# Raj Kamal Sonkar v. High Court of Judicature at Allahabad Through R.G

- **Citation:** (2016) 4 ILRA 794
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-07
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kamal-sonkar-v-high-court-of-judicature-at-allahabad-through-r-g-43689
- **Pages:** 17

## Headnote

Yashwant Verma, Ashish Mishra, Ranjan Srivastava, S.C.

Petitioner an employee of High Court- joined the service as Routine Grade Assistant on 19.11.1996-
promoted to the post of Lower Division Assistant 1999 -thereafter was placed on probation-In 2005, he was
considered for confirmation-but was not found suitable & the matter relating thereto was deferred-In 2007
a Committee constituted by the Registrar General considered the petitioner as well as other employees
working on probation for their services being confirmed-petitioner service was again not found to be
satisfactory and promotion was again deferred- he filed representation before the Registrar General-In
2008, the Registrar General rejected the representation holding that overall conduct of the petitioner is not
satisfactory.

SERVICE LAW - Probation & Confirmation - Allahabad High Court Officers and Staff (Conditions of Service
and Conduct) Rules, 1976 - Rules 32 & 33 - Maximum probation - Whether deemed confirmation -
Requirement of positive order of confirmation-Under Rules 32-33, although probation can be extended up
to a maximum of four years, there is no concept of deemed confirmation-Confirmation requires a positive act
of the Appointing Authority after satisfaction regarding three conditions : (a) work and conduct
satisfactory; (b) fitness for confirmation; and (c) integrity certified- Mere expiry of the maximum
period of probation does not result in automatic confirmation- Supreme Court Constitution Bench decisions in
Dharam Singh, Sukhbans Singh, G.S. Ramaswamy, Akbar Ali Khan, and the Larger Bench ruling in Satya
Narayan Jhavar applied. (Paras 6-17)
4 All. Raj Kamal Sonkar Vs High Court of Judicature at Allahabad Through R.G.

795
Probation - Assessment - Adverse entry (2001-02) - Effect of old entry - Whether relevant for later
consideration-In present case petitioner has Adverse entry in year 2001-02 -justified deferring confirmation
in 2005 but was too old to form basis for refusal in 2007- However, confirmation could still be withheld on
other valid grounds relating to suitability. (Paras 18-20)

Probation - Nature of assessment - Suitability includes overall conduct, behaviour, vigilance inputs - Not
confined to ACRs alone-probationer is on "test" -Employer may consider entire conduct, including vigilance
reports, complaints, disciplinary findings- Subjective satisfaction of the Appointing Authority not open to
interference unless arbitrary. (Paras 27-29)

Disciplinary Proceedings - Warning - Whether equivalent to censure - Whether can be considered for
denying confirmation-Warning issued on 12-06-2007 after full-fledged disciplinary enquiry where charges of
indiscipline, absenteeism, and misbehaviour were found proved-Although a warning is not a punishment
under the Rules and cannot be treated as censure-misconduct is a valid factor for assessing suitability for
confirmation. Warning only reflects leniency- misconduct remains a relevant adverse factor. (Paras 22-26,
30)

Promotion - Eligibility - Only confirmed employees to be considered - Petitioner not within zone of
consideration in 2007-Under Rule 8(3), only permanent employees can be considered for promotion to
Review Officer-petitioner was still on probation in 2007 and not confirmed due to unsatisfactory recordjuniors validly promoted-No illegality or discrimination. (Paras 31-33)

Held-No deemed confirmation-refusal to confirm in 2007 justified on basis of proved misconduct and
unsatisfactory suitability-Hence, Writ petition dismissed. (Para 35)

List of Cases cited:

## Text

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794 INDIAN LAW REPORTS ALLAHABAD SERIES
12. Keeping in view the gravity of the offence, punishment, period of detention of the
applicant, amount involved and the arguments adduced on behalf of the learned counsel for the
parties, I do not find any ground to grant bail to the applicant.

13. Accordingly, the bail application is rejected.

14. However, the trial court is directed to conclude the trial expeditiously, preferably
within a period of one year from the date of framing of charge against the accused applicant.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.04.2016

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

Writ A No.- 59185 Of 2008

Raj Kamal Sonkar

 ...Petitioner
Versus
High Court of Judicature at Allahabad Through R.G. ...Respondent

Counsel for the Petitioner:
Jai Prakash Rai, U.N. Sharma

Counsel for the Respondent:
Yashwant Verma, Ashish Mishra, Ranjan Srivastava, S.C.

Petitioner an employee of High Court- joined the service as Routine Grade Assistant on 19.11.1996-
promoted to the post of Lower Division Assistant 1999 -thereafter was placed on probation-In 2005, he was
considered for confirmation-but was not found suitable & the matter relating thereto was deferred-In 2007
a Committee constituted by the Registrar General considered the petitioner as well as other employees
working on probation for their services being confirmed-petitioner service was again not found to be
satisfactory and promotion was again deferred- he filed representation before the Registrar General-In
2008, the Registrar General rejected the representation holding that overall conduct of the petitioner is not
satisfactory.

SERVICE LAW - Probation & Confirmation - Allahabad High Court Officers and Staff (Conditions of Service
and Conduct) Rules, 1976 - Rules 32 & 33 - Maximum probation - Whether deemed confirmation -
Requirement of positive order of confirmation-Under Rules 32-33, although probation can be extended up
to a maximum of four years, there is no concept of deemed confirmation-Confirmation requires a positive act
of the Appointing Authority after satisfaction regarding three conditions : (a) work and conduct
satisfactory; (b) fitness for confirmation; and (c) integrity certified- Mere expiry of the maximum
period of probation does not result in automatic confirmation- Supreme Court Constitution Bench decisions in
Dharam Singh, Sukhbans Singh, G.S. Ramaswamy, Akbar Ali Khan, and the Larger Bench ruling in Satya
Narayan Jhavar applied. (Paras 6-17)
4 All. Raj Kamal Sonkar Vs High Court of Judicature at Allahabad Through R.G.

795
Probation - Assessment - Adverse entry (2001-02) - Effect of old entry - Whether relevant for later
consideration-In present case petitioner has Adverse entry in year 2001-02 -justified deferring confirmation
in 2005 but was too old to form basis for refusal in 2007- However, confirmation could still be withheld on
other valid grounds relating to suitability. (Paras 18-20)

Probation - Nature of assessment - Suitability includes overall conduct, behaviour, vigilance inputs - Not
confined to ACRs alone-probationer is on "test" -Employer may consider entire conduct, including vigilance
reports, complaints, disciplinary findings- Subjective satisfaction of the Appointing Authority not open to
interference unless arbitrary. (Paras 27-29)

Disciplinary Proceedings - Warning - Whether equivalent to censure - Whether can be considered for
denying confirmation-Warning issued on 12-06-2007 after full-fledged disciplinary enquiry where charges of
indiscipline, absenteeism, and misbehaviour were found proved-Although a warning is not a punishment
under the Rules and cannot be treated as censure-misconduct is a valid factor for assessing suitability for
confirmation. Warning only reflects leniency- misconduct remains a relevant adverse factor. (Paras 22-26,
30)

Promotion - Eligibility - Only confirmed employees to be considered - Petitioner not within zone of
consideration in 2007-Under Rule 8(3), only permanent employees can be considered for promotion to
Review Officer-petitioner was still on probation in 2007 and not confirmed due to unsatisfactory recordjuniors validly promoted-No illegality or discrimination. (Paras 31-33)

Held-No deemed confirmation-refusal to confirm in 2007 justified on basis of proved misconduct and
unsatisfactory suitability-Hence, Writ petition dismissed. (Para 35)

List of Cases cited:

1. High Court of M.P. v. Satya Narayan Jhavar, AIR 2001 SC 3234

2. State of Punjab v. Dharam Singh, AIR 1968 SC 1210

3. Sukhbans Singh v. State of Punjab, AIR 1962 SC 1711

4. G.S. Ramaswamy v. Inspector General of Police, AIR 1966 SC 175

5. State of U.P. v. Akbar Ali Khan, AIR 1966 SC 1842

6. Dayaram Dayal v. State of M.P., (1997) 7 SCC 443

7. Jaikishan v. Commissioner of Police, 1995 Supp (3) SCC 364

8. State of Punjab v. Baldev Singh Khosla, (1996) 9 SCC 190

9. Om Prakash Maurya v. U.P. Cooperative Sugar Factories Federation, 1986 SCC Supp 95

10. M.K. Agarwal v. Gurgaon Gramin Bank, 1987 Supp SCC 643

11. Kazia Mohammed Muzzammil v. State of Karnataka, (2010) 8 SCC 155
796 INDIAN LAW REPORTS ALLAHABAD SERIES
12. Ajit Singh v. State of Punjab, AIR 1983 SC 494

13. Registrar, High Court of Gujarat v. C.G. Sharma, (2005) 1 SCC 132

14. Vijay Singh v. State of U.P., 2012 Law Suit SC 227

15. Vinod Kumar v. State of Haryana, (2013) 16 SCC 293

16. Ashu Nandan Singh v. State of U.P., 2007 (5) ADJ 764

(Delivered by Hon'ble Manoj Kumar Gupta, J.)

1. The petitioner is an employee of this Court. He joined the service as Routine Grade
Assistant on 19.11.1996. He was promoted to the post of Lower Division Assistant in December,
1999 and was placed on probation. In the year 2005, he was considered for confirmation, but was
not found suitable and consequently, the matter relating thereto was deferred. Again in October,
2007 a Committee constituted by the Registrar General considered the petitioner as well as other
employees working on probation for their services being confirmed. The service of the petitioner
was again not found to be satisfactory and the matter relating thereto was again deferred. The
petitioner filed representation before the Registrar General, who is Appointing Authority of the
petitioner. On 15.10.2008, the Registrar General rejected the representation holding that overall
conduct of the petitioner is not satisfactory. For such purpose, he interalia took into consideration a
warning entry issued to him on 19.7.2007 on the basis of a departmental inquiry. Its
communication to the petitioner by the Joint Registrar (Establishment) on 22.10.2008 is subject
matter of challenge in the instant petition. The petitioner has also prayed for a mandamus
commanding the respondents to confirm his services since December 2000 and to promote him
from 31.8.2007, the date from which his juniors were promoted, with all consequential benefits.
During the pendency of the writ petition, by an office order dated 17.4.2009, the service of the
petitioner was confirmed on the post of Assistant Review Officer from the date of the order, subject
to decision of the instant writ petition. The aforesaid order, in so far as it denies confirmation of
service of the petitioner since December, 2000, is also under challenge, by getting the petition
amended. Following the order of confirmation, by another order dated 31.5.2010 passed by
Registrar General, the petitioner was promoted to the post of Review Officer, subject to seniority
being fixed as per decision in the instant writ petition.

2. The case of the petitioner is that under the Service Rules the period of probation
prescribed is one year and since no order was passed extending the period of probation and
consequently, he would be deemed to have been confirmed in December, 2000. It is urged that the
probation could be extended by a maximum period of three years, which expired in December,
2003. Thereafter, his services would be deemed to have been confirmed. There was no justification
in not confirming him in the year 2005 or in postponing the issue relating to confirmation on the
ground that his services had not been found to be satisfactory. It is urged that the same mistake was
committed when the respondent refused to confirm the petitioner in October, 2007. It is further
submitted that at the relevant time there was no adverse entry in preceding five years. The solitary
4 All. Raj Kamal Sonkar Vs High Court of Judicature at Allahabad Through R.G.

797
adverse entry of the year 2001-02, being an entry more than five years old, could not be made basis
for not confirming the petitioner and in denying promotion to him. The warning issued by the
Registrar General by order dated 12.6.2007 also could not form basis for withholding confirmation
or denying promotion to the petitioner inasmuch as a warning is neither an adverse entry nor a
punishment under the Service Rules. It is pointed out that a preliminary inquiry in another matter
which also formed the basis for denying confirmation, has culminated in favour of the petitioner
and thus, the same could not have been the basis for denying confirmation in service. It is urged
that the respondent had acted in a discriminatory manner in promoting since 31.8.2007, a number
of persons junior to the petitioner, even though in respect of two of the employees namely Pankaj
Mishra and Pankaj Kushwaha adverse entries were also there.

3. The writ petition was opposed by learned counsel for the respondent by contending that
under the Service Rules, although a maximum period of probation as well as extended period of
probation are prescribed, yet there is no provision of deemed confirmation. It is submitted that the
Appointing Authority is enjoined with the duty to assess the suitability of a candidate and he is
confirmed only if he is found fit and his integrity is certified. It is urged that in the case of the
petitioner, his work and conduct was not found to be satisfactory. It is submitted that in the year
2001-02 there was an adverse entry against the petitioner followed by another adverse entry in the
year 2004-05, which though was expunged later on. It is submitted that in the year 2005 the case of
the petitioner was considered for confirmation of his services but it was found to be unsatisfactory.
Consequently, the matter was deferred. It is pointed out that in a departmental proceeding held
against the petitioner, he was found guilty of indiscipline and misbehavior with his superiors.
However, the respondent, taking into consideration the unconditional apology submitted by the
petitioner as well as the fact that it was first such instance, took a lenient view and instead of
awarding any severe punishment, he was let off with a warning to be careful in future and be a
disciplined employee. It is submitted that it amounts to a censure entry within the meaning of
Service Rules and consequently, the respondent was justified in denying confirmation to the
petitioner in the year 2007 when his case was considered for confirmation alongwith other
employees. It is further submitted that under the Service Rules only a permanent employee in the
cadre is to be considered for promotion. In August 2007, when other employees were granted
promotion since 31.8.2007, the petitioner was not a confirmed employee but was on probation. He
was, therefore, not within the zone of consideration for promotion to the post of Review Officer. It
is thus sought to be suggested that the relief claimed by the petitioner seeking promotion since
31.8.2007 has no rational basis. It is further submitted that Registrar General in his order dated
15.10.2008 has given detailed reasons for rejecting the representation filed by the petitioner against
denial of confirmation to him in October, 2007. He further submitted that later on the respondent
again assessed the suitability of the petitioner for confirmation of his services and upon being
satisfied, issued office order confirming his service w.e.f. 16.4.2009 and also granted promotion to
him since 31.5.2010 and thus, no discrimination has been practiced against the petitioner. It is
submitted that the alleged adverse entries against Pankaj Mishra and Pankaj Kushwaha were
advisory in nature, for future guidance, and since they had shown fast improvement, consequently,
they were confirmed, whereas in case of the petitioner, instead of there being any improvement, he
was found guilty in the disciplinary proceedings resulting in issuance of warning on 12.6.2007. It is
798 INDIAN LAW REPORTS ALLAHABAD SERIES
thus sought to be suggested that no discrimination has been practiced against the petitioner as
alleged. It is further submitted that the instant writ petition seeking confirmation and promotion
from a back date will adversely affect those senior to him, thus, without impleading such persons,
the writ petition is not maintainable.

4. I have considered the submissions made by learned counsel for the parties and perused
the material on record.

5. The services of the petitioner is governed by the Allahabad High Court Officers and
Staff (Conditions of Service and Conduct) Rules, 19761. Rules 32 and 33, which are relevant for
answering the issues posed before this Court, are as under:-

"32. Probation.- (1) A person on initial appointment to a post in the establishment
in substantive capacity shall be placed on probation for a period of one year.

(2) The Appointing Authority may allow continuous service rendered in an
officiating capacity or as a temporary measure on the post or on a higher post, to be taken into
account for the purpose of computing the period of probation.

(3) The Appointing Authority, may, for reasons to be recorded in writing, extend the
period of probation in individual cases specifying the date upto which the extension is granted.
Provided that in no case the period of probation will be extended by three years.

(4) If it appears to the Appointing Authority at any time during or at the end of the
period of probation or extended period of probation, as the case may be, that a probationer has not
made sufficient use of his opportunities or has otherwise failed to give satisfaction, he may be
reverted to his substantive post, if any, or if he does not hold a lien on any post, his services may be
dispensed with.

(5) A person whose services are dispensed with under sub-rule (4) shall not be
entitled to any compensation.

33. Confirmation.- A probationer shall be confirmed in his appointment at the end
of his period of probation or extended period of probation as the case may be, if-

(a) his work and conduct during the probationary period have been found to be
satisfactory;

(b) he is considered fit for confirmation; and

(c) his integrity is certified."

6. Rule 32 provides for a probation of one year which could be extended by three years.
Thus, the maximum period of probation under the Service Rules is four years. In case of the
4 All. Raj Kamal Sonkar Vs High Court of Judicature at Allahabad Through R.G.

799
petitioner whose initial promotion to the cadre of Lower Division Assistant was in December,
1999, the maximum period of probation had thus come to an end in December, 2004. The basic
issue for consideration is whether after the expiry of maximum period of probation, the service of
the petitioner shall be deemed to have been confirmed or he continues to be a probationer until a
specific order of confirmation is passed under Rule 33. The issue is no more res-integra and now
stands settled by a series of Constitution Bench judgments of the Supreme Court. In High Court of
M.P. Vs. Satya Narayan Jhavar2 a three Judge bench of the Supreme Court was considering a
reference made to it by a two Judge bench disagreeing with the view taken by another two Judge
bench in Dayaram Dayal Vs. State of Madhya Pradesh3. The Supreme Court, after considering
various Constitution Bench judgments as well as series of other decisions, noticed that there are
three line of cases on the point viz. (a) 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; (b) 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; and (c) 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.

7. The Supreme Court considered the Constitution Bench judgements in the case of
Sukhbans Singh Vs. State of Punjab4, G.S. Ramaswamy Vs. Inspector General of Police,
Mysore5 and State of Uttar Pradesh Vs. Akbar Ali Khan6 and held that under the first line of
cases where no maximum period of probation is stipulated under the Service Rules or the letter of
appointment, a probationer cannot be deemed to be confirmed. It is held that in such cases there is
no bar against termination at any point of time, before the service is confirmed.

8. The real difficulty is in drawing a distinction between the second and third line of cases.
It was noticed that in support of the contention of deemed confirmation, anchor-sheet of the
argument is another Constitution Bench judgment in the case of State of Punjab Vs. Dharam
Singh7. In that case, the Supreme Court held that at the end of maximum period of probation, the
probationer shall be deemed to be confirmed in service. Relying on the said judgment, the two
Judge Bench of the Supreme Court in the case of Dayaram (supra) took the view that Rule 24 of
the Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Service)
Rules, 1955 contemplated a deemed confirmation on expiry of maximum period of probation. The
Larger Bench of the Supreme Court in High Court of Madhya Pradesh Vs. Satya Narayan Jhavar
800 INDIAN LAW REPORTS ALLAHABAD SERIES
(supra) did not agree with the view taken in Dayaram's case (supra) and distinguished Dharam
Singh (supra) by holding as under:-

"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.

36. 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 probationer's 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 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).

 (emphasis supplied).

9. The Larger Bench cited with approval two previous judgments in the case of Jaikishan
Vs. Commissioner of Police8 and State of Punjab Vs. Baldev Singh Khosla9. In the case of
Jaikishan (supra) Rule 5 runs thus:-
4 All. Raj Kamal Sonkar Vs High Court of Judicature at Allahabad Through R.G.

801

"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 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."

10. In that case, the concerned person was appointed as a temporary constable on 9
September, 1982. His service during period of probation was not found to be satisfactory and he
was given opportunity to improve upon his performance not only during extended period of three
years of probation but even thereafter two years more time was given to him. However, it was
found that he could not improve upon his performance, consequently, his service was terminated.
The termination order was challenged before the Administrative Tribunal without success. The
matter ultimately travelled to the Supreme Court, where reliance was placed on the Constitution
Bench judgment in the case of Dharam Singh (supra). The Supreme Court repelling the contention,
held that successful completion of probation was a condition precedent for confirmation and since
it was found that there was no satisfactory improvement in performance during the period of
probation as well as extended period of probation and even thereafter, consequently, his services
were rightly terminated. It is held as under:-

"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." (emphasis supplied)

11. In the case of Baldev Singh Khosla (supra) Rule 10 of Punjab State Co-operative
Service (Class II) Rules, 1958 which prescribes for a maximum period of probation of three years
was under consideration. Rule 10 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.
802 INDIAN LAW REPORTS ALLAHABAD SERIES

(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.

(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."

12. The Supreme Court repelled the plea of deemed confirmation after expiry of maximum
period of probation by holding thus:-

"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."

 (emphasis supplied)

13. Learned counsel for the petitioner, apart from the decision of the Constitution Bench
judgment in the case of Dharam Singh (supra), also cited another judgment of the Supreme Court in
Om Prakash Maurya Vs. U.P. Co-operative Sugar Factories Federation, Lucknow10. The said
judgment of the Supreme Court is again based on the interpretation made by the Supreme Court in
the case of Dharam Singh (supra). Likewise, other decision in the case of M.K. Agarwal Vs.
Gurgaon Gramin Bank11, also places reliance on the Constitution Bench judgment of the
Supreme court in the case of Dharam Singh (supra) in holding that where under the Service Rules,
a maximum period of probation is provided but there is no provision as to what would happen at
the end of the maximum permissible period of probation, there would be confirmation by
implication.

 14. As noticed above, the Larger Bench judgment of the Supreme Court in High Court of M.P.
Vs. Satya Narayan Jhavar (supra) specifically dealt with the said issue and concluded by holding
that merely because a maximum period of probation has been provided under the Service Rules,
continuance of the probationer thereafter would not automatically result in deemed confirmation. It
has been held thus:-
4 All. Raj Kamal Sonkar Vs High Court of Judicature at Allahabad Through R.G.

803

"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)." (emphasis supplied)

15. In a more recent decision of the Supreme Court in the case of Kazia Mohammed
Muzzammil Vs. State of Karnakata and another12 the Supreme Court, after considering catena of
cases in favour of and against the proposition of deemed confirmation, held as under:-

"19. Having discussed in some elaboration the conduct of the appellant as well as
his antecedents, now we proceed to examine the merits of the legal controversy raised in the
present case on behalf of the appellant in relation to `deemed confirmation'. The `deemed
confirmation' is an aspect which is known to the service jurisprudence now for a considerable time.
Both the views have been taken by the Court. Firstly, there can be `deemed confirmation' after an
employee has completed the maximum probation period provided under the Rules wherafter, his
entitlement and conditions of service are placed at parity with the confirmed employee. Secondly,
that there would be no `deemed confirmation' and at best after completion of maximum probation
period provided under the Rules governing the employee, the employee becomes eligible for being
confirmed in his post. His period of probation remains in force till a written document of successful
completion of probation is issued by the Competent Authority.

20. Having examined the various judgments cited at the bar, including that of all
larger Benches, it is not possible for this Bench to state which of the view is correct enunciation of
law or otherwise. We are of the considered opinion, as to what view has to be taken, would depend
upon the facts of a given case and the relevant Rules in force. It will be cumulative effect of these
two basics that would determine the application of the principle of law to the facts of that case."

16. Under the Service Rules albeit a stipulation in Rule 32 as regards the maximum period
of probation, Rule 33 specifically contemplates a positive act of passing an order of confirmation
by the employer. The confirmation of the probationer is not automatic on expiry of period of
probation or the extended period of probation but is dependent on the following factors:-

"(a) his work and conduct during the probationary period have been found to be
satisfactory;

(b) he is considered fit for confirmation; and
804 INDIAN LAW REPORTS ALLAHABAD SERIES

(c) his integrity is certified."

(Vide Rule 33 of the Rules)
17. It is implicit in Rule 33 that the Appointing Authority, having regard to these factors,
has to pass an order of confirmation. In case, concept of deemed confirmation or automatic
confirmation is applied, it would render Rule 33 otiose. Thus, in the considered opinion of the
Court, the petitioner cannot be deemed to have been confirmed on expiry of the period of probation
or the extended period of probation.

18. It is established on record that in the year 2001-02 while the petitioner was on
probation, he was given the following adverse entry:-

"2001-02 Habitual late comer, leaves Office without permission. Work and conduct
FAIR. Integrity certified.

It goes to show that during the extended period of probation the petitioner failed to
make sufficient use of his opportunities. His work and conduct was not found to be satisfactory.
Consequently, in the year 2005 when his case was considered for confirmation, he was not found
fit for confirmation and the matter relating thereto was deferred, meaning thereby that he was given
more time to prove his capability and suitability to the post.

19. The real challenge made by learned counsel for the petitioner is to the non confirmation
of the petitioner and denial of promotion to him in the year 2007. In pursuance of an order of the
Registrar General dated 25.7.2007, a three member Committee comprising of Registrar
(Establishment), OSD (Litigation) and OSD (Classification) was constituted to consider the matter
relating to confirmation of 244 Assistant Review Officers. The said Committee, after having regard
to their entire service record, made recommendation for confirmation of the services of 222
Assistant Review Officers, whereas it recommended for postponing the confirmation of 22
Assistant Review Officers including the petitioner. The remark of the Committee in relation to the
petitioner for not recommending him for confirmation was as under:-

Sl.
Emp. No.
Name
Remarks
15
6061
Raj Kamal Sonkar
Adverse entry in the year 2001-02.
Warning vide Registrar General's
order dated 12.6.2007.
As reported by the Registrar
General's office that a Preliminary
enquiry has been concluded by the
Enquiry Officer and is under
consideration before the learned
Registrar General for final orders.
Due to the above punishment he
has not been found satisfactory, as
4 All. Raj Kamal Sonkar Vs High Court of Judicature at Allahabad Through R.G.

805
such, the Committee is of the
opinion that his case may be
deferred at present.

20. The adverse entry of the year 2001-02 was subject matter of consideration in the year
2005 when on its basis the petitioner was denied confirmation, but his service was not terminated
and was afforded further opportunity to improve upon his performance and prove his capability and
suitability to the post. Thereafter, when the case of the petitioner was considered once again for
confirmation in the year 2007, such entry should not have been considered. Further, it was also an
entry more than five years old at the relevant time. In the opinion of the Court, such old entry was
not of much relevance in the year 2007 and could not form basis for denying confirmation of the
services of the petitioner in the year 2007.

21. The other material considered by the Committee is a preliminary inquiry conducted in
relation to the alleged misconduct on part of the petitioner and the matter relating thereto being
under consideration by the Registrar General at the relevant time. It has come on record that on the
basis of the aforesaid preliminary inquiry, a regular inquiry was instituted. The Inquiry Officer
submitted a report dated 16.11.2010, in which he found no evidence of any misdemeanor on part of
the petitioner and therefore, recommended for the proceedings being dropped. The report of the
Inquiry Officer was accepted by the Registrar General on 6.1.2011 and thus, the aforesaid matter
ended in favour of the petitioner. Consequently, the same also could not constitute basis for
denying confirmation to the post.

22. Yet another material, which formed basis for not recommending the case of the
petitioner for confirmation, is an alleged warning entry issued to the petitioner by the Registrar
General on 12.6.2007. It is urged on behalf of the petitioner that a warning entry is neither an
adverse entry nor a punishment contemplated under the Service Rules and consequently, it had no
relevance. In this regard, reliance has been placed on various decisions; first of which is in the case
of Vijay Singh Vs. State of U.P. and others13. In that case, in a disciplinary proceeding held
against a Sub Inspector of Police, the punishment awarded was of withholding integrity certificate.
The order of the Disciplinary Authority was unsuccessfully challenged in departmental appeal and
thereafter, in a revision before the Additional Director General of Police. The writ petition filed
before the High Court was also dismissed upholding the punishment. The Supreme Court, after
considering the Service Rules, held that withholding of integrity is not one of the punishments
prescribed under the Service Rules and consequently, allowed the appeal holding that a
Disciplinary Authority cannot award such punishment.

23. Counsel for the petitioner also cited a Division Bench judgement of this Court in the
case of Ashu Nandan Singh Vs. State of U.P.14. It is a case where a member of U.P. Palika
Centralized Engineering Services was issued punishment of warning after being subjected to
disciplinary proceedings. On the basis thereof, he was denied full pay during the period of
suspension. The employee challenged the same contending that under Fundamental Rule 54-B (3)
he became entitled to full pay and allowances to which he would have been entitled, had he not
806 INDIAN LAW REPORTS ALLAHABAD SERIES
been suspended. The Court held that since no major penalty has been awarded, thus suspension
itself was illegal. It is further held that warning being not a punishment prescribed under the
Service Rules, the order denying full pay during the period of suspension was not valid.

24. The next decision cited is in the case of Vinod Kumar Vs. State of Haryana and
others15. It was a case where a warning entry in the confidential roll of the employee formed the
basis for his compulsory retirement. The Supreme Court held that warning is not a punishment
prescribed under the Service Rules and further that such warning was recorded administratively in
the service record without holding any inquiry and thus, could not form basis to retire the employee
prematurely.

25. In the case of the petitioner, the proceedings which culminated with recording of
warning in the character roll of the petitioner commenced on a report of Deputy Registrar (Judicial)
dated 24.11.2005 complaining that the petitioner was in habit of coming late and leaving office
before time, being absent without prior information, careless towards his official duties,
misbehavior towards his superiors and not amenable to their advice. A preliminary inquiry was got
conducted through Sri A.K. Mukherjee, OSD (Classification) and the petitioner was found prima
facie guilty of repeated acts of misconduct, insubordination, gross indiscipline and carelessness
towards his official duties. He described the petitioner an incorrigible stubborn official. In view of
such report, a full fledged departmental inquiry was initiated by order dated 16.1.2006. A charge
sheet was served on the petitioner and after conducting the disciplinary inquiry, the Inquiry Officer,
having regard to the attendance register, various reports of the Section Officer, statement of Sri
Santosh Kumar, Deputy Registrar (J), Sri Prem Chandra, Section Officer, Sri V.B.