• Notice period for me for shifting to another job

I am a doctor working in central govt in C.H.S cadre under ministry of health,govt of India as assistant professor in a medical College at Delhi after selection by UPSC. I joined my present job on 1 Nov 2016. My appointment letter says one year probation period with further extension if desired by appointment authority and confirmation by govt. My ACR has been sent twice in this time as satisfactory but my probation time completion and confirmation of job is still not received by me from ministry/ not done by ministry. 
I had appeared for another interview by UPSC before joining my present job and selected for railways as divisional railway officer( same starting pay scale as of of CHS job as per 6th pay commission). I received the joining letter from railways now.
My question is - what will be notice period for resignation now if I want to shift job-- one month as for probationers or three months as for permanent employee.( Probation period is complete but confirmation is not done till now even almost two years completed,means wheather job is automatically confirmed if probation period is over)

Second,can I give a resignation on technical ground to join railways ( my concern is my present job is directly under govt of India by ministry of health but railways is a board) and whether giving a resignation on technical ground to join railways will shorten my duration of notice period for resignation.
Third, if I join railways,will I get the pay protection as I had completed almost two years as of now in my present job and 2 increments eligible.
Asked 4 years ago in Labour

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9 Answers

1) if the contract of employment has fixed or a particular period of probation and on expiry of the probation period the employee still continues in services then the implications are that he/she continues as a probationer. A probationer continuing past the probation period will not automatically become a permanent employee

2) you have to serve one month notice period applicable to probationers

3) As per the Ministry of Finance OM No. 3379-E.III (B)/65 dated the 17th June, 1965, the resignation is treated as a technical formality where a Government servant has applied through proper channel for a post in the same or some other Department, and is on selection, required to resign from the previous post for administrative reasons. The resignation will be treated as technical resignation if these conditions are met, even if the Government servant has not mentioned the word "Technical" while submitting his resignation. The benefit of past service, if otherwise admissible under rules, may be given in such cases. Resignation in other cases including where competent authority has not allowed the Government servant to forward the application through proper channel will not be treated as a technical resignation and benefit of past service will not be admissible.

4) you would not be granted benefit of past services

5) it is not a technical resignation in your case

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

Dear Sir,

Kindly note that the above circumstances suggest that there are two issues at hand : firstly, whether you can resign from your current employment for railways as your completion certificate of probation is not sent to you. Secondly, whether you are entitled to receive benefits in terms of your probation period, etc.

Let's take issue number first first. The employment letter of a probation period you have received from the concerned ministry will have the details about conditions of probation period . However, till the time you have not received the completion certificate of your probation there are divergent views of various court's regarding automatic conversion to regular employment (as everything depends on the employment contract of the probation period). Further, for a probation period generally the notice period is one month, but it again deep ends upon the contract and it's recitals which guides your employment relationship.

Coming on to the second issue, you may very well resign from the current job and take up another as both are govt jobs and you can only decide which one is better. It doesn't matter what reason you give for your resignation, but it will have to be in consonants with your contract of employment or your offer letter.

Third, suppose you make an exit considering yourself as probationary period employer to serve only one month notice then you cannot ask for the increments if the contract of one employment doesn't govern the same.

In toto, everything must passes through the employment contract to reach to a specific answer before making any general response according to the law, as in service law the initial response comes out of the employment contract or service letter.

Mayank Sapre
Advocate, New Delhi
256 Answers

5.0 on 5.0

Hello,

If your job has not been considered to be permanent in nature then you will be considered on probation and as such you will have to serve 1 month notice.

Yes you will get the pay protection.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

It will be considered as technical since you were not confirmed by the authorities.

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Dear Sir, in furtherance of my previous response to your query, you are well with in your right to seek regularisation as after successfully completing the probation period more than what is required, you can ask the authorities to make you permanent.

Since you have.not.got the certificate from them then your resignation will be on the basis of probation. Hence, one month notice is required.

Mayank Sapre
Advocate, New Delhi
256 Answers

5.0 on 5.0

It will not be regarded as technical resignation as you did not apply through proper channel for railways job

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

Please resign immediately no time period is required as you have not received any communication confirming you or extending your probation period and join another job if you give one month time it is always welcome.

Koshal Kumar Vatsa
Advocate, Gurgaon
2283 Answers
3 Consultations

5.0 on 5.0

Pay protection is a way of safeguarding the pay. and conditions of service of employees whose pay is adversely affected by organisational change. It is meant to allow the individual to find another post at their original pay band or to adjust to the lower salary within the protection period.

As per the Ministry of Finance OM No.33 79-E.III (B)/65 dated the 17th June, 1965, the resignation is treated as a technical formality where a Government servant has applied through proper channel for a post in the same or some other Department, and is on selection, required to resign the previous post for administrative reasons. The resignation will be treated as technical resignation if these conditions are met, even if the Government servant has not mentioned the word “Technical” while submitting his resignation. The benefit of past service, if otherwise admissible under rules, may be given in such cases. Resignation in other cases including where competent authority has not allowed the Government servant to forward the application through proper channel will not be treated as a technical resignation and benefit of past service will not be admissible. Also, no question of benefit of a resignation being treated as a technical resignation arises in case of it being from a post held on ad hoc basis.

2. This benefit is also admissible to Government servants who have applied before joining the Government service and on that account the application was not routed through proper channel. The benefit of past service is allowed in such cases subject to the fulfillment of the following conditions:-

(i) the Government servant should intimate the details of such application immediately on their joining;

(ii) the Government servant at the time of resignation should specifically make a request, indicating that he is resigning to take up another appointment under Government/ Government organisation for which he applied before joining the Government service;

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

If your confirmation has not been done then you can be considered as a probationer till you get the confirmation letter.

you may enquire about this in the department and tender your resignation under technical resignation mode.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

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