# HIGH COURT OF MADHYA PRADESH THRU. REGISTRAR AND ORS v. SATYA NARAYAN JHAVAR

- **Citation:** [2001] Supp. 1 S.C.R. 532
- **Court:** Supreme Court of India
- **Decided:** 2001-08-14
- **Case number:** Civil Appeal No. 5303 of 2001
- **Bench:** G.B. Pattanaik, S.N. Phukan, B.N. Agrawal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/high-court-of-madhya-pradesh-thru-registrar-and-ors-v-satya-narayan-jhavar-18040
- **Pages:** 32

## Headnote

Service law :
c
.,
Madhya Pradesh Judicial Service (Classification, Recruitment and
Conditions of Service) Rules, 1955 : Rule 24.
Judicial Officers-Appointed on probation-Ru/es stipulated 4 years
maximum period of probation-Such Judicial Officers found unsuitable for
confirmation-Hence, their services terminated after expiry of 4 years period
D of probation-Validity of-Held : Order of confirmation is a positive act on
the part of the employer-Mere continuance of the probationer beyond
maximum period of probation is not deemed confirmation-Hence, termination
order valid.
E
The respondents were appointed as Civil Judges (Trainee), Class II,
temporarily on officiating basis under the provisions of Madhya Pradesh
Judicial Service (Classification, Recruitment and Conditions of Service)
Rules, 1955 and they were required to undergo six months training before
being appointed on probation for a period of two years. Under Rule 24 of the
Rules - the initial probation period of two years could be extended for a
F further period of two years, meaning thereby the maximum period of probation
under the Rules was four years. However, the services of the respondents
were terminated after expiry of four years period of probation. But the High
Court set aside the termination order of the respondents. Hence this appeal.
On behalf of the appellants it was contended that under Rule 24 of the
G Rules, after expiry of maximum period of probation, a judicial officer could
not be deemed to have been automatically confirmed and he could be confirmed
only if his service was found to be satisfactory and he had passed the
departmental examinations; and that since the Full Court of the High Court
did not find the respondents fit for confirmation their services were rightly
H terminated.
532
...
HIGH COURT OF M.I'. ,, SA TY A NARAYAN JHAVAR
533
Allowing the appeals, the Court
A
HELD : 1. The 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 B
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. It is not possible to hold that since a maximum period of
probation has been provided under Rule 24 of the Madhya Pradesh Judicial C
Service (Classification, Recruitment and Conditions of Service) Rules, 1955,
at the end of that period the probationer must be deemed to be confirmed.
[560-D, E, F[
Samsher Singh v. State of Punjab, [1974[ 2 SCC 831 and State of
Punjab v. Dharam Singh, [1968[ 3 SCR I, followed.
D
Om Prakash Maurya v. UP. Cooperative Sugar Factories Federation,
(1986[ Supp. SCC 95; MK Agarwal v. Gurgaon Gramin Bank, [1987[ Supp.
SCC 643; State of Gujarat v. Akhi/esh CBhargav, [1987[ 4 SCC 482;
Municipal Corporation v. Ashok Kumar Misra, (1991[ 3 SCC 325; Jai
Kishan v. Commissioner of Police, [19951 Supp. 3 SCC 364; State of Punjab E
v. Baldev Singh Khosla, [19961 9 SCC 190 and Chief General Manager,
State Bank of India v. Bijoy Kumar Mishra, [1997[ 7 SCC 550, relied on.
Shri Kedar Nath Bahl v. State of Punjab, [1974[ 3 SCC 21; Tarsem Lal
Verma v. Union of India, [1997[ 9 SCC 243 and Wasim Beg v. State of UP,,
(199813 sec 321, held inapplicable.
F
Dayaram Dayal v. State of MP,, [1997[ 7 SCC 443, overruled.
2.1. Ordinarily a deemed confirmation of a probationer arises when
the letter of appointment so stipulates or the Rules governing service condition
so indicate. But it cannot be said that merely because a maximum period of G
probation has been provided in the Service Rules, continuance of the
probationer thereafter would ipso facto held to be a deemed confirmation.
[561-D-E

## Text

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A
HIGH COURT OF MADHYA PRADESH THRU.
REGISTRAR AND ORS.
v.
SATYA NARAYAN JHAVAR
B
AUGUST 14, 2001
[G.B. PATTANAIK, S.N. PHUKAN AND B.N. AGRAWAL, JJ.]
Service law :
c
.,
Madhya Pradesh Judicial Service (Classification, Recruitment and
Conditions of Service) Rules, 1955 : Rule 24.
Judicial Officers-Appointed on probation-Ru/es stipulated 4 years
maximum period of probation-Such Judicial Officers found unsuitable for
confirmation-Hence, their services terminated after expiry of 4 years period
D of probation-Validity of-Held : Order of confirmation is a positive act on
the part of the employer-Mere continuance of the probationer beyond
maximum period of probation is not deemed confirmation-Hence, termination
order valid.
E
The respondents were appointed as Civil Judges (Trainee), Class II,
temporarily on officiating basis under the provisions of Madhya Pradesh
Judicial Service (Classification, Recruitment and Conditions of Service)
Rules, 1955 and they were required to undergo six months training before
being appointed on probation for a period of two years. Under Rule 24 of the
Rules - the initial probation period of two years could be extended for a
F further period of two years, meaning thereby the maximum period of probation
under the Rules was four years. However, the services of the respondents
were terminated after expiry of four years period of probation. But the High
Court set aside the termination order of the respondents. Hence this appeal.
On behalf of the appellants it was contended that under Rule 24 of the
G Rules, after expiry of maximum period of probation, a judicial officer could
not be deemed to have been automatically confirmed and he could be confirmed
only if his service was found to be satisfactory and he had passed the
departmental examinations; and that since the Full Court of the High Court
did not find the respondents fit for confirmation their services were rightly
H terminated.
532
...
HIGH COURT OF M.I'. ,, SA TY A NARAYAN JHAVAR
533
Allowing the appeals, the Court
A
HELD : 1. The 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 B
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. It is not possible to hold that since a maximum period of
probation has been provided under Rule 24 of the Madhya Pradesh Judicial C
Service (Classification, Recruitment and Conditions of Service) Rules, 1955,
at the end of that period the probationer must be deemed to be confirmed.
[560-D, E, F[
Samsher Singh v. State of Punjab, [1974[ 2 SCC 831 and State of
Punjab v. Dharam Singh, [1968[ 3 SCR I, followed.
D
Om Prakash Maurya v. UP. Cooperative Sugar Factories Federation,
(1986[ Supp. SCC 95; MK Agarwal v. Gurgaon Gramin Bank, [1987[ Supp.
SCC 643; State of Gujarat v. Akhi/esh CBhargav, [1987[ 4 SCC 482;
Municipal Corporation v. Ashok Kumar Misra, (1991[ 3 SCC 325; Jai
Kishan v. Commissioner of Police, [19951 Supp. 3 SCC 364; State of Punjab E
v. Baldev Singh Khosla, [19961 9 SCC 190 and Chief General Manager,
State Bank of India v. Bijoy Kumar Mishra, [1997[ 7 SCC 550, relied on.
Shri Kedar Nath Bahl v. State of Punjab, [1974[ 3 SCC 21; Tarsem Lal
Verma v. Union of India, [1997[ 9 SCC 243 and Wasim Beg v. State of UP,,
(199813 sec 321, held inapplicable.
F
Dayaram Dayal v. State of MP,, [1997[ 7 SCC 443, overruled.
2.1. Ordinarily a deemed confirmation of a probationer arises when
the letter of appointment so stipulates or the Rules governing service condition
so indicate. But it cannot be said that merely because a maximum period of G
probation has been provided in the Service Rules, continuance of the
probationer thereafter would ipso facto held to be a deemed confirmation.
[561-D-E[
Samsher Singh v. State of Punjab, [ 19741 2 SCC 831; Sukhbans Singh
v. State of Punjab, [196311SCR416; G.S Ramaswamy v. Inspector-General H
534
SUPREME COURT REPORTS [2001] SUPP. I S.C.R.
A of Police, 119641 6 SCR 279 and State of U.P. v. Akbar Ali Khan, J1966J 3
SCR 821, followed.
2.2. Under Rule 24(3) 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
B the prescribed departmental examination. This power of the Governor under
Rule 24(3) would become otiose if the probationer acquries a deemed
confirmation on the expiry of the maximum period of probation prescribed
under Rule 24(3). Rule 24(3) is, therefore, another inbuilt provision in the
Rules, which is a special provision to negative the inference of deemed
C confirmation on the expiry of the maximum period of probation indicated in
Rule 24(1). 1561-F, G, H; 562-AI
Samsher Singh v. State of Punjab, 119741 2 SCC 831; Sukhbans Singh
v. State of Punjab, 11963) I SCR 416; G.S.Ramaswamy v. Inspector-General
of Police, 11964) 6 SCR 279 and State of U.P. v. Akbar Ali Khan, 11966) 3
D SCR 821, followed.
Dayaram Dayal v. State of M.P., 119971 7 SCC 443, overruled.
2.3. Rule 24 does not provide for a deemed confirmation on expiry of
the maximum period of probation, and, on the other hand it contemplates
E positive order of confirmation to be passed by the appropriate authority, ifthe
authority concerned is satisfied about the fitness of the probationer for
confirmation, and ifthe 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
F can be construed to be a confirmation by implication. J562-B, CJ
State of Punjab v. Dharam Singh, 11968) 3 SCR l, followed.
3. Subordinate Judiciary is the foundation on which the super-structure
is built. It would be the solemn duty of every authority on whom the
G administration of justice vests, to see that the said foundation is not shaken
by any process including the process of allowing adjudged unsuitable persons
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
H a status of deemed confirmation ought not to be granted, particularly when
HIGH COURT OF M P v. SATY A NARAYAN JHA VAR [AGRAWAL, L]
535
the Full Court of High Court has adjudged the Judicial Officers unsuitable. A
[562-F,G]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5303 of
2001.
From the Judgment and Order dated 1.3.2000 of the Madhya Pradesh B
High Court in LPA No. 215of1998.
WITH
C.A. No. 5304-5309 of2001.
P.P. Rao, Satish K. Agnihotri, Rohit K. Singh and A.K. Pandey for the C
Appellants.
R.K. Jain, A.K. Chitale and Kailash Vasdev, Sushi! Kumar Jain, A.P.
Dhamija, Niraj Sharma, K. Sarada Devi and Prakash Shrivastava for the
Respondent.
The Judgment of the Court was delivered by
B.N. AGRA WAL, J. Leave granted.
D
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) E
No. 11675 of2000, 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.
F
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 G
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. H
536
SUPREME COURT REPORTS [2001] SUPP. I S.C.R.
A 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 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
B 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 inspite
of giving repeated opportunities to improve themselves, they could not
C 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
D 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'
E 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
F 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 wa~ resolved to terminate his services which were terminated
in the year 1992.
G
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
H to terminate her services which were terminated on 23.12.1993.
,
..
HIGH COURT OF M.P. v. SA TY A NARA YAN JHAVAR [AGRAWAL. J.]
537
Challenging the orders of termination, different writ applications were A
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 B
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.
c
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 D
that heirs of Samarudas would be entitled to only 50% of the back wages
whereas other six appeals have been allowed, the orders 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.
E
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 Bencltdecision of this Court in Dayaram Dayal v. State of MP. & 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 F
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 G
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 appellantHigh Court, in support of the appeal, submitted that in Dayaram Dayal's case
(supra) this Court failed to appreciate the correct ratio laid down by the
~onstitution Bench in the case of State of Punjab v. Dharam Singh, [ 1968] H
538
SUPREME COURT REPORTS [2001] SUPP. I S.C.R.
A 3 SCR I, and seven Judge Bench decision of this Court in the case of Samsher
Singh V. State of Punjab & Anr., [ 1974] 2 sec 831, which have been followed
in other cases. Acc@rding 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
B 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
C 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
D
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
E Dayal's 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
F of the Rules which runs thus:-
G
H
"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 office routine and procedure.
HIGH COURT OF M.P. v. SA TY A NARAYAN JHAVAR [AGRAWAL, J.]
539
(3) If during the period of probation he has not passed the A
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 B
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 i~ C
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 D
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 E
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
canriot 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 v. State of Punjab, [1963] I SCR 416. In that case the
Constitution Bench was considering the question of confj_i:mation under rule
22 of the Punjab Civil Service (Ex&utive Branch) Rules, 1930 which provides
F
that a candidate on first appointment to the service shall remain on probation G
for a period of I 8 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 H
540
SUPREME COURT REPORTS [2001] SUPP. I S.C.R.
A 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
B 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
C 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
D being absorbed in a permanent post, is in no better position.
In G.S. Ramaswamy & Ors. v. 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
E 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
F 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
G 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
H conduct were satisfactory during the probation period. In that case, it was
HIGHCOURTOF M.P. v. SA TY A NARAYAN JHAVAR [AGRAWAL, J.]
541
contended by placing reliance upon the following sentence in rule 486, namely, A
opromoted 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 B
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.
C
Again Constitution Bench in the case of State of Uttar Pradesh v.
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:-
D
"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 E
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 ifhe 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 F
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:-
G
"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 Governor. There is no rule that
on the expity of the period of probation the probationer shall be
deemed to have been confirmed in the post which he is holding as H
A
B
c
542
SUPREME COURT REPORTS [2001) SUPP. I S.C.R.
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
D 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
E 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
F 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 v. The State of Punjab & Ors.,
G [1974] 3 sec 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
H was reverted to his original post. When a writ application was filed before the
HIGH COURT OF M.P. v. SA TY A NARAYAN JHAVAR [AGRAWAL, J.]
543
High Court challenging the order of reversion, the same was dismissed and A
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, B
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 C
expiration of the probationary period does not necessarily lead to
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 D
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 November4, 1958, was that
he continued to be a probationer and has no right to the post. It, E
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 v. Union of India & Ors., [1997] 9 SCC
243, a person was occupying the post of Photographic Officer under Ministry F
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 G
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 H
544
SUPREME COURT REPORTS (2001] SUPP. I S.C.R.
A 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
B is a Constitution Bench decision of this Court in the case of State of Punjab
v. Dharam Singh, (1968] 3 SCR l, 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, 196 I which
C runs thus:-
D
E
F
"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
G
permanent vacancy against which such member can be confirmed."
The respondent in that case was appointed on I st 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
H to hold the post after October I, 1960 and no formal order confirming him in
HIGH COURT OF M.P. v. SA TY A NARAYAN JHAVAR [AGRAWAL. J.]
545
his post was passed. On February 10, 1963 service of the respondent was A
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 B
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 tennination
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 C
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 D
the initial period of probation of the respondent in that case expired on l st
October, l 958, 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 E
probation period could not extend beyond October l, 1960. The Court observed
that in view of the pr_oviso to rule 6(3) it was not possible to presume that
the competent authority extended the probation period after October l, 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:-
F
" ...... 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 G
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
compleiion of the maximum period of probation has been confirmed H
546
SUPREME COURT REPORTS [2001] SUPP. I S.C.R.
A
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
B
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 salc:ry including
C
the increment which fell due on October 1, 1962. The rules did not
require them to pass any test or to fi1/jil 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
D
E
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 I, 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
F 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.
G
In the case of Wasim Beg v. State of U. P. & Ors., [ 1998] 3 SCC 321, a
person was selected for appointme~t 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:-
H
"Any employee regularly appointed for the first time or promoted to
HIGH COURT OF M.P. v. SA TY A NARAYAN JHAVAR [AGRAWAL, J.]
547
any post in the corporation shall be placed on probation for a period A
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 B
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 C
employee in that grade after he has successfuffy 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 D
competent authority for purposes of this rule will be the next higher
level than the appointing authority for that category of post.