Civil Appeal No 924 of 1970
Appeal by special leave from the Judgment and order dated 19 10 1977 of the Punjab and Haryana High Court in Civil Writ Petition No 321977
Appellant in person
HS Marwah RN Sachthey and A Sachthey for the Respondent
The Judgment of the Court was delivered by FAZAL ALI J
This appeal by special leave is directed against the judgment of the Punjab  Haryana High Court dismissing the Writ Petition filed by the appellant against the order of his termination passed by the Senior Superintendent of Police
The appellant was appointed on 2 7 1973 as a temporary Assistant Sub Inspector of Police
On 26 9 1977 his services were terminated by the Senior Superintendent of Police
Against this order the appellant moved the High Court of Punjab  Haryana but his petition was rejected
Thereafter he came to this Court and after obtaining special leave from his Court the appeal has been placed before us for hearing
The short point taken by the appellant in this appeal is that under Rule 1281 of Punjab Police Rules the petitioner must be considered to be on probation for a period of three years and as the appellant has crossed this period or three years he must be deemed to have been confirmed and therefore his services could not be terminated
In support of this submission reliance is placed by the appellant on a Division Bench Judgment of this Court in case of The Superintendent of Police Ludhiana and Anr
vs Dwarka Das etc
Where Shinghal J speaking for the Court observed as follows So if Rules 1223 and 1221 are read together it will appear that the maximum period of probation in the case of a police officer of the rank of constable is three years for the Superintendent of Police concerned has the power to discharge him within that period
lt follows that the power of discharge cannot be exercised under Rule 1221 after the expiry of the period of three years
 It is true that the observations made by this Court support the contention of the appellant to all extent
But in our opinion the 489 Division Bench decision was not correctly decided as it has not considered the Five Bench decision of this Court in case of State of Punjab vs Dharam Singh where after considering the number of cases the Court observed thus This Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the past after the expiry of the period 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 service rules
Tn such a case 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 or probation it is not possible to hold that he should be deemed to have been confirmed
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 to 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 the instant case the appellant was appointed purely on a temporary basis and not on probation and therefore Rule 128 which deals with officials who are appointed on probation does not apply to this case at all
It is well settled that a person is appointed on probation only if he is appointed against a substantive vacancy
In the instant case it is not disputed that the appellant was appointed only against a temporary vacancy
Assuming however that Rule 128 of the Punjab Police Rules applies to the appellant s case and he is governed by Rule 128 even after the probation of three years is over the police officer shall not be deemed to be confirmed unless there is any rule which provides that in absence of an order of confirmation at the end of the probation the employee must be presumed to be confirmed
There is no such provision in the present rules
In these circumstances therefore as held by this Court in the case of Dharam Singh it must be held that if no express order of confirmation was 490 passed after the appellant completed three years it must be presumed that his probation was extended
In this view of the matter as the appellant was a temporary hand the services could be terminated at any time
It appears that the attention of this Court is Dwarka Das s Case was not drawn to the case of State of Punjab vs Dharam Singh supra which has been decided by a larger Bench and therefore the later decision rendered by this Court in Dwarka Das is directly opposed to the view taken by the larger Bench and must therefore be overruled
For these reasons therefore we are unable to find any legal error in the order passed by the Senior Superintendent of Police in terminating the services of the appellant The appeal is accordingly dismissed
A request has been made by the appellant that he may be allowed to retain the Govt
quarter which has been allotted to him for some time so as to enable him to find alternative accommodation
Mr Marwah Counsel for the State has no objection if a reasonable time is given to the appellant for this purpose
We therefore give three months  time to the appellant to vacate the government quarter allotted to him on his furnishing an undertaking to the Sr
Supdt
of Police


Summary:
The services of the appellant who was appointed as an Assistant Sub Inspector of Police on July 2 1973 were terminated in September 1977
The High Court rejected his petition impugning the order of termination of his services
In appeal to this Court it was contended that on completion of the three year period of probation in accordance with r 1281 of the Punjab Police Rules the appellant should be deemed to have been confirmed in the post and that the order terminating his services was illegal
Dismissing the appeal  HELD
 There is no legal error in the order passed by the Senior Superintendent of Police terminating the appellant s services
490C 1
It is well settled that a person is appointed on probation only when he is appointed against a substantive post
The appellant having been appointed against a temporary vacancy was not on probation
Rule 128 which deals with officials appointed on probation does not apply to this case
489 F G 2
Assuming that r 128 was applicable the officer could not be deemed to be confirmed unless there is any rule providing that in the absence of an order of confirmation at the end of the probation the employee must be presumed to be confirmed
There is no such provision in the present rules and hence the period of probation must be presumed to have been extended
in the State of Punjab vs Dharam Singh  this Court held that when a first appointment is made on probation for a specific period a and the employee is allowed to continue in the post after the expiry of the period 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 the Service Rules
In such a case an express order of confirmation is necessary to give the employee a substantive right to the post
489B C In the instant case since no order of confirmation had been passed after the appellant completed three years it must be presumed that his probation had been extended 488 State of Punjab vs Dharam Singh 1968 3 SCR applied
Supdt
of Police Ludhiana and Anr
vs Dwarka Das etc
 over ruled