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TMI Blog2001 (8) TMI 1422X X X X Extracts X X X X X X X X Extracts X X X X ..... tion upheld, but other appeals have been allowed and the judgment rendered by learned single Judge dismissing the writ applications has been set aside. 3. 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 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 6. 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. 7. Challenging order passed in the writ application filed by Samarada ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sub-missions, the question which we are called upon to consider is as to whether decision of the Court in Dayararn Dayal's case was correctly decided and Rule 24 of the Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough 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. 12. Now we proceed to consider the first line of cases in which the earliest one is Sukhbans Singh v. State of Punjab (1963)ILLJ671SC . 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 Cover nor 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 probat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has given satisfaction the 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 con- firmed 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 17. In the case of Tarsem Lal Verma v. Union of India : (1997)9SCC243 , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted 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 31 of the Constitution. 19. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rule 6(3) on the ground that their work or conduct during the period of probation was unsatisfactory . (Emphasis added) 20. 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. 21. In the case of Wasim Beg v. State of U.P. (1998)ILLJ1209SC , a person was selected for appointment as Divisional Manager ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Managing Director and the service was liable to be terminated on one month's 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 ₹ 2 lakhs to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 changes 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. 25. 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 Ghand 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, imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 had 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. 26. In the case of Municipal Corporation, Raipur v. Ashok Kumar Misra (1981) 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 probation which runs thus (Para 3 of AIR, Lab IC): 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arid 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 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 to 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. 28. After referring to the Rule, the Court: laid down the law at page 330 (of 1991 (3) SSC 325) 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 prob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 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. 30. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointment 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. 32. There, the person was promoted as an Assistant Registrar, Co-operative 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the probationer is to the 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. Obviously 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) 33. In the case of Chief General Manager, State Bank of India v. Bijoy Kumar Mishra (1997)7SCC5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of two years of probation, the person absented himself from duty from 2nd April, 1981 for 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 Oct. 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fulfil 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 fulfil 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 up on 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 probati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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). 37. 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 prob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect 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 service. 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(l), as has been observed by this Court in the case of Dayaram Dayal (supra) also and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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