TMI Blog2008 (4) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... to each employee and the Bank cannot be deprived of such discretionary jurisdiction, thus need not deal with the question as to whether the insistence of confirmation test is not in accordance with the Regulations. Appeal filed by the Bank is dismissed and that of the writ petitioner is allowed. The writ petitioner shall be reinstated in service forthwith. She, however, may be paid only 50 % of the back wages. This order we are passing keeping in view that her services had been terminated on 9th November, 1990. The writ petitioner is also entitled to costs. Counsel's fee assessed at Rs.50,000/-. - Appeal (civil) 3125 of 2008 - - - Dated:- 30-4-2008 - SINHA, S.B. AND SIRPURKAR,V.S., JJ. S.B. SINHA, J. 1. Leave granted in both the matters. 2. These two appeals arise out of a judgment and order dated 20th May, 2005 rendered by the Division Bench of the Orissa High Court at Cuttack in WP No. 2333 of 1991. 3. Writ Petitioner (Respondent in appeal arising out of SLP ) No. 18997 of 2005 and Appellant in the connected appeal) was appointed as a Management Trainee in the Punjab National Bank (Bank). She was duly selected by the Banking Service Recruitment Board, Delhi. An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on period expired on 28th July, 1988. It was extended by another year i.e. till 28th July, 1989. 6. Indisputably, she had otherwise completed her period of probation. She also fulfilled the other conditions of service. Her services, however, were terminated by an order dated 9th November, 1990 stating :- "You were appointed as a Management Trainee on 25.8.1986. One of the terms of your appointment stipulates that : "3. CONFIRMATION You will be considered for confirmation in the Bank service after two years on : a) Satisfactory report of your training. b) Passing Bank's confirmation Test. c) You may also be required to pass a test in language other than your mother tongue before confirmation. In the event of your not satisfactorily completing the training referred to in sub para 3(a) or failure to qualify the Bank's confirmation test within the training/probation period of two years or to pass the test in a language other than your mother tongue, your probation may be extended by a further period not exceeding one year. If during the period of probation, including the period of extension, if any, the competent authority is of the opinion that you are not fit for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court on the case of Indubala was misplaced as an affidavit explaining the situation had not been taken into consideration and in any event no legal right can be claimed on the basis of an illegality committed by the employer as Article 14 of the Constitution of India speaks of a positive right. 12. Mr. S.S. Upadhyay, learned Senior Counsel, appearing on behalf of the writ petitioner, on the other hand, would submit :- i) The order of termination being not based on unsatisfactorily completion of the in-house training or the non-passing of a language test, which only have been provided for in the Regulations, the impugned order of termination could not have been passed on the premise that the writ petitioner did not pass the confirmation test. ii) Having regard to Regulations 15 and 16 of the Regulations, her services having been terminated on 9th November, 1990 i.e., after the extended period of the period of probation upto 28th July, 1989 expired, she would be deemed to have been confirmed in service. iii) In any event she had clearly been discriminated against inasmuch as an employee who was similarly situated had been given a fourth opportunity to clear the said confirmat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ordinarily, although when conflict occurs between an executive order and a statutory Regulation, the latter will prevail; we will proceed on the premise that such a condition could be imposed by the competent authority. 17. We, for the time being, would also assume that having regard to the doctrine of approbation and reprobation as also the doctrine of election, the writ petitioner could not question the validity or otherwise of the said executive action. 18. While saying so, however, we are not unmindful of the observations made by this Court in Municipal Corporation, Raipur vs. Ashok Kumar Misra : (1991) 3 SCC 325. "6. Exercise of the power to extend the probation is hedged with the existence of the rule in that regard followed by positive act of either confirmation of the probation or discharge from service or reversion to the substantive post within a reasonable time after the expiry of the period of probation. If the rules do not empower the appointing authority to extend the probation beyond the prescribed period, or where the rules are absent about confirmation or passing of the prescribed test for confirmation of probation then inaction for a very long time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirmation. Both the earlier judgments of the Supreme Court in Dharam Singh and Om Prakash cases (supra) were noticed and distinguished. Seen in this light, there can be no escape from the conclusion that in the circumstances here, mere expiry of the period of probation, without the respondent having qualified in the confirmation test, did not entitle him to confirmation in service. 22. The decisions of this Court in Dharam Singh (supra) and Om Prakash Maurya (supra), on the one hand, and Municipal Corporation, Raipur vs. Ashok Kumar Misra : (1991) 3 SCC 325, on the other, as would appear from the discussions made hereinafter had set the legal principles differently. 23. In Dharam Singh, a Constitution Bench of this Court categorically held that :- "Where on the completion of the specified period of probation the employee is allowed to continue in the post without an order of confirmation., the only possible view to take in the absence of anything to the contrary in the original order of appointment or promotion or the service rules, is that the initial period of probation has been extended by necessary implication." What is, therefore, evident is that the matter must be g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of probation has been confirmed in the post by implication." 25. The said principle was reiterated by a seven Judge Bench of this Court in Samsher Singh vs. State of Punjab vs. State of Punjab : (1974) 2 SCC 831 stating : "71. Any confirmation by implication is negatived in the present case because before the completion of three years the High Court found prima facie that the work as well as the conduct of the appellant was unsatisfactory and a notice was given to the appellant on October 4, 1968 to show cause as to why his services should not be terminated. Furthermore, Rule 9 shows that the employment of a probationer can be proposed to be terminated whether during or at the end of the period of probation. This indicates that where the notice is given at the end of the probation the period of probation gets extended till the inquiry proceedings commenced by the notice under Rule 9 come to an end. In this background the explanation to Rule 7(1) shows that the period of probation shall be deemed to have been extended impliedly if a Subordinate Judge is not confirmed on the expiry of this period of probation. This implied extension where a Subordinate Judge is not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aximum period of probation permitted under the Service Rules since no other inference is possible in such a situation from the employer's conduct of continuing to take work from the employee after that period." 28. We may, having noticed the legal principles enunciated by this Court, consider the decision of this Court in Ashok Kumar Misra (supra). The relevant Rule which was involved therein was Rule 8 of Madhya Pradesh Government Servants' General Conditions of Service Rules, 1961 which was in the following terms :- "8. Probation . (1) A person appointed to a service or post by direct recruitment shall ordinarily be placed on probation for such period as may be prescribed. (2) The appointing authority may, for sufficient reasons, extend the period of probation by a further period not exceeding one year. Note .- A probationer whose period of probation is not extended under this sub-rule, but who has neither been confirmed nor discharged from service at the end of the period of probation shall be deemed to have been continued in service, subject to the condition of his service being terminable on the expiry of a notice of one calendar month given in writing by eith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and the passing of the prescribed examinations. It is not the respondent's case that he passed all the examinations. He shall be deemed to be continued on probation. Before confirmation the appointing authority is empowered to terminate the service of the probationer by issuing one calendar month's notice in writing and on expiry thereof the service stands terminated without any further notice. Within three months from the date of expiry of original two years period of probation and within one year's period, the order of termination was made. In this view the question of conducting an inquiry under the Classification, Control and Appeal (Rules) after giving an opportunity and that too for specific charges does not arise." 30. The order of termination in that case was, therefore passed within the extended period of probation in service. Ashok Kumar Misra (supra), therefore, in our opinion did not speak in a different tone and is in conformity with the legal principles laid down in Dharam Singh (supra) and others. 31. The High Court, therefore, in our opinion was not correct in relying upon the decision of the Division Bench of the Allahabad High Court in the case of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot claim any advantage relying on the same." 34. At once we may notice that the said statement contained a factual error which has been very fairly conceded by Mr. Mehta as the ground for giving another opportunity to Indubala to appear at the confirmation test for the 4th time was not on the ground of her own illness but on her mother's illness. 35. Was the fact situation in Indubala's case is different from that of the writ petitioner? The answer must be found in the judgment of the High Court, wherein it was held that the writ petitioner's case stands on a much better footing. As she could not appear in the third chance on account of the illness of her mother which did not depict the correct state of affairs whereas the writ petitioner underwent a mis-carriage of her conception in the month of April, 1988, she had to remain alone at the place of posting and could not prepare for the examination. At the time when she was called upon to appear in the examination for the second time, she was in the advance stage of pregnancy and she was medically advised not to move, as she had miscarriages at two previous occasions. That is the reason why she could not appear in the test. When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species, Article 16 gives effect to the doctrine or equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and Constitutional law a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allenged as being violative of the guarantee of equality embodied in Article 16 Citing with approval Justice Krishna Iyer in State of Jammu Kashmir v. Trilokinath Khosa : ( 1974 ) 1 SCC 19, it was thus stated: "Krishna Iyer, J., stated that the social meaning of Articles 14 and 16 is neither dull uniformity nor specious 'telentism'. Further, the soul of Article 16 is the promotion of the common man's capabilities, opening up full opportunities to develop without succumbing to the sophistic argument of the elite that talent is the privilege of the few and they must rule. But then, personnel policy does require an eye on efficiency; and so, though 'chill penury" should not 'repress their noble rage', technical proficiency cannot be sacrificed at the altar of wooden equality. All these call for a striking of balance between the long hunger for equal chance of the lowlier and the disturbing concern of the community for higher standards of performance. Even so, mini-classifications based on micro-distinctions are false to our egalitarian faith; and over-doing of classification would be undoing of equality. The Court has to function always as a sentinel on the qui vive." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under the IAS Selection Regulations which held the field for over 33 years, as unjust, arbitrary, unreasonable and that which arbitrarily affected the legitimate and normal expectations of non-State Civil Service Class-I officers and was inhibited by Article 14 of the Constitution, the regulation was struck down as unconstitutional. 42. Delhi Transport Corporation vs. D.T.C. Mazdoor Congress and others : 1991 Supp (1) SCC 600, dealt with the question of constitutional validity of the right of the employer to terminate the services of permanent employees without holding any inquiry in certain circumstances by reasonable notice or pay in lieu of notice. After referring to a plethora of decisions of this court on the application of Article 14 and 16 in cases of public employment, it was opined: "Thus it could be hold that Article 14 read with 16(1) accords right to an equality or an equal treatment consistent with the principles of natural justice. Any law made or action taken by the employer, corporate statutory or instrumentality under Article 12 must act fairly, justly and reasonably. Right to fair treatment is an essential inbuilt of natural justice. Exercise of unb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od specified in sub-section (4) of Section 4. Apart from the right to payment of maternity benefits, she would be entitled to the benefits of Sections 6 and 9 thereof. Section 9 reads as under :- "9. Leave for miscarriage, etc.-In case of miscarriage or medical termination of pregnancy, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage, or, as the case may be, her medical termination of pregnancy." 44. Mr. Mehta has, however, drawn our attention to Regulation 36 of the Regulations to contend that maternity leave was admissible upto a period of 6 months only, on and from the 1st day of April, 2000. A statutory Regulation, as is well known, is subject to the provisions of a Parliamentary Act. Regulations framed by the Board of Directors of the Bank fail to provide for grant of maternity leave and other benefits to which a woman employee would be entitled to in terms of the Maternity Benefit Act, 1961. A subordinate legislation, as is well known, must be made in conformity with the Parliamentary Act. 45. In Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. A State, even for applying the constitutional scheme of equqlity would not enforce its decision only upon taking into consideration the cases of the different parties before it. A woman who had undergone miscarriages, in our opinion, was entitled to a different treatment. Article 14 indisputably is a positive concept. Applicability of the doctrine of equality as a positive concept, therefore, should have been the premise that as a woman having regard to the state of affairs in which the writ petitioner was placed, she was entitled to obtain a different treatment from the employer. Article 14 does not apply in a vacuum. Whereas persons absolutely similarly situated, should be treated equally, equal treatment to the persons dis-similarly situated would also attract the wrath of Article 14. It is from that point of view that the writ petitioner's case ought to have been considered vis-a-vis Indubala. If the appellate authority was entitled to exercise its power of relaxation, which in the absence of any statutory interdict (presumably it was entitled to), it should have considered the case of the petitioner vis-`-vis Indubala, whose case, was rightly been found by the High Court st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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