Ganesh Chander Joshi vs Union Of India And Ors.
1993 Latest Caselaw 54 Del

JUDGMENT

P.K. Bahri, J.

(1) This writ petition has been filed under Article2.26 of the Constitution of India seeking writ in the nature of Certiorari quashing the order of discharge of the petitioner dated 5/10/1987.

(2) Facts, in brief, are that the petitioner was appointed on the post of Superintendent (B/R II) w.e.f. 18/01/1983 and he was put on a probation of two years. The Departmental Rules governing the petitioner,which are reproduced on running page 12 of the writ petition, show that initial appointment of the officers and other persons has to be on a probation for the first two years and after completion of that probation period, the competent authority has to assess the suitability of the person concerned and pass suitable orders either confirming the successful completion of probation or extending the probationary period for not more than one year at a time.It is also provided that the aggregate period of probation would not, save for exceptional reasons, exceed four years and on the expiry of or any time during the period of probation, the appointing authority does not consider any member suitable for continuance, he shall be discharged and no notice will be given therefore. 2.The short question which arises for consideration in this case is that after the maximum period of four years of probation provided under the Rules has expired, whether the respondents were legally right in passing a simpliciter order of discharge of the petitioner without holding disciplinaryproceedings. The order of discharge was made after the expiry of four years and about 9 months from the date of initial appointment. The Rules clearly contemplate that the period of probation cannot be allowed to exceed four years at all. if that is the State of Rules, the question which arises for consideration is as to what could be the status of the petitioner as an employee on the expiry of maximum period of probation of four years?

(3) Learned Counsel for the petitioner has referred to a Constitution Bench decision of the Supreme Court in case of State of Punjab v. DharamSingh, . In the said case, Rule 6 of the Punjab Education Service (Provincialised Cadre) Rules 1961 came up for consideration. The said Rule provided that the post in the first instance would be on probation lor one year and on completion of one year period of probation, the authority could either extend the period of probation,provided the total period of probation, including the extension, would not exceed three years, In the said case, after the maximum period of probation of three years bad expired, the employee was allowed to continue without any specific order being made confirming the employee in the post. Theresort was not taken to the provisions of the Punjab Civil Service (Punishment and Appeal) Rules 1952 for taking any disciplinary action against the petitioner in that case, but his services were discontinued treating him to be not suitable for service as his service was not found up to the mark during the probation period.

(4) The Supreme Court held that in case 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 an express order of confirmation, then he cannot be deemed to continue in that post as a probationer on implication. The reason is that such an implication is negatived by the service rules forbidding extension of the probationary period beyond maximum period fixed by it. In such a case, it is permissible to draw the inference 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.

(5) This ratio laid down in this judgment clearly applies to the facts of the present case. The Supreme Court had noticed other judgments of the Supreme Court which bad taken the view consistently that when a first appointment or promotion is made for a specific period 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 promotion or the service rules. In such acase, 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.

(6) But the Supreme Court clearly held that this ratio would not apply where the rules specified that the maximum period of probation would not exceed some period and in case the rules do prescribe maximum period ofprobation, the employee, who has put in the said maximum period of probation, would be impliedly deemed to be confirmed on the expiry of the maximum period of confirmation.

(7) The learned Counsel for the respondent has cited Hari Singh Mannv. State of Punjab, 1970 S.L.R. 915 where a Division Bench of the Punjab and Haryana High Court had held that after the expiry of the probationperiod, the authorities have to make up their mind within a reasonable time to decide as to whether an employee, whose period of probation has expired,is to be continued in service or not, keeping in view his performance during the probation period. In the said case. the petitioner was appointed as Deputy Superintendent of Police on 20/05/1965 and the maximum period of probation in Rule 8 (B) of the Punjab Rules 1959 was three years. His period of probation was completed on 20/05/1968, but the services of the petitioner were terminated on Jan. 30, 1969. The Punjab and Haryana HighCourt had made a reference to the judgment of the Supreme Court given in Dharamvir's case (supra) and had held that there cannot be automatic confirmation of an employee who has completed maximum period of probation and unless and until some reasonable time expires after the expiry of the maximum period of probation, the employee would continue to be on probation and his services could be terminated on the basis of his performance being not up to the mark during the probation period.

(8) I am afraid the Division Bench of the Punjab and Haryana HighCourt has not given full effect to the ratio laid down in Dharamvir's case(supra). It has been clearly laid down in the said case that where the rules fix a maximum period of probation, the employee would be deemed to be confirmed impliedly on expiry of the period of probation. So, there could be no question of any action being taken against such an employee treating that employee as on probation after the expiry of the maximum period ofprobation. Just on the expiry of the period of probation, the authorities are bound to take action against that employee immediately for terminating his services if his performance in the. probation period was not satisfactory. No period can be allowed to be expired beyond four years in the present case following the employer to assess the work of the probationer and then take the steps to terminate his service without resorting to disciplinary proceedings when status of the employee as a probationer comes to an end on expiry of maximum period of four years provided in the Rules.

(9) Reliance was also placed by learned Counsel for the respondent on Kedar Nath v. State of Punjab, 1972 S.L.R. 320. This judgment is of no help to the respondent because in this case no maximum period of probation had been fixed in the Rules. It is settled law that where a person is appointed as a probationer in any post and his period of probation is mentioned, it does not follow that at the end of the said probation period, he obtains confirmation automatically even if no order is passed in that behalf. This particular ratio has already been noticed by the Constitution Bench in the aforesaid judgment of Dharamvir's case (supra). The legal inference becomes different when rules provide for maximum period of probation which cannot be exceeded.

(10) Lastly, the learned Counsel for the respondent cited K.A. Barotv. State of Gujarat, 1990 (supra) Supreme Court Cases 287. This judgment is also distinguishable because in this case also no maximum period of probation had been fixed by the Rules beyond which the probation cannotcontinue.

(11) So, in view of the above discussion, following the Supreme Court Judgment in Dharamvir's case (supra), I hold that on the expiry of the period of four years from the initial appointment, the petitioner would be deemed to have been confirmed in the post and he could not have been discharged simpliciter by passing the order on 5/10/1987. I allow the writ petition and make the Rule absolute and quash the impugned order. The petitioner would be deemed to have continued in service and would be entitled to all consequential reliefs regarding pay. etc.

(12) The petitioner shall have costs quantified at Rs. 500.00.I The petition stands disposed of.