WP(C) No. 564 of 2010. Case: Shampa Nath Vs The Hon'ble Gauhati High Court.
| Case Number | WP(C) No. 564 of 2010 |
| Counsel | For Appellant: Party-in-Person and For Respondents: S.M. Chakraborty, Sr. Advocate, S. Chakraborty, Addl. Govt. Advt., P. Dhar, D. Das and B.N. Majumder, Advocates |
| Judges | Deepak Gupta, C.J. and S. Talapatra, J. |
| Issue | Constitution of India - Article 235 |
| Judgement Date | September 26, 2014 |
Judgment:
Deepak Gupta, C.J., (At Agartala)
1. The original writ petitioner late Sri Somnath Gangopadhyay was selected to the Tripura Judicial Service Grade III (TJS) in December 2003. He was appointed on probation for a period of two years on 24.5.2004. After completion of his training, he was initially posted at Udaipur as Civil Judge (Jr. Div.) cum Judicial Magistrate, 2nd Class. On 20th August, 2007 the State of Tripura issued a notification discharging the services of the petitioner treating him as a probationer with immediate effect. That order was challenged by the petitioner by means of this writ petition.
2. Unfortunately, the original writ petitioner committed suicide on 25.12.2012. Thereafter his widow Ms. Shampa Nath applied for being brought on record and vide order dated 20th June, 2013 she was permitted to represent the estate of the original petitioner. Ms. Shampa Nath appeared in person and has argued the matter and also submitted her detailed written submissions running into 97 pages. However, if we go through the detailed submissions, there are only few grounds of challenge. The first ground is that the petitioner had completed his period of probation and was deemed to be a confirmed employee and therefore, his services could not have been discharged by treating him to be a probationer. The second ground is that even if he was discharged during probation, the grounds for discharge should have been indicated in the order of discharge in terms of sub-rule (6) of Rule 15 of the Tripura Judicial Service Rules, 2003. The third ground is that the order of discharge is illegal because it is based on unfounded and unverified allegations which were not inquired into and all of which allegations are in the nature of misconduct and that in view of such allegations, an inquiry was necessary. Lastly it is contended that the entire action against the petitioner was malafide and allegations of malafide had been levelled against respondent no. 4, the then Registrar of the Agartala Bench of the Gauhati High Court, respondent no. 5 who was the then District and Sessions Judge, Agartala, respondent no. 6, the then Chief Judicial Magistrate, Agartala and allegations of malafide had also been levelled against various other officers of the Tripura Judicial Service and ministerial staff of the Court as well as the Tripura Judicial Officers Association.
3. Before dealing with the factual aspects of the matter it would be relevant to quote Rule 15 of the Tripura Judicial Service Rules, 2003 which deals with probation, officiation, confirmation and increment and reads as follows:
15. Probation, Officiation, Confirmation and Increment:-
(1) All appointments to the service by direct recruitment shall be on probation for a period of two years.
(2) All appointments by promotion shall be on officiating basis of a period of two years.
(3) The period of probation or officiation, as the case may be, of an officer may, for reasons to be recorded in writing, be extended by such period not exceeding the period of probation of officiation, specified in sub-rules (1) or (2).
(4) At the end of the period of probation or officiation or the extended period of probation or officiation, as the case may be the High Court shall consider the suitability of the person to hold the post/grade to which the is appointed or promoted, and-
(i) if he is found suitable to hold the post/grade and has passed the special examinations or tests, if any, required to be passed during the period of probation or officiation, as the case may be, the High Court shall, as soon as possible, issue an order declaring him to have satisfactorily completed the period of probation or officiation, as the case may be; and such an order shall have effect from the date of expiry of the period of probation or officiation, including the extended period, if any, as the case may be.
(ii) if the officer is not found suitable to hold the post/grade to which he is appointed or promoted, as the case may be, the Governor on the recommendation of the High Court or, as the case may be, the High Court, being the appointing authority, shall If he is a promote, revert him to the post/grade which he held prior to his promotion;
If he is a probationer, discharge him from service.
(5) A person shall not be considered to have satisfactorily completed the period of probation or officiation, as the case may be, unless a specific order to that effect is passed. Any delay in passing such an order shall not entitle the person to be deemed to have satisfactorily completed the period of officiation or probation.
6(i) Notwithstanding anything hereinabove, the appointing authority as aforesaid may, at any time during the period of probation, discharge from service, a probationer on account of his unsuitability for the service.
(ii) An order under sub-rule (1) shall indicate the grounds for the discharge but no disciplinary enquiry shall be necessary.
(7) No appeal shall lie against an order discharging a probationer or an order reverting a promote to the post held by him prior to his promotion.
(8) An officer who has been declared to have satisfactorily completed his period of probation or officiation shall be confirmed in the service in the category of post/grade to which he was appointed or promoted, as the case may be, at the earliest opportunity against substantive vacancy.
(9)(a) A probationer or promote may draw the increments that fall due during the period of probation or officiation. He shall not, however, draw any increment after the expiry of the period of probation or officiation unless and until he is declared to have satisfactorily completed his probation or officiation, as the case may be.
(b) When a probationer or promote is declared to have satisfactorily completed his probation or officiation, as the case may be, he shall draw, as from the date such order takes effect, the pay he would have drawn had he been allowed the increments for the whole of his service from the date of his appointment on probation or officiation as the case may be.
(10) Notwithstanding anything contained in sub-rules (1) and (2) where validity of the appointment of an officer-(a) on probation is questioned in any legal proceedings before any Court of law, the period of probation of such person shall continue till the final disposal of such proceedings;
(b) on officiating promotion is questioned in any legal proceeding, before any Court of Law, the period of officiation of such promote shall continue till the final disposal of such proceedings.
4. The petitioner was appointed on 24.5.2004 and as per sub-rule (2) of Rule 15 he was to be on a probation for a period of 2(two) years. Admittedly, after completion of 2(two) years no order of confirmation was passed. No order of extension of his period of probation was passed. Therefore, it is contended on behalf of the petitioner that Sri Somnath Gangopadhyay having completed his period of probation of 2 years is deemed to be a confirmed officer. We are not in agreement with this submission. Sub-rule (3) of Rule 15 permits the extension of period of probation for a further period not exceeding the original period of probation i.e. 2 years. Therefore, it is envisaged that the total period of probation can be four years. However, sub-rule (5) clearly lays down that a person shall not be considered to have satisfactorily completed the period of probation, unless a specific order to that effect is passed. This sub-rule also provides that any delay in passing such an order will not give right to the person to claim that he is deemed to have satisfactorily completed the period of probation. Therefore, we have no hesitation in holding that the original writ...
To continue reading
Request your trial