SANDEEP KUMAR vs HIGH COURT OF DELHI
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5367/2021 & CM APPL. 16591/2021
SANDEEP KUMAR ….. Petitioner
Through: Mr. Ramesh Kumar Mishra with Mr. Kumar Abhinandan and Ms. Kirti Paliwal, Advocates.
versus
HIGH COURT OF DELHI ….. Respondent
Through: Mr. Vibha Mahajan Seth with Ms. Teena Srivastava, Advocates.
% Date of Decision: 05th October, 2023
CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MS. JUSTICE MINI PUSHKARNA
J U D G M E N T
MINI PUSHKARNA, J: (ORAL)
1. The present writ petition has been filed challenging the Memorandum dated 3rd December, 2020 issued by Establishment-I Branch of this Court whereby the request made by the petitioner for confirmation of his services to the post of Personal Assistant was rejected. Further, the present petition also challenges the Memorandum dated 04th January, 2021 issued by Establishment-I Branch of this Court whereby the request made by the petitioner to retain lien for a period of one year on the post of Personal Assistant in this Court has been rejected.
2. Factual matrix of the case are as under:
2.1 Petitioner was initially selected as a Stenographer Grade-III on 03rd October, 2013 in the selection process carried out by Punjab and Haryana High Court and worked in Sessions Division, Karnal. He was subsequently promoted in the year 2016 as Stenographer Grade-II and worked in the Office of District and Sessions Judge, Karnal till 26th July, 2017. After completion of the probation period of two years, the petitioner was confirmed.
2.2 Pursuant to vacancy notice dated 15th September, 2015 issued by this Court, the petitioner applied for the post of Personal Assistant, which was routed through the District Court, Karnal. Since the petitioner was successful in the selection procedure conducted by this Court, he submitted technical resignation to the District and Sessions Judge, Karnal. Vide letter dated 26th July, 2017, the petitioner was relieved from duty by the District and Sessions Judge, Karnal, pursuant to which the petitioner joined the Establishment of this Court as Personal Assistant on 27th July, 2017. The petitioner retained lien on the post in Karnal for two years or during the probation period in the new establishment.
2.3 In the year 2017 i.e. prior to joining the Establishment of this Court, the petitioner had applied for the post of Senior Scale Stenographer in the Establishment of Punjab and Haryana High Court vide application dated 06th June, 2017. The same was intimated by the petitioner to this Court.
2.4 Subsequently, in the month of February, 2020, the skill test for the post of Senior Scale Stenographer was conducted by the Punjab and Haryana High Court. The petitioner was successful in the selection process. Thereafter, he was issued appointment letter dated 21st December, 2020 for the post of Officiating Senior Scale Stenographer by the High Court of Punjab and Haryana.
2.5 The petitioner requested for confirmation of his service to the Establishment of this Court, which was rejected by Memorandum dated 03rd December, 2020. Subsequently, the petitioner vide letter dated 18th December, 2020 submitted his technical resignation in which he specifically prayed that he may be granted a lien for a period of one year to the post of Senior Scale Stenographer in the Establishment of this Court. Thereafter, the petitioner wrote another letter dated 31st December, 2020 wherein he prayed that he may be relieved on or before 05th January, 2021. He further submitted in the said letter that he was not pressing the prayer seeking retention of lien for a period of one year on the post in the Establishment of this Court for the time being. Eventually, the technical resignation of the petitioner was accepted in terms of Office Order dated 04th January, 2021 issued by the Establishment Branch of this Court, which reads as under:-
HIGH COURT OF DELHI: NEW DELHI
(Establishment-I Branch)
No. 13/Estt.I/E-IV/DHC
Date: 04.01.2021
OFFICE ORDER
Consequent upon his selection for appointment to the post of Senior Scale Stenographer in the Punjab & Haryana High Court, Honble the Chief Justice has been pleased to accept the technical resignation of Mr. Sandeep Kumar, Temporary Personal Assistant in Level 7 of Pay Matrix (as per 7th Central Pay Commission), by waiving off one months notice period. Consequently, he stands relieved from the services of this Court with immediate effect.
It is certified that no Vigilance/Disciplinary proceedings are either pending or contemplated against Mr. Sandeep Kumar, Personal Assistant.
Sd/-
(Vandana Kairon)
Joint Registrar (Estt.-I)
2.6 Prior to acceptance of the technical resignation of the petitioner, this Court vide Office Order dated 22nd December, 2020 published a list of Personal Assistants working in this Court who had successfully completed their probation. The name of the petitioner was reflected at Serial no. 28 of the list.
2.7 Vide Memorandum dated 04th January, 2021 issued by the Establishment Branch of this Court, the petitioner was informed that his request to retain lien for a period of one year on the post of Personal Assistant in this Court, had been rejected. Thus, the present writ petition has been filed challenging the Memorandums dated 03rd December, 2020 and 04th January, 2021 issued by the Establishment Branch of this Court. The petitioner prays for directions to the Establishment Branch of this Court to grant lien to him on the post of Personal Assistant for a period of two years w.e.f. 04th January, 2021 treating him confirmed/permanent or quasi-permanent employee.
3. On behalf of the petitioner, the following contentions have been raised:-
3.1 The petitioner having successfully completed the probation period, is entitled for consideration for confirmation subject to fitness, as per Rules applicable for Central Government Employees. However, in Delhi High Court (DHC) Establishment, an employee is arbitrarily not considered for confirmation long after appointment. The Office order dated 29th January, 1996 of the respondent arbitrarily requires five years of service for confirmation, whereas the declared period of probation is only two years.
3.2 Confirmation of the petitioner and retaining lien over his previous post of Personal Assistant with DHC Establishment is required to enable him to avail the benefit of pay protection. Non-confirmation of service of the petitioner has caused great prejudice to him. Since he has been denied the status of a confirmed employee by DHC Establishment, the 7 years of past service of the petitioner in District Courts, Karnal and in DHC Establishment, has become meaningless for the petitioner. The petitioner is not able to take any benefit of his past service despite having followed all Rules entitling him to get the benefits of continuity of service as regards pay protection and retaining lien over the previous post. Further, non-confirmation of petitioner renders the technical resignation submitted by the petitioner and accepted by the DHC Establishment, redundant.
3.3 The service of the petitioner has not been confirmed on the ground that he has not completed five years of service in this Court. It is submitted that the petitioner has not been confirmed in the service as his past services in the District Court, Karnal has wrongly not been considered and he has been denied confirmation arbitrarily.
3.4 The petitioner was posted in this Court against permanent post on temporary basis. After completion of probation, he is entitled for confirmation, but is unconfirmed only due to administrative delay.
3.5 The petitioner is entitled for lien on the basis of his entitlement for confirmation or quasi permanent status, as per Rules. As per Government of India Order F.R. 13, lien right is available for permanent and quasi permanent employees. The same are applicable to the petitioner.
3.6 Due to non-grant of lien, the petitioner is suffering a huge monetary loss, as he has not been given the benefit of past service by the Punjab and Haryana High Court, where he is paid salary of only Rs. 28,709/- as Senior Scale Stenographer, instead of his gross salary of about Rs. 79,000/- in this Court as Personal Assistant. The petitioner has been treated as new Entrant into the new service in Punjab and Haryana High Court.
3.7 In support of his contentions, learned counsel appearing for the petitioner has relied upon Office Memorandum (OM) dated 24th November, 2022 issued by the Government of India, Department of Personnel and Training which pertains to technical resignation and lien.
4. On the other hand, on behalf of respondent, it is submitted that there is no concept of automatic confirmation or deemed confirmation. The expiry of the period of probation shall not result in automatic confirmation.
5. It is further submitted that the petitioner had completed only 3 years and 4 months of service in this Court. However, as per Office Order dated 29th January, 1996, Annual Confidential Reports (ACRs) of five years are required for confirmation. The petitioner has no right to seek confirmation on the post of Personal Assistant or right to retain lien on the said post.
6. We have heard learned counsel for the parties and perused the record.
7. At the outset, this Court notes that the offer letter of appointment to the post of Personal Assistant dated 15th July, 2017 issued to the petitioner categorically mentions that the petitioner shall be placed on probation initially for a period of two years, with the express stipulation that the expiry of the period of probation shall not result in automatic confirmation. Offer letter of appointment dated 15th July, 2017 issued to the petitioner is reproduced as hereunder:-
HIGH COURT OF DELHI: NEW DELHI
Establishment-I Branch
No: 14404/Estt/E-IV/DHC
Date: 15.07.2017
To
Roll No. 1076234
Mr. Sandeep Kumar
S/o Mr. Balwant Singh,
H.No. 276, Sector 14 Urban Estate
Karnal, Haryana 132001
Sub: Offer of appointment to the post of Personal Assistant on temporary basis in the
Level 7 of Pay Matrix (as per 7th Pay Commission).
Memorandum:
You are hereby informed that on the basis of Personal Assistant Examination 2015, you have been selected for appointment as temporary Personal Assistant in this Court in the Level 7 of Pay Matrix (as per 7th Pay Commission) plus usual allowances as are sanctioned from time to time.
Your appointment would be governed by Delhi High Court Establishment (Appointment & Conditions of Service) Rules, 1972 and by such other conditions as may be imposed by Honble the Chief Justice from time to time. You will be placed on probation initially for a period of two years with stipulation that expiry of the period of probation shall not result in your automatic confirmation.
The new restructured Contribution Pension Scheme as contained in the Ministry of Finance, Department of Economic Affairs Notification dated Dec. 22, 2003 and subsequent instructions issued by Government of India on this subject from time to time will be application to you.
Your services during the above tenure of appointment will be terminable on one months notice from either side. Honble the Chief Justice, however, reserves the right of terminating your services forthwith without assigning any reason on or before the expiry of the stipulated period of notice by making payment to you of a sum equivalent to the pay and allowances for such period or the unexpired portion thereof.
In case, you are willing to accept this offer of appointment on the terms and conditions mentioned above, you may send the acceptance within 10 days from the date of receipt of this offer of appointment. In case, you fail to accept the offer of appointment within the stipulated period, the same shall stand cancelled automatically.
(Yash Pal)
Officer on Special Duty (Estt.)
8. Further, it is to be noted that even the Office Order dated 22nd December, 2020 whereby the petitioner was stated to have successfully completed his probation period in the post of Personal Assistant, states that the completion of the probation period shall not result in automatic confirmation.
9. This Court also notes that in terms of the Office Order dated 29th January, 1996 issued by this Court on its administrative side, laying down the guidelines that would apply for confirmation of an employee, reference to ACRs of the last five years are to be made. Office Order dated 29th January, 1996 reads as under:-
HIGH COURT OF DELHI: NEW DELHI
No. 80/Estt.
Dated: 29-1-96
OFFICE ORDER
Honble the Chief Justice has been pleased to order that the following guidelines will be followed for confirmation and promotion of officials to various posts upto the level of Assistant and equal status posts:-
CONFIRMATION
(a) Confirmation would continue to be made from the joint inter-se Seniority list of officials of equal status posts.
(b) The Committee would assess the officials as Fit or Not Yet Fit for confirmation in their turn on the basis of their performance in the post of assessed on the basis of their records of service, with, particular reference to Annual Confidential Reports for the last five years.
.
(Emphasis Supplied)
10. In view of the aforesaid, since the petitioner has worked for approximately 3 years and 4 months in this Court, the question of considering his case for confirmation in this Court would not arise. Therefore, it is clear that the petitioner has no right to seek confirmation on the post of Personal Assistant or right to retain lien on the said post.
11. It is also relevant to note that the conditions of service of employees of this Court are governed by The Delhi High Court Establishment (Appointment & Conditions of Service) Rules, 1972 (1972 Rules). Rule 8 (a) of the 1972 Rules clearly stipulates that expiry of the period of probation shall not result in automatic confirmation. Rule 8 (a) of the 1972 Rules reads as under:
DELHI HIGH COURT ESTABLISHMENT (APPOINTMENT AND CONDITIONS OF SERVICE) RULES, 1972
8.
Nature of appointment
a. Appointment to post specified in Schedule – II other than the post of Registrar-cum-Secretary to Hon’ble the Chief Justice may be substantive or on probation or on officiating, temporary or adhoc basis. Any appointment other than substantive appointment may be terminated at any time without assigning reasons. Probation shall ordinarily be of one year’s duration. Expiry of the period of probation shall not result in automatic confirmation.
12. Thus, it is manifest that as per the 1972 Rules, mere completion of a period of probation does not result in an automatic confirmation. Mere fact that the initial period was complete would not automatically lead to a confirmation. Therefore, the petitioners contention that he is entitled to be confirmed on the post of Personal Assistant cannot be accepted.
13. Division Bench of this Court in the case of V.K. Mittal and Ors Vs. Registrar General, High Court of Delhi and Ors1, has held in categorical terms that where the Rules require that there will not be any automatic confirmation, then there would be no deemed confirmation. Thus, it has been held as follows:
87. To summarise the conclusions:
XXX XXX XXX
(d) Under the 1972 Rules there is no scope for a ‘deemed confirmation’ of the Petitioners as PSs. Their contention that they should be held to have been deemed to be confirmed as PSs on 17th February 2007 or at the latest 25th July 2007 is rejected.
XXX XXX XXX
14. Similarly, in the judgment dated 05th February, 2020 in W.P.(C) 1332/2020, Ms. Shayda Abbasi Vs. The Registrar General, Honble High Court of Delhi, this Court has held that there cannot be any automatic confirmation merely because the initial period of probation has expired. Thus, it has been held as follows:
8. On the question of deemed confirmation, this Court has in its judgment dated 21st January, 2016 in W.P.(C) No. 2836/2010 V. K. Mittal v. Registrar General, High Court of Delhi, summarised the legal position, in the light of the 1972 Rules of this Court as under:
64. The legal position on ‘deemed confirmation’ can be summarised as under:
(a) If in the rule or order of appointment, a period of probation is specified and a power to extend probation is also conferred and the officer is allowed to continue beyond the prescribed period of probation, he cannot be deemed to be confirmed. At the end of such probation he becomes merely qualified or eligible for substantive permanent appointment.
(b) There is the other line of cases where even though 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 presumption about continuation, beyond the period of probation, as a probationer stands negatived by the fixation of a maximum time-limit for the extension of probation. In such cases the officer concerned must be deemed to have been confirmed.
(c) A third line of cases is where though under the rules maximum period of probation is prescribed, it requires 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 has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.
(d) While there could be some other cases where the rules do not contemplate issuance of such a specific order in writing but merely require that there will not be any automatic confirmation or some acts, other than issuance of specific orders, are required to be performed by the parties. Even in those cases, there would be no ‘deemed confirmation’.
9. Thereafter the Court clarified that Rule 8 (a) of 1972 Rules makes it evident that confirmation is not automatic. It further noted that with there being no maximum period of probation, the mere fact that the initial period was completed would not automatically lead to a confirmation.
10. Learned counsel for the Respondent has placed before this Court a copy of the office order dated 29th January, 1996 issued by this Court on its administrative side laying down the guidelines that would apply for the confirmation of an employee on a given post till the level of Assistant and equal status posts. A perusal of the said office order reveals that in order to consider the case for confirmation, a reference has to be made to the Annual Confidential Reports of the last five years.
11. With the Petitioner having worked for approximately three years, the question of considering her case for confirmation in this Court would not even otherwise have arisen prior to her tendering her resignation in order to join the post of Junior Hindi Translator in the MoD. Viewed from any angle, therefore, the case of the Petitioner that that she should be deemed to have been confirmed during her service in this Court cannot be accepted.
12. For the aforesaid reasons the Court is of the view that there is no merit in this petition. It is accordingly dismissed.
15. The position that emerges from the aforesaid discussion is that the suitability of the petitioner for confirmation was to be assessed on the basis of ACR grading of preceding five years recorded during the service rendered in this Court. The service in the previous department cannot be considered for the said purpose. The petitioner had completed only 3 years and 4 months of service in this Court. Thus, there is no occasion for consideration of his case for confirmation. Even otherwise, the petitioner already having tendered his technical resignation from the post of Personal Assistant, he has no right to seek confirmation and lien to the said post he is no longer working on.
16. The OM dated 24th November, 2022 issued by the Government of India pertaining to lien, as relied upon by the petitioner, has no applicability to the facts and circumstances of the present case, since the petitioner was not confirmed to the post of Personal Assistant in the Establishment of this Court. Similarly, the contention of the petitioner regarding treating him as quasi-permanent employee and granting him the benefit of lien on that basis, is without any merit as there is nothing on record to show that petitioner was a quasi-permanent employee of this Court or was treated to be so.
17. In view of the aforesaid discussion, this Court holds that no case has been made out by the petitioner for his confirmation or lien to the post of Personal Assistant in the Establishment of this Court.
18. However, this Court notes that the petitioner was extended all benefits for granting continuity in service, pay protection, leave record and length of service by the Establishment of this Court by taking into account the past service of the petitioner in the District Courts, Karnal. Therefore, this aspect would be of vital importance if the petitioner was to raise plea regarding grant of continuity in service and pay protection before the Establishment where he is currently employed, i.e., Punjab and Haryana High Court. The petitioner is at liberty to apply for grant of continuity in service and pay protection before Punjab and Haryana High Court and bring to its notice the fact of benefits of pay protection and continuity in service granted by this Court to him.
19. With the aforesaid observations, the present writ petition is dismissed along with the pending application.
MINI PUSHKARNA, J
MANMOHAN, J
OCTOBER 5, 2023/c/au
1 2016 SCC OnLine Del 407
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