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PETITIONER: SHIY KUMAR SHARMA

       Vs.

RESPONDENT: HARYANA STATE ELECTRICITY BOARD, CHANDIGARH & ORS.

DATE OF JUDGMENT27/07/1988

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1988 AIR 1673            1988 SCR  Supl. (1) 621  1988 SCC  Supl.  669     JT 1988 (3)   131  1988 SCALE  (2)79

ACT:      Civil Services:  Confirmation-Archaic rule giving scope to executive  authorities to  act malafide/arbitrarily-Gives rise to unnecessary litigations-High time for Government and authorities to think over.      Seniority-Seniority has  nothing to do with stoppage of increment-Such minor  punishment not  to  affect  seniority- Especially when probation is completed satisfactorily.

HEADNOTE:      The appellant  was appointed  an Assistant  Engineer on June 10,  1963 in  the Punjab  State  Electricity  Board  on probation for  two years  which ended  on June  10, 1965. On bifurcation of  Punjab Electricity Board, the service of the appellant was  allocated to Haryana State Electricity Board. As a result of a disciplinary proceeding held against him in 1968, a  minor penalty  of stoppage of one increment without any future effect was imposed on the appellant. After expiry of  one   year,  the   appellant  was,  however,  given  the increment.      By virtue  of  an  order  dated  March  30,  1970,  the appellant  and   respondents  2  to  19  were  confirmed  as Assistant Engineers,  class-II on  satisfactorily completing the probation  period of  two years.  Though the others were confirmed with  effect from April 1, 1969, the appellant was confirmed with  effect from  December 1, 1969. Consequently, the appellant’s  name was  placed last  of all the confirmed officers. The  appellant challenged the said order by way of a writ  petition before  the High  Court which dismissed the petition. This  appeal  by  special  leave  is  against  the judgment of the High Court. G      Allowing the appeal, ^      HELD:  1.  The  penalty  by  way  of  stoppage  of  one increment for  one year  was without  any future  effect. In other words,  the appellant’s  increment for  one  year  was stopped and such stoppage of increment will H 622 have no effect whatsoever on his seniority. Accordingly, the Electricity Board  acted illegally  and most  arbitrarily in placing the  juniors of  the  appellant  above  him  in  the

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seniority list  and/or confirming  the appellant in the post with effect  from December 1, 1969 instead of April 1, 1969. The question of seniority has nothing to do with the penalty that was imposed upon the appellant. It is apparent that for the same  act of misconduct, the appellant has been punished twice, that  is, first, by the stoppage of one increment for one year  and, second,  by placing  him below his juniors in the seniority list. [624G-H; 625A]      2. There  is no explanation why the confirmation of the appellant  was   deferred  till   December  1,   1969.   The explanation that  after some  substantive posts  had  fallen vacant on  April 1,  1969, the  question of confirmation was taken into  consideration is  not supported by. any material on record  inasmuch as  there is  nothing to show when these posts had  fallen vacant. It is difficult to accept that all these posts  had fallen  vacant on the same day, that is, on April 1, 1969. Though the vacancies had occurred before that day, the  Board did  not care  to take  up the  question  of confirmation for  reasons best  known to  it. While there is some necessity for appointing a person in government service on probation  for a  particular period, there may not be any need for  confirmation of  that officer after the completion of  the   probationary   period.   The   archaic   rule   of confirmation, still in force, gives a scope to the executive authorities to  act arbitrarily  or malafide  giving rise to unnecessary litigations. It is high time that the Government and other  authorities should  think  over  the  matter  and relieve the  government  servants  of  becoming  victims  of arbitrary actions. [625H; 626B; 625C;-D]      S.B. Patwardhan  & others  v. State  of  Maharashtra  & others, [1977] 3 SCR 775, referred to.      [Setting  aside   the  High   Court  judgment  and  the seniority list,  this Court  directed that a fresh seniority list be  prepared within  six months  on the  basis of  this judgment and  maintain the appellant’s seniority in the post to which he has been promoted in the meantime.] [626D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 301 of 1984.      From the  Judgment and  order  dated  1.2.1983  of  the Punjab and  Haryana High  Court in Letters Patent Appeal No. 1410 of 1982.      P.D. Sharrna for the Appellant. 623      Parmod Dayal for the Respondents.      The Judgment of the Court was delivered by      DUTT, J.  This appeal  by  special  leave  is  directed against the judgment of the Division Bench of the High Court of Punjab  & Haryana  whereby the  High Court  dismissed  in limine the  letters patent appeal preferred by the appellant against the  judgment of  a learned Single Judge of the High Court dismissing the writ petition of the appellant relating to his seniority.      The appellant  was appointed  an Assistant  Engineer-II with  effect   from  June  10,  1963  in  the  Punjab  State Electricity Board  on probation for two years which ended on June 10,  1965. After  the bifurcation  of the  Punjab State Electricity  Board,   the  service   of  the  appellant  was allocated  to   the   Haryana   State   Electricity   Board, hereinafter referred  to as  ’the Board’.  As a  result of a disciplinary proceeding held against the appellant, on April 15, 1968.  a minor penalty for the stoppage of one increment

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without any  future effect  was imposed  on the appellant by the Board.  After the expiry of one year, the appellant was, however, given the increment.      Although the  probationary period  of the appellant was completed on  June 10,  1965, he  was not confirmed within a reasonable time  thereafter. There  is also  no material  to show that  his period  of probation  was  extended.  In  the meantime, some  substantive posts  of  Assistant  Engineers, Class-II, fell  vacant and  by an order dated March 30, 1970 of the  Secretary  to  the  Board,  the  appellant  and  the respondents  Nos.  2  to  19  were  confirmed  as  Assistant Engineers, Class-II.  It has been specifically stated in the said order that the officers mentioned therein, that is, the appellant  and   the  respondents   Nos.  2   to   19,   had satisfactorily completed  the  probationary  period  of  two years.  It,  however,  appears  from  the  said  order  that respondents Nos.2  to 14  were confirmed  in  the  posts  of Assistant Engineers,  Class-II, with  effect from  April  1, 1969, while  the appellant  was confirmed  in that post with effect from  December 1, 1969. Consequently, the appellant’s name was  placed last  of all the confirmed officers. In the seniority list  also, the  name of  the appellant was placed against serial  No. 63,  that is,  below the  names  of  the respondents Nos.  2  to  19,  although  the  seniority  list appears to have been prepared on the basis of the respective dates of  appointments of the officers. As the appellant was appointed on June 10, 1963, his name should have been placed below the  name of  Pawan Kumar  Aggarwal  (Serial  No.  45) respondent No. 3 624 appointed on June 7, 1963 and above the name of Sudesh Kumar Tuli (Serial  No. 46) respondent No. 2 appointed on June 21, 1963, but  his name  was placed  below that  of Ved  Prakash Lalit (Serial  No. 62),  who was appointed on April 7, 1964. In other words, the names of the respondents Nos. 2 and 4 to 19, who  are all juniors to the appellant, were placed above the name  of the appellant in the seniority list without any reason whatsoever.      Being aggrieved  by the  impugned order  of  the  Board dated March 30, 1970 and also the seniority list wherein the appellant’s name  has been  placed below  the names  of  his juniors, namely,  respondents  Nos.  2  and  4  to  19,  the appellant filed a writ petition before a Single Judge of the Punjab &  Haryana High Court. As stated already, the learned Single Judge  dismissed the  writ petition,  and the letters patent appeal  preferred by the appellant against. the order of the  learned Single  Judge was also dismissed. Hence this appeal. It  may be  stated here  that respondent No. 4, S.P. Nlidha, is since dead.      The only  point that  is involved  in  this  appeal  is whether  the   Board  was   justified  in   confirming   the appointment of  the  appellant  in  the  post  of  Assistant Engineer, Class-II,  with effect  from December  1, 1969 and placing him below his juniors, namely respondents Nos. 2 and 4 to 19, in the seniority list. As has been noticed already, there is no material to show why the appellant was confirmed in the  post with  effect from December 1, 1969, when he had completed   his    probationary   period    of   two   years satisfactorily. It  is submitted on behalf of the Board that as the  minor penalty was imposed on the appellant by way of stoppage of  his increment  for one  year, he  was confirmed with effect  from December  1, 1969  and  placed  below  the respondents Nos. 2 and 4 to 19 in the seniority list.      We are  unable to  accept  the  above  contention.  The penalty was  imposed on  April 15,  1968 and, as a result of

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which, he  was deprived  of  the  monetary  benefit  of  one increment for  one year only. The penalty by way of stoppage of one increment for one year was without any future effect. In other  words, the  appellant’s increment for one year was stopped and  such stoppage  of increment will have no effect whatsoever on  his seniority.  Accordingly, the  Board acted illegally and most arbitrarily in placing the juniors of the appellant above  him in the seniority list and/or confirming the appellant in the post with effect from December 1, 1969, that is,  long after  the date  of confirmation  of the said respondents Nos.  2 to  19. The  question of  seniority  has nothing to  do with  the penalty  that was  imposed upon the appellant. It 625 is apparent  that  for  the  same  act  of  misconduct,  the appellant has  been punished  twice, that  is, first, by the stoppage of  one increment  for one  year  and,  second,  by placing him below his juniors in the seniority list.      The appellant  should have  been confirmed  on June 10, 1965 on  which date  he  had  completed  two  years  of  his probationary  period.   As  has  been  stated  already,  the probationary period was not extended. The Board has not laid down any  guideline  for  confirmation.  There  is  no  rule showing when  an officer  of the  Board will  be  confirmed. While there  is some  necessity for  appointing a  person in government service  on probation  for a  particular  period, there may  not be  any need for confirmation of that officer after the  completion of  the probationary period. If during the period  of probation a government servant is found to be unsuitable, his  services may  be terminated.  On the  other hand, if  he is found to be suitable, he would be allowed to continue in service. The archaic rule of confirmation, still in force,  gives a scope to the executive authorities to act arbitrarily  or   malafide  giving   rise   to   unnecessary litigations. It  is high  time that the Government and other authorities should  think over  the matter  and relieve  the government  servants   of  becoming   victims  of  arbitrary actions. In  this connection we may refer to the decision in the case of S.B. Patwardhan & others v. State of Maharashtra & Ors.  [ 1977]  3 SCR  775 where Chandrachud, C.J. speaking for the Court observed as follows:           "Confirmation   is    one   of    the   inglorious           uncertainties  of   government  service  depending           neither on  efficiency of the incumbent nor on the           availability of  substantive vacancies.  A glaring           instance widely  known in a part of our country is           of a distinguished member of the judiciary who was           confirmed as  a District  Judge years after he was           confirmed as  a Judge  of the High Court. It is on           the  record   of   these   writ   petitions   that           officiating Deputy  Engineers were  not  confirmed           even though  substantive vacancies  were available           in which  they could have been confirmed. It shows           that confirmation  does not have to conform to any           set  rules  and  whether  an  employee  should  be           confirmed or  not depends  on the  sweet will  and           pleasure of the Government.      In the  instant case, although the Board found that the appellant  had   satisfactorily  completed   his  period  of probation, yet  he was  placed  below  his  juniors  in  the seniority list  without any  rhyme or  reason. There  is  no explanation  why  the  confirmation  of  the  appellant  was deferred till December 1, 1969. It is, however, submitted on behalf of 626

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the Board  that after  some  substantive  posts  had  fallen vacant on April 1, 1969, the question of confirmation of the appellant and  the respondents  Nos. 2  to 19 was taken into consideration. This  submission  is  not  supported  by  any material on record inasmuch as there is nothing to show when these posts  had fallen  vacant. It  is difficult  to accept that all these posts had fallen vacant on the same day, that is, on  April 1,  1969. We have, therefore, no hesitation in holding that the vacancies had occurred before that day, but the  Board   did  not  care  to  take  up  the  question  of confirmation for reasons best known to it. That facts stated hereinabove, disclose  that the  Board had acted arbitrarily at its  sweet will  and without any justification whatsoever in making the appellant junior to the respondents Nos. 2 and 4 to  19, who  are admittedly  juniors  in  service  to  the appellant.      For the  reasons aforesaid, the judgment of the learned Single Judge  and that  of the  Division Bench  of the  High Court and  the impugned  seniority list  are set  aside.  We direct that  a fresh  seniority list  shall be  prepared  by placing the appellant immediately below Pawan Kumar Aggarwal and above  Sudesh Kumar  Tuli within six weeks from date and maintain the seniority of the appellant, as directed, in the post to  which  the  appellant  has  been  promoted  in  the meantime .      The appeal is allowed with costs quantified at Rs.5,000 G.N.                                    Appeal allowed. 627