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TMI Blog1997 (8) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... e suspension was revoked and he resumed duties as Civil Judge Class II w.e.f. 7-8-1991. There were certain adverse remarks in the ACRs during 1987-88, 88-89, 89-90, 91-92 and 92-93. The inspection Judge of the High Court who inspected appellant's Court on 26-2-1992 also referred to certain irregularities. In the Full Court Meeting dated 3-5-1992, the appellant was not found fit for confirmation and his case for promotion as Civil Judge, Class I was postponed, In a subsequent Full Court Meeting dt. 30-4-1993, 1st, 2nd May, 1993, it was decided that appellant was not fit for confirmation and looking at his overall performance, his services should be terminated after giving him one month's salary in lieu of notice. The resolution was forwarded to the Madhya Pradesh State Government on .19-7-1993. The State Government by orders dated 8-11-1993, terminated the appellant's (sic) paying one month's salary in lieu of notice. The order was served on 17-12-1993, The writ petition filed by the appellant being MP 627/94 was dismissed by the learned single Judge on 25-4-1994. 2. The learned single Judge held that during the period of probation, the appellant was found guilty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirmation and if they have passed all such departmental examinations as may be prescribed. Learned Counsel submits that whenever such a maximum period of probation is fixed by the Rules, then if the officer is continued beyond the maximum period prescribed, the officer must be deemed to have been confirmed in view of the judgment of the Constitution Bench in State of Punjab v. Dharam Singh [1968]3SCR1 . 4. On the other hand, learned Counsel for the respondents, contends that the maximum period of probation extended up to 22-5-1990 and that before that date, the High Court had taken note of the charges served on the appellant on 3-3-1990 during the period of probation and the notes of inspection of the appellant's Court on 3-5-1992, and that in view thereof, the Full Court decided initially on 3-5-1992, he was not fit for confirmation/promotion and then decided on 30-4-1993, 1st and 2nd May, 1993 that his services had to be terminated on one month notice. As long as there was no order of confirmation even after the expiry of the 4 year period, the appellant could not be deemed to have been confirmed and must be deemed to be continuing under probation. If he was continuing u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontains a deeming provision while in some other cases, it has been held that in certain exceptional situations, it is permissible to hold that the services must be deemed to be confirmed. We shall show that there is no real conflict between the two sets of decisions and it depends on the conditions contained in the order of appointment and the relevant rules that are applicable. 8. One line of cases has held that if in the rule or order of appointment a period of probation is specified and a power to extend probation is also specified and the officer is continued beyond the prescribed period of probation, he cannot be deemed to be confirmed, and there is no bar on the power of termination of the officer after the expiry of the initial period of probation. In the case before a Constitution Bench of this Court in Sukhbans Singh v. State of Punjab , Rule 22 of the relevant rules provided a period of probation and contained a provision for extension of probation. Rule 23 for termination during probation and Rule 24 for substantive appointment on completion of probation. It was held that a probationer cannot . . . automatically acquire the status of a permanent member of a service, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for extension thereof subject to a maximum of three years. The petitioner in that case was on probation from 1-10-57 for one year and was continued beyond the extended period of three years (in all four years) and terminated in 1963 without any departmental inquiry. A Constitution Bench of this Court referred Sukbhams Singh (1963)ILLJ671SC ; G.S. Ramaswamy (1970)ILLJ649SC and Akbar Ali (1967)ILLJ70SC cases and distinguished the same as cases where the rules did not provide for a maximum period of probation but that if the rule, as in the case before them provided for a maximum, then that was an implication that the officer was not in the position of a probationer after the expiry of the maximum period. The presumption of his continuing as a probationer was negatived by the fixation of a maximum time-limit for the extension of probation. The termination after expiry of four years, that is after the maximum period for which probation could be extended, was held to be invalid. This view has been consistently followed in Om Prakash Maurya v. U.P. Co-op. Sugar Factories Federation (1986)IILLJ145SC ; M.K. Agarwal v. Gurgaon Gramin Bank : [1987]3SCR640 and State of Gujarat v. Akhilesh C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant rule provided for a maximum of one year for the extended period of probation but there was a Note under Rule 8(2) of the Madhya Pradesh Govt. Servant's General Conditions of Service Rules, 1961. Rule 8(2) of the Rules and the Note read: 8(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. It was held that by this Court as follows: 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 if his services being terminated on the expiry of a notice of one calendar month given in writing by either side. The consequence of the Note was explained furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents however relied upon Beena Tiwari v. State of M.P. [1988]2SCR492 . In that case, it is true that while dealing with Rule 16(5) of the M. P. Govt. Service (Temporary and Quasi Judicial Service) Rules, 1960, this Court held that Rule 3-A thereof was not attracted but that the question of confirmation fell squarely under Article 235 of the Constitution of India and that Rule 16(5) of the rules itself provided that if the person concerned is not considered fit for confirmation at the end of such period, or fails to pass the prescribed departmental examinations, his services shall be dispensed with. The termination after the maximum period of probation was upheld relying on the above position. The attention of the Court was not drawn to the decision of the Constitution Bench in Dharam Singh's case [1968]3SCR1 and the long line of cases which followed that decision. 15. Learned Counsel for the respondents also relied upon Satya Narain Athya v. High Court of M.P. AIR1996SC750 . But that case is one where the Court, after referring to the M. P. Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955 and to the fact that the initial period ..... X X X X Extracts X X X X X X X X Extracts X X X X
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