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PETITIONER: DHANJIBHAI RAMJIBHAI

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT22/01/1985

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. VENKATARAMIAH, E.S. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1985 AIR  603            1985 SCR  (2) 632  1985 SCC  (2)   5        1985 SCALE  (1)65  CITATOR INFO :  F          1989 SC1247  (5)

ACT:      Service law- Termination simpliciter of the services of a probationer  without confirming  him after allowing him to continue after  the initial  period of  Probation - Right to confirmation-The termination  cannot be  set to  be as  mala fide or  in violation of provisions of Clause (2) of Article 311 of the Constitution of India Article 136-Interference by the Supreme Court.

HEADNOTE:      The services  of the appellent who was appointed to the post of  Sales Tax Officer, by an order dated March 22, 1972 on probation  for a  period  of  two  years,  but  continued thereafter in  service without  any order  confirming him in his appointment  were terminated on March 31, 1975. The writ petition filed in the      High Court  of Gujarat, challenging the said terminated was dismissed,  by a  judgment dated April 21, 1976. Finding no basis  for the allegation of mala fide on facts the court held that  there was  no right to confirmation on the expiry of the  period of  probation, and  therefore, there  was  no violation of the provisions of Clause (2) Article 311 of the Constitution. An appeal filed by the appellant was dismissed by the  Division Bench, on March 28, 1977. Hence the appeal, by special leave of the Court.      Dismissing the appeal, the Court, ^       HELD  1.1. The  allegation of  mala  fides  is  wholly baseless and  has not  been established.  Where a finding of fact has been rendered by a learned Single Judge of the High Court as  a Court  of first instance and thereafter affirmed in appeal  by an  Appellate Bench  of that  High Court,  the Supreme Court  should be  reluctant to  interfere  with  the finding unless there is very strong reason to do so.                                                     [635C-D1       2.1  When the  order of  appointment recited  that the appellant would  be on  probation for a period of two years, it conformed  to Rule  5  of  the  Recruitment  Rules  which prescribes such  period of  probation. Under  the  Rule  the

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period of  probation may  be extended in accordance with the rules. The  period of  two years  specified in  the Rule  is merely the  initial period  for  which  an  officer  may  be appointed on  probation and  does not  represent the maximum period of  probation In terms of the said rule the period of probation may be extended. [635E-F] 633       2.2  The power  to extend the period of probation must not be confused A with the manner in which the extension may be effected.  The one  relates to  power, the  other to mere procedure. Merely  because procedural  rules have  not  been framed does  Dot imply  a negation  of  the  power.  In  the absence of  any rule indicating the manner for extending the period of  probation, it  is sufficient  that the  power  is exercised  fairly  and  reasonably,  having  regard  to  the context in which the power has been granted. [635G-H] B       3.1 There is no question of any legitimate expectation of being  confirmed or  even right  to confirmation  on  the expiry  of  two  years  of  probation  and  on  successfully completing the  qualifying tests and training undergone by a Government employee.  It was open to the State Government to consider the  entire  record  of  service  rendered  by  its employee and  to  determine  whether  he  was  suitable  for confirmation or  his  services  should  be  terminated.  The function of confirmation implies the exercise of judgment of the confirming  authority on  the overall suitability of the employee for permanent absorption in service. [636A-B]       3.2 The contention that the appellant should have been heard before  his services  were terminated  is not  correct since the  order of  termination does not contain any stigma or refer  to any  charge Or  misconduct on  the part  of the appellant and the termination was on the basis of an overall appreciation of his record of service disentitling him to be absorbed in the service. (636D; F)       3.3.  No distinction  lies between a probationer whose services are  terminated on  the expiry  of two  years and a probationer who  has completed  the normal span of two years and whose  services are  terminated some time later after he has put  in a  further period  of service.  It is  perfectly possible that  during the  initial period  of probation  the confirming authority  may be  unable  to  reach  a  definite conclusion on  whether the  candidate should be confirmed or his services  should be  terminated. Such  candidate may  be allowed to  continue beyond  the initial period of two years in order  to allow  the confirming  authority to arrive at a definite opinion.  A candidate  does not  enjoy any  greater right to  confirmation if  he is  allowed to continue beyond the initial period of probation. [636G-H; 637A-B]

JUDGMENT:       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2480 of 1977       From  the Judgment  and Order  dated  28.3.77  of  the Gujarat High Court in L.P.A. No. 232 of 1976.       R.N. Karanjawala 2nd P.H Parekh for the appellant.       M.N.  Phadke, S.C.  Patel  and  R.N.  Poddar  for  the respondents.       The Judgement of the Court was delivered by       PATHAK,  J. This appeal by special leave arises out of a writ  petition filed  by the appellant in the Gujarat High Court challenging an order terminating his services. 634             The appellant was appointed to the post of Sales

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Tax Officer  by an  order dated  March 22,  1972. The  order recited that  the appointment  was on probation for a period of two  years. The  period of  two years  expired,  and  the appellant  continued  in  service  and  no  order  was  made confirming  his   appointment.  On   March  31,   1975   the appellant’s services were terminated.       Aggrieved  by the  termination of  his  services,  the appellant filed  a  writ  petition  in  the  High  Court  of Gujarat, but  by his judgment and order dated April 21, 1976 a learned  Single Judge  dismissed  the  writ  petition.  An appeal was  filed by  the appellant, and an  Appellate Bench of the  High Court dismissed the appeal by its judgement and order dated March 28. 1977       Three  points have  been  raised  before  us  in  this appeal. The  first contention  is that the order terminating the appellant’s  services   was passed mala fide, the second is that  on the  expiry  of  the  period  of  probation  the appellant  must  be  deemed  to  have  been  confirmed,  and inasmuch  as  his  services  have  been  terminated  without complying with  clause (2)  of  Article  311  the  order  is invalid. The  last contention  is  that  the  principles  of natural justice  were violated  inasmuch as  on the facts of the present  case the  appellant. even as a probationer, was entitled to be heard before his services were terminated.       On  the first  contention, the learned Single Judge as well as  the Appellate  Bench examined  the material  on the record and  came concurrently  to the  conclusion  that  the allegation of  mala fide  was  without  foundation.  Learned counsel for  the appellant  has taken  us through the record and has endeavored to show that the appellant had discharged his duties  ably and with integrity, and there was no reason for terminating  his services.  Various particulars were set forth in  the special  leave petition filed in this Court in support  of   that   assertion.   Now,   it   appears   that substantially the  same allegations  were set  forth by  the appellant in  his writ  petition, but in the affidavit filed in reply  by the  State Government  those  allegations  were denied.  On   the  contrary,   it  was   asserted  that  the appellant’s services were terminated entirely because of his unsatisfactory record and that the order was not vitiated by any illegality or unfairness. In support of the plea of mala fides, the  appellant alleged  that his  services  had  been terminated because  he  had  taken  proceedings  against  an assessee, Messrs.  Shriraj &  Company who,  according to the appellant, enjoyed  political favour  and influence with the authorities. The allegation 635 has been denied in the counter-affidavit. During the hearing of the  special leave petition this Court directed the State Government to  file a  specific affidavit  relating  to  the facts alleged  in the writ petition regarding a confidential enquiry initiated  by the Government. The affidavit filed in reply admits  that an  enquiry  was  initiated  against  the appellant on  the complaint  of the  said assessee,  but  it maintains that  there was  no mala  fides on the part of the Ministers  concerned  and  that  a  persual  of  the  record relating to  that enquiry  shows that the allegation of mala fides is  wholly baseless.  We have  considered  the  matter carefully and  we find  no sufficient  reason to differ from the finding  of the  High Court  that the allegation of mala fides is  not established.  We think it desirable to observe that where  a finding of fact has been rendered by a learned Single Judge  of the High Court as a Court of first instance and thereafter  affirmed in  appeal by an Appellate Bench of that High Court, this Court should be reluctant to interfere

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with the  finding unless  there is  very strong reason to do so.       The  second contention  on behalf  of the appellant is that the  appellant must  be deemed  to have  been confirmed inasmuch as he was allowed to continue in service even after the expiry of the period of probation of two years specified in the order of appointment. We are of opinion that when the order of appointment recited that the petitioner would be on probation for  a period of two years, it conformed to Rule 5 of the  Recruitment Rules  which prescribes  such period  of probation. The  Rule  states  further  that  the  period  of probation may  be extended in accordance with the rules. The period of  two years  specified in  the Rule  is merely  the initial period  for which  an officer  may be  appointed  on probation. As  the terms  of the  same  Rule  indicate,  the period of  probation may  be extended.   The  period of  two years does not represent the maximum period of probation.       It  is next  urged that  as no  rules have been framed indicating the manner for extending the period of probation, there is  no power  to extend  the period  of probation. The argument suffers  from a  fallacy. The  power to  extend the period of  probation must not be confused with the manner in which the  extension may  be affected.  The one  relates  to power,  the   other  to   mere  procedure.   Merely  because procedural rules  have not  been framed  does  not  imply  a negation of  the power.  In the absence of such rules, it is sufficient  that   the  power   is  exercised   fairly   and reasonably, having  regard to the context in which the power have been granted. 636       It  is then  submitted that  the appellant  enjoyed  a legitimate expectation  of being  confirmed on the expiry of two years  of probation  and on  successfully completing the qualifying tests  and training  undergone by him. We are not impressed by  that contention.  It was  open  to  the  State Government  to  consider  the  entire  record  of    service rendered by  the appellant  and to  determine whether he was suitable  for   confirmation  or   his  services  should  be terminated. There  was no  right  in  the  appellant  to  be confirmed merely  because he  had completed  the  period  of probation of  two years  and had  passed the requisite tests and completed  the  prescribed  training.  The  function  of confirmation  implies   the  exercise  of  judgment  by  the confirming authority  on  the  overall  suitability  of  the employee for permanent absorption in service.       The second contention must also be rejected.             The last contention is that the appellant should have been   heard  before his  services were terminated. The order of termination does not contain any stigma or refer to any charge of misconduct on the part of the appellant. It is said that  the State  Government terminated  the appellant’s services because  a complaint  had been  made against him by Messrs. Shriraj & Company, whose case had been dealt with by him, and  that the  appellants should  have been    given  a hearing to  show that  there was no basis for the complaint. There would  have been  substance in  this contention if the appellant’s services  had been  terminated on  the ground of misconduct committed  in connection with the case of Messrs. Shriraj &  Company. On  the contrary,  it appears  from  the record  before   us  that   the  appellant’s  services  were terminated because  on an overall appreciation of his record of service he was found unsuitable for being absorbed in the service.        A  distinction  is  sought  to  be  drawn  between  a probationer whose  services are  terminated on the expiry of

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the period of two years and a probationer, who has completed the  normal  span  of  two  years  and  whose  services  are terminated some  time later  after he  has put  in a further period of  service. We are unable to see any distinction. It is perfectly  possible that  during the  initial  period  of probation the  confirming authority may be unable to reach a definite conclusion on whether the candidate should be 637 confirmed  or   his  services  should  be  terminated.  Such candidate may  A be  allowed to  continue beyond the initial period of  two  years  in  order  to  allow  the  confirming authority to  arrive at  a definite  opinion. It seems to us difficult to  hold that a candidate enjoys any greater right to confirmation  if he  is allowed  to continue  beyond  the period of probation. B       In  our judgment there is no force in this appeal, and it is  dismissed but  in the circumstances without any order as to costs. S.R.                                       Appeal dismissed. 638