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Devendra (Scientist)     05 August 2013

Probation period extended without notice and reason

I have following rules in my appointment letter

"You appointment is temperoray but is likely to continue. You will be on probabtion for a perod of one year from the date of your appointment. which may be extended upto one more year at the discertion of competent authority. During the probabtion period, your services are liable to be terminated by the appointment authority without assigning any reason by giving a notice of one month or depositing one months pay in leiu. and you can also resign without assigning any reason at one month notice. After sucessful completion of probabtion your services will be confirmed. "

After 15 month of my joining I was given a letter that my probabtion has been extended for six months. The letter of extention does not give any reason for the extension of probabtion. There after I have not been informed any thing about the extension or the closure of probabtion. I have completed 2 years 5 months of the service. 

Can the appointing authority terminate my services at this stage. Can I challenge the extension of my probation in the court. What are the chances if I go to the court abut the arbitary decison regarding my probation extesnion or a possible termination. I have also not been given any increment in last two years.



 33 Replies

Sudhir Kumar, Advocate (Advocate)     06 August 2013

would you just inform if the employer is Govt.  It is vital for the reply.

Devendra (Scientist)     06 August 2013

Thanks for the reply. The employer is an autnomus goverment organization under UGC, MHRD


(Guest)

You must have exercised all the departmental options of appeal to the higher authorities against the unreasoned order effectuating extension of your probation.


Coming to your core issue, even if we leave your departmental code and regulations aside [which must be having clear cut provisions disabling your employer from taking any arbitrary action against the employees], action taken by your employer is a blatant violation of the principles of natural justice which mandate a "right of fair hearing" to the employee before taking any proposed adverse action which has a possible detrimental implication on the employee.


The order passed against you, as you have stated is unreasoned, which also is a good groung for challenging the same. As per established administrative laws every order has to be reasoned and speaking one.


Your offer of appointment prescribes a limitation for extending the period of probation, which elapsed 06 months before the action taken by your employer. The action taken by your employer was thus beyond his jurisdiction at that point of time and hence it can very well be called "illegal" and "ultra vires".


Therefore, if you file a writ petition in the high court, it will certainly be allowed and the action of your employer be quashed being arbitrary and illegal. You should proceed.


All the best...!

Sudhir Kumar, Advocate (Advocate)     06 August 2013

No notice is required forexdtentin of probation. It is also not appealable. Law is yet to crystalise on the aspect of demed confirmation.


(Guest)

It does in no way mean that an administrative authority can pass unreasoned, arbitrary and adverse orders against an employee, without affording a fair opportunity to defend himself.


In Government service employer can not act as a dictator. After expiration of probation period, no employer can extend it without giving notice, without intimating reasons and without affording fair opportunity to defend. Hon'ble Supreme Court has in many cases quashed arbitrary administrative orders just for the violation of Principles of Natural Justice and it has now become an uncodified but precedent based settled law.

Devendra (Scientist)     06 August 2013

Dear Sudhir and Abhinav, a lot of thanks for your opinion on the issue.

I am summarizing my case with more detials and would appreciate if you can guide me in further course of action.

I joined on April 2011. Finished my one year and submitted my ACR to my reporting aurhority on May 2012. Got a letter in the end of Agust which states that the head of the institute has extended my probation for six months i.e upto May 2012-Oct-212 without mentioning any reason for that. I enquired about the reasons of extension and my reporting authority told me orally that the extension was done on the opinion of a person (a senior colleague who is neither my reporting authority (No 2 in institute hirearcy) nor is the head of institute). After that no information has been given to me. I have  submitted my second year ACR in May 2013.  I have been denied increment in July 2012 and  inJuly 2013. I met my reporting aurthority in june 2013 and he informed orally that personally he is satisfied with my performance, and he will try to get me confirm, but head of the instituion (on the opinin of the same senior colleague) can overrule his decision.

Now what shuold be my plan of action. Should I give a written applcation to my reporting authority and head of instiution asking why my probation was extended, why it has not been closed yet, and  why the due increments are denied (because of probabtion extension) and then file a case in high court.

Or should I wait for confirmation letter (to aviod any further  harm by head of instituion) and then put my case in institute grivinace comitee and then go to high court seeking justice for finacial loss and mental harrasment due to extnsion of probation without  any reason by the competent authority.

What are my legal chances. Can the process backfire.

 

With warm Regards

 

 

Abhinav Jha (Advocate)     07 August 2013

Legally speaking, it’s not possible for the employer to extend your probation without assigning any reason. “Your department must have reviewed your performance and found it to be not satisfactory”, and you must have been communicated the same in the letter extending your probation.

 

Your fate depends entirely on the exact clauses contained in your offer of appointment.  In view of the precedents as laid down by the Supreme Court, you are in the safe side only if:-

1.        1.]  Your offer of employment contains an initial probation period and an extension period.

2.       2.]  It also contains a maximum period for such extension as stated in point. 1 above, beyond which it is not permissible to extend the probation.

 

 If both the conditions as stated in point. 1 & 2 co- exist, and a letter of termination is not issued before the maximum period prescribed, you are entitled to claim deemed confirmation w.e.f.  the expiry of the maximum period prescribed for extension of probation.

 

 

[Note: Remember, if  (a) the offer of appointment does not contain a maximum period for extension of your probation or (b) it contains a mandatory act on the part of your employer like issuing a confirmation letter after successful completion of probation, then your case is weak.]

Sudhir Kumar, Advocate (Advocate)     07 August 2013

I will partially agree with Mr Abhinav.  There is a system of asessement report and adverse of which is communicated to the emplopyee and there is no provision for represntation against the same.

Sudhir Kumar, Advocate (Advocate)     07 August 2013

I will partially disagree with Mr Abhinav.

 

In Govt sector, the appointment letter does not contain reference to each te3rms and conditions of service which is governed by rule formulated under provisio Article 309 of the consitution or other terms of service or other instructions issued by DOPT/MOF /MHA etc.

Abhinav Jha (Advocate)     07 August 2013

Respected sir, I agree to your stated disagreement and appreciate the same. You are 100% right here.

 

Coming to Mr. Devendra's problem, if we study the case of Satyanarayan Jhawar (repeatedly affirmed by the Hon'ble Supreme Court) in its entirety, which has dealt the question of "Deemed Confirrmation in Service Jurisprudence" in the most simplistic manner, the whole confusion regarding Probation, Extension of probation and Termination on Unsatisfactory Performance will automatically disappear. It is now a crystal clear and settled law.

Abhinav Jha (Advocate)     07 August 2013

By "exact clauses in the offer of appointment" I didn't mean only the 'appointment letter' in its strict sense, but also the other service codes and regulations dealing with such rules regarding probation etc..

Sudhir Kumar, Advocate (Advocate)     08 August 2013

kinldy give the citation of the case being referred by you on the aspect of deemed confirmation..

Abhinav Jha (Advocate)     08 August 2013

Attached herewith is the most recent judgement delivered in a civil writ petition (2012) of Kasturi Ram International School & Anr. vs. Directorate of Education and Anr. on the issue of Deemed Confirmation in Service Jurisprudence.


It clarifies that there can be three lines of cases on the point, second of which postulates that if a maximum period for the extension of probation is prescribed beyond which it is not permissible to extend it, and there is no provision for issuing a mandatory confirmation letter by the employer or passing a departmental test by the employee, then the employee will be deemed confirmed by implication.


Attached File : 311611894 kasturi ram international school vs.pdf downloaded: 150 times

Abhinav Jha (Advocate)     08 August 2013

Additional references on the point are attached herewith.


Attached File : 311611894 dayaram dayal vs state of m.p. and another ... on 28 august, 1997.pdf, 311611894 high court of madhya pradesh thru. ... vs satya narayan jhavar on 14 august, 2001.pdf downloaded: 191 times

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