1. The petitioner is an employee of this Court. He joined the service as Routine Grade Assistant on 19.11.1996. He was promoted to the post of Lower Division Assistant in December, 1999 and was placed on probation. In the year 2005, he was considered for confirmation, but was not found suitable and consequently, the matter relating thereto was deferred. Again in October, 2007 a Committee constituted by the Registrar General considered the petitioner as well as other employees working on probation for their services being confirmed. The service of the petitioner was again not found to be satisfactory and the matter relating thereto was again deferred. The petitioner filed representation before the Registrar General, who is Appointing Authority of the petitioner. On 15.10.2008, the Registrar General rejected the representation holding that overall conduct of the petitioner is not satisfactory. For such purpose, he interalia took into consideration a warning entry issued to him on 19.7.2007 on the basis of a departmental inquiry. Its communication to the petitioner by the Joint Registrar (Establishment) on 22.10.2008 is subject matter of challenge in the instant petition. The petitioner has also prayed for a mandamus commanding the respondents to confirm his services since December 2000 and to promote him from 31.8.2007, the date from which his juniors were promoted, with all consequential benefits. During the pendency of the writ petition, by an office order dated 17.4.2009, the service of the petitioner was confirmed on the post of Assistant Review Officer from the date of the order, subject to decision of the instant writ petition. The aforesaid order, in so far as it denies confirmation of service of the petitioner since December, 2000, is also under challenge, by getting the petition amended. Following the order of confirmation, by another order dated 31.5.2010 passed by Registrar General, the petitioner was promoted to the post of Review Officer, subject to seniority being fixed as per decision in the instant writ petition.
2. The case of the petitioner is that under the Service Rules the period of probation prescribed is one year and since no order was passed extending the period of probation and consequently, he would be deemed to have been confirmed in December, 2000. It is urged that the probation could be extended by a maximum period of three years, which expired in December, 2003. Thereafter, his services would be deemed to have been confirmed. There was no justification in not confirming him in the year 2005 or in postponing the issue relating to confirmation on the ground that his services had not been found to be satisfactory. It is urged that the same mistake was committed when the respondent refused to confirm the petitioner in October, 2007. It is further submitted that at the relevant time there was no adverse entry in preceding five years. The solitary adverse entry of the year 2001-02, being an entry more than five years old, could not be made basis for not confirming the petitioner and in denying promotion to him. The warning issued by the Registrar General by order dated 12.6.2007 also could not form basis for withholding confirmation or denying promotion to the petitioner inasmuch as a warning is neither an adverse entry nor a punishment under the Service Rules. It is pointed out that a preliminary inquiry in another matter which also formed the basis for denying confirmation, has culminated in favour of the petitioner and thus, the same could not have been the basis for denying confirmation in service. It is urged that the respondent had acted in a discriminatory manner in promoting since 31.8.2007, a number of persons junior to the petitioner, even though in respect of two of the employees namely Pankaj Mishra and Pankaj Kushwaha adverse entries were also there.
3. The writ petition was opposed by learned counsel for the respondent by contending that under the Service Rules, although a maximum period of probation as well as extended period of probation are prescribed, yet there is no provision of deemed confirmation. It is submitted that the Appointing Authority is enjoined with the duty to assess the suitability of a candidate and he is confirmed only if he is found fit and his integrity is certified. It is urged that in the case of the petitioner, his work and conduct was not found to be satisfactory. It is submitted that in the year 2001-02 there was an adverse entry against the petitioner followed by another adverse entry in the year 2004-05, which though was expunged later on. It is submitted that in the year 2005 the case of the petitioner was considered for confirmation of his services but it was found to be unsatisfactory. Consequently, the matter was deferred. It is pointed out that in a departmental proceeding held against the petitioner, he was found guilty of indiscipline and misbehavior with his superiors. However, the respondent, taking into consideration the unconditional apology submitted by the petitioner as well as the fact that it was first such instance, took a lenient view and instead of awarding any severe punishment, he was let off with a warning to be careful in future and be a disciplined employee. It is submitted that it amounts to a censure entry within the meaning of Service Rules and consequently, the respondent was justified in denying confirmation to the petitioner in the year 2007 when his case was considered for confirmation alongwith other employees. It is further submitted that under the Service Rules only a permanent employee in the cadre is to be considered for promotion. In August 2007, when other employees were granted promotion since 31.8.2007, the petitioner was not a confirmed employee but was on probation. He was, therefore, not within the zone of consideration for promotion to the post of Review Officer. It is thus sought to be suggested that the relief claimed by the petitioner seeking promotion since 31.8.2007 has no rational basis. It is further submitted that Registrar General in his order dated 15.10.2008 has given detailed reasons for rejecting the representation filed by the petitioner against denial of confirmation to him in October, 2007. He further submitted that later on the respondent again assessed the suitability of the petitioner for confirmation of his services and upon being satisfied, issued office order confirming his service w.e.f. 16.4.2009 and also granted promotion to him since 31.5.2010 and thus, no discrimination has been practiced against the petitioner. It is submitted that the alleged adverse entries against Pankaj Mishra and Pankaj Kushwaha were advisory in nature, for future guidance, and since they had shown fast improvement, consequently, they were confirmed, whereas in case of the petitioner, instead of there being any improvement, he was found guilty in the disciplinary proceedings resulting in issuance of warning on 12.6.2007. It is thus sought to be suggested that no discrimination has been practiced against the petitioner as alleged. It is further submitted that the instant writ petition seeking confirmation and promotion from a back date will adversely affect those senior to him, thus, without impleading such persons, the writ petition is not maintainable.
4. I have considered the submissions made by learned counsel for the parties and perused the material on record.
5. The services of the petitioner is governed by the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 19761. Rules 32 and 33, which are relevant for answering the issues posed before this Court, are as under:-
"32. Probation.- (1) A person on initial appointment to a post in the establishment in substantive capacity shall be placed on probation for a period of one year.
(2) The Appointing Authority may allow continuous service rendered in an officiating capacity or as a temporary measure on the post or on a higher post, to be taken into account for the purpose of computing the period of probation.
(3) The Appointing Authority, may, for reasons to be recorded in writing, extend the period of probation in individual cases specifying the date upto which the extension is granted. Provided that in no case the period of probation will be extended by three years.
(4) If it appears to the Appointing Authority at any time during or at the end of the period of probation or extended period of probation, as the case may be, that a probationer has not made sufficient use of his opportunities or has otherwise failed to give satisfaction, he may be reverted to his substantive post, if any, or if he does not hold a lien on any post, his services may be dispensed with.
(5) A person whose services are dispensed with under sub-rule (4) shall not be entitled to any compensation.
33. Confirmation.- A probationer shall be confirmed in his appointment at the end of his period of probation or extended period of probation as the case may be, if-
(a) his work and conduct during the probationary period have been found to be satisfactory;
(b) he is considered fit for confirmation; and
(c) his integrity is certified."
6. Rule 32 provides for a probation of one year which could be extended by three years. Thus, the maximum period of probation under the Service Rules is four years. In case of the petitioner whose initial promotion to the cadre of Lower Division Assistant was in December, 1999, the maximum period of probation had thus come to an end in December, 2004. The basic issue for consideration is whether after the expiry of maximum period of probation, the service of the petitioner shall be deemed to have been confirmed or he continues to be a probationer until a specific order of confirmation is passed under Rule 33. The issue is no more res-integra and now stands settled by a series of Constitution Bench judgments of the Supreme Court. In High Court of M.P. Vs. Satya Narayan Jhavar2 a three Judge bench of the Supreme Court was considering a reference made to it by a two Judge bench disagreeing with the view taken by another two Judge bench in Dayaram Dayal Vs. State of Madhya Pradesh3. The Supreme Court, after considering various Constitution Bench judgments as well as series of other decisions, noticed that there are three line of cases on the point viz. (a) where in the service rules or the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation; (b) where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry order of termination has not been passed; and (c) where though under the rules maximum period of probation is prescribed, but the same require a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor the person concerned has passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.
7. The Supreme Court considered the Constitution Bench judgements in the case of Sukhbans Singh Vs. State of Punjab4, G.S. Ramaswamy Vs. Inspector General of Police, Mysore5 and State of Uttar Pradesh Vs. Akbar Ali Khan6 and held that under the first line of cases where no maximum period of probation is stipulated under the Service Rules or the letter of appointment, a probationer cannot be deemed to be confirmed. It is held that in such cases there is no bar against termination at any point of time, before the service is confirmed.
8. The real difficulty is in drawing a distinction between the second and third line of cases. It was noticed that in support of the contention of deemed confirmation, anchor-sheet of the argument is another Constitution Bench judgment in the case of State of Punjab Vs. Dharam Singh7. In that case, the Supreme Court held that at the end of maximum period of probation, the probationer shall be deemed to be confirmed in service. Relying on the said judgment, the two Judge Bench of the Supreme Court in the case of Dayaram (supra) took the view that Rule 24 of the Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955 contemplated a deemed confirmation on expiry of maximum period of probation. The Larger Bench of the Supreme Court in High Court of Madhya Pradesh Vs. Satya Narayan Jhavar (supra) did not agree with the view taken in Dayaram's case (supra) and distinguished Dharam Singh (supra) by holding as under:-
"20. From the aforesaid passage, it would be clear that as Rule 6 did not require a person to pass any test or to fulfill any other condition before confirmation, this Court was of the view that upon the expiry of maximum period of probation the probationer could be deemed to have been confirmed which goes to show that if such provision would have been there in the rules, the conclusion might have been otherwise.
36. In the case on hand, correctness of the interpretation given by this Court to rule 24 of the Rules in the case of Dayaram Dayal (supra) is the bone of contention. In the aforesaid case, no doubt, this Court has held that a maximum period of probation having been provided under sub-rule (1) of rule 24, if a probationer's service is not terminated and he is allowed to continue thereafter. It will be a case of deemed confirmation and the sheet anchor of the aforesaid conclusion is the Constitution Bench decision of this Court in the case of Dharam Singh (supra). But, in our considered opinion in the case of Dayaram Dayal (supra), rule 24 of the Rules has not been interpreted in its proper perspective. A plain reading of different sub-rules of rule 24 would indicate that every candidate appointed to the cadre will go for initial training for six months whereafter he would be appointed on probation for a period of 2 years and the said period of probation would be extended for a further period not exceeding 2 years. Thus, under sub-rule (1) of rule 24 a maximum period of 4 years probation has been provided. The aforesaid sub-rule also stipulates that at the end of the probation period the appointee could be confirmed subject to his fitness for confirmation and to have passed the departmental examination, as may be prescribed. In the very sub-rule, therefore, while a maximum period of probation has been indicated, yet the question of confirmation of such a probationer is dependent upon his fitness for such confirmation and his passing of the departmental examination by the higher standard, as prescribed. It necessarily stipulates that question of confirmation can be considered at the end of the period of probation, and on such consideration, if the probationer is found suitable by the Appointing Authority and he is found to have passed the prescribed departmental examination then the Appointing Authority may issue an order of confirmation. It is too well settled that an order of confirmation is a positive act on the part of the employer which the employer is required to pass in accordance with the Rules governing the question of confirmation subject to a finding that the probationer is in fact fit for confirmation. This being the position under sub-rule (1) of rule 24, it is difficult for us to accept the proposition, broadly laid down in the case of Dayaram Dayal (supra), and to hold that since a maximum period of probation has been provided thereunder, at the end of that period the probationer must be held to be deemed to be confirmed on the basis of the judgment of this Court in the case of Dharam Singh (supra). (emphasis supplied)
9. The Larger Bench cited with approval two previous judgments in the case of Jaikishan Vs. Commissioner of Police8 and State of Punjab Vs. Baldev Singh Khosla9. In the case of Jaikishan (supra) Rule 5 runs thus:-
"5(e)- (i) All direct appointments of employees shall be made initially on purely temporary basis. All employees appointed to the Delhi Police shall be on probation for a period of two years:
Provided that the competent authority may extend the period of probation but in no case shall the period of probation extend beyond three years in all.
(ii) The services of an employee appointed on probation are liable to be terminated without assigning any reason.
(iii) After successful completion of period of probation, the employee shall be confirmed in the Delhi Police by the competent authority, subject to the availability of permanent post."
10. In that case, the concerned person was appointed as a temporary constable on 9 September, 1982. His service during period of probation was not found to be satisfactory and he was given opportunity to improve upon his performance not only during extended period of three years of probation but even thereafter two years more time was given to him. However, it was found that he could not improve upon his performance, consequently, his service was terminated. The termination order was challenged before the Administrative Tribunal without success. The matter ultimately travelled to the Supreme Court, where reliance was placed on the Constitution Bench judgment in the case of Dharam Singh (supra). The Supreme Court repelling the contention, held that successful completion of probation was a condition precedent for confirmation and since it was found that there was no satisfactory improvement in performance during the period of probation as well as extended period of probation and even thereafter, consequently, his services were rightly terminated. It is held as under:-
"Successful completion of probation is a condition precedent for confirmation as envisaged in clause (iii) of Rule 5(e) of the Rules. The authorities have power to allow maximum period of three years of probation. In this case instead of giving him three years, they have given a long 5 years period so as to see whether the appellant would improve his performance in the service. Since they found that there was no satisfactory improvement, his probation was terminated and he was removed from service as a probationer. Under these circumstances, we do not find any illegality in the action taken by the respondents warranting interference." (emphasis supplied)
11. In the case of Baldev Singh Khosla (supra) Rule 10 of Punjab State Co-operative Service (Class II) Rules, 1958 which prescribes for a maximum period of probation of three years was under consideration. Rule 10 runs thus:-
"10. Probation.- All members of the service shall on appointment remain on probation in the first instance for a period of two years, provided that Government may allow service rendered on a post on an identical cadre or in the higher post in another department to count for probation in the post in the service.
(2) Provided further that in the case of members promoted from the State Service Class III continue officiating of four months or over shall be reckoned as a period spent on probation.
(3) If the work or conduct of any candidate or member during the period of training or probation in the opinion of Government is not satisfactory they may dispense with his service if he has been recruited by direct appointment or may revert him to his former post if he has been recruited by promotion or by transfer. On the conclusion of the period of probation of any member of the service, Government, may, if vacancy exists, confirm him in his appointment, if his work or conduct has, in its opinion been satisfactory may extend his period of probation by such period as it may think fit and thereafter pass such orders as it could have passed on the expiry of the first period of probation, provided that the total period of probation, including extension, shall not exceed three years in any case."
12. The Supreme Court repelled the plea of deemed confirmation after expiry of maximum period of probation by holding thus:-
"It would thus be seen that the outer limit of three years provided under the rules is an enabling provision to allow the probationer to continue in service without being reverted or discharged from service for failure to satisfactorily complete the period of probation, but that would not mean that the probationer, on expiry of three years period, must be deemed to have been confirmed. The rule itself envisages a positive order of confirmation. So long as the order of confirmation is not made, even after expiry of probation, the probationer may continue and remain in service, but by allowing him to remain in service it cannot be concluded that he must be deemed to have been confirmed." (emphasis supplied)
13. Learned counsel for the petitioner, apart from the decision of the Constitution Bench judgment in the case of Dharam Singh (supra), also cited another judgment of the Supreme Court in Om Prakash Maurya Vs. U.P. Co-operative Sugar Factories Federation, Lucknow10. The said judgment of the Supreme Court is again based on the interpretation made by the Supreme Court in the case of Dharam Singh (supra). Likewise, other decision in the case of M.K. Agarwal Vs. Gurgaon Gramin Bank11, also places reliance on the Constitution Bench judgment of the Supreme court in the case of Dharam Singh (supra) in holding that where under the Service Rules, a maximum period of probation is provided but there is no provision as to what would happen at the end of the maximum permissible period of probation, there would be confirmation by implication.
14. As noticed above, the Larger Bench judgment of the Supreme Court in High Court of M.P. Vs. Satya Narayan Jhavar (supra) specifically dealt with the said issue and concluded by holding that merely because a maximum period of probation has been provided under the Service Rules, continuance of the probationer thereafter would not automatically result in deemed confirmation. It has been held thus:-
"Ordinarily a deemed confirmation of a probationer arises when the letter of appointment so stipulates or the Rules governing service condition so indicate. In the absence of such term in the letter of appointment or in the relevant Rules, it can be inferred on the basis of the relevant Rules by implication, as was the case in Dharam Singh (supra). But it cannot be said that merely because a maximum period of probation has been provided in Service Rules, continuance of the probationer thereafter would ipso facto must be held to be a deemed confirmation which would certainly run contrary to Seven Judge Bench Judgment of this Court in the case of Samsher Singh (supra) and Constitution Bench decisions in the cases of Sukhbans Singh (supra), G.S. Ramaswamy (supra) and Akbar Ali Khan (supra)." (emphasis supplied)
15. In a more recent decision of the Supreme Court in the case of Kazia Mohammed Muzzammil Vs. State of Karnakata and another12 the Supreme Court, after considering catena of cases in favour of and against the proposition of deemed confirmation, held as under:-
19. Having discussed in some elaboration the conduct of the appellant as well as his antecedents, now we proceed to examine the merits of the legal controversy raised in the present case on behalf of the appellant in relation to `deemed confirmation'. The `deemed confirmation' is an aspect which is known to the service jurisprudence now for a considerable time. Both the views have been taken by the Court. Firstly, there can be `deemed confirmation' after an employee has completed the maximum probation period provided under the Rules wherafter, his entitlement and conditions of service are placed at parity with the confirmed employee. Secondly, that there would be no `deemed confirmation' and at best after completion of maximum probation period provided under the Rules governing the employee, the employee becomes eligible for being confirmed in his post. His period of probation remains in force till a written document of successful completion of probation is issued by the Competent Authority.
20. Having examined the various judgments cited at the bar, including that of all larger Benches, it is not possible for this Bench to state which of the view is correct enunciation of law or otherwise. We are of the considered opinion, as to what view has to be taken, would depend upon the facts of a given case and the relevant Rules in force. It will be cumulative effect of these two basics that would determine the application of the principle of law to the facts of that case."
16. Under the Service Rules albeit a stipulation in Rule 32 as regards the maximum period of probation, Rule 33 specifically contemplates a positive act of passing an order of confirmation by the employer. The confirmation of the probationer is not automatic on expiry of period of probation or the extended period of probation but is dependent on the following factors:-
It goes to show that during the extended period of probation the petitioner failed to make sufficient use of his opportunities. His work and conduct was not found to be satisfactory. Consequently, in the year 2005 when his case was considered for confirmation, he was not found fit for confirmation and the matter relating thereto was deferred, meaning thereby that he was given more time to prove his capability and suitability to the post.
19. The real challenge made by learned counsel for the petitioner is to the non confirmation of the petitioner and denial of promotion to him in the year 2007. In pursuance of an order of the Registrar General dated 25.7.2007, a three member Committee comprising of Registrar (Establishment), OSD (Litigation) and OSD (Classification) was constituted to consider the matter relating to confirmation of 244 Assistant Review Officers. The said Committee, after having regard to their entire service record, made recommendation for confirmation of the services of 222 Assistant Review Officers, whereas it recommended for postponing the confirmation of 22 Assistant Review Officers including the petitioner. The remark of the Committee in relation to the petitioner for not recommending him for confirmation was as under:-
Sl.
Emp. No. Name Remarks 15 6061 Raj Kamal Sonkar Adverse entry in the year 2001-02.
Warning vide Registrar General's order dated 12.6.2007.
As reported by the Registrar General's office that a Preliminary enquiry has been concluded by the Enquiry Officer and is under consideration before the learned Registrar General for final orders.
Due to the above punishment he has not been found satisfactory, as such, the Committee is of the opinion that his case may be deferred at present.
20. The adverse entry of the year 2001-02 was subject matter of consideration in the year 2005 when on its basis the petitioner was denied confirmation, but his service was not terminated and was afforded further opportunity to improve upon his performance and prove his capability and suitability to the post. Thereafter, when the case of the petitioner was considered once again for confirmation in the year 2007, such entry should not have been considered. Further, it was also an entry more than five years old at the relevant time. In the opinion of the Court, such old entry was not of much relevance in the year 2007 and could not form basis for denying confirmation of the services of the petitioner in the year 2007.
21. The other material considered by the Committee is a preliminary inquiry conducted in relation to the alleged misconduct on part of the petitioner and the matter relating thereto being under consideration by the Registrar General at the relevant time. It has come on record that on the basis of the aforesaid preliminary inquiry, a regular inquiry was instituted. The Inquiry Officer submitted a report dated 16.11.2010, in which he found no evidence of any misdemeanor on part of the petitioner and therefore, recommended for the proceedings being dropped. The report of the Inquiry Officer was accepted by the Registrar General on 6.1.2011 and thus, the aforesaid matter ended in favour of the petitioner. Consequently, the same also could not constitute basis for denying confirmation to the post.
22. Yet another material, which formed basis for not recommending the case of the petitioner for confirmation, is an alleged warning entry issued to the petitioner by the Registrar General on 12.6.2007. It is urged on behalf of the petitioner that a warning entry is neither an adverse entry nor a punishment contemplated under the Service Rules and consequently, it had no relevance. In this regard, reliance has been placed on various decisions; first of which is in the case of Vijay Singh Vs. State of U.P. and others13. In that case, in a disciplinary proceeding held against a Sub Inspector of Police, the punishment awarded was of withholding integrity certificate. The order of the Disciplinary Authority was unsuccessfully challenged in departmental appeal and thereafter, in a revision before the Additional Director General of Police. The writ petition filed before the High Court was also dismissed upholding the punishment. The Supreme Court, after considering the Service Rules, held that withholding of integrity is not one of the punishments prescribed under the Service Rules and consequently, allowed the appeal holding that a Disciplinary Authority cannot award such punishment.
23. Counsel for the petitioner also cited a Division Bench judgement of this Court in the case of Ashu Nandan Singh Vs. State of U.P.14. It is a case where a member of U.P. Palika Centralized Engineering Services was issued punishment of warning after being subjected to disciplinary proceedings. On the basis thereof, he was denied full pay during the period of suspension. The employee challenged the same contending that under Fundamental Rule 54-B (3) he became entitled to full pay and allowances to which he would have been entitled, had he not been suspended. The Court held that since no major penalty has been awarded, thus suspension itself was illegal. It is further held that warning being not a punishment prescribed under the Service Rules, the order denying full pay during the period of suspension was not valid.
24. The next decision cited is in the case of Vinod Kumar Vs. State of Haryana and others15. It was a case where a warning entry in the confidential roll of the employee formed the basis for his compulsory retirement. The Supreme Court held that warning is not a punishment prescribed under the Service Rules and further that such warning was recorded administratively in the service record without holding any inquiry and thus, could not form basis to retire the employee prematurely.
25. In the case of the petitioner, the proceedings which culminated with recording of warning in the character roll of the petitioner commenced on a report of Deputy Registrar (Judicial) dated 24.11.2005 complaining that the petitioner was in habit of coming late and leaving office before time, being absent without prior information, careless towards his official duties, misbehavior towards his superiors and not amenable to their advice. A preliminary inquiry was got conducted through Sri A.K. Mukherjee, OSD (Classification) and the petitioner was found prima facie guilty of repeated acts of misconduct, insubordination, gross indiscipline and carelessness towards his official duties. He described the petitioner an incorrigible stubborn official. In view of such report, a full fledged departmental inquiry was initiated by order dated 16.1.2006. A charge sheet was served on the petitioner and after conducting the disciplinary inquiry, the Inquiry Officer, having regard to the attendance register, various reports of the Section Officer, statement of Sri Santosh Kumar, Deputy Registrar (J), Sri Prem Chandra, Section Officer, Sri V.B. Jauhari, the then Section Officer and Sri Vijay Kumar-II, Section Officer (EW-1 to EW-4) and statement of Sri K.P. Mishra, ARO Writ C-1 (DW-1), concluded that the charges levelled against the petitioner stand proved. The order of the Registrar General dated 12.6.2007 recites that the petitioner had given an undertaking that the mistakes committed by him is regretted and had sought unconditional apology and assured that he would be vigilant in future. Upon the said undertaking, the Registrar General, despite the fact that the delinquency stood proved, let off the petitioner by issuing a warning to him. The relevant extracts in this regard from the order of the Registrar General dated 12.6.2007, are reproduced for convenience of reference:-
"I have gone through the enquiry report as well as comments submitted by the delinquent official and examined the material on record. There is sufficient material on record to establish that Sri Raj Kamal Sonkar, ARO is guilty for the aforesaid lapses. The representation/ comments being devoid of any merit are hereby rejected.....
Further Sri Raj Kamal Sonkar has given undertaking that whatever the mistake has been done in past is regretted and seek unconditional apology and assures in future that he would be vigillent.
Upon the said undertaking, Sri Santosh Kumar Srivastava, Deputy Registrar (Judicial) vide report dated 12.06.2007 has observed that after the enquiry, now Sri Sonkar has realized his mistake and tendered his apology and assured that such type of mistake would not be repeated in future. In his opinion, he could be given an opportunity to amend himself as he is at the stage of starting of his service so with a warning to be careful in future, he may be given an opportunity to become an ideal employee of this Court.
Having consideration of the entire aspect as well as charges leveled against Sri Sonkar it is finally concluded that Sri Raj Kumal Sonkar, A.R.O. is found guilty of the charges leveled against him. Further, considering his carrier and first enquiry as well as subsequent report of the D.R. (J) dated 12.06.2006, who has initially recommended for enquiry of indiscipline and misbehavior against him. I am of the considered view that warning will meet the ends of justice, hence Sri Raj Kamal Sonkar is warned to be careful in future and be a disciplined employee.
Let the warning be recorded in his character roll and he be informed accordingly."
26 . It is amply clear that in the disciplinary proceedings held against the petitioner the misconduct was found proved. However, the Appointing Authority, taking a sympathetic view, preferred not to award any punishment, being of the opinion that if given an opportunity, the petitioner would mend his ways and prove to be an ideal employee. The warning that the Registrar General had issued was thus a note of caution to be more careful in future and to abstain from repeating such acts of misconduct, lest the Appointing Authority would be compelled to take serious action next time. In the Service Rules, one of the punishments contemplated is a censure entry, which is in the nature of a condemnation of an employee on being found to be guilty of misconduct but concededly, a warning is not one of the punishments prescribed under the Service Rules. It is noticeable that in case a censure entry is given to an employee, which is a minor punishment, he has the remedy of filing departmental appeal against the same. However, in case of a warning, which is not one of the punishments contemplated under the Service Rules, no such departmental remedy is provided. Even in the instant case, the petitioner initially preferred a representation against the warning entry issued to him, but thereafter, on basis of legal advice, got it dismissed as not pressed on 26.2.2008. An employee, as held by the Supreme Court, cannot be inflicted a punishment not contemplated by the Service Rules. Thus, it is difficult to accept the contention of learned counsel for the respondent that the warning issued to the petitioner by the order of the Registrar General would amount to a censure entry. However, at the same time, as noticed above, in the case of the petitioner, the misconduct was found proved. The punishment was not awarded taking a sympathetic view and having regard to the undertaking furnished by the petitioner that he would be more careful and vigilant in future. The question for consideration is whether in the facts and circumstances of the instant case, the proven delinquency on part of the petitioner but which ultimately did not result in any punishment being awarded, be a relevant factor for denying him confirmation on the post.
27. The probation as per Oxford Dictionary means "testing of conduct or character of a person." According to Webster Dictionary, the word originates from Latin Probatio (Onis) which connotes testing of the capability and character of a person during the specified period. In other words, the term probation refers to a period of testing or period of trial. The term probationer connotes the employment either of fresh entrant to service on test or of an existing officer to a higher post on test and is tentamount to suspension of final appointment to an office until a person temporarily appointed has by his conduct proved himself to be fit to the post.
28. In Ajit Singh and others Vs. State of Punjab and another16 the Supreme Court pointed out that concept of probation was evolved as a tool in the hand of the employer to observe the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable, to dispense with his services, without holding any inquiry. The object behind is to guard against errors of human judgment in selecting suitable personnel for service. The new recruit is put to test for a period before he is absorbed in service. It is held that "period of probation gave a sort of locus poenitentiae to the employer to observe the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserved a right to dispense with his service without anything more during or at the end of the prescribed period which is styled as period of probation."
29. Thus, while adjudging a probationer on the touchstone of suitability to the post, a host of other considerations apart from annual confidential reports, weigh with the appointing authority. In Registrar, High Court of Gujarat and another Vs. C.G. Sharma17 the Supreme Court held that the confirmation of an employee is purely a matter of subjective satisfaction of the employer and it may extend to consider not only the entries in the character roll but also the vigilance reports, complaints, if any, received against the employee from time to time etc. It is held thus:-
"47. In our opinion, what is to be considered in such matters is the examination of overall entries of the officer concerned and not the entry here and there. It may well be in some cases that in spite of satisfactory performance still the authority may desire to not to extend the Probation of an employee in public interest, as in the opinion of the said authority, the post has to be manned by a more efficient and dynamic person. There is no denying of the fact that in all organizations there is a great deal of dead-wood and, more so in Government and Judicial departments, which has to be replaced in public interest. Therefore, as pointed out by many Courts in India and by this Court, it is purely a matter of subjective satisfaction of the High Court. In such case, the record so considered would naturally include the entries in the Confidential Reports/Character Rolls/ Vigilance Reports, both favourable and adverse. There cannot be any justification for interference by this Court in such cases."
30. In case of the petitioner, as noted above, the delinquency was found proved but punishment was not inflicted as the employer was of the opinion that the petitioner should be given one more opportunity to improve upon his performance. He was only issued a warning to be careful and vigilant in future. The order of the Registrar General dated 12.6.2007 in no categorical terms indicates that the Appointing Authority of the petitioner was not satisfied with the manner in which he was conducting himself in discharge of his duties. In the opinion of the Court, the aforesaid material was thus a cogent piece of adverse material which weighed with the Committee as well as the Appointing Authority while declining his confirmation in October, 2007. The Court is unable to accept the submission of the learned counsel for the petitioner that despite existence of such material, the petitioner was entitled to confirmation of his service, merely because the warning entry does not amount to award of a punishment under the Rules.
31. One of the pleas taken by the petitioner is that the respondent had played discrimination against the petitioner in not confirming him on the post of Assistant Review Officer, whereas in case of Pankaj Mishra and Pankaj Kushwaha, Assistant Review Officers, there services were confirmed despite certain adverse entries against them. The said aspect was considered by the Registrar General in his order dated 15.10.2008 while rejecting the representation of the petitioner for being confirmed in service. It has been observed that the entries in case of these employees were only advisory entries "without holding any departmental inquiry" (emphasis supplied). On the other hand, in the case of the petitioner, he was given warning after conducting regular disciplinary inquiry and upon charge of proven delinquency. As such, the contention raised by the petitioner in this regard does not have any substance.
32. The next contention of the petitioner is that his juniors were promoted w.e.f. 31.8.2007, whereas he was illegally denied the said benefit. Concededly, under Rule 8 (3) only a permanent employee is entitled to be considered for promotion to the post of Review Officer. The petitioner indisputably was on probation at the relevant time and the matter relating to his confirmation on the post of Assistant Review Officer was duly considered in October, 2007 and he being not found suitable, the matter relating to his confirmation was deferred. On the other hand, some of the colleagues of the petitioner were promoted w.e.f. 31.8.2007, as they were found suitable and their service was confirmed. Thus, they ceased to be junior to the petitioner.
33. It has come on record that during the pendency of the writ petition, the Registrar General having regard to the subsequent satisfactory services of the petitioner, by an order dated 17.4.2009, confirmed him on the post of Assistant Review Officer with effect from the date of the order. In due course of time, the petitioner was considered for promotion and was promoted to the post of Review Officer since 31.5.2010. It is not the case of the petitioner that any permanent Review Officer junior to the petitioner was promoted after 16.4.2009 but before grant of promotion to the petitioner by order dated 31.5.2010. In such circumstances, this Court does not find any illegality in grant of promotion to the petitioner on the post of Review Officer since 31.5.2010.
34. Since this Court has not found any rational basis for granting any further relief to the petitioner, and consequently, this Court is not going into the issue as to whether the writ petition was maintainable without impleading those who were likely to be affected, in case the writ is allowed.
35. In consequence and as a result of discussion made above, the petition lacks merit and is dismissed. No order as to costs.
(Manoj Kumar Gupta, J.) Order Date :- 07.04.2016 SL