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PETITIONER: KARNATAKA STATE ROAD TPT.  CORPORATION & ANR.

       Vs.

RESPONDENT: S.  MANJUNATH

DATE OF JUDGMENT:       24/04/2000

BENCH: Doraiswami Raju, S.S.Ahmad

JUDGMENT:

     Raju, J.

     These  three appeals are dealt with together since not only  they involve a common question of law but also for the reason that they were dealt with in common in the High Court and submissions have been also in common before us.

     The respondent in Civil Appeal No.113/98 was appointed as  Assistant  Traffic  Manager  in  Karnataka  State   Road Transport  Corporation  (for  short ‘KSRTC) pursuant  to  a Select   List  of  candidates   prepared  and  published  on 13/15-12-82  for  a  period of two years and was  placed  on probation.   On  10.1.85, due to certain lapses, which  were pending  inquiry,  an  order postponing  one  increment  was passed.   On  7.8.85, the period of probation  was  extended upto  14.6.86.  Ultimately, on 13.1.88 his services came  to be  terminated  for the reason that his  Performance  Report during  the period of probation was not satisfactory and  he also  failed  to  show any improvement despite  having  been given  a  chance  to  do   so.   Aggrieved,  Writ   Petition No.4273/88  was filed before the High Court challenging  the said order of termination and for consequential benefits.

     The  respondent  in Civil Appeal No.114/98 joined  the service  in KSRTC as a Clerk on 5.3.63.  Thereafter, he  was considered for appointment and included in a Select List for appointment  (not by way of promotion) as Assistant  Traffic Manager.    On   22.11.82,  the   respondent   was   offered appointment  as such initially for a period of two years and was  placed  on  probation for a period of  two  years.   On 13/15-12-82,  the  appointment  order came to be  issued  as Assistant  Traffic  Manager  and  he   was  also  placed  on probation  for  two years.  On 14.12.84 when the  period  of probation  was  over,  he was continued in  service  without passing  any order of confirmation since he was found to  be indifferent to the job for which action appears to have also been   taken  resulting  in  a  punishment  of  censure  and subsequently  also  of  withholding   one  increment.    His appointment   as  Assistant  Traffic   Manager  came  to  be terminated  and  he was reverted to his substantive post  of Junior  Assistant.   This was challenged by means of a  Writ Petition in the High Court.

     The  respondent  No.1  in Civil Appeal  No.115/98  was selected  for  appointment as Assistant Mechanical  Engineer Class-II  and on 28.11.81 he was also appointed as such  and

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placed  on  probation.   He  had  incurred  certain  adverse remarks  on deficiency being noticed in his performance.  On 6.12.83  though the period of two years had come to an  end, the  same was extended on 19.4.84 for a period of six months and  further  extended  on 7.6.84 for  another  six  months. During  his  service,  he was found to have been  guilty  of various  acts  of misconduct and ultimately on 16.11.85  his services  were terminated on the ground of unsuitability  as also  misconduct.   Aggrieved, the respondent filed  a  Writ Petition before the High Court.

     All the three Writ Petitions were initially heard by a learned  Single  Judge of the Karnataka High Court and by  a common order dated 3.11.95 those Writ Petitions were allowed on the view that there was an implicit term in the scheme of Regulation  governing  their services that on the expiry  of the  period  of probation beyond the maximum  term  provided therein,  an employee will be deemed to have been  confirmed inasmuch  as the Corporation cannot terminate their services on  the  expiry  of  such  period.   In  coming  to  such  a conclusion,  the  learned Single Judge followed  an  earlier decision  of  a Division Bench dated 5.2.82 in  Writ  Appeal No.100/91  (M.   Balachandra  Rao Vs.  KSRTC &  Anr.).   The Corporation, aggrieved by such orders, pursued the matter on Appeal  before a Division Bench in Writ Appeal Nos.36-38/96. The  Division Bench adverted to the decisions of this  Court reported  in State of Punjab Vs.  Dharam Singh [AIR 1968  SC 1210];  Paramjit Singh Vs.  Ram Rakha [1979 (3) SCC 478] and M.K.  Agarwal Vs.  Gurgaon Gramin Bank [AIR 1988 SC 286] and observed  that  the position in the appeals is no  different from the one dealt with in those decisions of this Court and consequently  confirmed  the  order of  the  learned  Single Judge.  Hence, the above appeals.

     The sheet-anchor of attack for the appellants is based upon  Regulation  11,  particularly clause (8) of  the  said Regulation  and  it  is contended that  notwithstanding  the completion  of the period of probation, having regard to the stipulation therein no automatic confirmation or status of a ‘permanent  employee could be claimed to have been acquired by  the respondents.  According to the learned counsel,  the principles  laid down in those decisions of this Court  were not  properly  appreciated  and   applied  with   particular reference  to  the Regulation governing the services of  the respondents in the Corporation and, therefore, the orders of termination  passed  by the Corporation could not have  been interfered  with.  Reliance has been placed on the decisions reported  in  Jai Kishan Vs.  Commissioner of Police &  Anr. [1995  Supp.   (3) SCC 364] and State of Punjab Vs.   Baldev Singh Khosla [(1996) 9 SCC 190].  Regulation 11 (6) has also been   relied  upon  to  urge   that  a  specific  order  of confirmation  by  the  Competent Authority  is  a  condition precedent for claiming confirmation in service or completion of  the probation and on account of a mere lapse or delay on the  part  of the Competent Authority in passing the  orders declaring  the successful completion of probation, status of confirmation  could  not be claimed to have accrued  to  the respondents  automatically after the expiry of the period of probation or its extended period.

     The learned counsel for the respondents contended that Regulation  No.11  has been properly construed by  the  High Court  in  the light of the principles laid down in  similar cases    where   almost    identical    type   of    service rules/regulations  came to be considered by this Court  and,

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therefore,  the  decisions under challenge do not  call  for interference.   Reliance has also been placed in this regard on  the  decisions reported in Dayaram Dayal Vs.   State  of M.P.  & Anr.  [(1997) 7 SCC 443] and Wasim Beg Vs.  State of U.P.   &  Ors.   [(1998) 3 SCC 321],  besides  inviting  our attention  to some of the case law referred to therein.  The impugned   orders   of  termination  of  services   of   the respondents,  though  claimed to be orders  terminating  the probation  and consequently their services are in  substance only  orders  of punishment without following the  mandatory procedure  therefor or giving any opportunity to show- cause or  conducting  any  inquiry  in this  regard.   Argued  the learned  counsel  for the respondents further that the  High Court was right in setting aside such orders and the appeals are devoid of any merit.

     To  appreciate the grievance projected on either side, it is necessary to refer to Regulation No.11, which reads as follows :-

     11.   Probation 1.  Every candidate appointed against a  permanent post shall be on probation for a period of  two (2)  years.  This term may be extended at the discretion  of the  Appointing  Authority for reasons to be  recorded  in writing by a further period not exceeding one (1) year.  The period of probation shall not be further extended.

     2.   On  the satisfactory completion of the period  of probation  and  his  passing the prescribed tests,  if  any, within  the  Period of Probation the candidate shall  become eligible for confirmation.

     3.   If  the candidate appointed on probation  is  not found  suitable  for  the  post, his  services  may  at  the discretion of the appointing authority, be terminated at any time within the period of probation.  In case of an employee of  the  Corporation,  who  is  appointed  on  probation  on selection  such termination shall mean reversion to the post held by him regularly prior to such appointment.

     4.   All  appointments  by promotions shall be  on  an officiating  basis  for a period of one year which  may  for reasons  to  be  recorded  in writing  be  extended  by  the appointing authority by a period not exceeding SIX MONTHS.

     5.   At  the  end  of the period  of  officiation  the appointing  authority shall consider the suitability of  the person  so  promoted  to  hold  the post  to  which  he  was promoted.

     6.   If  the Appointing Authority considers  that  the work  of  the  person  so  promoted  during  the  period  of officiation  is satisfactory, it shall, as soon as possible, issue  an order declaring the person to have  satisfactorily completed  the period of officiation and is confirmed in the promoted  post.   Such an order shall have effect  from  the date of completion of officiation.

     7.   If at the end of the period of officiaiton or the extended  peirod  of officiation under Sub-Regulation  4  of this  Regulation,  as  the  case   may  be,  the  Appointing Authority  considers that the person is not suitable for the post  to which he is promoted it shall, by order revert, the person to the post which he held prior to his promotion.

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     8.   A  person  shall  not   be  considered  to   have satisfactorily  completed the period of officiation unless a specific  order  to that effect is made.  Any delay  in  the issue of an order under Sub-Regulation 3 or Sub-Regulation 4 of  this  Regulation,  shall not entitle the  person  to  be deemed  to  have  satisfactorily  completed  the  period  of officiation.

     9.    A  person  who  has   been  declared   to   have satisfactorily    completed     his     officiation    under Sub-Regulation  (4)  shall be confirmed in the category  for which he was promoted, at the earliest opportunity, Provided that  where  the  appointment  is made  by  promotion  to  a temporary  post in any service the person concerned shall be continued on an officiating basis in the temporary post.

     The  law  on the subject has been  varying,  depending upon  the peculiar pattern of the service  rules/regulations concerned and the scheme underlying the same inspite of more than   one  Constitution  Bench   judgments  of  this  Court declaring  the  general and basic principles  governing  the rights  of  a probationer.  There was always a  keen  tussle between  the  employer  and employee in the  application  of those  principles  to  individual or class  or  category  of cases.

     This   Court  had  an   occasion  to  review,  analyse critically  and  clarify  the principles  on  an  exhaustive consideration of the entire case law in two recent decisions reported  in  Dayaram Dayals case (supra) and  Wasim  Begs case  (supra).   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 conferred and the officer is allowed to continue beyond the prescribed period 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 or  extended  period  of probation.   This  is  because, at the end of  probation  he becomes  merely  qualified  or   eligible  for   substantive permanent  appointment.   The other line of cases are  those where  even  though  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.  The  Constitution  Bench which  dealt  with the case reported in State of  Punjab  vs Dharam  Singh  (AIR 1968 SC 1210), while distinguishing  the other  line  of  cases  held   that  the  presumption  about continuation,   beyond  the  period  of  probation,   as   a probationer  stood  negatived by the fixation of  a  maximum time limit for the extension of probation.  Consequently, in such  cases  the  termination after expiry  of  the  maximum period upto which probation could be extended was held to be invalid, inasmuch as the officer concerned must be deemed to have been confirmed.

     The  principles  laid  down  in  Dharam  Singhs  case (supra) though were accepted in another Constitutional Bench of  a  larger  composition in the case reported  in  Samsher Singh,  etc.  vs State of Punjab & Anr.  [(1974) 2 SCC 831], the special provisions contained in the relevant rules taken up  for  consideration  therein  were held  to  indicate  an intention  not  to treat the officer as deemed to have  been confirmed, in the light of the specific stipulation that the period  of  probation shall be deemed to be extended if  the officer  concerned  was not confirmed on the expiry  of  his

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period  of  probation.  Despite the indication of a  maximum period  of  probation,  the implied extension  was  held  to render  the maximum period of probation a directory one  and not  mandatory.   Hence, it was held that a  probationer  in such  class of cases is not to be considered confirmed, till an  order  of  confirmation is actually made.   The  further question  for consideration in such category of cases  where the  maximum period of probation has been fixed would be, as to  whether  there are anything else in the rules which  had the   effect  of  whittling  down   the  right   to   deemed confirmation  on  account of the prescription of  a  maximum period  of  probation beyond which there is an embargo  upon further extension being made, and such stipulation was found wanting in Dayaram Dayals case (supra).

     The   decision  in  Wasim   Begs  case  (supra)  also purported  to  classify  these  type  of  cases  into  three categories,  on a review of the entire gamut of law.  It was observed therein as follows:

     15.    Whether  an  employee  at   the  end  of   the probationary  period automatically gets confirmation in  the post or whether an order of confirmation or any specific act on  the  part  of the employer confirming  the  employee  is necessary,  will depend upon the provisions in the  relevant Service Rules relating to probation and confirmation.  There are  broadly  two sets of authorities of this Court  dealing with  this question.  In those cases where the Rules provide for  a  maximum period of probation beyond  which  probation cannot  be extended, this Court has held that at the end  of the  maximum  probationary  period there will  be  a  deemed confirmation  of  the employee unless Rules provide  to  the contrary.   This is the line of cases starting with State of Punjab  vs  Dharam  Singh, M.K.  Agarwal vs  Gurgaon  Gramin Bank,  Om  Parkash  Maurya vs U.P.  Coop.   Sugar  Factories Federation, State of Gujarat vs Akhilesh C.  Bhargav.

     16.   However, even when the Rules prescribe a maximum period  of probation, if there is a further provision in the Rules for continuation of such probation, beyond the maximum period,  the  courts  have made an exception and  said  that there  will be no deemed confirmation in such cases and  the probation  period  will be deemed to be extended.   In  this category  of  cases we can place Samsher Singh vs  State  of Punjab  which  was the decision of a Bench of  seven  Judges where  the  principle  of  probation not  going  beyond  the maximum  period fixed was reiterated but on the basis of the Rules  which were before the Court, this Court said that the probation  was deemed to have been extended.  A similar view was  taken  in the case of Municipal Corpn.  vs Ashok  Kumar Mishra.   In  Satya  Narayan  Athya vs High  Court  of  M.P. although  the Rules prescribed that the probationary  period should  not  exceed two years, and an order of  confirmation was  also necessary, the termination order was issued within the extended period of probation.  Hence the termination was upheld.

     17.   The  other line of cases deals with Rules  where there  is  no  maximum period prescribed for  probation  and either  there is a Rule providing for extension of probation or there is a Rule which requires a specific act on the part of  the employer (either by issuing an order of confirmation or  any  similar act) which would result in confirmation  of the  employee.  In these cases unless there is such an order of  confirmation, the period of probation would continue and

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there  would  be  no deemed confirmation at the end  of  the prescribed  probationary period.  In this line of cases, one can put Sukhbans Singh vs State of Punjab, State of U.P.  vs Akbar  Ali  Khan,  Kedar  Nath  Bahl  vs  State  of  Punjab, Dhanjibhai  Ramjibhai  vs  State of Gujarat and  Tarsem  Lal Verma  vs  Union of India, Municipal Corpn.  vs Ashok  Kumar Misra  and  State of Punjab vs Baldev Singh Khosla.  In  the recent case of Dayaram Dayal vs State of M.P.  (to which one of us was a party) all these cases have been analysed and it has  been held that where the Rules provide that the  period of  probation  cannot be extended beyond the maximum  period there  will  be  a  deemed confirmation at the  end  of  the maximum  probationary period unless there is anything to the contrary in the Rules.

     In the light of the position of law, thus laid down it has to be seen under what class or category the cases before us  will  fall  and whether despite of the fixation  of  the maximum  period of probation there are any special provision in  the  rules which could negate or nullify the  inevitable consequence  of  a  deemed confirmation, arising  out  of  a ceiling  fixed  firmly  on  the   period  of  probation  and extension  to be made thereafter, if any.  Since much stress has  been laid by the counsel on either side on the  purport to be of Regulation 11, it becomes necessary to consider the ambit and scope of the stipulations therein.  The Regulation deals  with  the period of probation of an appointee,  other than  by way of promotion [clauses (1) to (3) of  Regulation 11]  and also about the period of officiation in respect  of an  appointee by way of promotion [clauses (4) to (9)].  The Regulation  does make, in our view, substantial  difference, for  purposes  of  confirmation   between  an  appointee  by promotion  and  one appointed, otherwise than on  promotion, and purport to deal with these two categories distinctly and separately,   in  all  respects  -  the   relevant   period, subsequent  extension and consequences arising out of expiry of  such maximum period coupled with the action or  inaction on  the part of the competent authority for the purposes  of the  Regulation.   The  learned counsel  for  the  appellant corporation   could  not  easily   get  over  the  dichotomy maintained  throughout  in  the   various  clauses  of  this Regulation   among   the  two   categories  or   method   of appointment.  But, what was strongly pleaded was that Clause (8)  of  the Regulation takes care of both  categories  and, therefore,  unless  a  specific order has been made  by  the competent  authority,  the  person concerned  shall  not  be considered  to  have satisfactorily completed his period  of probation  and any delay in the issue of an order shall  not entitle  the  person  to be deemed  to  have  satisfactorily completed the probation.

     As  indicated  by  us, the Regulation deals  with  two different categories of cases - one about the probation of an  appointee  other than by way of promotion and the  other relating   to  officiation  of  a  person   appointed   on promotion.  The similarity of purpose and identity of object apart, of such provision, there is an obvious difference and positive distinction disclosed in the manner they have to be actually  dealt  with.  The deliberate use of two  different phraseology  probation  and  officiation  cannot  be  so lightly  ignored  obliterating the substantial variation  in the  method of handling such categories of persons envisaged by  the Regulations.  The mere fact that a reference is made to  Clause  (3) also in the later part of Clause (8) of  the Regulation  could  not be used to apply all  the  provisions

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relating  to the category of appointees on officiation  to the  other  category  of  appointees  on  probation.   The stipulation  in Clause (8) of the Regulation when making the passing  of an order, a condition precedent for satisfactory completion  specifically  refers only to the  completion  of period  of  officiation.    Similarly,  notwithstanding  a reference  made  to  Clause  (3) alongside  Clause  (4),  in stipulating the consequences of any delay in making an order declaring satisfactory completion, the reference is confined only to deemed satisfaction and completion of the period of officiation,  and  not  of probation.  Clause  (9)  of  the Regulation  insofar  as  it provides for confirmation  as  a sequel  to  declaration,  only deals with a  promotee  to  a temporary post and not of the other category.  While dealing with  the termination of a candidate, not found suitable for the  post,  clause  (3)  of  the  Regulation  envisage  such termination  being  made, at any time within the period  of probation, and not at any time after the completion of such maximum  period  of probation.  Consequently, the  cases  on hand also would fall within the category of cases dealt with in Dayaram Dayals case (supra) and Wasim Begs case (supra) and  the services of the respondents could not be put an end to except by means of departmental disciplinary proceedings, after   following  the  mandatory   requirements   of   law. Therefore,  the High Court cannot be faulted for interfering with  the  orders  of  termination of the  services  of  the respondents.

     For  all the reasons stated above, we see no merit  in the  challenge  made to the judgment of the High  Court  and these appeals fail and are hereby dismissed.  No costs.