# STATE OF PUNJAB v. DHARAM SINGH

- **Citation:** [1968] 3 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1965-01-07
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-punjab-v-dharam-singh-4277
- **Pages:** 7

## Headnote

A
STATE OF PUNJAB
v.
DHARAM SINGH
February, 2, 1968
B
(K. N. WANCHOO, C.J., R. S. BACHAWAT, J. M. SHELAT,
c
D
E
F
G
H
G. K: MITTER AND C. A. VAIDIALINGAM, 11.)
Punjab Educational S•rv/ce (Provinciali.red Cadre)
Class Ill, Rules,
1961, r. 6(3)-Prohationer a.flainst permanent post allowed to continue
after period of probation-Effect-When amounts to confirmation.
The resPondents, who were teachers in District Board Schools were
taken over by the State of Punjab with effect from !st October 1957 when
the Local Dodies Schools in the State were provincialised. The Punjab
Educational Service (Provincialised Cadre) Class l!l Rules were framed
in 1961 but wore deemed to ha\'e come into force on !st October 1957.
Under r. 6(1) of the Rules the respondents, who were officiating in per-
"""'"11t posts against permanent vacancies were deemed to have held their
posts on probation, in the first instance, for one year from ls.t October
1957. On the completion of this initial period of probation on
!st
October 1958, tour courses of action were open ro the appointing authority under r. 6(3), namely, (a) to extend the period of probation, provided the total period of probation, incl ud!ng extensions, would not exceed
three years, or (b) to reven the employee t<f his former post if he was
promoted from some lower pest. or (c) to. dispense with his services if
bis work or conduct during the period of probation was unsatisfactory,
or .(d) to conflnn him in his appointment. As the respondents were not
promoted from lower posts there was no question of their reversion. No
other order was however passed. but the authority continued them in their
posts for three years, that is, ur.to lsit October 1960 and even thereafter;
allowed them to draw nnnual increments of sa!ary including the increment
which fell due on 1st October 1962; and some time in 1963, termina~
their services. The orders of termination were passed without holding any
departmental enquiry and without giving the respondents any oppo~nity
to make any tcpresentation.
The writ petitions filed by the respondel>!s challenging the orders were
allowed by the High Court.
The High Coun held that the respondents
were not temporary employees that on the expiry of three years' period
of probation they must be deemed to have been confirmed in their posts,
that the impugned ordel'S having deprived them of their right to those
posts, amounted to removal from service by way of punishment and were
~
in violation of Art. 311 and the Punjab CiVI1 Services (Punishment
and Appeal) Rules, 1952.
In appeal to this Court,
HELD : The impugned orders were rightly set aside by the High
Court. [7 El
Where on the completion of the specified period of probation an employeo is allowed to continue in the post without an order of confirmation,
in the absence of anything to the contrary in the original order of appointment or promotion or the Service Rules, the initial period of probation is
deaned to be extended by necessary ii:tplica!ion. J!ut, where, as _in the
present case, the Service Rules fix a certain penOd of time beyond which the
2
SUPREME COURT REPORTS
(1968] 3 S.C.R.
probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed. to CC!Dtinue in that post after the
completion of the maximum periOd of probat!on ~~out an express order
of confirmation, he cannot be deemed to contm.ue. tn that -post as a prohationer. The reason is that such an implication is negatived by the service
rule forbidding extension of the probationary period .beyond the ~aximum
period fixed by it. In sueb a case, it is permissible to draw the mfeNncc
that the cn1ployee allowed to continue in the p<_lSt on comple.tion.of,thl!
maximum period of probation has been confirmed in the post by 1mphcation.
[5 C, G; 6 A-BJ
Case law rcferr~d to.
Narain Singh Ahluwc.lia v. Sltlte of P1mj<1b, C.A. No. 492 of 1963
dated 29th January 1964; explained and followed.
C!VIL APPELLATE JURISDICTION : Civil Appea

## Text

A
STATE OF PUNJAB
v.
DHARAM SINGH
February, 2, 1968
B
(K. N. WANCHOO, C.J., R. S. BACHAWAT, J. M. SHELAT,
c
D
E
F
G
H
G. K: MITTER AND C. A. VAIDIALINGAM, 11.)
Punjab Educational S•rv/ce (Provinciali.red Cadre)
Class Ill, Rules,
1961, r. 6(3)-Prohationer a.flainst permanent post allowed to continue
after period of probation-Effect-When amounts to confirmation.
The resPondents, who were teachers in District Board Schools were
taken over by the State of Punjab with effect from !st October 1957 when
the Local Dodies Schools in the State were provincialised. The Punjab
Educational Service (Provincialised Cadre) Class l!l Rules were framed
in 1961 but wore deemed to ha\'e come into force on !st October 1957.
Under r. 6(1) of the Rules the respondents, who were officiating in per-
"""'"11t posts against permanent vacancies were deemed to have held their
posts on probation, in the first instance, for one year from ls.t October
1957. On the completion of this initial period of probation on
!st
October 1958, tour courses of action were open ro the appointing authority under r. 6(3), namely, (a) to extend the period of probation, provided the total period of probation, incl ud!ng extensions, would not exceed
three years, or (b) to reven the employee t<f his former post if he was
promoted from some lower pest. or (c) to. dispense with his services if
bis work or conduct during the period of probation was unsatisfactory,
or .(d) to conflnn him in his appointment. As the respondents were not
promoted from lower posts there was no question of their reversion. No
other order was however passed. but the authority continued them in their
posts for three years, that is, ur.to lsit October 1960 and even thereafter;
allowed them to draw nnnual increments of sa!ary including the increment
which fell due on 1st October 1962; and some time in 1963, termina~
their services. The orders of termination were passed without holding any
departmental enquiry and without giving the respondents any oppo~nity
to make any tcpresentation.
The writ petitions filed by the respondel>!s challenging the orders were
allowed by the High Court.
The High Coun held that the respondents
were not temporary employees that on the expiry of three years' period
of probation they must be deemed to have been confirmed in their posts,
that the impugned ordel'S having deprived them of their right to those
posts, amounted to removal from service by way of punishment and were
~
in violation of Art. 311 and the Punjab CiVI1 Services (Punishment
and Appeal) Rules, 1952.
In appeal to this Court,
HELD : The impugned orders were rightly set aside by the High
Court. [7 El
Where on the completion of the specified period of probation an employeo is allowed to continue in the post without an order of confirmation,
in the absence of anything to the contrary in the original order of appointment or promotion or the Service Rules, the initial period of probation is
deaned to be extended by necessary ii:tplica!ion. J!ut, where, as _in the
present case, the Service Rules fix a certain penOd of time beyond which the
2
SUPREME COURT REPORTS
(1968] 3 S.C.R.
probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed. to CC!Dtinue in that post after the
completion of the maximum periOd of probat!on ~~out an express order
of confirmation, he cannot be deemed to contm.ue. tn that -post as a prohationer. The reason is that such an implication is negatived by the service
rule forbidding extension of the probationary period .beyond the ~aximum
period fixed by it. In sueb a case, it is permissible to draw the mfeNncc
that the cn1ployee allowed to continue in the p<_lSt on comple.tion.of,thl!
maximum period of probation has been confirmed in the post by 1mphcation.
[5 C, G; 6 A-BJ
Case law rcferr~d to.
Narain Singh Ahluwc.lia v. Sltlte of P1mj<1b, C.A. No. 492 of 1963
dated 29th January 1964; explained and followed.
C!VIL APPELLATE JURISDICTION : Civil Appeal No. 787 of
1966.
Appeal by special leave from the judgment and order dated
November 26, 1964 of the Punjab High Court in Letters Patent
Appeal No. 354 of 1963 and Civil Appeal No. 1017 of 1966.
B
c
Appeal by special leave from the judgment and order dut~d
D
January 7, 1965 oi ilie Punjab High Court in Letters Patent
Appeal No. 162 of 1964.
Vikram Mahajan and S. P. Nayar, for the appellant (in C.A.
No. 787 of 1966).
•
R. N. Sachthey, for the appellant (in C.A.
No.
1017 of
E
1966).
Mohan Behari Lal, for the respondent (in both the appea19
The Judgment. of the Court was delivered by
Bachawat, J. These two connected appeals raise a common
question of construction of r. 6 of the Punjab Educational
Service (Provincialised Cadre) Class III Rules, 1961. .Before
October 1, 1957, Dharam Singh and Dev Raj, the respondents to
these appeals, were junior teachers in District Board schools. The
District Board schools were provincialised, and the services of
the respondents were taken over by the Punjab State with effect
from October 1, 1957 in pursuance of a scheme of provincialisation of Local Bodies schools in the State. On February 13, 1961,
the Governor of Punjab in exercise of the powers conferred
by the proviso to Art. 309 of the Constitution framed the Punjab
Educational Service (Provincialised Cadre) Class HI Rules, 1961
regulatiug the conditions of service of the teaching staff taken over
by the State Government from the local authorities. Rule 1 provides that the rules will be deemed 10 have come into force with
effect frnm October 1, 1957. Rule 3 created the Punjab EducaF
G
H
A
B
c
D
E
F
G
H
PUNJAB v. DHARAM SINGH (Bacltawat, I.)
3
tional (Provincialised Cadre) Class III Service consisting of .the
posts shown in Ap;;endix .A. ; It i< co1;llmon cas~ that the posts
held by the respondents are mcluded m AppcndL--:: A
~n::!
c~rry
time scales of pay. Rule 6 is in these terms:
"6(1). Members of the Service, officiating or to be
promoted against permanent posts, 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 confirn1 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 per!od of prob.:.!tion hy suc;h period !!~
he may deem fit or revert him to his fonner post if he
was promoted from some lower post.
Provided that the total period of probation including extensions, if any, shall not exceed three years.
( 4) Service spent on deputation to a corresponding
or higher post may be allowed to count towards the
period of probation, if there is a permanent vacancy
against which such member can be confirmed."
The respondents were officiating· in permanent posts and under
r. 6(3) they continued to hold those posts on probation in the first
instance for one year. The maximwn period of probation fixed
by the rules was three years which expired on October 1, 1960.
The respondents continued to hold their posts after October 1,
1960, but formal orders confirming them in their posts were not
passed. Under r. 7, the Director of Public 1nstruction, Punjab
was the appointing authority. By two separate orders passed
on February 10, 1963 and April 4, 1963, the Director terminated
their services. The order in each case stated that the services of
the respondent concerned "are hereby terminated in accordance
with the terms of his employment. The order shall take effect
after one month from the date it is served on him." Rule 12
provides that in matters relating to discipline, punishment and
appeals, members of the service shall be governed by the Punjab
Civil Services (Punishment and Appeal) Rules, 1952. The orders
dated February 10 and April 4, 1963 were passed without holding any departmental enquiry and without giving the respondents
any opportunity •of making representations against the action
SUPREME COURT REPORTS
(1968] 3 S.C.R.
taken against them. The respondents filed separate writ petitions
in the Punjab High Court challenging the aforesaid orders on the
ground that they had acquired sulistantive rights to their posts,
and that the orders amounted to removal from service, and were
passed in violation of Art. 3 ll of the Constitution. The appeliants pleaded that the respondents were temporary employees, that
their services were terminated in accordance with the terms of
their employment, and that the impugned orders did not aJ!IOUnt to
removal from service and were not in violation of Art. 311.
Learned single Judges of the High.Court rejected the respondents'
contentions. and dismissed the writ petitions.
The respondents
filed separate Letters Patent appeals against these judgments. The
appellate Court allowed the appeals and set aside the impugned
orders. The appellate Court held that the respondents were not
temporary employees, that they held the posts on probation, that
on the expiry of three years' period of probation they must be
deemed to have been confirmed in their posts, that the impugned
orders having deprived them of their right to those posts amounted
A
B
c
.to removal from service by way of punishment and were passed in
;-iolation of. Art. 311 and the Punjab Civil Services (Punishment
D
and Appeal) Rules, 1952. · It is against these appellate orders
that the present appeals have been filed after obtaining special
leave.
The High Court found that the respondents were officiating
in permanent posts against permanent vacancies as contemplated
by r. 6 ( 1), and that on the coming into force of the rules, they
must be deemed to have held their posts under r. 6 ( 1) on probation in the first instance for one year from October 1, 1957. The
correctness of these fiodings is not disputed by the appellants.
The High Court also held that in the circumstances of these cases,
on the completion of three years' period of probation on October
l, 1960, the respondents must be deemed to have been confirmed
in their appointments. The appellants attack this finding. They
submit that in the absence of formal orders of confirmation tlJl
respondents must be deemed to have continued in their posts as
probatipners. In the alternative, they submit that on completion
of three years' period of probation, the respondents must be
deemed to have been discharged from service and re-employed as
temporary employees. We are unable to accept these contentions.
This Court has consistently held that when a first appointment
or promotion is made on probation for a specific period and the
em,eloyee is allowed to con!inue in the post after the expiry of the
penod without any specific order of confirmation, he should be
deemed to continue in his post as a probationer only, in the
absence of any indication to the contrary in the original order of
appointment or promotion or the servlce rules. In such a case,
E
F
G
H
A
B
c
D
E
G
H
PUN.TAB v. DHARAM SINGH (Bachawat, I.)
5
an express order of confirmation is necessary to give the employee
a substantive right to the post, and from the mere fact that he
is allowed to continue in the post after the expiry of the specified
period of probation it is not possible to hold that he should be
deemed to have been confirmed. . Th.is view was taken in Sukhbans Singh v. The State of Punjab('), G. S. Ramaswamy v.
The Inspector-General of Police, Mysore State,
Bangalore('),
The Accountant General, Madhya Pradesh, Gwalior v. Beni
Prasad Bhatnagar('), D. A. Lyall v. The Chief Conservator of
Forests, U.P. and others(') and State of U.P. v. Akbar Ali(').
The reason for this conclusion is that where on the completion
of the specified period of probation the employee is allowed to
continue in the post without an order of confirmation, the only
possible view to take in the absence of anything fo the contrary
in ·the original order of appointment or promotion or the service
rules, is that the initial period of probation has been extended by
necessary implication. In all these cases, the conditions of service
of the employee permitted extension of the probationary period
for an {ndefinite time and there was no service rule forbidding its
extension beyond a certain maximum period.
The same view was taken in Narain Singh Ahluwalia v. State
of Punjab and another(').
It was· suggested before us that the
service rules in that case provided for a maximum period of pro:
bation of two years beyond which the probationary period could
not be extended. The judgment in that case does not refer to
such a rule, nor does it appear from the judgment that before the
appellant was reverted to his substantive post, the maximum period
of probation in the post to which he had been promoted had expired. A reference to the paper book in that case shows that in
November, 1957 the appellant was promoted as a superintendent
and on June 26, 1959 before the expiry of the maximum period
of probation he was reverted to his substantive post.
He thus
continued to hold the post of superintendent as a probationer
when the. order of reversion was passed.
In the present case, r. 6(3) forbids extension of the period of
probation beyond three years. Where, as in the present case, the
service rules fix a certain period of time beyond which the probationary period cannot be ex'.ended, and an employee appointed or promoted to a post on probation is allowed to continue in
that post after ,completion of the m~ximum period of probation
without an express order of confirmatmn, he cannot be deemed to
(1) [1963) (I) S.C.R. 416, 424-426
(2) [1964] 6 S.C.R. 278, 288-289
(3) C.A. No. 548 of 1962 decided on Janua,.y 23, 1964.
(4) C.A. No. 259 or 1963 decided OD l'ebruary 24, 1965.
(5} (1966] 3 S.C.R. 821, 825-826.
!6) C.A. No. 492 of 1963 decided on Janua,.y 29, 1964.
SUPREME COURT REPORTS
[1968] 3 S.C.R.
continue in thal post as a probationer by implication. The reason
is that such an implication is negativ~ by the service rule forbidding extension of the probationary period beyond the maximum
~od fix.ed by it. In such a case,___it is permissible to dra~ the
inference that the employee allowed fo continue in the post on
completion of the maximum period of probation has been c, 1firmed in the post by implication.
The employees referred to in r. 6( 1) held tb.eir posts in the first
instance on probation for one year commencing from October 1.
1957. On completion of the one year period of probation of the
employee, four courses of action were open to the appointing
authority under r. 6(3). Tb.e authority could either (a) extend
the period of probation prf?vided the total period of probation
including extensions would not exceed three years, or (b) revert
the employee to .his former post if he was promotec;I from some
lower post, or ( c) dispense with his services if his work or conduct during the period of probation was unsatisfactory, or (d)
confirm him in his appointment. It could pass one of these
orders in respect of the respondents on completion of their one
year period of probation. But the authority allowed them to
continue in their posts thereafter without passing any order in
writing under r .. 6(3). In the absence of any formal order, the
question is whether by necessary implication from the ·proved
facts of these cases, the authority should be presumed to have
passed some order under r. 6 (3) in respect of the respondent,,
aad if so, what order ~hould be presumed to have been passed.
The respondents were not promoted from lower posts and
there was no question of their reversion to such posts at any
time under r. 6(3).
The initial period of probation of the respondents ended on
October !, 1958. By allowing the respondents to continue in
their posts thereafter without any express order of confirmation.
the competent authority must be taken to have extended the
period of probation up to October l, 1960 by implication. But
under the proviso to r. 6(3), the probationary period could not
extend beyond October 1, 1960. In view
of the
proviso
tor. 6'(3), it is not possible to presume that the competent authority extended the probationary period after October 1, 1960. or
that thereafter the respondents continued to hold their posts as
probationers.
I
Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct
during the period of probation was in· the opinion of the authority
unsatisfactory. Instead of dispensing with their services on comA
B
c
D
E
F
G
H
PUN.JAB v. DHARAM SINGH (Bachawat. J.)
A pletion of the extended period of probation, the authority continued them in their posts until sometime in 1963, and allowed
them to draw annual increments of salary including the increment
which fell due on October 1, 1962. The rules did not require
them to pass all)'. test or to fulfil any other condition before con•
firmation.
There was I!_O compelling .reason for dispensing with
6
their services and re-employing them as temporary employees on
October 1, 1960, and the High Court rightly refused to draw the
inference that they wer_e so disc~arged fr?m service . and reemployed. In these circumstances, tJ.ie 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
c
orders of confirmation in writing, it. should be presumed to have
passed orders of confirmation by so allowing them to continue .
in their posts after October 1, 1960. After such confirmation, the
authority had no power to dispense with their services under
r. 6(3) on the ground that their work or conduct during the
period of probation was unsatisfactory. It follows ,that on the
dates of the impugned orders, the respondents had the right to
D
hold their posts. The impugned orders deprived them of this right
and amounted to removal from service by way of punishment. The
removal from service could not be made without following the
procedure laid down in the Punjab Civil Services (Punishment
and Appeal) Rules, 1952 and without conforming .to the constitutional requirements of Art. 311 of the Constitutiol). As the
E
procedure laid down Jn the Punjab Civil Services (Punishment
and Appeal) Rules, 1952 was not followed and as the constitutional protection of Art. 311 was violated, the impugned orders
were rightly set aside by the High Court.
F
In the result, the appeals are dismissed with costs. There will
be one hearing fee.
V.P.S.
Appeals dismissed.