SHIV KUMAR SHARMAversusHARYANA STATE ELECTRICITY BOARD, CHANDIGARH & ORS.

                       SHIV KUMAR SaARMA
                               v.
                                                                                     A
HARYANA STATE ELECTR!Cifi BOARD, CHANbitiA.RH
                  & ORS.

                              JULY 21, ~988

[E.S. VENKATARAMIAH AND MURARI MOHON DUTI'; 11.]

      Civil :Services: Confitmaiion-Atthaic rule gMng scope .to
executive authorities lo act malafiile/iitbilrar:ily-tJives riSe to uhneces"
sary litigations-High time for Government and authorities to tliilik
over,


     SeniiJrii)'--'-'-SeniiJriiy has nothing to ilo wiih &ioppage ,t;f ilitn!'
ment-Such minor pulilshmenl liot ro affetl seliioriiy=Espedaily when
probation is-tompleteil satisfactorily.

      The ·appeliant Wil!i i1ppoh1ted an Assistllilt Eiiflilll!l!t 110 June   to.,
i9ti3 in the Punjab Slate Electricity Board ·oil probation for two years
which end~d on June .io, 1965. On bii"utcatlon ol PuiiJab Eiectriclly
Board; tbe service of the appellant was aiiocaleci to iiafylllili state
Electricity Board. As a te5ult of a diseiplinary proceeding held against
him in 19611; a minor penalty of stoppage of one ·increment without any              E
future effect was impi>sed ofi the appellant. After expiry .ilfone year, the
appellant \\·as, however, given the increment.

       By virtue of 8il order dated March 30, i97il; the ajipeliiiiil Jilid
respondents 2 to· f9 were ci>nflffited as Assistant Engineers; ciass•ii ilil
satisfactorily completing the probation periild lif lwil years, Thongh the           F
others were confirmed with eifect fiilni Aprii i, i9ii9; the appellant was
confirmed with effect froni December 1, 1969. Consequently, the appei•
lant;s name was placed laiit of all the confirmed officers. the appellant
challenged the said order by way of a writ petition before thl! High
Court which dismissed the petition. This appeal by special leave ·is
against the judgment ofthe High Court                                                G
      Allowing the appeal;

     HELD: L The peiiaity by way of stoppage of one lntrenient tor
one year was without any future effect. In other word.S; the appellant's
increment for one year was stopped and such stoppage ·of increment will              H
                                      621
                                                     •



     622          SUPREME COURT REPORTS                  [1988] Supp. 1 S.C.R.

     have no effect whatsoever on his seniority. Accordingly, the Electricity
A
     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 pQst with effect from December 1, 1969 instead of April 1, 1969.
     Tlie 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
B    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
c    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
D    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 con-
     firmation of that officer after the completion of the probationary
     period. The 11rchaic rule of confirmation, still in force, gives a scope to
     the executive authorities to act arbitrarily or ma/a fide giving rise to
E    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.
F
           [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]

G.         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.

H          P.D. Shanna for the Appellant.
S.K. SHARMA v. HARYANA STATE EtECTRICITY BOARD !DUTT, J.J           623

     Parmod Dayal for the Respondents.
                                                                            A
     The Judgment of the Court was delivered.by

      DUTT, J. This appeal by special leave is directed against the
judgment of the 'Division Beneh of the High Court of Punjab &
Haryan...whereby the High C~iurt dismissed in limine the letters patent     B
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 C
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 without any future effect was imposed on the appellant D
by the Board. After the expiry of one year, the appellant was, how-
ever, given the increment.

      Although the probationary period of the appellant was comp-
leted on June m, 1965, he was not confirmed within a reasonable time
thereafter. There is also no material to show that his period of pro-       E
bation 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 res-
pondents Nos. 2 to 19 were confirmed as Assistant Engineers, ClasS-
11. It has been specifically stated in the said order that the officers
mentioned therein, that is, the appellant and the respondents Nos. 2 to     F
19, had satisfactorily completed the probationary period of two years.
It, however, appears from the said order that respondents Nos.2 to 19
were confirmed in the posts of Assistant Engi'!eers, 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   G
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 res-
pective 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           H
    624         SUPREME COURT REPORTS                [1988) Supp. 1 S.C.R.

    appointed on June 7, 1963 and above the name o.f Sudesh Kumar Tuli
A   (Serial No. 46) respondent No. 2 appointed on June 21, 1963, but his
    n;ame was placed below that ofVed 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 (he appellant,
    were plaqed above the name of the appellant in the seniority list with-
B   out 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 mlme
    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
c   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. Midha, is since dead.

D         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
E   effect from December 1, 1969, when he had completed his proba-
    tionary 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.
F
          We are unable to accept the above contention. The penalty was
    imposed on April 15, 1968 and, as a result of 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
G   was stopped and such stoppage of increment will have no effect
    whatsoever on his seniority. Accordingly, the Board acted illegally and
    most :irbitrarily 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
H   nothing to do with the penalty that was imposed upon the appellant. It
 S.K. SHARMA v. HARY ANA STATE ELECTRICITY BOARD !DUTT, J. I          625

 is apparent that for the same act of misconduct, the appellant has been     A
 punished twice, that is, first, by the stoppage of one increment for one
 year and, second, by placing him below his juniors int.he seniority list.

        The appellant ~hould 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. B
· 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 C
  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 mala fide giving rise to
  unnecessary litigations. It is high time that the Government and other
  authorities should think over the matter and relieve the government D
  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 E
             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 con-
             firmed as a District Judge years after he was confirmed as a
             Judge of the High Court. It is on the record of these writ F
             petitions that officiating Deputy Engineers were not con-
             firmed even though substantive vacancies were available in
             which they could have been confirmed. It shows that con-
             firmation does not have to conform to any set rules and
             whether an employee should be confirmed or not depends
             oil the sweet will and pleasure of the Government.           G

     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 H
    626          SUPREME COURT REPORTS               [1988] Supp. l S.C.R.

A   the Board that after some substantive posts had fallen vacant on April
    1, 1969, the question of confirmation of the appellant and the res-
    pondents 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
B   all these posts had fallen vacant on the same day, that is, on April I,
    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
c   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
D   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
E
    G.N.                                                    Appeal allowed.