioner by telegram dated 7.11.2000, 21.11.2000 and 30.11.2000. Thereafter the petitioner received a telegram dated 15.12.2000 stating that he has been reverted to the post of Assistant Manager vide order dated 28.11.2000 and was directed to report at F.C.I. Zonal Officer (North), New Delhi. True copy of the telegram is Annexure-11 to the writ petition. By communication dated 15.12.2000 the order dated 24/28.11.2000 has been communicated to the petitioner for reverting him. True copy of the orders dated 24/28.11.2000 and 15.12.2000 are Annexures 12 and 13 to the writ petition. It is alleged that no opportunity of hearing was given to the petitioner before passing the impugned order. It is further alleged that there is no complaint whatsoever regarding the work and conduct of the petitioner as Deputy Manager. In Paragraph 26 of the writ petition, it is stated that the Competent Authority has not passed any order of extension of the period of probation beyond one year and hence the petitioner should be deemed to be confirmed as Deputy Manager. Hence, this petition.
5. A counter-affidavit has been filed on behalf of the respondents 1, 2 and 3 by the Joint Manager/Regional Manager, F.C.I., Lucknow. In Paragraph 4 of the same, it is stated that the petitioner was promoted as Deputy Manager on provisional basis. The promotion order dated 31.3.1999 was on the terms and conditions which provide that such promotion dies not bestow any claim for seniority and confirmation on the post during the pendency of the litigations mentioned in that order. Similarly, the probation period of one year which could be extended for not more than one year was subject to any direction that may be given by the Court in the aforesaid litigations. The probation period is governed by the Regulation 15(2) of the F.C.I. Staff Regulations, 1971, and the petitioner's promotion was subject to the conditions mentioned therein. In Paragraph 6, it is stated that it is open to the Competent Authority to revert the petitioner, if his performance during the probation period was found unsatisfactory. It is stated in Paragraphs 9, 11 and 12 of the counter-affidavit that the petitioner work was unsatisfactory during his probation period. The first two probation reports received from the Regional Office, Patna/Zonal Office, Calcutta, were considered and the petitioner's performance was found unfit in the first probation report and average in the second probation report. A decision was taken by the Managing Director, F.C.I, to call for a third probation report to decide whether the petitioner should be continued as Deputy Manager or not. The third probation report received from the Zonal Office, Calcutta also stated that the petitioner was unfit and his work was unsatisfactory. Hence, after considering the third probation report it was decided to revert the petitioner to the post of Assistant Manager. It is stated that no opportunity of hearing had to be given to the petitioner before reverting him as his promotion was on probation and he was never confirmed.
6. In Paragraph 10 of the counter-affidavit, it is stated that after taking initial leave from his place of posting at Regional Office, Patna, the petitioner went to Kanpur, his native place, from where he went on medical leave without sanction of the Competent Authority. Thus, his leave was unauthorised and he prayed for extension of his leave only after receipt of the reversion order with intent and motive to get the unauthorised leave regularized.
7. In our opinion, there is no merit in this petition. It is well settled that a probationer has no right to hold the post, as he is not a confirmed employee. It is well settled in service law that even after the period of probation has come to an end an employee remains on probation and does not become automatically confirmed until and unless a confirmation order is passed. The only exception to this is where the maximum period of probation is prescribed in the service rules. If that maximum, period has expired then the probationer becomes automatically confirmed vide Wasim Beg v. State of U.P., 1998 (3) SCC 321. In the present case, we have not been shown an statutory rule regarding the maximum period of probation. Instead we have been referred to the orders copies of which are Annexure 4,5 and 6 to the writ petition which are letters of various authorities stating that the period of probation would be one year and this can be extended by a further period not exceeding one year and/or subject to the direction given by the Court in certain litigations. In our opinion, a letter or order does not amount to a statutory rule. In order to claim automatic confirmation a probationer should must show that there is a statutory rule fixing the maximum period of probation. There is no such statutory rule under the F.C.I. Staff Regulation, 1979 or elsewhere which gives benefit to the petitioner to automatic confirmation. In the absence of such statutory rule the petitioner cannot claim to have become automatically confirmed.
8. As mentioned in the counter-affidavit of the F.C.I., the petitioner's work had been assessed in the three probation reports and he was ultimately not found fit for promotion as Deputy Manager.
9. No doubt termination of probation by way of punishment is illegal, but in this case as mentioned in the counter-affidavit the termination was on the assessment of the work of the petitioner and not by way of punishment. Hence, it cannot be held to be punitive and no opportunity of hearing had to be given to the petitioner as he was not confirmed on the post of Deputy Manager. As held by the Supreme Court, in L.I.C. v. Raghavendra, AIR 1998 SC 327, (vide Paragraph 13), a person who is placed on probation does not have the right to hold the post, and it is found that he was not suitable for post his probation can be terminated at any time and he can be reverted to his original post. In Paragraph 14 of the same decision the distinction between a permanent employee and an employee placed on probation has been mentioned and it was stated that there was no need to give notice or to hold a regular enquiry before passing the reversion order. In Paragraph 15, it was held that a discharge from service during the probation period is valid.
10. In Wasim Beg v. State of U.P., 1998 (3)SCC 321, it was held that whether an employee at the end of the probationary period automatically gets confirmation on the post or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary will depend upon the provisions in the relevant service rules relating to probation and confirmation. Where the rules provide for a maximum period of probation beyond which probation cannot be extended at the end of the maximum probationary period there will be a deemed confirmation of the employee unless the rules provide to the contrary. Thus, it is the service rule which is material for determining whether the employee has become automatically confirmed or not. Mere letters like those contained in Annexures 4, 5 and 6 do not amount to service rules. Hence, they cannot give any right to the employee to get automatic confirmation even if they have prescribed the maximum period of probation.
11. In H.F. Sangati v. Registrar General, High Court of Karnataka, 2001 (89) FLR 231, it was held that discharge of a probationer is not a punitive order and does not require compliance of the principles of natural justice. In K. V. Krishnamani v. Lalit Kala Academy, 1996 (5) SCC 89, the reason for termination given in the counter was that the driving of the staff car was not satisfactory. It was held by the Supreme Court that this only constituted the motive and not the foundation for the termination. Hence, it was held that an enquiry was not necessary as the termination was simpliciter and not punitive.
12. Hence, there is no merit in this petition and it is accordingly dismissed.