In Deepak Dwivedi vs. The State of Bihar through the Principal Secretary, General Administration Department (2025), Patna High Court's Division Bench of Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy, dismissed the appeal and approved the judgement of Justice Madhuresh Prasad, the single judge because the appellant never joined his duty and, therefore, he was never confirmed as he never passed the required examination nor did he appear for any competency test for typing on a typewriter or computer."
Justice Prasad had recorded that the Department had constituted a Medical Board to verify/ascertain his claim of being medically unfit, he refused to appear before the Medical Board for being examined in spite of repeated opportunities being granted to him. In the circumstance, the authorities have found thep petitioner's conduct to be unsatisfactory and undesirable in the administrative set up. Under the 2007 Act, there is a provision that an Assistant, as the petitioner, initially is appointed on probation for two years from the date of appointment. It also provides that the period of probation may, if the appointing authority may deem fit, be extended but for total period which may not in any case exceed three years. Even in the extended period, the service is found to be unsatisfactory, service is liable to be terminated. It is in exercise of this power that the petitioner's service, having regard to the facts and circumstances, has been found to be unsatisfactory. The petitioner has rightly been terminated. The petitioner was still a probationer as per the 2007 Act under which he was appointed. The impugned order therefore does not require any interference."
The Division Bench concluded that "it would be presumed that his period of probation continued and during the period of probation, his services being found to be absolutely unsatisfactory, he was terminated from service." The other respondents were: Additional Secretary to the Govt. of Bihar, General Administration Department, Bihar Patna and Under Secretary, Minority Welfare Department. The judgement was authored by Justice Kumar.
The Bihar Secretariat Services Act, 2007 would be applicable to the case of the appellant. Section 10 of the Act of 2007 provides that every person directly recruited to the grade of Assistant shall initially be appointed on probation. The period of probation shall be of two years from the date of appointment. The period of probation may, if the appointing authority deems fit, be extended but the total period of extension of probation shall not in any case exceed three years. In case of service being unsatisfactory in the extended period also, the service of the person may be terminated. It was noted that Section 10 has to be read with Section 12 which provides for the manner in which an employee is confirmed in service.
The petitioner's challenge to the order of termination failed before the Single Judge, on the ground that the appellant had never been confirmed in service and therefore there was no requirement before terminating his services to put him to the rigors of domestic proceedings, rejected the writ petition. The Court pointed out that it appears from the records that immediately after the appointment of the appellant as an Assistant on February 21, 2014, he was posted in the office of the Resident Commissioner, Bihar Bhavan on April 3, 2014.
When he was transferred to the Minority Welfare Department of the Govt. of Bihar on October 10, 2014, he proceeded on leave on the ground of illness and remained on continued leave for a long time. The plea of the appellant was rejected and he was given 15 days time to resume his duties, failing which, disciplinary action would be taken for terminating his services. It could not fetch the appellant to his place of work. He later joined the services on 02.09.2015 along with a certificate of fitness from Allahabad. Since it was election time and there was requirement of man-power, therefore, the General Administration Department accepted his joining. The appellant again went on casual leave, never to return. In the meantime, two years passed by but because of the absence of the appellant, there was no confirmation and, therefore, he remained under probation.
It is essential to be noticed in this judgment that the appellant was asked to appear before a Medical Board for confirmation of his medical unfitness to join his duties and to test whether he had been malingering for all this while, but he refused to appear before the Medical Board for reasons inexplicable to the Department.
His services were terminated in this backdrop. The contention raised in the appeal was that the appellant had crossed the period of probation and therefore without subjecting him to departmental proceeding, his services could not have been terminated. The Division Bench observed:"A person appointed on probation after satisfactory completion of probation period as well as on completion of required training and on passing of required departmental examination and passing the test for competency in typing on typewriter or computer, shall be confirmed by the appointing authority."
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