Probation period extended without notice and reason

Dear Abhinav and Sudhir

I am thankful to both of you for your opinion and advice. I am attaching the relevant section of my appointment letter (personal information has been edited out) and the extension letter (personal information has been edited out). Extension letter has been given to me after 1 year 3 months of my joining.  Apart form this, no letter/notice has been given to me. I have completed 2 years 4 months of  the service without any increment in salary.

Seeing these documents can you inform me in which catageory my case comes.....

Thanks for your time and support

With Regards

Devendra

Attached documents in pdf format

You decide to be as vague as possible and are bound to suffer incomplete advise.  You have not clarified as to who is the appointing authority.

[**Terms and conditions contained in the offer of appointment alone are not appreciated by the courts while deciding a service matter. Express rules contained in your departmental service code  and relevant DOPT circulars should therefore also be referred to before opting to go for a legal remedy**]

Based on the very limited facts provided by you, following preliminary steps may be resorted. Exercise your statutory right given under the RTI Act in your personal capacity and do three things:-  [1] Get a Certified True Copy of your ACR as reported upon by the Reporting Officer and reviewed by the Reviewing Officer. This comes within the ambit of “information” and is not immune from disclosure.  [2] Do ask in the same application as to when and how many times performance of your service has been additionally reviewed by the Competent Authority/Director during the initial two years from the date of your appointment. Get CTCs of those performance assessment reports too, it there exist any. [3] Then ask as to why report of unsatisfactory service performance (if any) was not ever communicated to you before or at the time of extending your probation period.

As per the edited data furnished by you, it seems that your case falls into the second line of cases. Maximum period of 02 years probation (initial 01+ extendable 01) has been expressly provided.  Probation (as per edited extension letter furnished) has been extended for 06 months w.e.f. 01 year from joining, which means after 18 months of appointment it also ceased without there being any communication of its further extension till date i.e. even after 28 months.

Neither is there any provision for a mandatory and express issuance of Confirmation Letter by your employer nor for passing a Departmental Test by you. Your unsuitability for the post has also not been communicated to you ever before.  Moreover, more than a reasonable period has elapsed since the expiration of the extended period of probation too. Your service should therefore be deemed to have been confirmed w.e.f. completion of exact two years (24 months) from the date of your joining.

Dear Sudhir and Abhinav

 I have edited the fiels to remove my name, institute name, date of joining, and pay grade to hide my personal identity on the web.

My Appointment authority is Director. Since my Basic pay is more than Rs. 15,500, the appointment letter is issued by the institute only after getting it approved by head of Bord of Governace (GB) of the institute. The appointment letter contains the signature of Administrative officer (equivalent to registrar of the university).

My institute has 5 centers. Each center has one head and the head of my center is my reporting authority. All the center heads report to Director. We submit our ACR to head of our center.  Our leave applications etc are also directily sumbitted to/ and secntioned by head of the center.

Each such center contains 5-6 labs and each lab have 2-3 scientists. From last 3-4 years, the Director is trying to create some form of hierarcy among the scientist in a lab by informally calling the senior most person as the lab incharge. (This hieracy is present in practise in name of lab discipline but any sort of written communication on this is denied). 

I have seen the bye laws of my institute. The bye laws contains information regarding whom the director can appoint directly, whome he can appoint only after consesus of the Bord of governace, general code of conduct regarding applying other goverment jobs, notice period, transferable nature of job among given centers, format of appointment letter etc...A certain fraction of these rules are written in appointment letter also. Bye laws (it was an uncertified copy which I have seen) and the appointment letter contains no additional information regarding the probabtion.

I hope that it gives the overall picture of the hierarcy of our institute. If you think that an unedited version of the appointment letter and the extension letter would be more useful in foumulating your opinin, I can upload that here or can email that to you.

Thanks to you and Abhinav for the useful advice.

Warm Regards

Devendra

if appointment is approved by BOD then Director cannot be the appointing authority. You recruitment is made by the Board.  The termiatnion by Director is serious irrgularity.

If the ACR and assessetment report is advderse it was bound to be communicated to you in writing.  In case the same has not been done thenit is irregularity on the part of department.  Do not correct the mistake of department by misusing RTI against you.  If you  seek ACR copy under RTI then adverse report stands communicated. In that case you are bound to representwithin 15 days which will be rejected and deptt's  mistake will stand correct.

What is stated aforesaid to be a mere irregularity on the part of the department is legally a violation of the Principles of Natural Justice, which alone makes an administrative act arbitrary & illegal, and any action based on that act/illegal omission is liable to be quashed by the law courts. Legally, irregularities are of two categories... (i) which can’t be cured by a subsequent act and thus vitiate the administrative action, and (ii) which can be cured by a subsequent corrective step and thus don't vitiate the administrative action.

The first types of actions are those which are taken in gross violation of the Principles of Natural Justice and make an administrative act ILLEGAL. Non- communication of adverse report in ACR or other Performance Assessment Report falls under such category. 

It is a 500% incorrect statement that any information (CTCs of ACR/ Performance Assessment Report) if is received by you under the RTI Act “in your personal capacity” will operate as a communication of the same to you “in your official capacity”. Neither will you be required to represent within 15 days as stated above nor will it discharge your department of its liability under the Service Jurisprudence.  Please don’t get misled. Do make good use of RTI Act in your personal capacity to collect as much evidence as possible against your employer.

After lapse of a reasonable period of 10 months from the expiration of extended period of probation, and there being no communication regarding your unsuitability/ unsatisfactory performance as yet, your service should be deemed confirmed on the expiry of exact 24 months from appointment. Communication, if made at this stage (after 28 months of appointment) can’t rectify the illegal omission by your department and hence your termination is not even the remotest possibility. Remember the Judges/ Presiding Officers of Law Courts/ Tribunals don’t act mechanically or give a narrow interpretation of rules. On the contrary, they use their judicial minds to see if actually Principles of Natural Justice have been violated or not. 

He need not get any copy of ACR assessement report under RTI.  He can simply plead that nothing adverse has been communicated to him.  He has no duty to get the adverse communicated to him rather it is duty of the department to communicate the same to him.  As along as nothing is communicated he has allthe reasons to plead that nothing is adverse. Let the department defend the allegation.  I am fully sure that getting such materail under RTI will provide escape route to the department who is otherwise committing irregularities against him.

Such like arbitrary actionshave been queshed by courts evenwhenthere was no RTI.  Golden swrod does not mean that one has toslit his throat in order to use it.

1. nothing adverse is communicated (as explained by him so far) so the decision is arbitrary
2. extention is ordered after period of inital exstention. (The citation quoted above by Mr Abhinav will be helpful)
3. extention is not by appointing authroity. (violation of Art 311)

These grounds should be sufficient for him to proceed.

He should certainly use RTI to get the details of the minutes of the committee and the inputs to the committe, which recommnedeed his extention and the noting submitted to the Director leading to the extentiosns.  Such papers will reveal more irregularities.

Respected Sudhir sir, I reqest you not to misinterpret any of my statements. Contrary to the inference drawn by you, my advice regarding preliminary steps which may be taken did not in any manner mean that Mr. Devendra should obtain (under RTI Act) the CTCs of his ACR/ Performance Assessment Report because of any legal duty on his part to prove non- communication of adverse remark or his satisfactory performance. This is indeed a rebuttable legal presumption and the burden of proving prior- communication of adverse remark lies on the department.

But an intelligent person must obtain every relevant document which relates to his case and may help proving his point upto the highest level in case of an inevitable legal battle. Having extra material in hand is always advisable than staying in derth of relevant documents. No one knows which document contains an advantageous matter for him. 

Sir, your being fully sure or holding an incorrect view of a Statutory Act does not change the law. Right under the RTI Act is given equally to every common "citizen" and so any department can't officially say a single word w.r.t. an RTI application filed by an employee in his "personal capacity". Also the supply of information in such a case does not operate as deemed communication of the same to the employee in his "official capacity".

I leave this query to the experts.The Shops and establishment Act/Standing Orders restrict the period of probation and its extension. The S&E Act of some states prescribe this to be (intial period) 3 months while the Standing Order may stipulate 6 months. Does the Service Rules of Government/PSUs prescribe 1 year probation - can a probation be so long!

Vasudevan

@ Mr Vasudevan. Shops and Comemrcial Estt  Act perhaps does not apply to Govt bodies where service conditions are governed by rules framed under Article 309 of the consittution.

Mr Abhivan Jha has already quoted appropirately applicable citations which maybe useful to the queriests.

@ Mr Bhinav Jha.  I fully agree with the veiw the the ACR can be obtained under RTI Act.

But still I maintain that he should get each and every paper udner RTI Act but not the ACR/Assesement report. In all probability there may be some advserse entry which is uncommunicated. Non-communication of adverse is srious irregularity which can be fatal to the deptt. The deptt doe snot deserve any escape route.

He must not lose argument of being ignorant of any advbderse enty. 

rest is upto him what he has to do.

This is a very interesting thread.

Learned Experts/members have enriched the forum with their advice in this thread.

LCI expert/member Mr. Beni Prasad has contributed a recent judgment by Supreme Court of India at the following thread:

Every entry in ACR of a public servant must be communicated to him/her within a reasonable period

https://www.lawyersclubindia.com/forum/Every-entry-in-acr-of-a-public-servant-must-be-communicated-86603.asp#.UhLzJ9KAqWM

Supreme Court of India

Sukhdev Singh vs Union Of India & Ors. on 23 April, 2013

It can be downloaded from:

https://indiankanoon.org/doc/9665019/

https://indiankanoon.org/doc/9665019/?type=print

It is the prerogative of the Learned Experts/members Mr. Sudhir Kumar, Mr. Abhinav Jha to recommend and interpret the application of this judgment in the matter posted in this thread.