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PETITIONER: THE DIRECTORMINISTRY OF COAL & ORS.

       Vs.

RESPONDENT: BIMLENDU KUMAR

DATE OF JUDGMENT:       28/10/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted      We have heard learned counsel for the parties .      This appeal  by special  leave arise  from the order of the  Division   Bench  of  the  Patna  High  Court  made  on 24.11.1994 in  LPA No.35/91  and the  order of  the  learned single Judge made on 26.2.1991 in CWJC No.1111/89.          The admitted  position is  that the  respondent was appointed on  probation to  a temporary post under Rule 7(1) of the  coal Mine  Provident  fund  (Employees  Recruitment) Rules, 1982  (for short  , the  ’Rule’). His appointment was terminated  on   May  14   ,1989  which  was  challenged  by contending that  since his probation was not extended beyond three years  under Rule  7(6) of  the  Rule,  the  order  of termination is bad in law. The learned single Judge has held that he is a temporary appointee; therefore, his termination is bad  in law. He is accordingly entitled to the payment of the salary for the period of three year and three months. On appeal the Division Bench set aside the order of the learned single Judge  and held  that the respondent should be deemed to  have  been  confirmed  and  directed  payment  of  wages amounting to six years  salary. Thus, this appeal by special leave.          The question  is: whether  the view  taken  by  the Division Bench  and the  learned single  Judge is correct in law? Rule  7(1) contemplates  that the person appointed to a post by  direct recruitment,  with a  view to  his  eventual substantive appointment  to that  post shall be on probation for a  period of  two years.  For  an  eventual  substantive appointment, on  successful completion  of  probation,  Rule 7(6) contemplates thus:      "(6) The appointing authority   may      in suitable    case   extend    the      period of probation by not    more      than one year, but no person in any      case be  kept on  probation  for  a      total period  exceeding three years      in any post. In the case         of      extension  of  probationary  period      the employee  shall be  informed of

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    his short coming well in advance to      enable him to make  special  effort      for improvement."       Sub-rule (7) of Rule 7 speaks of confirmation of the probationer after completion of the period of probation. It envisages thus:      "(7) Confirmation of a probationer        after completion of the period of      probation shall  not be  automatic.      As long  as no  specific  order  of      confirmation   or      satisfactory      completion of  probation  is issued      to a  probationer such  probationer      such probationer shall be deemed to      have      continue   on   probation      notwithstanding sub-rule(6)."      A conjoint  reading of  Rule 7(1),  7(6) and 7(7) would show that  Rule 7(6)  is subject  to the  operation of  Rule 7(1). It  is, no  doubt, true,  as contended  by   Mr.  P.P. Malhotra, learned  senior counsel  for the  appellants, that after the  expiry of  the period  of two year, the appellant has power  to extend  the  period of probation for more than three years  to enable    the  probationer  to  improve  his efficiency in  the service  so that  he  could  improve  his efficiency as may be pointed out, and improve his quality of service for  confirmation. However,  in view of the language in   sub-rule (7)  of Rule  7, the operation of Rule 7(6) is subject to  the confirmation  on satisfactory  completion of the probation.  In this  case, there  is no express order of confirmation of probation and substantive appointment, after completion of  the probation.  It must  be deemed that after the expiry  of three years, he remained to be a probationer. Therefore,  the   declaration  that   he  was   a  confirmed probationer is  bad in  law. Learned  counsel seeks to place reliance on the judgement of this Court in Om Prakash Maurya vs. U.P.  Cooperative Sugar  Factories Federation, Lucknow & Ors.[1986 Supp.  SSC  95]  in  particular,  in  paragraph  3 thereof. In  that case,  there was  no provision  similar to sub-rule (7)  of Rule  7. That  relates  to  appointment  by promotion and the period of probation was prescribed for two year. Under  this situation,  this Court had held that after the expiry  of two  years, he  cannot  be  reverted  to  the substantive post  but deemed  to  be  confirmed.  The  ratio therein has  no application  to the   fact situation and the rule position in this case. The  probationer appointed under Rule  7(1)  requires  to  be    appointed  eventually  to  a substantive  appointment  by    separate  order.  Therefore, satisfactory  completion   of     the  probation   and   the declaration of  the probation are two condition precedent to eventual substantive appointment to the post in which he was recruited and appointed on probation.      In the  above legal position, the eventual  substantive appointment to  the  post  in  which  he  was  appointed  on probation .      In the  above legal  position, the  view taken by   the Division Bench is clearly in error. The learned single Judge also was not right in directing to pay  compensation for the period of  three years  and three months in view of the fact that probation  was terminated  in term  of Rule 7(7) of the Rules.      The appeal  is accordingly  allowed. The  writ petition and the LPA stand dismissed. No cost.