probation. Odisha State Medical Corporation Limited Employees' Service Rules, 2017, which came into force with effect from 22^ndSeptember, 2017 was applicable to the parties. Rule 10 deals with probation and confirmation. The relevant rules 10.1 to 10.3 are reproduced below.

"10.1 All the employees directly recruited by the Corporation shall be on probation for one year from the date of joining.

10.2 The appointing authority may extend the period of probation for a further period of one year at a time considering the ability, suitability and performance of the officer and inform the employee concerned the reason for such extension.

10.3 The appointing authority shall regularize the employee concerned in the post on successful completion of probation period on the basis of his ability, suitability and performances by a written order."

(emphasis supplied)

2. Respondent was appointed on letter dated 10^thMarch, 2017. There was no controversy between the parties regarding applicability of the rules that had come into force later, as aforesaid on 22^ndSeptember, 2017. The learned single Judge

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recorded as much in impugned judgment. That position continues in appeal.

3. She had relied on 1^stterm and condition in the appointment letter, reproduced below.

"1. The appointment is purely temporary. You will be on probation for one year from the date of joining. The probation period can be extended a further period of one year or more as per satisfaction of authority. During the period of probation, your services can be terminated by the Appointing Authority on payment one month's notice or in lieu of the same with one month's salary. Depending on satisfactory performance and conduct during the probation period, your continuance and regularization in the post will be decided. The probation period will be counted towards normal annual increment, leave and seniority. On successful completion of probation, you will be confirmed in the concerned post." (emphasis supplied)

She submitted that her client could extend the period of probation for a further period of one year or more as per its satisfaction. Furthermore, during period of probation, the service could be terminated on one month's notice or in lieu of the same with one month's salary. Going back to rules 10.2 and 10.3 she submitted,

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regularization of respondent in the post could only be by a written order. Facts in the case did not proceed to that stage. Prior thereto, during extended continuation of the probation period, respondent's service was terminated. She added, it was a simple termination without stigma.

4. She relied on judgment of the Supreme Court in High Court of M.P. v. Satya Narayan Jhavar, reported in (2001) 7 SCC 161, inter alia, paragraph-11. She demonstrated from the paragraph, there were three lines of cases discussed. She relied on the first line of cases, said to be where in the service rules or in 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. If the officer continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. This line was approved by the Supreme Court in saying, in such cases there is no bar against termination at any point of time after expiry of the period of probation. She reiterated, the termination was during extended period of probation. The extension though happened after two years, no dispute was and cannot be raised regarding continuance of it at the time of termination.

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5. She relied on one more judgment of the Supreme Court in Registrar, High Court of Gujarat v. C.G. Sharma, reported in (2005) 1 SCC 132, paragraph-26. The proposition is that even if period of probation expires and the probationer is allowed to continue, automatic confirmation cannot be claimed as a matter of right because in terms of the rules, as in that case, work had to be satisfactory, which is pre-requisite or pre-condition for confirmation. The Supreme Court went on to say that language of the rules itself excluded any chance of giving deemed or automatic confirmation.

6. Today Miss Mahapatra, learned advocate appearing on behalf of respondent draws attention to impugned judgment and submits, the declarations of law made by the Supreme Court on the point of probation and confirmation were duly considered by the learned single Judge. Facts in the case were appreciated and are that her client successfully completed probation period of one year as required under rule 10.1. On having done so the appointing authority was mandated by rule 10.3 to regularize her client in the post on basis of his ability, suitability and performance, by a reasoned order. Her client was entitled to this. There was no communication to indicate her client was

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unsuccessful in completing the period of probation or that he lacked ability, suitability or performance.

7. She draws attention to several paragraphs in impugned judgment to demonstrate that this was taken note of by the learned single Judge. There is nothing on record to show her client was ever noticed on performance. Hence, irresistible conclusion drawn by the learned single Judge was, the severance was punitive. This cannot be as the Supreme Court in very many cases has declared that there must be opportunity given for a probationer employee, to improve on performance. She submits, impugned judgment is good. There be no interference in appeal.

8. Question to be answered in this appeal turns on interpretation of rules 10.1, 10.2 and 10.3. Rule 10.1 says, employees directly recruited shall be on probation for one year from the date of joining. There is no dispute respondent was directly recruited and had to undergo probation for one year from his date of joining. Moving on to rule 10.2, thereby is permission for the appointing authority to extend the period of probation for further period, of one year at a time, considering the ability, suitability and performance of the officer. There is further requirement to inform the employee concerned, the reasons for

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such extension. On query Miss Mahapatra submits, the first extension was by office order dated 12^thMarch, 2019. Text of the order is reproduced below.

"OFFICE ORDER The probation period of the following employees of Odisha State Medical Corporation Ltd. is hereby extended for a further period of one year in terms of the provision laid down in their appointment letters.

"

Ms. Rath submits, there was earlier office order dated 9^th January, 2019. She draws attention to pages-48 and 49 in the appeal brief to demonstrate existence of the office order and relevant page in peon book bearing signature, said to be of respondent, acknowledging receipt thereof. On query made Ms. Rath submits, counter was filed but the documents were not disclosed. Text of the office order is reproduced below.

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"OFFICE ORDER The probation period of Sri Pravat Kusum Mandal, Manager, Procurement (Drugs & Surgical), Odisha State Medical Corporation Ltd. is hereby extended in terms of the provision laid down in his appointment letter no.3232/OSMC/HR/2017, dated 10.03.2017."

Since we are dealing with the writ petition in appeal, on affidavit evidence, it will be better not to solely rely on this office order dated 9^thJanuary, 2019 even though we notice, in paragraph-9 of the counter affidavit there is reference to it.

9. It will appear from contents of both, the disputed office order as well as office order dated 12^thMarch, 2019, there was no indication informing the employees concerned, reason for such extension. We may add that the disputed office order is dated 9^th January, 2019 and following office order dated 12^thMarch, 2019. Respondent joined service on 14^thMarch, 2017. Thus, both office orders extending the probation period came long after initial probation period of one year.

10. Subsequent fact is, respondent's service was terminated by office order dated 25^thJuly, 2019. Text of the office order is reproduced below.

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"OFFICE ORDER In pursuance to the terms & condition laid down in clause no.1 of the appointment letter no.3232, dated 10.03.2017 issued, the services of Shri Pravat Kusum Mandal, Manager-Procurement (D & S) who is under probation, is hereby terminated with effect from 25.07.2019 (FN). One month salary in lieu of notice period of one month be released to Shri Pravat Kusum Mandal."

The termination must be seen as done in terms of clause (1) in the appointment letter.

11. Judgments relied upon by the parties and duly considered, as reflected from impugned judgment, are of the Supreme Court declaring the law that an employee continuing beyond the period of probation must be seen as a situation, where the employer has impliedly extended it. In the case at hand, rule

10.2 permits the employer to extend the period of probation for further periods, one year at a time. In the circumstances, the belated extension, if it can be said so, must be seen as permissible by the employer.

12. However, we do see that there has been infraction of the rule by the employer in having thus extended the probation. No

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information was given to respondent on the reason for the extension. As such, the extension therefore cannot be seen as duly made. So, the situation becomes one of respondent having been appointed on 10^thMarch, 2017 and continued to serve as in probation till his termination on 25^thJuly, 2019. He thus had put in approximately two and half years of service on probation, without information had on any shortcoming in respect thereof.

13. In State of Gujurat v. Akhilesh C. Bhargav, reported in (1987) 4 SCC 482 the Supreme Court had occasion to consider administrative instruction issued by the Ministry indicating guidelines to be followed regarding it being not desirable that a member of the service should be kept on probation for years. In the case considered there was requirement for the probationer to take final examination within four years of probation. Said requirement is not there in the present case. However, we do have facts where respondent continued in service initially beyond requisite one year probation period and till he was terminated, without information on reason for belated extension of probation. It follows, the learned single judge concluded the termination to be punitive. As we see things, we do not have reason to interfere. High Court of M.P. (supra) does

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not come to aid of appellant because we cannot quarrel with the declaration of law, of an employee continuing in service while in probation, to be on implied extension of it. We have arrived at finding that the extension of probation was not in terms of rule

10.2 on no information given to respondent, for reason of it. In the circumstances, C.G. Sharma (supra) is of no aid to appellants.

14. The learned single Judge by impugned judgment directed regularization of respondent's service. The direction is modified to be that respondent is to be reinstated on probation with deemed continuation of service and for appraisal of his performance on expectation to be confirmed.

15. The appeal is disposed of.

(Arindam Sinha) Acting Chief Judge (M.S. Sahoo) Judge

Jyostna Signature Not Verified Digitally Signed Signed by: JYOSTNARANI MAJHEE Reason: Authentication Location: ORISSA HIGH COURT Date: 24-Feb-2025 17:49:24

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