1. Applicant impugns respondents' order dated 4.4.2003 extending the period of probation for a period of six months w.e.f. 28.10.2002 as well as order dated 24.7.2003, wherein, on expiry of extended period assessed applicant not fit to continue on the post of Master (English) applicant was reverted back to the substantive post of Assistant Master. Quashing of the aforesaid has been sought with all consequential benefits.
2. Applicant was appointed as Assistant Master on 1.7.94 at Military School Chail. In view of the notification for the post of Master (English) which was to be processed through UPSC applicant being fully eligible as per the recruitment rules notified under Article 309 of the Constitution of India for the post of Master applied for the post and on interview and other formalities applicant was offered the post of Master (English) Group 'B' post at Rashtriya Indian Military College (IRMS) vide letter dated 29.9.2000. The post was permanent but the initial appointment was on temporary basis. The probation period of two years as per recruitment rules and also the conditions as per the condition was prescribed, which was extendable in the event of unsatisfactory performance during the period of probation. One of the conditions were the incumbent fails to complete the period of probation to the satisfaction of the Competent Authority renders him liable to be discharge from service or to be reverted to the parent department in case the lien against the post has been maintained. Applicant accepted the terms and conditions and tendered his technical resignation which was accepted vide letter dated 25.10.2000 by his parent department.
During the period when applicant was working in IRMS he was issued several counselling letters and was alleged with various allegations including appearing in drunken state making his integrity doubtful.
Though the result of applicant remained par excellent in so far as past percentage in English is concerned.
3. Vide letter dated 24.4.2003 on expiry of two years probation period the Competent Authority decided to extend the period of probation of applicant for a period of six months w.e.f. 28.10.2002. No appeal against the aforesaid letter was preferred by the applicant.
4. By the impugned order when the second assessment as to confirmation of applicant was to take place on expiry of the extended period of probation. Applicant was assessed as not fit to be continued on the post of Master (English). Accordingly instead of discharging him the alternative resort has been taken to revert applicant back to the substantive post of Assistant Master in Military Service.
5. By a letter dated 2.8.2003 applicant has been directed to be relieved and to hand over the possession of the official accommodation.
6. Applicant being aggrieved filed CWP No. 5005/2003 before the High Court of Delhi where status quo was maintained. However, vide order dated 1.10.2003 High Court of Delhi on the maintainability and the fact that applicant has jurisdiction before the Central Administrative Tribunal allowed the petition to be withdrawn. However, the interim order was ordered to be remained in force by two weeks. Vide interim order dated 13.10.2003 status quo was maintained by this Court.
7. Learned Counsel of the applicant Mr. S.K. Gupta has raised various contention in law to assail the impugned orders. According to Mr. Gupta as per the Rashtriya Indian Military College (Master) Recruitment Rules, 1975 probation period assigned for the Master through direct recruitment is two years. As there is no provision for extension of probation period in the recruitment rules, extending the period of probation of applicant as per the conditions of appointment which are contrary to the recruitment rules, applicant on completion of two years probation period was deemed confirmed and the respondents are estopped from invoking any condition of service either to discharge applicant or to revert him to the substantive post.
8. Moreover, by referring to consultation and recruitment through UPSC in so far as confirmation is concerned it is stated that once the Commission was consulted in the matter of appointment as DOPT O.M.dated 14.3.1977 if a decision is to be taken whether the officer has completed satisfactorily period of probation and whether he is found fit for confirmation, a recommendation is to be made by the Competent Authority to the Chairman or the Member of the Commission as per Govt.
of India. Ministry of Home Affairs O.M. dated 23.2.1978. As this mandatory provision has not been complied with suo moto extension of provision is without jurisdiction.
9. Mr. Gupta contends that applicant was having 100 percent result in five terms, as not specifically rebutted by the respondents in their reply to Para 4.7 of O.A. and counselling letters alleging specific misconduct, doubting the integrity of applicant in the light of the decision of Apex Court in Anup Jaiswal v. UOI, 1984(1) SLR 434, if there has been a nexus between the order of termination and the misconduct the same is punitive.
10. Relying upon the constitutional Bench decision of the Apex Court in Shamsher Singh v. State of Punjab, 1974(2) SLR 701, it is contended that as formulated in A.G. Benjamin v. UOI C.A. No. 1341/1966, decided on 13.12.1966, if the order visits the Govt. servant with evil consequences or castes aspersion against his integrity it is considered to be by way of punishment irrespective of the status of the Govt.
service whether probationer or temporary. In that event it is founded or misconduct and being punitive resort to disciplinary proceedings is must before dispensing with his services.
11. Relying upon the decision of Apex Court in V.P. Ahuja v. State of U.P. and Ors. (2000) 3 SCC 239 it is stated that if the order is casting stigma and punitive in nature the same is ex-facie illegal.
12. Further placing reliance on DOPT O.M. dated 18.3.1988 with regard to the probation referring to column 3.11.1 it is stated that in case of a decision for extension of probation the same shall be taken within 8 weeks after the expiry of the previous probationary period. As per the appointment of the applicant which was effective from 28.10.2000 the extension would have been taken within 8 weeks but as the probation of applicant has been extended on 4.4.2003 the same can not be sustained in law.
13. Mr. Gupta further contended that from the counter reply it is apparent that specific misconduct has been the basis of the termination, inter alia wherein quality of work and performance of the applicant was considered as well as his conduct of being drunken on duty as well as his integrity. ACRs of applicant containing these remarks which were never communicated was the basis of his reversion.
In this view of the matter it is contended that although the order is simple but based on specific misconduct violating Article 311 of the Constitution of India.
14. Applicant alleges mala fides against R-6 stating that he was creating troubles issuing various letters and threats to applicant. No show cause notice was issued before warning letters having issued.
There were no reasons for extension of probation period of applicant.
It is also stated that the reports had not been communicated to the applicant. It is further stated that at Chail Military School applicant had been issued certificate by Principal observing the conduct and character of applicant without any adverse material.
15. By placing reliance on Ram Iqbal Sharma v. UOI, AIR 1990 SC 1368, it is contended that when undesirability is one of the grounds a prior enquiry is mandated.
16. On the other hand, respondents' Counsel contested the O.A. and vehemently opposed the contentions of applicant. As a preliminary objection it is stated that having failed to exhaust the statutory remedy of representation. O.A. is not maintainable in view of Section 20 of the Administrative Tribunals Act, 1985.
17. In so far as another preliminary objection is concerned, it is stated that stand of applicant in the present O.A. is contrary to what has been taken before the High Court of Delhi in the writ petition, wherein it is stated that applicant was promoted to the post of Master from the substantive post of Assistant Master where he had applied on a public advertisement by the UPSC as a direct recruit and was appointed on probation for a period of two years. It is also stated that applicant had a past bad record which includes intoxication on work premises as well as forging of official records. The assessment report of applicant indicates quality of his work and performance, as such he was not found fit to be confirmed at RIMC, Dehradun by the DPC. This fact has been concealed by him. As applicant was reverted back to his substantive post of Assistant Master vide letter dated 30.7.2003, he put an application for medical leave and by an order dated 31.7.2003 he was informed that no action his medical leave can be taken. This fact was withheld from the High Court and on 8.8-2003 when the status quo has been granted by the High Court applicant has ceased to be in service of RIMC. Referring to the background of RIMC it is stated that the same was founded by Prince of Wales. It is a feeder Institution to the National Defence Academy, Pune. The RIMC is a residential school and is a unique Institution, the students are selected through competition on All India Basis. For this purpose dedicated and honest Masters are a sine quo non, those who can groom and nurture the future Armed Forces Officers. This is a lateral entry and first entry in the post of Civilian Gazetted Officers (Group B) at RIMC. The Institution has the credit of having produced till now four Chiefs of the Army and one of the Air Force. The Teacher who does not perform to the expected level is an undesirable element as despite according opportunities to improve and extension of probation period by six months no improved has been shown, applicant was declared unfit for retention at RIMC.18. In so far as deemed confirmation is concerned, it is stated that as per the terms and conditions of his employment applicant was put on a probation for a period of two years which was extendable on unsatisfactory performance and failure to complete the period of probation to the satisfaction of the Competent Authority renders either discharge or reversion. In such a situation the case of applicant for deemed confirmation is not sustainable in the light of the decision of the Apex Court on High Court of M. P. v. Satya Narayan Jhavar, (2001) 7 SCC 161, as despite expiry of probation period as well as extended period of probation till a specific order and a sine qua non of satisfactory performance has not been arrived at by the Competent Authority applicant's status remained as a probationer.
19. In so far as stigma is concerned, referring to the decision of the Apex Court in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences., Calcutta and Ors., JT 1999(1) SC 396 it is contended that whether the order is stigmatic or not is to be referred from the language as well as Annexures referred to therein. The order of reversion in the present case is a concession given to applicant as he would have been liable to be discharged and mere assessment as not fit would not cast any stigma as held by the Apex Court in State of Punjab v. Bhagwan Singh,Wasim Beg v.State of Uttar Pradesh and Ors., JT 1998(2) SC 354, it is contended that there is no question of any deemed confirmation.
21. It is stated that applicant had accepted the terms and conditions in the appointment order and had not challenged the same. He has also not assailed his extension of probation. The counselling letters and the censure awarded have remained unchallenged. In these circumstances observing applicant unfit on the basis of unsatisfactory performance is the prerogative of respondents and reversion or discharge of a probationer does not suffer from any legal infirmity.
22. As regards counselling letters it is stated that the same are advisory memos, affording an opportunity to applicant to improve his performance. The only requirement is to communicate. As nothing precludes applicant to have replied the same merely because the results were credit worthy would not absolve applicant's bad behaviour in the Campus of the Institution.
23. Referring to the assessment of performance during probation period of first year, dated 6.11.2001 applicant was observed not to be dependable and requiring greater tact in dealing with the students. In the 2nd year assessment performance he was found to be casual in his attitude and not dependable with his integrity doubtful. The third year assessment report covering the period upto 24.7.2003 shown no progress in the attitude of applicant which remained casual and unresponsible.
24. Citing examples of unsatisfactory performance of applicant. It is stated that applicant was not punctual in attending classes, wearing uniform and maintaining cleanliness. The habit of consumption of liquor remained despite all means of counselling. He was warned to improve on 7.2.2001, 10.8.2001, 27.8.2001, 20.12.2001 and 6.5.2002, but despite this no improvement was shown.
25. In so far as misconduct being the foundation is concerned, it is stated that as per the decision of the Apex Court in Dipti Parkash Banerjee's case (supra) the conduct of applicant was only a motive as his overall performance was not satisfactory and nothing preclude respondents from exercising their right to dispense with his service or to revert him to his substantive post where his lien is maintained.
26. It is lastly contended that the order passed is simple order of reversion which is neither punitive nor by way of victimisation. As applicant is no more in service of RIMC, his occupation of residential premises at RIMC is an unauthorised occupation which he is bound to vacate.
27. In the rejoinder, applicant has re-iterated his pleas taken in the O.A.28. We have carefully considered the rival contentions of the parties and perused the material on record.
29. It is not disputed that applicant who was working as Assistant Master through an advertisement was selected and appointed to the post of Master on the approval of the UPSC. The statutory rules for the post of Master prescribe probation of two years. As per the terms and conditions of appointment to which applicant had agreed to and accepted probation is of two years from the date of appointment which is extendable on unsatisfactory performance by the Competent Authority.
Thereafter also failure to complete the period of probation to the satisfaction of the Competent Authority shall render applicant for discharge or reversion to his parent department in case he is allowed to maintain his lien. Applicant who has held lien to Military School in the post of Assistant Master had joined the post of Master with RIMC on 28.10.2000 and on 28.10.2002 he has completed two years probation.
30. As per DOPT O.M. dated 18.3.1988 which has been revised vide O.M.dated 31.7.1990 in a direct recruitment if it is decided to extend the period of probation the decision shall ordinarily be taken within 8 weeks after the expiry of previous probationary period and should be communicated to the concerned officer in writing together with reasons, Respondents though not adhered to this time limit and extended period of probation not within 8 weeks from 28.10.2002 but this has been done on 4.4.2003 w.e.f. 29.10.2002 for a period of six months. The order contained no reasons. However, once the period of probation is two years and the terms and conditions do not supplant the rules but are supplementary and having no conflict empowers the Competent Authority in cases where the probation period has not been completed compulsorily to extend the period. The aforesaid has been on the basis of the inconsistent and unsatisfactory performance of applicant which has been communicated to him through counselling letters. Merely because respondents have not adhered to the time limit which is ordinarily to be followed and is not a mandate and by not recording reasons nothing precluded applicant to have raised his grievance against the order of extension of probation period. By not filing objection to the extension applicant himself has acquiesced to it. Moreover, in our considered view this is only a irregularity.
31. As regards deemed confirmation is concerned, the issue has laid at rest by the Apex Court in several pronouncements, of which latest is Satya Narayan Jhavar's case (supra). The case of applicant is covered in the first line of cases as per the terms and conditions of appointment where letter of appointment specified period of probation as two years with a power to extend, conferred upon the authority but without prescribing any maximum period of probation if an officer is continued beyond this prescribed period or extended period, there is no question of his deemed confirmation , which is a positive act and to be declared as such in consultation with the UPSC in the present case with a sine qua non condition precedent of satisfactorily completion of service. In absence of any material to establish that applicant has been declared to have completed the aforesaid period of probation successfully and a declaration to this effect has been made by the respondents.
32. The Apex Court in Wasim Beg's case (supra) has reiterated the aforesaid plea.Commissioner of Police, Hubli and Anr. v. R.S.More, "7. In High Court of M.P. v. Satya Narayan Jhavara three- Judges Bench of this Court while examining the question of deemed confirmation in service jurisprudence has categorized three classes of cases on the point. It was pointed out in SCC Para 11 at p. 169 as under: 11. The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject -matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is 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 of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension there of, a maximum period of such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired. (Emphasis supplied) 8. In our view, the case at hand falls under Category 3. As noticed, sub-rule (2) of Rule 5 requires that a probationer shall not be considered to have satisfactorily completed the probation unless a specific order to that effect is passed. No specific order having been passed by any authority , has been brought to our notice. Mr.
Hedge, learned Counsel, submitted that no order as contemplated under sub-rule (2) of Rule 5 has been passed by the Competent Authority. Admittedly, the order discharging the respondent, in exercise of powers under Rule 6, has been passed after the extended period of probation was over. In our view, however, that itself would not entitle the respondent to have claimed deemed confirmation in absence of the specific order to that effect. In service jurisprudence confirmation of service on a particular post is preceded by satisfactory performance of the incumbent unless service rules otherwise prescribe. In the instant case, sub-rule (2) of Rule 5 of the Rules provides that unless there is a specific order that the probationer has deemed to have satisfactorily completed the probation by reason of his being continued in service beyond the extended period of probation. The High Court has failed to consider this important aspect of the matter, resulting in miscarriage of justice. In our view, the High Court fell into error resulting in miscarriage of justice." 34. High Court of Delhi in Hari Chand v. Food Corporation of India, 2001 VIAD (DELHI) 950 has held that period of probation if extendable mere expiry of the aforesaid period of probation would not confer deemed confirmation.Municipal Corporation, Raipur v. Ashok Kumar Misra, (1991) 3 SCC 325, held that mere expiry of initial probation period would not automatically result in deemed confirmation which is a positive act depending upon the satisfactory completion of probation.
36. If one has regard to the above, keeping in line the terms and conditions of applicant, in absence of any positive declaration as to successful completion of probation the status of applicant at the time of his reversion remained as a probationer and he cannot be treated to be deemed confirmed. The aforesaid rule has recently been upheld by the Apex Court in Mohd. Muzaffar Alam v. State of Bihar, 2002 SCC (L&S) 685 holding that if an employee is not bound to be confirmed on expiry of the statutory period of probation without any positive declaration.
37. In so far as consultation with UPSC is concerned, as per DOPT O.M.dated 22.1.1972 it is in case where the officer has completed satisfactorily the period of probation and his case for confirmation is to be considered by the DPC and approval of UPSC is to be sought.
However, when he is not found fit for confirmation his record is to be sent for approval of the UPSC. The aforesaid in our considered view is not a mandatory provision to have vitiated the extension of probation or reversion of applicant. Merely because UPSC has not been consulted the Competent Authority who has appointed applicant on meticulous consideration of assessment report of applicant having not found applicant fit as per his performance despite several opportunities to imporove it is the prerogative of the employer during the probation period to discharge or revert the employee on his being adjudged unfit as per his performance. This order is a simple order of termination without casting any stigma or issued on punitive basis.
38. In the light of the above the first ground taken by applicant fails.
39. As regards the contention put-forth by applicant in so far as in his ACR his integrity has been found to be doubtful and his resort on a decision of the Apex Court in Shamsher Singh's case (supra) and the contention that specific act of moral turpitude being the foundation for want of an opportunity and regular disciplinary proceeding order is a camouflage for an order of punishment cannot be sustained are concerned, in Shamsher Singh's case though the confirmation by implication was negated, it has been observed that if the termination is sought to be founded on misconduct, negligence, inefficiency or disqualification then it is a punishment. The Apex Court has held as follows: "54. No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service without the meaning of Article 311 (2) of the Constitution.
55. Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude, the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to hold an inquiry and giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an inquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim protection. in Gopi Kishore Prasad v. Union of India AIR 1960 SC 689 it was said that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment.
Instead of taking the easy course, the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and incompetent officer.
56 The fact of holding an enquiry is not always conclusive. What is decisive is whether the order is really by way of punishment [See State of Orissa v. Ramnarain Das (1961) 1 S.C. R. 606]. If there is an enquiry the facts and circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance (See Madan Gopal v. State of Punjab (1963) 3 S.C. R. 716).
In R.C. Lacy v. State of Bihar and Ors. (Civil Appeal No. 590 of 1962 decided on 23 October, 1963) it was held that an order of reversion passed following an enquiry into the conduct of the probationer in the circumstances of that case was in the nature whether disciplinary action should be taken. A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311 (2). (See R.C. Banerjee v. Union of India (1964) 2 S.C.R. 135). A preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee has been held not to attract Article 311 (See Champaklal G. Shah v. Union of India (1964) 5 S.C.R. 190). On the other hand a statement in the order of termination that the temporary servant is undesirable has been held to import an element of punishment (See Jagdish Mitter v. Union of India AIR 57. If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to attract Article 311.
The substance of the order and not the form would be decisive (See K.H. Phadnis v. State of MaharashtraIn State of U.P. v. Sughar Singh, 1972(2) SCR 335, taking proposition of A.G. Benjamin's case (supra) the following was formulated: " 1. The service of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.
2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.
3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one be way of punishment, no matter whether he was a mere probationer or a temporary servant.
4. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution.
5. If there be a full-scale departmental enquiry envisaged by Article 311 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said articles." 41. In Dipti Prakash Banerjee's case (supra) the following observations have been made: "21. If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations and will be bad. But if the inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid." 42. If one has regard to the above, the foundation of misconduct would be when behind the back of a Government servant without holding a regular departmental enquiry where no findings have been arrived at merely on the basis of misconduct, which according to the employer is not to be probed into, discharging a Government servant on his unsatisfactory service would only constitute a motive.
43. In so far as the plea that adverse remarks in ACR had not been communicated, applicant's integrity has been held to be doubtful, what has been held in Shamsher Singh's case and Sughar Singh's case (supra) if the aspersion as to doubtful integrity visits a public servant with evil consequences then it is by way of stigma. The condition precedent for application of the aforesaid precedent is that stigma should be reflected either from the order of reversion/discharge or from the Annexures referred to therein, though no straight jacket formula can be evolved to decide the question of stigma, yet in Dipti Prakash Banerjee's case (supra) the following observations have been made: "31. Thus, it depends on the facts and circumstances of each case and the language or words employed in the order of termination of the probationer to judge whether the words employed amount to stigma or not Point 2 is decided accordingly." 44. If one has regard to the above, applying the test in the conspectus of the present case in the reversion order referring to the probation period as well as the extended period of probation on the basis of assessment arrived at by the DPC it has been observed that applicant was assessed not fit to be continued on the post of Master. The aforesaid, by no stretch of imagination can be termed as a stigmatic order. The "Apex Court in Bhagwan Singh's case (supra) held that even if the words 'unsatisfactory performance' are reflected in the order, yet stigma cannot be imputed. It is the assessment of performance of applicant which has formed the basis of reversion. This is not a stigma. The aforesaid order in the light of the aforesaid decision cannot be held to be stigmatic. Moreover, it is not the reply of respondents which would be considered and to be read to level only stigma as a justification in response to the averment of applicant regarding his satisfactory performance. Rebuttal to that with material to indicate unsatisfactory performance results in expression of particulars of motive as well as unsatisfactory performance of applicant which should not be construed as stigma. Stigma should be explicit in the order or in any of the referred Annexures which do not exist in the present case.
45. It is also equally settled by the Apex Court that during the period of probation as per the conditions of service and terms of appointment if the performance of applicant remained unsatisfactory and if the respondents, i.e. employer (Government) does not want to keep the unfit person in service it is open for them to dispense with the services or to revert him, as in the present case, would be an exercise within its jurisdiction and would be a simple order of reversion, without any victimisation and cannot be termed as punitive. A probationer has no right to the post and in absence of any specific confirmation his status remains as a that of a probationer.
46. As regards allegation of mala fides against R-6 is concerned, not only a firm foundation is to be laid but the mala fides are to be established. Being the Controlling Authority it is not the assessment of R-6 but a cumulative decision of DPC on the basis of record.
Counselling warnings and other material which reflected unsatisfactory performance of applicant. As such mala fides, in our considered view have not been established to its hilt, which is the requirement of law.
47. As no infirmity has been found in the orders passed by respondents.
O.A. is found bereft of merit and is accordingly dismissed. However, this shall not affect applicant's right whose lien has been maintained to join at Military School, Chail on the substantive post of Assistant Master. Interim order is vacated. No costs.