DAYARAM DAYAL v.

STATE OF M.P. AND ANR.

AUGUST 28, 1997

(SUJATA V. MANOHAR AND M. JAGANNADHA RAO, JJ.)

Se1vice Law :

M.P. Judicial Services (Classification, Recmitment and Conditions of C Se1vice) Rules, 1955, Rule 24 :

Probation-Deemed completion of-Continuance in service beyond maximum period prescribed under the Rules up .to which probation could be extended-In such situation the probationer is deemed to have been conjim1ed-Tennination on the ground of unsatisfactory perfonnance, without D holding a disciplina1y enquiry, held, invalid-However it is open to the Govemment to hold a departmental enquiry and tenninate his service or otherwise punish such employee if the charges are proved.

Conji1mation-Deemed confirmation, on expiry of maximum E presc1ibed pe1iod of probation.

Reinstatement/back wages-Tennination, held invalid-Employee entitled to all mrears of emoluments from the date of tennination-Also, entitled to all consequential benefits, in accordance with law.

p Rule 24 of the M.P. Judicial Services (Classification, Recruitment and Conditions of Service) Rules, 1955 provides that 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 of not exceeding two years. It was further provided in this Rule that the probationers may, at the end of the G period of their probation be confirmed subject to their fitness for confirmation and having passed by the higher standard, all such departmental examination as may be prescribed. Rule 24(3) of the Rules further provided that if during the period of probation, the probationer has not passed the prescribed departmental examinations, or has been found H otherwise unsuitable for the service, the Governor may, at any time,

DAYARAMDAYALv. STATE 625

dispense with his service.

The appellant was appointed as Civil Judge, Class II in State Subordinate Judicial Service by an order dated 22.10.1985. There were reports about his unsatisfactory performance and hence the State Government terminated the services of the appellant vide order dated 8.11.1993 (served on 17.12.1993) by paying one month's salary in lieu of notice period. The B action was unsuccessfully challenged by the appellant before the High Court. A Letters Patent Appeal filed by the appellant was also dismissed.

Hence this Appeal.

The contention of the appellant was that the maximum period of C probation prescribed under Rule 24(1) was four years and therefore as on 8.11.1993, i.e. after the completion of four years he was deemed to have been confirmed.

Allowing the appeal, the Court D HELD : 1.1. An examination of the rulings of this Court on the question of probation and confirmation shows that in some cases this Court has held that mere continuation beyond the period of probation does not amount to confirmation unless the order of appointment or the rule contains a deeming provision, while in some other cases, it has been held that in certain exceptional situation, it is permissible to hold that the E services must be deemed to be confirmed. There is no real conflict between two sets of decisions and it depends on the conditions contained in the order of appointment and the relevant rules that are applicable. [ 630-C]

1.2. In first line of cases, it has been held that if in the rule or order of appointment, a period of probation is specified and a power to extend probation is also specified and the officer is continued beyond the prescribed period of probation, he cannot be deemed to be confirmed. In such cases, there is no bar against termination after the expiry of the initial period of probation. The other line of cases are those where while there is

a provision in the rules of initial probation and extension thereof, a G maximum period for such extension is also provided beyond which it is not permissible to extend probation. Even in such type of cases, there may _ be special provision in the relevant rules to negative such inference.

[630-E, 631-E]

State of Punjab v. Dharam Singh, [1968] 3 SCR 1 and Beena Tiwa1i H

A v. State of M.P., 1988 Supp. SCC 213, relied on.

Sukhbans Singh v. State of Punjab, [1963) 1 SCR 416, G.R. Ramaswamy v. Inspector General of Police, AIR (1966) SC 1842; State of U.P. v.

Akbar Ali Khan, [1966) 3 SCR 821; Kedar Nath Bahl v. State of Punjab,

[1974) 3 SCC 21; Dhanjibhai Ramjibllai v. State of Gujarat, [1985) 2 SCC

95; Om Prakash Maurya v. U.P. Cooperative, Sugar Fact01ies' Federation, [1986) Supp. SCC 95; M.K. AgaTWal v. Gurgaon Gramin Bank, [1987) Supp.

SCC 643; State of Gujarat v. Akhilesh C. Bhargava, [1987) 4 SCC 482; Samsher Singh v. State of Punjab, [1974) 2 SCC 831 and Municipal Corporation v. Ashok Kumar Misra, [1991) 3 SCC 325, referred to.

2.1. In the instant case, Rule 24 of M.P. Judicial Services (Classification, Recruitment and Conditions of Service) has prescribed an initial period of probation and then for the extension of probation subject to a maximum period. The provision for a maximum is an indication of an D intention not to treat the officer as being under probation after the expiry of the maximum period of probation is not whittled down by any other provision in the rules. [634-BCJ

Satya Narayan Athya v. High Court of M.P., [1996) 1 sec 560, E distinguished.

Bina Tiwa1i v. State of M.P., (1988) Supp. sec 213, dissented from.

2.2. The termination order is set aside. The appellant is deemed to have been confirmed on the expiry of 4 years of probation as Civil Judge.

F He is reinstated into service and will be entitled to all consequential benefits, in accordance with law. It will however be open to the respondent to hold a departmental enquiry and terminate his service or otherwise punish him if the charges are proved against him. [635-C]

G . CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9569 of 1995.

From the judgment and Order dated 7.7.94 of the Madhya Pradesh High Court in L.P.A. No. 27 of 1994.

H Prakash Srivastava for Ms. Pratibha Jain for the Appellant.

DAYARAM DAYAL v. STATE [ M. JAGANNADHA RAO, J.] 627

S.K. Agnihotri for the Respondents.

The Judgment of the Court was delivered by

M. JAGANNADHA RAO, J. The appellant, after going through the process of selection by the Public Service Commission, was appointed as B Civil Judge, Class II in the Madhya Pradesh Subordinate Judicial Service by an order dated 22.10.1985. The order stated that he would have to undergo training for six months and be on probation for 2 years. The appellant completed training on 29.5.1986 and was put on probation for 2 years. He completed probation by 22.5.1988. On 2.3.1990, he was placed under suspension pending some charges. The charges were served on C 3.3.1990, an inquiry report was given by the District Judge on 12.4.1991 and the High Court, in its Full Court Meeting dt. 27/28.4.1991 resolved to impose a punishment of stoppage of two annual increments with cumulative effect. On 7.8.1991, the suspension was revoked and he resumed duties as Civil Judge Class II w.e.f. 7.8.1991. There were certain adverse remarks D in the ACRs during 1987-88, 88-89, 89-90, 91-92 and 92-93. The inspection Judge of the High Court who inspected appellant's co1Jrt on 26.2.92 also referred to certain irregularities. In the Full Court Meeting dated 3.5.92, / . the appellant was not found fit for confirmation and his case for promotion as Civil Judge, Class l was postponed. In a subsequent Full Court Meeting dt. 30.4.93, ht, 2nd May, 1993, it was decided that appellant was not fit for E confirmation and looking at his overall performance, his services should be terminated after giving him one month's salary in lieu of notice. The resolution was forwarded to the Madhya Pradesh State Government on 19.7.1993. The State Government by orders dated 8.11.1993, terminated the appellant's services by paying one month's salary in lieu of notice. The F order was served on 17.12.1993. The writ petition filed by the appellant being MP 627/94 was dismisse<; I by the learned Single Judge on 25.4.1994.

The learned Single Judg~ held that during the period of probation, the appellant was found guilty and punished by orders dated 23.8.1991 by stoppage of 2 increments with cumulative effect; that the appellant's court G was inspected by the inspection Judge and the appellant's work was not found satisfactory and adverse remarks were made and duly communicated to the appellant; that the overall performance was considered by the Full Court Meeting and it was decided to "discharge" him from service by giving him one month's salary in lieu of notice and that this was not illegal. In H

A LPA 27/94, the Division Bench in its judgment dated 7.7.1994 dismissed the appeal. It was contended in the appeal that the appellant was appointed in 1985 prescribing a period of 2 years probation, that according to the M.P. Judicial Services (Classification, Recruitment & Conditions of Service) Rules 1955, probation cannot be extended beyond 2 years in addition B to the initial period of 2 years (i.e. in all four years) and that therefore the appellant must be deemed to have been confirmed and hence a simple order of termination by issuing one month's notice or one month salary in lieu of notice, was not sufficient. This contention was rejected stating that "the 1955 Rules are not applicable" and that therefore, the "so called limitation on the extension of probation period cannot be accepted". The C charges framed against the appellant were acts of misconduct from April, 1989, which were well within the period of four years of service of the appellant. It was held that, in the circumstances, there could be no presumption that by not extending the probation or by not confirming him within the period of four years, it was intended to confirm him in service.

D The contention as to lack of opportunity was rejected. It is against this judgment that the appeal has been filed by the writ petitioner.

In this appeal, it is contended by the learned counsel for the appellant that the relevant rule in Madhya Pradesh applicable to Judicial Officers Class II, namely, Rule 24 of the M.P. Judicial Services (Classification, E Recruitment and Conditions of Service) Rules, 1955 (hereinafter called the 'Rules') states that an officer shall initially be on probation for 2 years and the same can be extended for a period not exceeding another two years.

The probationers may, at the end of the period of their probation, be confirmed subject to their fitness for confirmation and if they have passed

. F all such department<1l examinations as may bedprefscribbed .. Le'.11'nfieddcobunshel submits that whenever such a maximum perio o pro ation 1s ixe y t e Rules, then if the officer is continued beyond the maximum period prescribed, the officer must be deemed to have been confirmed in view of the judgment of the Constitution Bench in State of Punjab v. Dltaram Singh,

[1968) 3 SCR 1.

On the other hand, learned counsel for the respondents, contends that the maximum period of probation extended upto 22.5.90 and that before that date, the High Court had taken note of the charges served on the appellant on 3.3.90 during the period of probation and the notes of H inspection of the appellant's court on 3.5.92, and that in view thereof, the

DAYARAMDAYALv. STATE[ M.JAGANNADHARAO, J.] 629

Full Court decided initially on 3.5.92, he was not fit for confirma- A !ion/promotion and then decided on 30.4.93, 1st and 2nd May, 1993 that his services had to be terminated on one month notice. As long as there was no order of confirmation even after the expiry of the 4 year period, the appellant could not be deemed to have been confirmed and must be deemed to be continuing under probation. If he was continuing under B probation even after 22.5.90, then his termination with one month salary on 8.11.93 was valid. He relies upon Beena Tiwari v. State of M.P., [1988] Suppl. SCC 213 to say that the powers of the High Court under Article 235 are not subject to anything in the Rules.

The point that arises for consideration in the appeal is : Whether in C view of the fact that Rule 24 of the Rules prescribes not only the original period of 2 years of probation but also provides for extension of probation subject to a maximum of another 2 years, the appellant must be deemed to have been confirmed at the end of 4 years of probation even though no order of confirmation was issued and whether termination of his services without any inquiry must be held to be in violation of Article 311 of the D Constitution of India?

We have already set out the facts and the contentions. We shall now set out the rule which both sides tried to interpret in their favour. Rule 24 of the Rules reads as follows : E

"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 afwther pe1iod not exceeding two years. The probationers may, at the end of the period of their probation be confirmed subject F to their fitness for confirmation and to having passed by the higher standard, all such departmental examination 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 G procedure.

(3) If during the period of probation he has not passed the prescribed departmental examinations, or has been found otherwise unsuitable for the service, the Governor may, at any time, therefore, dispense with his service." H

A It will be noticed that the rule does not merely fix a period of probation but also fixes a maximum period beyond which the probation cannot be continued and if that be so, the question is whether by implication the officer who is continued beyond the said maximum period must be deemed to have been confrrmed by implication?

B An examination of the rulings of this Court on the question of probation and confirmation shows that in some cases this Court has held that mere continuation beyond the period of probation does not amount to confirmation unless the order of appointment or the rule contains a deeming provision while in some other cases, it has been held that in C certain exceptional situations, it is permissible to hold that the services must be deemed to be confirmed. We shall show that there is no real conflict between the two sets of decisions and it depends on the conditions contained in the order of appointment and the relevant rules that are applicable.

One line of cases has held that if in the rule or order of appointment a period of probation is specified and a power to extend probation is also specified and the officer is continued beyond the prescribed perfod of probation, he cannot be deemed to be confirmed, and there is no bar on the power of termination of the officer after the expiry of the initial period E of probation. In the case before a Constitution Bench of this Court in

Sukhbans Singh v. State of Punjab, (1963] 1 SCR 416, rule 22 of the relevant rules provided a period of probation and contained a provision for extension of probation, Rule 23 for termination during probation and Rule 24 for substantive appointment on completion of probation. It was held that p "a probationer. cannot.. ...... automatically acquire the status of a permanent member of a service, unless of course the rules under which he is appointed expressly provides for such a result. The rules governing the Provincial Civil Services of Punjab do not contain any provision whereby a probationer at the end of the probation period is automatically absorbed as a permanent member of the Civil Service." At the end of the probation, he is merely G qualified or eligible for substantive permanent appointment. Thus termination after expiry of initial power of probation was held not invalid. Another Constitution Bench followed the above judgment (vide) G.S. Ramaswamy

v. l.G. of Police, Mysore to say that Rule 486 of the relevant Hyderabad Rules did not provide for automatic confirmation after 2 years of probation H unless the officers "have given satisfaction". Similar was the position in the

DAYARAMDAYALv. STATE[M.JAGANNADHARAO, J.) 631

case before anothe~ Constitution Bench in State of U.P. v. Akbar Ali Khan, A [1966) 3 SCR 821. Here also the Court held that on completion of 2 years of probation as per rules, the officer continued to be a probatim:1er until an order of confirmation was passed. Sukhbans Singh's case was followed and it was stated that unless the order of appointment or the rule said that at the end of the probationary period, if no order was passed, the officer B is to be deemed to have been confirmed, the officer continued to be on probation. We may state that the facts in Kedar Nath v. State of Punjab, [1974) 3 SCC 21 decided by a three Judge Bench are also similar and the earlier rulings set out above were followed. In Dltamjibhai Ramjibhai v.

State of Gujarat, [1985) 2 SCC 51, also the period of probation fixed under the Rules was two years and there was also provision for extension but no C maximum was prescribed. The termination was after the expiry of the period of 2 years of probation. A three Judge Bench took the view that there could be no automatic confirmation at the end of two years and <hat

the termination after 2 years was valid.

D The other line of cases are those 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. Question as to its effect arose before the (:onstitution Bench in State of Punjab v. Dltaram Singh, (1968) 3 SCR 1. The relevant rule there provided initially for a one year probation and then for extension thereof E subject to a maximum of three years. The petitioner in that case was on probation from 1.10.57 for one year and was continued beyond the extended period of three years (in all four years) and terminated in 1963 without any departmental inquiry. A Constitution Bench of this Court referred Sukhbans Singh, G.S. Ramaswamy and Akbar Ali cases and dis- F tinguished the same as cases where the rules did not provide for a maximum period of probation but that if the rule, as in the case before them provided for a maximum, then that was an implication that the officer was not in the position of a probationer after the expiry of the maximum period.

The presumption of his continuing as a probationer was negatived by the G fixation of a maximum time-limit for the extension of probation. The termination after expiry of four years, that is after the maximum period for which probation could be extended, was held to be invalid. This view has been consistently followed i11 Om Prakash Maurya v. U.P. Coop. Sugar Factories Federation, (1956) Suppl. SCC 95; M.K Agarwal v. Gurgaon

Gramin Bank, [1987) Suppl. SCC 643 and State of Gujarat v. Akhileslt C. H

A Bhargava, (1987] 4 SCC 482 which are all cases in which a maximum period for extension of probation was prescribed and termination after expiry of the said period was held to be invalid inasmuch as the officer must be deemed to have been confirmed.

The decision of the Constitution Bench in State of Punjab v. Dharam B Singh was accepted by the Seven Judge Bench in Samsher Singh v. State of

Punjab, (1974] 2 SCC 831. However it was distinguished on account of a further special provision in the relevant rules applicable in Samsher Singh's case. The rule there provided for an initial period of 2 years of probation and for a further period of one year as the maximum. One of the officers, C Ishwar Chand Agarwal in that case completed the initial period of 2 years on 11.11.1967 and the maximum on 11.11.1968, and after completion of total 3 years his services were terminated on 15.12.i969. But still Dharam Singh's case was not applied because the Rules contained a special provision for continuation of the probation even beyond the maximum of 3 years. The Explanation to Rule 7(1) stated (see p. 852) that the period of probation D shall be deemed extended if a Subordinate Judge is not confinned on the expiry of his period of probation. The Court held (p. 853) that this provision applied to the extended period of probation : It observed :

"This explanation in the present case does not mean that the implied extension of the probationary period is only between two or three years. The explanation on the contrary means that the provision regarding the maximum period of probation for three years is directory and not mandatory unlike in Dharam Singh 's case and that a probationer is not in fact confirmed till an order of confirmation is made."

Thus, Samsher Singh's case while it accepted Dharam Singh's case, is still not covered by that case because of the special Explanation which clearly deemed the probation as continuing beyond the maximum period of probation as long as no confirmation order was passed.

Similarly, the case in Municipal Co1poration, Raipur v. Ashok Kumar Misra, (1991] 3 SCC 325 accepted Dharam Singh's case and the cases which followed it but distinguished that line of cases on account of another special provision in the rules. There the relevant rule provided for a maximum of one year for the extended period of probation but there was a Note under H Rule 8(2) of the Madhya Pradesh Govt. Servant's General Conditions of

DAYARAMDAYALv. STATE[M.JAGANNADHARAO, J.)

Service Rules, 1961. Rule 8(2) of the Rules and the Note read :

"8(2) The appointing authority may, for sufficient reasons, extend the period of probation by a further period not exceeding one year.

Note - A probationer whose period of probation is not extended under this sub-rule, but who has neither been confirmed nor B discharged from service at the end of the period of probation shall be deemed to have been continued in service, subject to the condition of his service being terminable on the expiry of a notice of one calendar month given in writing by either side."

It was held that by this Court as follows :

"Under the Note to sub-rule (2) if the probationer is neither confirmed nor discharged from service at the end of the period of probation, he shall be deemed to have been continued in service

as probationer subject to the condition if his services being ter- D minated on the expiry of a notice of one calendar month given in writing by either side."

The consequence of the Note was explained further as follows :

"As per sub-rule ( 6), on passing the prescribed departmental E examinations and on successful completion of the period of probation, the probationer shall be confirmed in the service or post to which he has been appointed. Then he becomes an approved probationer. There[ ore, after the expiry of the period of probatio11 and before its confinnation, he would be deemed to have bee11 continued in service as a probationer. Confirmation or probation F would be subject to satisfactory completion of probation or to pass in the prescribed examinations. Expiry of the period of probation therefore, does not entitle him with a right of deemed co11finnation.

The rule contemplates to pass an express order of confirmation in that regard. By issue of notice of one calendar month in writing G by either side, the tenure could be put an end, which was done in this case."

It is clear that the Court distinguished Dharam Sillgh, Om Parkash Maurya, M.K Agarwal, andAkhilesh Bhargava because of the Note under Rule 8(2'), even though Rule itself provided a maximum of one year for extension of H

A probation.

Thus, even though the maximum period for extension could lead to an indication that the officer is deemed to be confirmed, still special provisions in such rules could negative such an intention.

B It is, therefore, clear that the present case is one where the Rule has prescribed an initial period of probation and then for the extension of probation subject to a maximum, and therefore the case squarely falls within the second line of cases, namely, Dltaram Singlt's case and the provision for a maximum is an indication of an intention not to treat the C officer as being under probation after the expiry of the maximum period of probation. It is also significant that in the case before us the effect of the rule fixing a maximum period of probation is not whittled down by any other provision in the rules such as the one contained in Samslter Singlt's case or in Asltok Kumar Mishra's case. Though a plea was raised that termination of service could be effected by serving one month's notice or D paying salary in lieu thereof, there is no such provision in the order of appointment nor was any rule relied upon for supporting such a contention.

Learned counsel for the respondents however relied upon Beena Kumari v. State of M.P., [1988] Sup!. SCC 213. In that case, it is true that E while-dealing with rule 16(5) of the M.P. Govt. Service (Temporary and Quasi Judicial Service) Rules, 1960, this Court held that Rule 3-A thereof was not attracted but that the question of confirmation fell squarely under Article 235 of the Constitution of India and that Rule 16(5) of the rules itself provided that "if the person concerned is not considered fit for confirmation at the end of such period, or fails to pass the prescribed F departmental examinations, his services shall be dispensed with." The termination after the maximum period of probation was upheld relying on the above position. The attention of the Court was not drawn to the decision of the Constitution Bench in Dharam Singh's case and the long line of cases which followed that decision.

G Learned counsel for the respondents also relied upon Satya Narain Athya v. High Court of M.P., [1996] 1 SCC 560. But that case is one where the Court, after referring to the M.P. Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955 and to the fact that the initial period of probation was 2 years and the extension of probation H could therefore be for another 2 years, found that the termination was

DAYARAMDAYALv.STATE(M.JAGANNADHARAO, J.) 635

within the extended period of 2 years and not after a total period of 4 years A as in the case before us. Certain observations regarding there being no deemed confirmation (at p. 562) are obviously made with reference to the initial period of 2 years. This case cannot also help the respondents.

For the aforesaid reasons, this appeal is allowed and the judgments of the High Court are set aside and the writ petition of the appellant is B allowed. The termination order is set aside and it will be deemed that the appellant's services were confirmed on the expiry of 4 years of probation as Civil Judge i.e. w.e.f. 22.5.1990 and the appellant is reinstated into service w.e.f. 22.5.1990 and will be entitled to all arrears of emoluments from the date of termination, namely, 8.11.1993 upto the date of reinstate- C ment and he shall also be entitled to all consequential benefits, in accordance with law. It will be open to the respondents to hold a departmental enquiry and terminate his services or otherwise punish him if charges are proved against him. There shall be no order as to costs.

R.K.S.

Appeal allowed. D