JUDGMENT [ENTITY], J.
1. This Revision Application by the original plaintiff arises from an application for interim injunction restraining the opponents-defendants from acting upon or executing their order dt. 5-11-1980 and memorandum dt. 29-11-80 extending his period of probation and holding departmental inquiry. The learned trial Judge granted ex parts interim order as prayed. However, after biparte hearing, the interim injunction was confirmed as regards the order dt. 5-11-1980 regarding extension of the period of probation and it was vacated with regard to the memorandum dt. 29-11-80 regarding holding of the departmental inquiry and it was clarified that the defendants were at liberty to prosecute the departmental inquiry against the plaintiff in pursuance of the memorandum dt. 29-11-80.
2. Being aggrieved thereby the defendants preferred an appeal to the District Court and the learned District Judge has allowed the appeal and vacated the interim order. The petitioner-original plaintiff has filed the present Revision Application against the order of the District Court vacating the injunction granted by the trial Court. The main contention of the petitioner-plaintiff in the suit is that he was appointed as an Administrative Officer on probation for a period of two years on 15th March 1977 and under the Rules the maximum period for which the probation could be extended, was another period of two years and therefore, it could not have been extended beyond 15th March 1981. However, by the impugned order dt. 5-11-80 it was extended by the department till 30th September 1981. It was also urged that the extension of the probation was arbitrary and irrational and without any reasons.
3. At the appellate stage, the defendants had produced the reasons for extension and that have been accepted by the learned Appellate Judge. At that stage, the petitioner-plaintiff had requested that he may be permitted to challenge the reasons on the ground of mala fide. However, the request was turned down on the ground that there were no averments in the original plaint and the application. The plaintiff-petitioner wanted to contend that the extension was mala fide because he had reported to the Council certain irregularities committed by the Director at Nagpur and the matter was also referred to the Central Vigilance Commission and according to the petitioner he was held to be right and the Director's attempt to blame the petitioner had utterly failed and the Central Vigilance Commission had found the Director to be blamed. In addition, be bad also referred to the report of the [ENTITY] Director under whom he was transferred in September 1979. On 2nd August 1980 the petitioner's probation was extended upto 30th September 1980. Soon after the completion of this probation period, the [ENTITY] Director under whom the petitioner was working had made a report to the Council dated 3-10-80 stating that the petitioner's performance was outstanding and he had recommended confirmation of the petitioner. Despite that on 5-11-80 the probation was extended by the impugned order till 30th September 1981 by the appointing authority. It also appears that by letter dt. 20th November 1980, [ENTITY] Director had inquired about the reasons as to why the petitioner's probation was extended inspite of his outstanding performance. However, the respondents deny receipt of the letter.
4. The petitioner also relied on the circumstance that he was sought to be transferred to Rajasthan by way of punishment and, therefore, he had challenged the order of transfer by way of [CASE NUMBER] and had obtained interim injunction against the said order. The respondent-Council carried the matter in appeal to the District Court and in Revision to the High Court and Special Leave Petition to the Supreme Court and failed in all these proceedings. The petitioner claims that despite of his outstanding performance and its assessment by his superiors who have seen his work and conduct and who have recommended satisfactory completion of the probation, the authorities have arbitrarily extended the period of probation.
5. In the District Court the question of mala fide was not permitted to be raised as it appears from para 41 of the judgment of the lower appellate court. I am not deciding this question at this stage because this Revision can be decided on a question of law, namely, whether the period of probation can be extended beyond four years.
6. The relevant rule is [SECTION] of "Service Rules for the combined cadre of Administrative Officers in Indian Council of Agricultural Research, 1975" which are reproduced as Annexure 23 at page 388 in the 'Manual of Administrative Instructions' published by the Council. [SECTION] is the relevant rule and it deserves its reproduction in full. It is as under:
8. Probation; (i) A person appointed to a post in the cadre, either by direct recruitment or by promotion, shall be on probation for a period of 2 years provided that the Controlling Authority may; for counting the said period of two years, at its discretion, take into account period or periods of appointment in similar posts held by him in the Council. For persons selected through direct recruitment channel, the period of probation will run concurrently with the period of training, if any.
(ii) During the period of probation an employee may be required to undergo such courses of training and instructions and to pass such examinations/tests, if any as may be prescribed by the Authority.
(iii) On completion of the probation period, an employee shall if considered fit for permanent employment, be confirmed in his appointment subject to availability of a substantive vacancy.
(iv) The Appointing Authority may extend the period of probation specified in [SECTION] of these rules, provided the period so extended shall not exceed two years.
(v) If on the expiration of the period of probation referred to in [SECTION] of these rules or of any extension thereto under [SECTION] above, as the case may be, the Controlling Authority is of the opinion that an employee is not fit for permanent appointment or if at any time during probation or extension is satisfied that he will not be fit for permanent appointment on the expiration of such period of probation or extension, the employee may be discharged from service or reverted to his substantive post or subject to such orders as may be passed by the Controlling Authority.
7. [SECTION] for initial appointment on probation for a period of two years and the petitioner was, in fact, appointed on probation for a period of two years by the order dt. 15th March 1977. [SECTION] provides that the Appointing Authority may extend the period of probation, but the period so extended shall not exceed two years. Thus, the Appointing Authority has no power to extend the period of probation by another two years. Therefore the first extension upto 30th September 1980 was within the permissible limits i.e. limits of four years from 15th March 1977, because the period of four years would have expired on 15th March 1981. However, the impugned order extends the period upto 30th September 1981. The Appointing Authority has no authority whatsoever to extend the period of probation beyond four years in view of the clear provisions of [SECTION].
8. The learned District Judge in para 20 of his judgment, while referring to [SECTION], holds that it permits the Appointing Authority to extend the period of probation and "there is nothing in [SECTION] to suggest that there can be no further extension after the extended period of two years has expired. It merely says that the extended period shall not exceed two years". It is impossible to agree with this reasoning. The rule is very clear, simple and in mandatory terms and it provides that 'the period so extended, shall not exceed two years'. The words "shall not" mean no doubt that he had no authority to extend the period beyond 15th March 1981.
9. In the alternative it was submitted that under [SECTION] there can be extension of the probation period beyond four years and that submission has been accepted by the learned District Judge in para 21 of the judgment. It is not possible to agree with that reasoning. First of all, under [SECTION] it is the Controlling Authority who has to form an opinion regarding the fitness for permanent appointment or otherwise and if an employee is not found fit, he may be discharged or reverted to his substantive post or be subjected to such orders as may be passed by the Controlling Authority. There is nothing to show that the Controlling Authority had applied mind and taken any decision at the relevant time and there is no pleading on that aspect. It appears that it was assumed before the lower appellate court that the Controlling Authority has in fact extended the period of probation beyond four years. The Controlling Authority is specified in [SECTION] as "The President, Indian Council of Agricultural Research." At the hearing of this Revision Application on February 20, 1984, the Learned Counsel for the respondents, stated that he was not in a position to state whether the Controlling Authority had passed any order under [SECTION] and he concluded his arguments on that day and the judgment could have been dictated on the next day but for the fact that from the next day onwards, I was sitting in the Full Bench and, therefore, the matter was adjourned to 2nd March 1984. On that day an affidavit is filed on behalf of the respondents producing therewith office order dt. 29th February 1984 under [SECTION]. The order states that the President being the Controlling Authority has accorded his approval to the extension of the probationary period of the petitioner beyond 30th September 1981 till finalisation of the court case regarding extension of probationary period and/or for the disciplinary proceedings contemplated against him. When this affidavit was filed at the hearing I had told the Learned Counsel that the matter was not adjourned for giving any opportunity for passing any fresh order but opportunity was given to the respondents to point out to the court whether at the relevant time the Controlling Authority had passed any order under [SECTION]. The respondents have clearly abused the indulgence in the time granted by the court, to pass further order against the petitioner. It appears that in their anxiety to justify their actions against the petitioner they have even ignored the orders passed by this Court in the Revision Application. In the present Revision Application also the petitioner has prayed for an interim relief to restrain the respondents, their agents and servants from implementing the order dated 5-11-1980 extending the period of probation and directing the respondents to maintain status quo and the High Court has passed an order directing to maintain status quo on 12-1-1984. By this order dt. 29th February, 1984, the respondents have tried to change the status and state of things.
10. Apart from everything else, this order also cannot come to the rescue of the respondents. The Controlling Authority cannot pass an order of extension of period of probation in 1984 with retrospective effect from 30th September 1980. In fact, the Controlling Authority has not passed any order of extension, but has given the approval to the extension of the probationary period. The Controlling Authority has power under [SECTION] to exercise the power within four years so as to extend the period of probation of four years. It is not open to him to revive and restart the probation after it has finally and fully completed the maximum permissible period of four years. After completion of that maximum permissible period of four years, the right had accrued in favour of the employee not to have period of his probation extended and that right cannot be taken away by a delayed action of the Controlling Authority after 3 to 4 years.
11. On the main question whether the period prescribed by [SECTION] is the maximum mandatory period of probation, the petitioner has relied on the judgment of the Supreme Court in the case of The State of Punjab v. [ENTITY] In that case the rules regarding probation provided as follows:
Provided that the total period of probation including extensions, if any, shall not exceed three years.
and the Supreme Court held that where 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 any express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication, because the implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In that case the Supreme Court even went to the length of holding that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication. However, in the present case at this stage it is not necessary for me to hold that he is deemed to have been confirmed. At this stage the question is only with regard to the period of probation-whether the period of probation could be extended beyond four years or not. After the completion of four years whether expressly or by necessary implications he is confirmed or not and till the order of confirmation is passed, whether he acquires the status of permanency or not, is not necessary at this stage.
12. The Learned Counsel for the respondents strongly relied upon the judgment of this Court in the case of [PRECEDENT]. In that case [SECTION] provided that every new entrant, as also every promotee, against a post other than a purely temporary one, shall be on a probation for a specified period which may be extended or reduced. This rule does not state of any limit. [SECTION] provided that ordinarily the period of probation would be six months and each extension of the probationary period, where considered desirable, shall generally be for three months, and no more than two extensions should normally be allowed and it further provided that unless there are sound reasons to believe that the employee's endeavours, if any, for self-improvement to fit into the post have a reasonable chance of success, no further extension should be allowed indicating that if there were sound reasons the extension can be even beyond the period of 12 months (6+3+3) [SECTION] then provided that in no case of a workman will probation period be longer than 12 months. [SECTION] provided that successful completion of probation shall not be construed as "confirmation" and a separate letter shall be issued on fulfilment of certain conditions, such as, availability of permanent post, medical fitness, production of character and antecedent certificates, pendency of departmental inquiry, etc. Regarding pendency of departmental inquiry, there was an express provision that the confirmation of such an officer should be withheld until the enquiry against him is completed and if exonerated, should be confirmed and given his due place in the seniority list. Having regard to these Rules, which were in general and guiding terms and not mandatory terms, the court held that even after the expiry of the maximum period of probation, the employee of the Corporation continued to serve as probationer only and in para II, the court observed that "it cannot be said by way of an inference by necessary implication that the petitioners stood confirmed on the expiry of the maximum probationary period of 12 months". In the present case, I am not dealing with the case at this stage whether the present petitioner stood confirmed on the expiry of the maximum period of four years.
13. The Learned Counsel for the respondents has argued at length that the Rules have no statutory force and they are mere administrative guidelines and they are not binding to the Council, and they are not justiciable and enforceable. It is not possible to accept such contention. The Council has been held to be the authority of State by the Supreme Court and it cannot be said that these rules are not justiciable or enforceable. If the Council were free to apply the rule in all cases and not applied the rule in case of the petitioner, it would be clearly discriminatory and arbitrary and irrelevant and violative of [SECTION] of the [ACT]. In paras 8 and 9 of the judgment, the District Court has observed that "in view of the aforesaid understanding, justiciability or otherwise of the service terms and conditions and the rules etc. would not be decided finally in this appeal but the matter will be proceeded with on the basis that at least for the purposes of the appeal they are justiciable" and in that view of the matter, the District Court did not touch the question of specifically enforceability of the Rules. The observations in paras 8 and 9 are amply clear. Therefore also the respondents who are party to that understanding are estopped from raising such contention at this stage.
14. In the case of [PRECEDENT]. the Supreme Court held that the officer cannot be held to be automatically confirmed on the completion of the period of probation. At this stage the question of confirmation is not being agitated. The question is whether the period of probation could have been extended beyond the maximum period of four years and on that question the judgment of the Supreme Court in case of [ENTITY] is clear and applicable in the facts of the present case.
15. The Learned Counsel for the petitioner has also argued that the High Court cannot interfere in revision against an order refusing the interim relief. However, in the present case, it is clear that the District Court has clearly gone wrong and on a misconception of position of law, vacated the interim injunction granted by the trial Court during the pendency of the suit. This is clearly an illegality and material irregularity which is required to be set right.
In the result, the Revision Application succeeds and the impugned order passed by the District Court is quashed and set aside and the order of the trial Court is restored. Rule made absolute accordingly with costs.