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CASE NO.:

Appeal (civil) 5303 of 2001

PETITIONER:

HIGH COURT OF MADHYA PRADESH THRU. REGISTRAR & ORS.

Vs.

RESPONDENT:

SATYA NARAYAN JHAVAR

DATE OF JUDGMENT: 14/08/2001

BENCH:

G.B. Pattanaik, S.N. Phukan & B.N. Agrawal

JUDGMENT:

WITH

Civil Appeal No._5304_____of 2001 [Arising out of SLP (C) No. 11663/2000]

Civil Appeal No._5305_____of 2001 [Arising out of SLP (C) No. 11673/2000],

Civil Appeal No._5306_____of 2001 [Arising out of SLP (C) No. 11675/2000],

Civil Appeal No._5307_____of 2001 [Arising out of SLP (C) No. 11686/2000],

Civil Appeal No._5308_____of 2001 [Arising out of SLP (C) No. 11688/2000],

Civil Appeal No._5309_____of 2001 [Arising out of SLP (C) No. 11704/2000].

JUDGMENT

B.N. AGRAWAL,J.

Leave granted.

Common judgment impugned in these appeals has been passed by

Madhya Pradesh High Court in Letters Patent Appeals preferred by the

respondents in these appeals, excepting Civil Appeal arising out of SLP

(C) No. 11675 of 2000, which was preferred by the present appellant,

whereby the Letters Patent Appeal preferred by the appellant has been

dismissed and the order of learned Single Judge allowing the writ

application upheld, but other appeals have been allowed and the

judgment rendered by learned Single Judge dismissing the writ

applications has been set aside.

Necessary facts giving rise to these appeals are that respondents in

these appeals, excepting Civil Appeals arising out of SLP (C) Nos. 11675

and 11704 of 2000, were appointed as Civil Judges (Trainee), Class II, on

different dates temporarily on officiating basis upon the recommendations

of the State Public Service Commission under the provisions of Madhya

Pradesh Judicial Service (Classification, Recruitment and Conditions of

Service) Rules, 1955 (hereinafter referred to as `the Rules) and they were

required to undergo six months training before being appointed on

probation for a period of two years. After completion of six months

training, their probation period started on different dates as per rule 24 of

the Rules wherein the initial probation period was two years which could

be extended for a further period of two years, meaning thereby the

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maximum period of probation under the Rules was four years. Cases of

these respondents were considered for confirmation within a period of four

years but they were not found fit by the Full Court, as such the same were

deferred on the first occasion and later on, after expiry of four years period

of probation. Case of only respondent in Civil Appeal arising out of SLP

(C) No. 11457 of 2000 was considered only once and that also after the

probation period and he having not been found fit for confirmation, upon

the recommendation of the High Court, his service was terminated and so

far others are concerned, their cases for confirmation were considered,

even after probation period, every year for a couple of years, but, as in

spite of giving repeated opportunities to improve themselves, they could

not improve, ultimately the Full Court recommended for terminating their

services whereupon the same were terminated. Services of the

respondents in the aforesaid five appeals, excepting Civil Appeals arising

out of SLP (C) No. 11457/2000, were terminated after few years of expiry

of four years period of probation whereas the service of respondent in Civil

Appeal arising out of SLP (C) No. 11457/2000 was terminated within few

months from the expiry of period of probation.

One Samarudas Banjare, whose heirs are respondents in Civil

Appeal arising out of SLP (C) No. 11675 of 2000, was appointed as Civil

Judge (Trainee) and he joined as such on 15.7.1976 and after completing

six months training his probation period started on 14.1.1977 and expired

on 13.1.1981. His case for confirmation was considered by the Full Court

and he was not found fit for confirmation. Therefore, on 29.8.1981 the Full

Court recommended to terminate his services whereupon on 19.11.1981

the same were terminated. The said termination order was challenged

before the High Court in a writ application which was allowed and

reinstatement order was passed whereupon he joined on 25.9.1985 and

when the said order of reinstatement was challenged before this Court, the

same was upheld, but it was directed that Shri Banjare should be kept

under close watch for three years. Thereafter case of this employee was

considered every year, but he was not found fit for confirmation and

accordingly it was resolved to terminate his services which were

terminated in the year 1992.

Respondent in Civil Appeal arising out of SLP (C) No. 11704/2000

was appointed as Civil Judge (Trainee) on 27.10.1987 and after

completing six months training she joined as probationer on 1.5.1988 and

maximum period of probation expired on 30.4.1992. Thereafter her case

was considered by the Full Court for confirmation and she having not been

found fit, it was resolved to terminate her services which were terminated

on 23.12.1993.

Challenging the orders of termination, different writ applications were

filed. Writ application of respondent in appeal arising out of SLP (C)

No.11704 of 2000 was heard separately by a learned Single Judge of the

High Court and the same was dismissed. Other six writ applications were

heard by another learned Single Judge of the High Court and same were

disposed of by a common judgment whereby the writ application filed by

Samardudas Banjare was allowed and order of his termination from

service was quashed, but no order of reinstatement was passed as during

the pendency of the writ application the said person died, whose heirs

were substituted and it was directed that they would be entitled to all

arrears of emoluments from the date of the order of termination till the date

of his death. So far as other writ applications are concerned, the same

were dismissed.

Challenging order passed in the writ application filed by Samarudas

Banjare, the High Court preferred a Letters Patent Appeal whereas others

filed separate appeals challenging the dismissal of their writ applications.

All the appeals were heard and disposed of by a common judgment.

Appeal filed by the High Court has been dismissed by the Division Bench

with modification that heirs of Samarudas would be entitled to only 50% of

the back wages whereas other six appeals have been allowed, the orders

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of termination of the respondents have been set aside and they have been

directed to be reinstated with 50% of the back wages. Hence separate

petitions were filed for grant of special leave to appeal.

When the SLPs were placed for consideration before a two Judge

Bench, reliance was placed on behalf of the respondents upon an earlier

two Judge Bench decision of this Court in Dayaram Dayal vs. State of M.P.

& Anr., 1997 (7) SCC 443, which was also a case under rule 24 of the

Rules wherein it was laid down that as no order of confirmation was

passed within the maximum period of probation, the probationer - judicial

officer would be deemed to have been confirmed after expiry of four years

period of probation, therefore, after expiry of the period of probation his

services could not have been terminated on the ground that he was not

found fit for confirmation by the Full Court. As correctness of the said

decision was doubted, the matter was referred to larger bench and

accordingly it has been placed before us.

Shri P.P. Rao, learned senior Counsel appearing on behalf of the

appellant-High Court, in support of the appeal, submitted that in Dayaram

Dayals case (supra) this Court failed to appreciate the correct ratio laid

down by the Constitution Bench in the case of State of Punjab vs.

Dharam Singh, (1968) 3 SCR 1, and seven Judge Bench decision of this

Court in the case of Samsher Singh vs. State of Punjab & another, (1974)

2 SCC 831, which have been followed in other cases. According to

learned counsel, under rule 24 of the Rules, after expiry of maximum

period of probation, a judicial officer cannot be deemed to have been

automatically confirmed and he can be confirmed only if his service is

found to be satisfactory and he passes departmental examinations.

Therefore, in view of the fact that the High Court did not find them fit for

confirmation, their services were rightly terminated. Shri R.K. Jain,

learned senior Counsel appearing on behalf of the respondents, submitted

that the case of Dayaram Dayal (supra) has been correctly decided as

after expiry of maximum period of probation, the respondents were

automatically confirmed and accordingly the Division Bench of the High

Court was justified in quashing the order of termination as after deemed

confirmation services of a judicial officer could not have been terminated in

the exercise of powers under rule 24 of the Rules, but the same could

have been terminated only by following the procedure prescribed for

holding an inquiry in a departmental proceeding, which has not been done

in the case on hand. Learned counsel further submitted that in any view

of the matter in terms of rule 24 of the Rules, order of termination could

have been passed immediately after expiry of four years maximum period

of probation and not after several months and years, as has been done in

the cases on hand. In view of the rival submissions, the question which we

are called upon to consider is as to whether decision of this Court in

Dayaram Dayals case was correctly decided and rule 24 of the Rules

postulates that services of a judicial officer shall be deemed to have been

confirmed on the expiry of period of four years, which is the maximum

period of probation, when during the aforesaid period no order of

termination was passed.

To appreciate the point in issue, it would be useful to refer to rule 24

of the Rules which runs thus:-

R.24 (1) Every candidate appointed to the cadre shall

undergo training for a period of six months before he is

appointed on probation for a period of two years, which period

may be extended for a further period not exceeding two years.

The probationers may, at the end of period of their probation,

be confirmed subject to their fitness for confirmation and to

having passed, by the higher standard, all such departmental

examinations as may be prescribed.

(2) During the period of probation, he shall be

required to do magisterial work and acquire experience in

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office routine and procedure.

(3) If during the period of probation he has not

passed the prescribed departmental examinations, or has

been found otherwise unsuitable for the service, the Governor

may, AT ANY TIME, THEREAFTER, dispense with his

services.

[Emphasis added]

The question of deemed confirmation in service Jurisprudence,

which is dependent upon language of the relevant service rules, has been

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 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. Other line of cases is that where while there is a provision in

the rules for initial probation and extension thereof, a maximum period for

such extension is also provided beyond which it is not permissible to

extend probation. The inference in such cases is that officer concerned is

deemed to have been confirmed upon expiry of the maximum period of

probation in case before its expiry 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 require 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 the person concerned has passed the requisite test, he

cannot be deemed to have been confirmed merely because the said period

has expired.

Now we proceed to consider the first line of cases in which the

earliest one is Sukhbans Singh vs. State of Punjab, (1963) 1 SCR 416. In

that case the Constitution Bench was considering the question of

confirmation under rule 22 of the Punjab Civil Service (Executive Branch)

Rules, 1930 which provides that a candidate on first appointment to the

service shall remain on probation for a period of 18 months and proviso

thereto enables the Governor to extend the period of probation. Rule 24 of

the said Rules provides that on the completion of the period of probation

prescribed or extended, a member of the service shall be qualified for

substantive appointment. It was laid down by this Court that a probationer

cannot automatically acquire the status of a permanent member of service,

unless of course the rules under which he is appointed expressly provide

for such a result and the rules in that case did not contain any such

provision. Rules 22, 23 and 24 were interpreted to mean that such a

probationer is merely qualified for substantive permanent appointment

where a probationer is not reverted by the Government under rule 23 on

the ground that in the opinion of the Government his work or conduct was

found to be unsatisfactory and where his service is not terminated under

rule 23, he continues to be a probationer, but requires the qualification for

substantive permanent appointment. According to the Rules, at the end

of the probationary period, a probationer who is neither terminated nor

absorbed in a substantive post will be eligible for being made permanent

and he will continue to be a probationer. The very fact that a person is a

probationer implies that he has to prove his worth and suitability for the

higher post in which he is officiating. If his work is not found to be

satisfactory, he is liable to be reverted to his original post even without

assigning any reason. In the said case, this Court further observed that it

would not be correct to say that the probationer has any right to the higher

post in which he is officiating or a right to be confirmed and he being a

probationer merely made eligible for being absorbed in a permanent post,

is in no better position.

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In G.S. Ramaswamy & Ors. Vs. Inspector-General of Police,

Mysore, (1964) 6 SCR 279, another Constitution Bench was considering a

case of promotion of Sub-inspector of Police under rule 486 of Hyderabad

District Police Manual which provides that all officers who are promoted

will be on probation for a period of two years and they may be reverted at

any time during the aforesaid period if their work and conduct are not

satisfactory, or they are found unsuitable for the appointment to which they

have been promoted. This Court observed that the aforesaid provision in

the Rules negatives the contention that the concerned officers had an

indefeasible right to promotion and they could not be reverted after they

had once started acting on the promoted post. By placing reliance upon

the wordings of rule 486 which provides that promoted officer would be

confirmed at the end of the probationary period if he has given satisfaction,

this Court observed that according to the Rules when the probationary

period is over and the promoted officer has given satisfaction during the

whole of that period, he will be confirmed and the fact that he is actually

promoted, temporarily or as officiating, does not give him any right to

continuance even during the period of two years probation inasmuch as

he will be liable to be reverted at any time even during those two years if

his work is found unsatisfactory and he can be confirmed only when the

authority concerned has found that his work and conduct were satisfactory

during the probation period. In that case, it was contended by placing

reliance upon the following sentence in rule 486, namely, promoted

officers will be confirmed at the end of their probationary period if they

have given satisfaction that the said rule expressly provided for automatic

confirmation after the period of probation is over. This Court repelled the

contention and held that such a rule does not contemplate automatic

confirmation after the probationary period of two years, as a promoted

officer can be confirmed under the rules only if he has given satisfaction,

which condition of giving satisfaction must be fulfilled before a promoted

officer can be confirmed under the rules and the same obviously means

that the authority competent to confirm an officer must pass an order to the

effect that the probationer has given satisfaction and is, therefore,

confirmed.

Again Constitution Bench in the case of State of Uttar Pradesh vs.

Akbar Ali Khan, (1966) 3 SCR 821, was considering the question of

confirmation of a probationer with reference to rules 12 and 14 of Uttar

Pradesh Subordinate Revenue Executive Service (Tehsildar) Rules, 1944

which read thus:-

Rule.12.- Every listed candidate on appointment in or against

a substantive vacancy shall be placed on probation. The

period of probation shall be two years.

Rule 14.- If it appears at any time during or at the end of the

period of probation that a person appointed on probation has

not made sufficient use of his opportunities or has failed to

pass the departmental examination completely or if he has

otherwise failed to give satisfaction, he may be reverted to his

substantive appointment:

Provided that the Board may extend the period of

probation to three years. An extension beyond this period

shall require the sanction of the Governor. Every extension

whether granted by the Board or the Governor shall specify

the exact date up to which it is granted.

In the light of the aforesaid rules, the Court in that case while laying down

the law observed thus at pages 825 and 826:-

The respondent was posted as a Tahsildar, and placed on

probation for two years. The initial period of probation was

liable to be extended by the Board of Revenue or by the

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Governor. There is no rule that on the expiry of the period of

probation the probationer shall be deemed to have been

confirmed in the post which he is holding as a probationer. If

a probationer was found not to have made sufficient use of his

opportunities or had failed to pass the departmental

examination completely or if he had otherwise failed to give

satisfaction he may be reverted to his substantive

appointment: again confirmation in the appointment at the end

of the period of probation could only be made if the

probationer had passed the departmental examination for

tahsildars completely and the Commissioner reported that he

was fit for confirmation and that his integrity was

unquestionable. It is common ground in this case that the

respondent had not passed the departmental examination

before 1955. He had therefore not qualified himself for

confirmation.

The scheme of the rules is clear: confirmation in the

post which a probationer is holding does not result merely

from the expiry of the period of probation, and so long as the

order of confirmation is not made, the holder of the post

remains a probationer. It has been held by this Court that

when a first appointment or promotion is made on probation

for a specified period and the employee is allowed to continue

in the post, after the expiry of the said period without any

specific order of confirmation he continues as a probationer

only and acquires no substantive right to hold the post. If the

order of appointment itself states that at the end of the period

of probation the appointee will stand confirmed in the absence

of any order to the contrary, the appointee will acquire a

substantive right to the post even without an order of

confirmation. In all other cases, in the absence of such an

order or in the absence of such a service rule, an express

order of confirmation is necessary to give him such a right.

Where after the period of probation an appointee is allowed to

continue in the post without an order of confirmation, the only

possible view to take is that by implication the period of

probation has been extended, and it is not a correct

proposition to sate that an appointee should be deemed to be

confirmed from the mere fact that he is allowed to continue

after the end of the period of probation.

[ Emphasis added ]

In the case of Shri Kedar Nath Bahl vs. The State of Punjab & Ors.,

(1974) 3 SCC 21, a person applied for the post and he was appointed on a

post which belonged to Punjab Provincial Service Class I and the post was

temporarily sanctioned upto February 28, 1955 and was likely to continue

thereafter. The post was extended from time to time upto November 4,

1958 when the same was discontinued and on the discontinuance, the

appellant was reverted to his original post. When a writ application was

filed before the High Court challenging the order of reversion, the same

was dismissed and dismissal was upheld by Division Bench of the High

Court in appeal as well as this Court on further appeal being brought to

this Court. While dismissing the appeal, this Court laid down the law thus

at page 26:-

The law on the point is now well settled. Where a person is

appointed as a probationer in any post and a period of

probation is specified, it does not follow that at the end of the

said specified period of probation he obtains confirmation

automatically even if no order is passed in that behalf. Unless

the terms of appointment clearly indicate that confirmation

would automatically follow at the end of the specified period,

or there is a specific service rule to that effect, the expiration

of the probationary period does not necessarily lead to

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confirmation. At the end of the period of probation an order

confirming the officer is required to be passed and if no such

order is passed and he is not reverted to his substantive post,

the result merely is that he continues in his post as a

probationer. The terms of appointment do not show that

the appellant would be automatically confirmed on the expiry

of the first six months of probation nor is any rule brought to

our notice which has the effect of confirming him in the post

after six months of probation. The position of the appellant,

therefore, till the abolition of the post on November 4, 1958,

was that he continued to be a probationer and has no right to

the post. It, therefore, follows that when the tenure of the post

came to an end, he was automatically reverted to his original

post as an Inspector on which he had the lien.

[ Emphasis added ]

In the case of Tarsem Lal Verma vs. Union of India & Ors., (1997) 9

SCC 243, a person was occupying the post of Photographic Officer under

Ministry of Defence, Armed Forces Film and Photo Division (Photographic

Officer) Recruitment Rules, 1982 whereby the probation period was fixed

at two years and no maximum period was prescribed. When the two years

probation period of the concerned officer expired, the probationer was not

terminated from service even though the work and conduct were found to

be not satisfactory and in order to give him an opportunity to improve his

performance, the period of probation was extended beyond the period of

two years by an additional 550 days. In that case the person concerned

claimed that as the period of two years had expired, he would be deemed

to have been automatically confirmed. The Administrative Tribunal

rejected the contention on the ground that the rules did not prescribe any

maximum period of probation and the probationer was allowed to continue

in service even after expiry of the probation period of two years to enable

him to show improvement. When the matter was brought to this Court,

order of the Tribunal was affirmed in view of observations aforementioned.

Amongst the other line of cases, the sheet anchor of the respondent

is a Constitution Bench decision of this Court in the case of State of

Punjab vs. Dharam Singh, (1968) 3 SCR 1, which has been heavily relied

upon. In that case the Court was considering effect of a probationer

continuing on the post after expiry of the maximum period of probation

prescribed under rule 6 of the Punjab Educational Service (Provincialised

Cadre) Class III Rules, 1961 which runs thus:-

R.6. (1) Members of the Service, officiating or to be

promoted against permanent post, shall be on probation in the

first instance for one year.

(2) Officiating service shall be reckoned as period

spent on probation, but no member who has officiated in any

appointment for one year shall be entitled to be confirmed

unless he is appointed against a permanent vacancy.

(3) On the completion of the period of probation the

authority competent to make appointment may confirm the

member in his appointment or if his work or conduct during

the period of probation has been in his opinion unsatisfactory

he may dispense with his services or may extend his period

of probation by such period as he may deem fit or revert him

to his former post if he was promoted from some lower post.

Provided that the total period of probation including extension,

if any, shall not exceed three years.

(4) Service spent on deputation to a corresponding or

higher post may be allowed to count towards the period of

probation, if there is a permanent vacancy against which such

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member can be confirmed.

The respondent in that case was appointed on 1st October, 1957 on

permanent post and under rule 6(3) he continued to hold the post on

probation in the first instance for one year. Maximum period of probation

fixed by the rule was three years which expired on October 1, 1960, but

the respondent continued to hold the post after October 1, 1960 and no

formal order confirming him in his post was passed. On February 10,

1963 service of the respondent was terminated and when the matter was

challenged before the Punjab High Court by filing a writ application, the

same was rejected on the ground that the respondent was a temporary

employee. Thereafter, when the appeal was preferred before the Division

Bench, the same was allowed holding that the respondent was not

temporary employee, he held the post on probation and on the expiry of

maximum period of three years of probation he must be deemed to have

been confirmed on his post, as such the order of termination was really an

order of removal from service by way of punishment without holding any

inquiry as such violative of Article 311 of the Constitution.

When the matter was brought to this Court, appellate order of the

High Court was confirmed and it was held that under rule 6(3) referred to

above, four courses of action were open to the appointing authority,

namely, (a) to extend the period of probation, provided the total period of

probation, including extensions, would not exceed three years, or (b) to

revert the employee to his former post if he was promoted from lower post,

or (c) to dispense with his services if his work or conduct during the period

of probation was not satisfactory, or (d) to confirm him in his appointment.

It was held that though the initial period of probation of the respondent in

that case expired on Ist October, 1958, by allowing him to continue in his

post thereafter without any express order of confirmation, the competent

authority must be deemed to have extended the period of probation upto

October 1, 1960 by implication which is the maximum period of probation,

but under proviso to rule 6(3) the probation period could not extend

beyond October 1, 1960. The Court observed that in view of the proviso to

rule 6(3) it was not possible to presume that the competent authority

extended the probation period after October 1, 1960 or that thereafter the

respondent continued to hold the post as probationer. While laying down

the law, this Court observed thus at pages 5-6:-

as in the present case, the service rules fix a certain period

of time beyond which the probationary period cannot be

extended, and an employee appointed or promoted to a post

on probation is allowed to continue in that post after

completion of the maximum period of probation without an

express order of confirmation, he cannot be deemed to

continue in that post as a probationer by implication. The

reason is that such an implication is negatived by the service

rule forbidding extension of the probationary period beyond

the maximum period fixed by it. In such a case, it is

permissible to draw the inference that the employee allowed to

continue in the post on completion of the maximum period of

probation has been confirmed in the post by implication.

[ Emphasis added ]

While considering the matter, the Court further observed thus at

pages 6-7:-

Immediately upon completion of the extended period of

probation on October 1, 1960, the appointing authority could

dispense with the services of the respondents if their work or

conduct during the period of probation was in the opinion of

the authority unsatisfactory. Instead of dispensing with their

services on completion of the extended period of probation,

the authority continued them in their posts until sometime in

1963, and allowed them to draw annual increments of salary

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including the increment which fell due on October 1, 1962.

The rules did not require them to pass any test or to fulfil any

other condition before confirmation. There was no compelling

reason for dispensing with their services and re-employing

them as temporary employees on October 1, 1960, and the

High Court rightly refused to draw the inference that they were

so discharged from service and re-employed. In these

circumstances, the High Court rightly held that the

respondents must be deemed to have been confirmed in their

posts. Though the appointing authority did not pass formal

orders of confirmation in writing, it should be presumed to

have passed orders of confirmation by so allowing them to

continue in their posts after October 1, 1960. After such

confirmation, the authority had no power to dispense with their

services under r.6(3) on the ground that their work or conduct

during the period of probation was unsatisfactory.

[ Emphasis added ]

From the aforesaid passage, it would be clear that as rule 6 did not

require a person to pass any test or to fulfill any other condition before

confirmation, this Court was of the view that upon the expiry of maximum

period of probation the probationer could be deemed to have been

confirmed which goes to show that if such provision would have been there

in the rules, the conclusion might have been otherwise.

In the case of Wasim Beg vs. State of U.P. & Ors., (1998) 3 SCC

321, a person was selected for appointment as Divisional Manager by U.P.

State Leather Development and Marketing Corporation Limited under

Model Service Rules for State Enterprises which were adopted by the said

Corporation. The relevant rules relating to appointment on probation were

as follows:-

Any employee regularly appointed for the first time or

promoted to any post in the corporation shall be placed on

probation for a period of one year from the date of joining the

new post.

The performance of the employee in the new post will

be watched during the probation and the appointing authority

will issue a certificate of having satisfactorily completed the

probation at the end of the period. The appointing authority

has discretion to extend the period of probation without

assigning any reason therefor.

The relevant rules relating to confirmation were as follows:-

Confirmation.- An employee directly appointed or promoted to

any post in the Corporation shall be deemed to have become

a confirmed employee in that grade after he has successfully

completed the period of probation.

A confirmed employee may be discharged from the

service of the Corporation under the orders of the competent

authority on three months notice or by giving 3 months salary

in lieu thereof. The competent authority for purposes of this

rule will be the next higher level than the appointing authority

for that category of post. The competent authority on getting a

recommendation from the appointing authority for the

discharge of a confirmed employee with reasons therefore,

may give an opportunity to the employee concerned for

explaining himself before coming to a decision.

This provision in the Rules should obviously be

sparingly and discreetly used only to weed out inefficient

employees who in spite of a number of warnings and

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admonition have failed to correct themselves or employees

who are in the opinion of the Board of Directors or the

Managing Directors as the case may be no suitable for

continued employment of the Corporation. The discharge

shall be only on grounds of continued inefficiency or

dishonesty, serious dereliction of duty or moral turpitude and

is not to be considered as a punishment under the disciplinary

proceedings

[ Emphasis added ]

In the letter of appointment dated 10th January, 1978, it was mentioned

that the incumbent will be on probation for a period of one year which

could be extended at the discretion of the Managing Director and the

service was liable to be terminated on one months notice or salary in lieu

thereof. The person concerned was allowed to work as Divisional

Manager for a period of about 3 years when he was re-designated as

Works Manager on 21st April, 1981. Thereafter he continued on the said

post and in April, 1983 he was allowed to cross efficiency bar. Initially,

work of the incumbent was good but subsequently his work and

performance deteriorated as a result of which the Corporation had to suffer

losses. As in spite of warning his performance did not improve, on

31.3.1985 the services were terminated and it was directed that in lieu of

three months notice he will be paid three months pay. The said order was

unsuccessfully challenged before the High Court. Thereafter, when

appeal was preferred before this Court, the same was allowed, order of

the High Court was set aside and the termination order was quashed, but

in view of the stand taken by the Corporation that the person concerned

was going to superannuate within a few months, the Court did not pass an

order of reinstatement, but directed the Corporation to pay a lump sum of

Rs. 2 lakhs to him.

In the said case no maximum period of probation was prescribed

either by the letter of appointment or the rules. The rules laid down that an

employee shall be deemed to have become a confirmed employee after he

has successfully completed the period of probation. From the affidavit filed

by the Corporation as well as the report of the Managing Director, it was

clear that the incumbent was considered by the Board as having

satisfactorily completed his period of probation on 9.1.1979 i.e., before

expiry of one year period of probation and was considered as a regular

employee from 10.1.1979. From the affidavit filed by the Corporation it

was clear that the services of the incumbent were satisfactory for the first

few years and work was very good and only thereafter his work

deteriorated as a result of which the Corporation suffered losses. Thus in

view of the stand taken that the incumbent had successfully completed the

period of probation, he was deemed to have become a confirmed

employee, as enumerated in the rules referred to above.

The view taken in the case of Dharam Singh (supra) has been

consistently followed in the cases of Om Prakash Maurya vs. U.P.

Cooperative Sugar Factories Federation, Lucknow & Ors., (1986) Suppl.

SCC 95, M.K. Agarwal vs. Gurgaon Gramin Bank and Ors. (1987) Supp.

SCC 643, State of Gujarat vs. Akhilesh C. Bhargav & Ors., (1987) 4 SCC

482, which are cases in which a maximum period for extension of

probation was prescribed and termination after expiry of the said period

was held to be invalid inasmuch as the officer must be deemed to have

been confirmed.

In the last line of cases, we may first refer to a decision by seven

Judges Bench of this Court in the case of Shamsher Singh vs. State of

Punjab & Anr., (1974) 2 SCC 831, where the Court was considering a case

under Punjab Civil Services (Judicial Branch) Rules 1951 where maximum

period of probation was prescribed as three years. There one Shamsher

Singh was appointed on May 1, 1964 as Subordinate Judge on probation.

On March 22, 1967 a notice was issued requiring him to show cause why

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his services be not terminated as he was found unsuitable for the job as

there were serious charges against him. After filing of show cause, the

services were terminated. Another person-Ishwar Chand Agrawal was

appointed as Judicial Officer on probation initially for a period of two years

and the maximum period of three years expired on November 11, 1968.

Thereafter, as the High Court found that the work as well as conduct of the

Judicial Officer were unsatisfactory and there were serious charges

against him, notice was given as to why his services be not terminated and

ultimately after submission of show cause, upon the recommendation of

the Full Court on 15th December, 1969, the services were terminated. Both

the incumbents challenged the order of termination by filing separate writ

applications before the Punjab High Court which were dismissed

necessitating filing of appeals by special leave before this Court.

In that case this Court was dealing with termination of services of the

probationer under rule 9 of Punjab Civil Services (Punishment and Appeal)

Rules, 1952 and rule 7(3) of the Punjab Civil Services Judicial Branch

Rules, 1951. Services of Shamsher Singh were terminated under rule 9

and that of Ishwar Chand Agrawal under rule 7(3) referred to above. Rule

9 provided that where it is proposed to terminate the employment of a

probationer, whether during or at the end of the period of probation, for any

specific fault or on account of unsatisfactory record or unfavourable

reports, implying the unsuitability for the service, the probationer shall be

apprised of the grounds of such proposal, and given an opportunity to

show cause against it, before orders are passed by the authority

competent to terminate the appointment. Thus it was held that rule 9

contemplates an inquiry into the grounds of proposal of termination of the

employment of the probationer. Rule 7(1) provided that every Subordinate

Judge in the first instance be appointed on probation for two years but this

period may be extended from time to time, expressly or impliedly, so that

the total period of probation, including extension, does not exceed three

years. Explanation to rule 7(1) provided that the period of probation shall

be deemed to have been extended if a Subordinate Judge is not confirmed

on the expiry of his period of probation. Rule 7(3) prescribes that an order

of confirmation is necessary. It lays down that on completion of period of

probation of any member of service the Governor may, on the

recommendation of the High Court, confirm him in his appointment if he is

working against a permanent vacancy or if his work or conduct is reported

by the High Court to be unsatisfactory, dispense with the services or revert

him to his former substantive post, if any, or extend his period of probation

and thereafter pass such orders as he may have passed on the expiry of

the first period of probation. Rule 7 thus confers powers on the Governor

on the recommendation of the High Court to confirm or to dispense with

the services or to revert the judicial officer or to extend his period of

probation. In the case of Shamsher Singh, law laid down by the

Constitution Bench in the case of Dharam Singh (supra) was approved, but

it was distinguished because of language of the relevant rule especially

Explanation to rule 7(1) and it was held that the provision prescribing the

maximum period of probation as three years is directory and not

mandatory and the period of probation shall be deemed to have been

extended even beyond the period of three years till proceeding

commenced by the notice came to an end either by confirmation or

discharge of the probationer. It was specifically laid down in that case that

no confirmation by implication can arise in view of the nature of relevant

rules. But as it was found by the Court therein that services of both the

persons aforementioned were terminated on serious charges of

misconduct which could have been done by holding an inquiry only as

required under rule 9 and the same having not been done, the orders of

termination were held to be bad being in infraction of the provisions of rule

9 of the aforesaid Rules as well as Article 311 of the Constitution and

consequently the same were quashed by this Court.

In the case of Municipal Corporation, Raipur v. Ashok

Kumar Misra, (1991) 3 SCC 325, the Court was considering the question

of confirmation of a probationer under Rule 8 of M.P.Govt. Servants

General Conditions of Service Rules, 1961, prescribing maximum period of

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probation which runs thus:-

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 either side.

(3) A probationer shall undergo such training and

pass such departmental examinations during the period of his

probation as may be prescribed.

(4) and (5) are not relevant, hence omitted.

(6) On the successful completion of probation and

the passing of the prescribed departmental examinations, the

probationer shall be confirmed in the services or post to which

he has been appointed.

[ Emphasis added ]

There, the incumbent was appointed as lower division clerk in Raipur

Municipal Corporation on 22nd September, 1966 on probation for a period

of two years which expired on September 21, 1968. On December 9,

1968, he was served with one months notice terminating his services with

effect from January 9, 1969. The said order was challenged by filing a suit

on the ground that order of termination having been passed without giving

opportunity of hearing was invalid as the person concerned became a

confirmed employee after expiry of period of probation. The suit was

dismissed by the trial court and the same was affirmed in appeal.

Thereafter, when the matter was taken to the High Court in second appeal,

the same was allowed, suit was decreed and order of termination was

quashed. Against the order of the High Court when appeal was brought to

this Court, the same was allowed, order of High Court was set aside and

the termination order was upheld. While considering Rule 8, the Court

observed thus at page 328:-

Thus, it is clear from Rule 8 of the Rules that the procedure to

place a direct recruit on probation for a prescribed period was

provided. The appointing authority would be entitled to place

a direct recruit on probation for a specified period and for

sufficient reasons may extend the period of probation to a

further period not exceeding one year. Under the note to sub-

rule (2) if the probationer is neither confirmed nor discharged

from service at the end of the period of probation, he shall be

deemed to have been continued in service as probationer

subject to the condition of his service being terminated on the

expiry of a notice of one calendar month given in writing by

either side. As per sub-rule (6) on passing the prescribed

departmental examination and on successful completion of the

period of probation, the probationer shall be confirmed in the

service or post to which he has been appointed. Then he

becomes an approved probationer. Therefore, after the expiry

of the period of probation and before its confirmation, he

would be deemed to have been continued in service as

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probationer. Confirmation of probation would be subject to

satisfactory completion of the probation and to pass in the

prescribed examinations. Expiry of the period of probation,

therefore, does not entitle him with a right to a deemed

confirmation. The rule contemplates to pass an express order

of confirmation in that regard. By issue of notice of one

calendar month in writing by either side, the tenure could be

put to an end, which was done in this case. "

After referring to the Rule, the Court laid down the law at page 330

which runs thus:-

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 may lead to an indication of the satisfactory completion of

probation. But in this case Rule 8 expressly postulates

otherwise. The period of probation is subject to extension by

order in writing for another period of one year. Passing the

prescribed examinations and successful completion of

probation and to make an order of confirmation are condition

precedent. Mere expiry of the initial period of probation does

not automatically have the effect of deemed confirmation and

the status of a deemed confirmation of the probation. An

express order in that regard only confers the status of an

approved probationer. We are of the view that note to sub-

rule (2) read with sub-rule (6) of Rule 8 manifests the

legislative intent that confirmation of the probation of the

respondent would be made only on successful completion of

the probation and the passing of the prescribed examinations.

It is not the respondents 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 months 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 years 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. The High Court, therefore,

committed manifest error of law in decreeing the suit.

[ Emphasis added ]

In the case of Jai Kishan v. Commissioner of Police and another,

1995 Supp (3) SCC 364, the Court was considering the question of

deemed confirmation under Rule 5(e) of Central Services (Temporary

Service) Rules, 1966 where the maximum period of probation was three

years. The said Rule runs thus:-

5(e)- (i) All direct appointments of employees shall be

made initially on purely temporary basis. All employees

appointed to the Delhi Police shall be on probation for a period

of two years:

Provided that the competent authority may extend the

period of probation but in no case shall the period of probation

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extend beyond three years in all.

(ii) The services of an employee appointed on

probation are liable to be terminated without assigning any

reason.

(iii) After successful completion of period of

probation, the employee shall be confirmed in the Delhi Police

by the competent authority, subject to the availability of

permanent post.

In that case, the concerned person was appointed as a temporary

constable on 9th September, 1982. During the period of probation, the

incumbent was required to complete successfully the probation after

complying with the condition of passing the test. The confirmation into

service was a condition precedent for continuance as a member of Delhi

Police Service. The incumbent was given opportunity not only for a period

of three years of probation but even thereafter two years more time was

given to him to improve his performance but as he could not improve, his

services were terminated which order was challenged before the

Administrative Tribunal and after rejection of the Review Petition, the

matter was brought to this Court in appeal where it was contended that

after expiry of period of three years, the incumbent must be deemed to

have been confirmed. This Court repelling the contention dismissed the

appeal stating thus at page 365:-

It is contended by the learned counsel for the appellant,

placing reliance on State of Punjab v. Dharam Singh, AIR

1968 SC 1210, that even if the appellant was not confirmed by

passing any order, on expiry of three years he must be

deemed to have been confirmed as a member of the Service.

Thereafter, the respondents had no jurisdiction to terminate

his service. It is difficult to accept the contention. Dharam

Singh case bears no relevance, as similar provision was not

there in the rule concerned. Successful completion of

probation is a condition precedent for confirmation as

envisaged in clause (iii) of Rule 5(e) of the Rules. The

authorities have power to allow maximum period of three

years of probation. In this case instead of giving him three

years, they have given a long 5 years period so as to see

whether the appellant would improve his performance in the

service. Since they found that there was no satisfactory

improvement, his probation was terminated and he was

removed from service as a probationer. Under these

circumstances, we do not find any illegality in the action taken

by the respondents warranting interference.

In the case of State of Punjab v. Baldev Singh Khosla, (1996) 9

SCC 190, question of deemed confirmation was considered under Rule 10

of Punjab State Cooperative Service (Class II) Rules, 1958, prescribing

thereunder maximum period of probation as three years and the said Rule

runs thus:-

10. Probation.- All members of the service shall on

appointment remain on probation in the first instance for a

period of two years, provided that Government may allow

service rendered on a post on an identical cadre or in the

higher post in another department to count for probation in the

post in the service.

(2) Provided further that in the case of members promoted

from the State Service Class III continue officiating of four

months or over shall be reckoned as a period spent on

probation.

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(3) If the work or conduct of any candidate or member

during the period of training or probation in the opinion of

Government is not satisfactory they may dispense with his

service if he has been recruited by direct appointment or may

revert him to his former post if he has been recruited by

promotion or by transfer. On the conclusion of the period of

probation of any member of the service, Government, may, if

vacancy exists, confirm him in his appointment; if his work or

conduct has, in its opinion been satisfactory may extend his

period of probation by such period as it may think fit and

thereafter pass such orders as it could have passed on the

expiry of the first period of probation, provided that the total

period of probation, including extension, shall not exceed

three years in any case.

There, the person was promoted as an Assistant Registrar,

Cooperative Societies by resolution dated 21st March, 1990 and he

completed the period of probation on 25th November, 1992 which was

extended from time to time. On 15th September, 1993, a show cause

notice was issued to him as to why he should not be reverted to the

substantive cadre on the ground that in the year 1991-92, i.e., during the

initial period of probation, there were adverse remarks against him and he

could not improve his performance even during the year 1993-94 for which

an opportunity was given in spite of the fact that period of probation was

extended by giving opportunity to him to improve his performance. On

consideration of the reply to the show cause notice, order was passed on

11th February, 1994 reverting him to the substantive post from which he

was promoted. When the said order was challenged before the High Court

in writ application, the same was allowed and the order of termination was

quashed on the ground that upon the expiry of three years period of

probation, he must be deemed to have been confirmed and, therefore, the

question of reversion did not arise. Thereafter the said order was

challenged before this Court in appeal, in which while repelling the

contention of deemed confirmation, appeal was disposed of observing

thus at page 191:-

Learned counsel for the respondent contends that

since the rule provides an outer limit of three years, if the

respondent had not been reverted within that period, he must

be deemed to have been confirmed and the High Court,

therefore, was right in concluding that the respondent is a

confirmed probationer. We do not find force in the contention.

Sub-rule (3) of Rule 10 clearly envisages that on conclusion of

the period of probation of any member of the service the

Government may, if vacancy exists, confirm him in his

appointment; if his work or conduct has, in its opinion, not

been satisfactory, it may extend his period of probation by

such period as it may think fit and thereafter pass such orders

as could have been passed on the expiry of his period of

probation. It would thus be seen that the outer limit of three

years provided under the rules is an enabling provision to

allow the probationer to continue in service without being

reverted or discharged from service for failure to satisfactorily

complete the period of probation, but that would not mean that

the probationer, on expiry of three years period, must be

deemed to have been confirmed. The rule itself envisages a

positive order of confirmation. So long as the order of

confirmation is not made, even after expiry of probation, the

probationer may continue and remain in service, but by

allowing him to remain in service it cannot be concluded that

he must be deemed to have been confirmed.

The rule also envisages that during the period of

probation, the appointing authority is required to see that the

performance of the work done by the probationer is to the

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satisfaction of the appointing authority. It is seen that for the

years 1991 and 1992 there were adverse remarks made upon

the performance of the respondent. Obvious for that reason,

his confirmation was not made. On the other hand, the period

of probation was further extended as admitted by the

respondent. Under these circumstances, he cannot be

deemed to have been confirmed. However, since the

authorities had extended the period of probation and given

him chance to improve his performance during the year 1993-

94, that period was not taken into consideration before

reverting the respondent from service. The appointing

authority is, therefore, directed to consider whether he is fit to

be confirmed, on the basis of his performance for the

subsequent period and in case it considers that he may be

confirmed, it would be open to them to pass appropriate

orders. In case, even after consideration of the performance

for the year 1993-94, his record is not found satisfactory,

appropriate orders may be passed and communicated to the

respondent.

[ Emphasis added ]

In the case of Chief General Manager, State Bank of India and

another v. Bijoy Kumar Mishra, (1997) 7 SCC 550, the question of

deemed confirmation was considered under paragraphs 15 and 16 of State

Bank of India Officers (Determination of Terms and Conditions of Service)

Order, 1979, prescribing maximum period of probation as three years

which are as under:-

Probation

15.(1) A person appointed as a Probationary Officer or a

Trainee Officer shall be on probation for a period of two years

(2) Any other employee of the Bank promoted as an officer

to the Junior Management Grade shall be on probation for a

period of one year.

(3) Any other person appointed to any grade including

junior management grade shall be on probation for such

period as may be decided by the competent authority:

Provided that the competent authority may, in the case

of any officer, reduce or dispense with the period of probation.

Confirmation

16. (1) An officer referred in paragraph 15 shall be

confirmed in the service of the Bank, if, in the opinion of the

competent authority, the officer has satisfactorily completed

the training in any institution, to which the officer may have

been deputed for training, an the in-service training in the

Bank:

Provided that an officer directly recruited to the Junior

Management Grade may be required also to pass a test in a

language other than his mother-tongue.

(2) If, in the opinion of the competent authority, an officer

has not satisfactorily completed either or both the trainings

referred to in sub-paragraph (1) or if the officer has not passed

the test referred to therein or an officers service is not

satisfactory, the officers probation may be extended by a

further period not exceeding one year.

(3) Where during the period of probation, including the

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period of extension, if any, the competent authority is of the

opinion that the officer is not fit for confirmation:

(a) in the case of a direct appointee, his services may be

terminated by one months notice or payment of one months

emoluments in lieu thereof, and

(b) in the case of a promotee from the Banks service, he

may be reverted to the grade or cadre from which he was

promoted.

There, the person concerned was appointed as a Probationary

Officer in the State Bank of India, on 24th October, 1980, joined duty on

15th December, 1980 and maximum period of probation was to expire on

14th December, 1983. During the initial period of two years of probation,

the person absented himself from duty from 2nd April, 1981for a long period

and the last date of his presence in the duty was in the first week of

August, 1983 and he remained absent till the year 1988. This shows that

he remained absent from much before the date of expiry of three years

period of probation and remained absent thereafter continuously for a

period of five years. In the year 1986-87, he joined M.Phil Course in

Punjab University without obtaining permission of the bank. The Bank

issued an order dated 4th October, 1988 terminating his services which

necessitated filing of writ application before the Orissa High Court

challenging order of termination on the ground that the officer shall be

deemed to have been confirmed upon expiry of three years maximum

period of probation as such the order of termination was invalid. The High

Court accepted the contention of deemed confirmation and quashed the

order, but the said order has been set aside by this Court on appeal being

preferred repelling the case of deemed confirmation on the ground that

there was no conduct of the employer allowing the employee to continue to

work on the post even after expiry of maximum period of probation in view

of the fact that the incumbent remained absent from duty for a long period

during the period of probation, on the date of expiry of the maximum period

of the probation and even thereafter, as such there was no occasion for

the bank to allow him to continue to work after completion of the probation

period. The Court distinguished the case of Dharam Singh (supra)

stating at page 555 thus:-

It is obvious that the decision in State of Punjab v. Dharam

Singh, (1968) 3 SCR 1, can have no application in a case

where the employee was absent from duty from a date much

prior to the expiry of the maximum period of probation and

remained absent even thereafter for a long time. There was

no occasion in such a case for the employer to allow the

employee (respondent) to continue to work on the post after

the expiry of the maximum period of probation because he

was absent and was not working on the post at the time of the

expiry of the period of probation. Deemed confirmation results

from the conduct of the employer in permitting continuance in

service after the expiry of the maximum period of probation

fixed by the rules. When there is no such conduct of the

employer, the very foundation for the argument of deemed

confirmation and reliance on Dharam Singh is not existent.

[ Emphasis added ]

In the case of Dayaram Dayal (supra), a two Judge Bench of

this Court was considering a case covered by Rule 24 of the Rules, in

which the incumbent was appointed as Civil Judge Class II in

M.P.Subordinate Judicial Service on 22nd October, 1985 and after

completing six months training, he was put on probation for two years

which period was completed on 22nd May, 1988. On 2nd March, 1990, he

was placed under suspension pending some charges and in the year 1991

after inquiry, punishment of stoppage of two annual increments with

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cumulative effect was awarded. There were certain adverse remarks in

ACRs between the years 1987-88 and 1992-93. On 3rd May, 1992, the

Full Court having not found him fit for confirmation, deferred the matter to

give one more opportunity. In the year 1993 again, the High Court did not

find him fit for confirmation as such his services were terminated by paying

one months salary in lieu of notice as required under Rule 24. When the

said order was challenged in a writ application, the same was dismissed

and order of dismissal was affirmed in appeal. Thereafter, when the

matter was challenged before this Court, the appeal was allowed,

judgments of the High Court were set aside and order of termination was

quashed holding that the incumbent would be deemed to have been

confirmed on the expiry of four years maximum period of probation

prescribed under the Rules following Constitution Bench decision of this

Court in the case of Dharam Singh (supra) where Rules did not require an

incumbent to pass any test or fulfill any other condition before confirmation,

as noticed by the Constitution Bench itself in that case which goes to show

that if the Rules would have required a person to pass any test or fulfill any

other condition before confirmation, it was not possible to draw an

inference that merely because an employee was allowed to continue on

the post upon completion of the maximum period of probation, he was

confirmed by implication. There the Court proceeded on the facts of that

case, which do not show any assessment of work and conduct of the

probationer being made and he being not found fit for confirmation by the

competent authority during the period of probation. In the absence of any

opinion formed after considering the performance of probationer, it was

presumed in that case that there being nothing adverse against the officer,

there was no compelling reason not to confirm him on the post inasmuch

as there was no plea on behalf of the State that his work and conduct was

not satisfactory. The Rules did not require any condition of assessment of

work at the end of extended period of probation or passing of departmental

examination. In the said case, order of termination was issued more than

two years after the expiry of maximum period of probation which was

completed on Ist October, 1960 and the order of termination was issued in

1963 without any assessment of his performance.

In the case on hand, correctness of the interpretation given by this

Court to rule 24 of the Rules in the case of Dayaram Dayal (supra) is the

bone of contention. In the aforesaid case, no doubt, this Court has held

that a maximum period of probation having been provided under sub-rule

(1) of rule 24, if a probationers service is not terminated and he is allowed

to continue thereafter it will be a case of deemed confirmation and the

sheet anchor of the aforesaid conclusion is the Constitution Bench

decision of this Court in the case of Dharam Singh (supra). But, in our

considered opinion in the case of Dayaram Dayal (supra), rule 24 of the

Rules has not been interpreted in its proper perspective. A plain reading of

different sub-rules of rule 24 would indicate that every candidate appointed

to the cadre will go for initial training for six months whereafter he would be

appointed on probation for a period of 2 years and the said period of

probation would be extended for a further period not exceeding 2 years.

Thus, under sub-rule (1) of rule 24 a maximum period of 4 years probation

has been provided. The aforesaid sub-rule also stipulates that at the end

of the probation period the appointee could be confirmed subject to his

fitness for confirmation and to have passed the departmental examination,

as may be prescribed. In the very sub-rule, therefore, while a maximum

period of probation has been indicated, yet the question of confirmation of

such a probationer is dependent upon his fitness for such confirmation and

his passing of the departmental examination by the higher standard, as

prescribed. It necessarily stipulates that question of confirmation can be

considered at the end of the period of probation, and on such

consideration if the probationer is found suitable by the Appointing

Authority and he is found to have passed the prescribed departmental

examination then the Appointing Authority may issue an order of

confirmation. It is too well settled that an order of confirmation is a positive

act on the part of the employer which the employer is required to pass in

accordance with the Rules governing the question of confirmation subject

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to a finding that the probationer is in fact fit for confirmation. This being the

position under sub-rule (1) of rule 24, it is difficult for us to accept the

proposition, broadly laid down in the case of Dayaram Dayal (supra), and

to hold that since a maximum period of probation has been provided

thereunder, at the end of that period the probationer must be held to be

deemed to be confirmed on the basis of the judgment of this Court in the

case of Dharam Singh (supra).

In the case of the Judicial Officers who are respondents before us, it

is the positive case of the High Court that their case for confirmation was

considered while they were continuing on probation but the Full Court did

not consider them suitable for confirmation and they were given a further

opportunity of improving themselves. Even notwithstanding such

opportunity they having failed to improve themselves and the High Court

having considered them unsuitable for confirmation the order of

termination emanated. It is difficult for us to comprehend that a

probationer while continuing on probation, on being considered is found

unsuitable for confirmation by the Appointing Authority and yet it can be

held to be a deemed confirmation because of maximum period of

probation indicated in the rule, merely because instead of termination of

the services he was allowed to continue and was given an opportunity for

improving and even after the opportunity he failed to improve and finally

the Appropriate Authority finding him unsuitable directs termination of his

services. The very fact that sub-rule (1) of rule 24 while prescribing a

maximum period of probation therein entitles a probationer for being

considered for confirmation and confers a right on the Appointing Authority

to confirm subject to the fitness of the probationer and subject to his

passing the higher standard of all departmental examination must be held

to be an inbuilt provision in sub-rule (1) which would negative the inference

of a confirmation in the post by implication, as interpreted by this Court in

the case of Dharam Singh (supra) while interpreting rule 6 of the Punjab

Educational Services (Provincialised Cadre) Class III Rules, 1961.

Ordinarily a deemed confirmation of a probationer arises when the

letter of appointment so stipulates or the Rules governing service

condition so indicate. In the absence of such term in the letter of

appointment or in the relevant Rules, it can be inferred on the basis of the

relevant Rules by implication, as was the case in Dharam Singh (supra).

But it cannot be said that merely because a maximum period of probation

has been provided in Service Rules, continuance of the probationer

thereafter would ipso facto must be held to be a deemed confirmation

which would certainly run contrary to Seven Judge Bench Judgment of this

Court in the case of Samsher Singh (supra) and Constitution Bench

decisions in the cases of Sukhbans Singh (supra), G.S. Ramaswamy

(supra) and Akbar Ali Khan (supra).

Apart from sub-rule (1) of rule 24 of the Rules, the effect of sub-rule

(3) may also be considered. Under sub-rule (3), if a probationer has been

found unsuitable for the service during the period of probation or he has

failed to pass the prescribed departmental examination then the Governor

at any time thereafter may dispense with his services. The power for

dispensing with services has been conferred upon the Governor to be

exercised at any time after the period of probation if the probationer is

found unsuitable or if he has failed to pass the prescribed departmental

examination. If the interpretation given by this Court in the case of

Dayaram Dayal (supra) to sub-rule (1) of rule 24 is held to be correct then

this power of the Governor under sub-rule (3) would become otiose

inasmuch as a probationer would acquire a deemed confirmation on the

expiry of the maximum period of probation provided in sub-rule (1). Sub-

rule (3) of rule 24, therefore, is another inbuilt provision in the Rules which

can be held to be a special provision to negative the inference of deemed

confirmation on the expiry of the maximum period of probation indicated in

sub-rule (1), as has been observed by this Court in the case of Dayaram

Dayal (supra) also and which is in conformity with the decisions of this

Court in the cases of Samsher Singh (supra), Sukhbans Singh (supra),

G.S. Ramaswamy (supra) and Akbar Ali Khan (supra). Rule 24, on a

plain grammatical meaning being given to the words used therein does

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not provide for a deemed confirmation on expiry of the maximum period of

probation, and on the other hand it contemplates a positive order of

confirmation to be passed by the Appropriate Authority, if the Authority

concerned is satisfied about the fitness of the probationer for confirmation,

and if the probationer has passed the departmental examination, as

prescribed. Mere continuance of the probationer after considering his

case for confirmation during the period of probation and finding him

unsuitable for confirmation by the decision of the Full Court, by no stretch

of imagination can be construed to be a confirmation by implication, as

was held by this Court in the case of Dharam Singh (supra) and that can

never be the intention of the Rule Making Authority. If the Full Court would

not have considered the suitability of the probationer for confirmation while

the probation period was continuing, the matter might have stood on a

different footing.

The importance of the suitability of the officer for confirmation need

not be emphasised and such suitability under the Rules is required to be

adjudged by the Full Court of the High Court. The Constitution itself while

indicating that the claims of Scheduled Castes and Scheduled Tribes to

services and posts shall be taken into consideration in Article 335, have

further added that such claim should be consistent with maintenance of

efficiency of administration. The Subordinate judiciary is the foundation on

which the super-structure is built. It would be the solemn duty of every

authority on whom the administration of justice vests, to see that the said

foundation is not shaken by any process including the process of allowing

adjudged unsuitable person to man the post. While interpreting rule 24

and considering the question whether a deemed confirmation can at all be

conferred, the aforesaid principle must be borne in mind and unless the

Rules explicitly say so, by implication a status of deemed confirmation

ought not to be granted, particularly when the Full Court of the High Court

has adjudged the Judicial Officers unsuitable. In this view of the matter,

we have no hesitation to come to a conclusion, that the decision of this

Court in the case of Dayaram Dayal (supra) does not lay down the correct

position with regard to the interpretation of rule 24 of the Rules. As has

been stated earlier in this batch of cases, the question of confirmation of

each of the probationers was considered by the Full Court within the

maximum period of probation provided in sub-rule (1) of rule 24, but the

Full Court found them not fit for confirmation and instead of adjudging

them unsuitable and recommending for termination, the Court deferred

their case for further consideration and thereby granted further opportunity

for proving their worth for confirmation. Such continuance of the

probationers, in our considered opinion, would not confer the status of

deemed confirmation, merely because a maximum period of probation has

been provided there in sub-rule (1) of rule 24.

In the result, the appeals are allowed, judgment passed by Division

Bench of the High Court is set aside and all the writ applications stand

dismissed. In the circumstances of the case, we direct that the parties

shall bear their own costs.

J.

[ G.B.PATTANAIK ]

J.

[ S.N.PHUKAN ]

...J.

[ B.N.AGRAWAL ]

14TH AUGUST, 2001.