ivil Appeal No 1273 of 1979
From the Judgment and Order dated 10111978 of the Gujarat High Court in LPA No 206 of 1978
TU Mehta GA Shah Mrs H Wahi MN Shroff and KMM Khan for the Appellant
SN Kacker Anil Kumar Gupta Brij Bhushan Sharma and NP Mahindra for Respondent No 1
1093 VC Mahajan C Ramesh and Miss A Subhashini for Respondent No2
The following Order of the Court was delivered This appeal by Special leave is against the appellate order of the Division Bench of the Gujarat High Court
Respondent No 1 was appointed to the Indian Police Service on 47 1969 and has been discharged by the impugned order dated 941974
After he was appointed by the Union of India he was allotted to the State cadre of Gujarat and the order of discharge has been made on the basis of steps taken by the State of Gujarat
The order of discharge was assailed by filing a writ petition under Article 226 of the Constitu tion
The Single Judge annulled the order
To the Writ petition both the Union of India and the State of Gujarat were party respondents
Against the Single Judge s decision two appeals were preferred to the Division Bench
The Divi sion Bench for reasons mostly different from what had been recorded by the learned Single Judge came to the same conclusion
Before this Court there is only one appeal by the State of Gujarat and the Union of India has been joined as a respondent
Initially a preliminary objection had been raised regarding the maintainability of the appeal in the absence of any appeal by the Union of India but Mr Kacker appearing for respondent No 1 has given up the same
It is therefore not necessary to go into that question
The order of discharge read as follows Under clause bb of Rule 12 of the Indian Police Service Probation Rules 1954 the President hereby discharges Shri AC Bhargav a person appointed to the Indian Police Serv ice on probation on the results of the IAS etc
Examination held in 1968 and allocated to the service cadre of Gujarat from the said service with effect from the date on which this order is served on the said Shri AC Bhargav
 Reference to Rule 12bb it was contended on behalf of the respondent brought into the otherwise innocuous order stigma in sufficient measure warranting a proceeding of the nature contemplated under Article 3112 of the Constitu tion
It is unnecessary for us to go into that question as in our opinion the view expressed by the High Court is 1094 quite sound
We may refer to the Constitution Bench decision of this Court reported in the case of State of Orissa and Anr
vs Ram Narayan Das  wherein this Court considered the order of discharge of a police officer on probation and held that in the case of a probationer obser vation like unsatisfactory work and conduct  would not amount to stigma
The other aspect which has been convassed before us at length is as to whether the respondent should have been treated as a confirmed officer of the cadre at the time the order of discharge was made
Admittedly the order of dis charge is about five years after the appointment
Rule 31 of the Indian Police Service Probation Rules 1954 provides that every person recruited to the service in accordance with Indian Police Service Appoint ment by Competitive Examination Regulations 1955  shall be appointed to the service on probation for a period of two years
At the relevant time sub rule 3 of the said Rules provided that the Central Government may if it so thinks fit in any case or class of cases extend the period of probation
Admittedly in this case there was no order of extention
It has been contended that no order of extension is necessary to be made as the process of confirmation is not automatic and even if the two year period as provided in Rule 31 has expired confirmation would not ipso facto follow and a special order has to be made
Reliance has been placed on a series of decisions of this Court which have held that an order of confirmation has to be made and confirmation would not follow automatically
The position here however is somewhat different
While the Probation Rules prescribed an initial period of two years of probation it did not provide any optimum period of probation
Administrative instructions were issued by the Ministry of Home Affairs Government of India on 16th March 1973 indicating the guidelines to be followed in the matter
The relevant portion thereof may be extract ed   ii It is not desirable that a member of the service should be kept on probation for years as happens occasionally at present
Save for exceptional reasons the period of proba 1095 tion should not therefore be extended by more than one year and no member of the serv ice should by convertion be kept on proba tion for more than double the normal period ie four years
Accordingly a probationer who does not complete the probationers  final examination within a period of four years should ordinarily be discharged from the service
 It is not disputed that the circular of the Home Minis try was with reference to the Indian Police Service Proba tion Rules
We have not been shown that these instructions run counter to the rules
It is well settled that within the limits of executive powers under the Constitutional scheme it is open to the appropriate Government to issue instruc tions to cover the gap where there be any vacuum or lacuna
Since instructions do not run counter to the rules in exist ence the validity of the instructions cannot be disputed
Reliance has been placed in the courts below on the consti tution Bench Judgment of this Court and which reported in  2968 1 SCR 111 Sant Ram Sharma vs State of Rajasthan and anr where Ramaswami J speaking for the Court stated thus   
We are unable to accept this argu ment as correct
It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts
But that does not mean that till statu tory rules are framed in this behalf the Government cannot issue administrative in structions regarding the principles to be followed in promotions of the officers con cerned to selection grade posts
It is true that Government cannot amend or supersede statutory rules by administrative instruc tions but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue in structions not inconsistent with the rules already framed
We are of the view that the rules read with instructions create a situation as arose for consideration by this Court in the case of State of Punjab vs Dharam Singh 1968 3 SCR 1
The Constitution Bench of this Court in that case inter preted the Punjab Educational Service Provincialised Cadre Class III Rules and found that there was a maximum limit of three years beyond which the period of probation could not be extended
When an officer appointed initially on proba tion was found to be continuing in service beyond three years without a written order of confirmation this Court held that it tantamounts to confirmation
In view of what we have stated above we are in argee 1096 ment with the High Court about the combined effect of the rules and instructions
We hold that the respondent stood confirmed in the cadre on the relevant date when he was discharged
For a confirmed officer in the cadre the Proba tion Rules did not apply and therefore proceedings in accordance with law were necessary to terminate service
That exactly was the ratio of the decision in Moti Ram Deka etc
vs General Manager NEF Railways Maligaon Pandu etc
  On the analysis indicated above the net result therefore is that the respondent No 1 had become a confirmed officer of the Gujarat IPS cadre and under rule 12bb of the Probation Rules his services could not be brought to an end by the impugned order of discharge
The appeal fails and is dismissed
There will be no order as to costs
NPV Appeal dis missed


Summary:
The first respondent was appointed to the Indian Police Service on 471969 and allotted to the Gujarat State Cadre
He was on probation and there was no order of extention of probation
He was discharged by the impugned order dated 9474
The order of discharge was assailed by the first re spondent
A Single Judge of the High Court annulled the order
Two appeals were preferred by the Union of India and the State to the Division Bench which came to the same conclusion though for different reasons
The State filed an appeal before this Court which was resisted by the respondent contending that reference to Rule 12bb of the Indian Police Service Probation Rules 1954 brought into the otherwise innocuous order stigma in sufficient measure warranting a proceeding of the nature contemplated under Article 3112 of the Constitution of India and that the respondent should have been treated as a confirmed officer of the cadre at the time the order of discharge was made
On behalf of the State it was contended that no order of extension of probation was necessary to be made as the process of confirmation was not automatic and even if the two year period as provided in Rule 31 of the Probation Rules had expired confirmation would not ipso facto follow and a special order had to be made
Dismissing the appeal this Court 1092 HELD 1
The first respondent having become a confirmed officer of the Gujarat IPS cadre under Rule 12bb of the Indian Police Service Rules 1954 his services could not be brought to an end by an order of discharge since the said Rules had no application for officer confirmed in the cadre
Proceedings in accordance with law were therefore neces sary to terminate his service
1096A C 21 While the Probation Rules prescribed an initial period of two years of probation they did not provide any optimum period of probation
Administrative instructions issued by the Government of India on 16th March 1973 indi cating the guidelines to be followed in the matter laid down that save for exceptional reasons the period of probation should not be extended by more than one year and no member of the service should by convention be kept on probation for more than double the normal period ie 4 years
1094F G 1095A B 22 Within the limits of executive powers under the Constitutional scheme it is open to the apropriate Govern ment to issue instructions to cover the gap where there be any vacuum or lacuna
Since instructions do not run counter to the rules in existence the validity of the instructions cannot be disputed
1095C In the instant case there was no order of extension and the order of discharge is about five years after the ap pointment
The respondent therefore stood confirmed in the cadre on the relevant date when he was discharged
1096A Sant Ram Sharma vs State of Rajasthan and Anr   State of Punjab vs Dharam Singh  and Moti Ram Deka etc
vs General Manager NEF Railways Maligaon Pandu etc
   referred to