1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

         CIVIL APPEAL NO(s). 6601-6602 OF 2008

MOHD. SALMAN                                      Appellant (s)

                VERSUS

COMMITTEE OF MANAGEMENT & ORS.                    Respondent(s)

O R D E R  

1. We propose to dispose of both the appeals by this common  

judgment and order as the issues involved are inter-connected.   

2. The issue that arises for consideration in these appeals  

is  whether  the  appellant  is  entitled  to  claim  deemed  

confirmation  of  his  service  as  an  Assistant  Teacher  in  the  

respondent no. 1 institution on an interpretation of Rule 26 of  

the  Uttar  Pradesh  Ashaskiya  Arabi  Tatha  Farsi  Madarson  Ki  

Manyata  Niyamawali.   However,  before  we  deal  with  the  

contentions  on  the  legal  issues  which  arise  for  our  

consideration, it would be necessary to state certain facts for  

proper appreciation of the issues.

3. The  appellant  was  appointed  on  1st March,  1989  as  an  

Assistant Teacher in the primary section of Madarsa Hanifa Ahle  

Sunnat Bahrul Uloom, Mau.  A copy of the appointment order dated  

22.2.1989 is placed on record.  The said order not only states

2

that by virtue of the said order, the appellant was appointed in  

the  said  Madarsa  to  the  post  of  Assistant  Teacher  

Tahtania(primary)  but  it  was  also  mentioned  therein  that  the  

said appointment is purely on probationary basis.  In the said  

letter,  the  appellant  was  further  informed  that  his  services  

could regularised but only if his performance during probation  

period was found to be good/satisfactory.  It was also indicated  

therein that if his performance during the aforesaid period is  

not satisfactory, then he could be terminated from the service  

of Madarsa anytime without assigning any reason.

4. The appellant was appointed initially on probation for a  

period of one year.  The said period of probation was extended  

for a further period of one year.  The respondent no. 1 in the  

counter affidavit filed has annexed a series of letters issued  

on behalf of respondent no. 1 to the appellant.  One of such  

letters is dated 10.4.1992.  By writing the aforesaid letter,  

the respondent no. 1 informed the appellant that his application  

for extension of probation period was received but since his  

teaching work was not satisfactory, therefore, respondent no. 1  

had decided to give him a chance again to improve his work so  

that in future his services could be made permanent.  By the  

said  letter,  his  probation  period  was  extended  for  one  year  

more.   

5. There  is  yet  another  letter  which  is  also  placed  on

3

record  which  is  dated  13.2.1993  wherein  by  referring  to  the  

earlier letter dated 10.4.1992, respondent no. 1 informed the  

appellant that earlier the committee extended his probation time  

and again to improve his performance and teaching work but it  

appeared to them that the appellant did not possess teaching  

capability  at  all.   By  the  said  letter,  the  appellant  was  

directed  to  show  cause  as  to  why  his  service  should  not  be  

dispensed with from the Madarsa.

6. Even thereafter, there is a letter issued on 3.4.1993  

wherein his attention was drawn to the earlier letters directing  

him to improve his performance to which according to respondent  

no. 1, the appellant did not pay any heed or attention.  The  

appellant was, therefore, intimated that his service now stood  

terminated in terms of clause 26 of Rules, 1987.   

7. The  aforesaid  order  came  to  be  challenged  by  the  

appellant by filing a writ petition in the Allahabad High Court  

which was allowed on the ground that on expiry of the two years'  

period of probation, there is an automatic confirmation of the  

service of the appellant and, therefore, the decision of this  

Court in the case of  The    State of Punjab   Vs.  Dharam Singh AIR  

1968  1210  becomes  applicable.   Consequent  upon  the  aforesaid  

findings, the order of termination dated 3.4.1993 was set aside  

with a further direction that the appellant be reinstated in  

service.  

4

8. Being aggrieved by the said judgment and order passed by  

the  learned  Single  Judge  of  the  Allahabad  High  Court,  the  

respondents filed an appeal before the Division Bench which was  

entertained  and  was  registered  as  Special  Appeal  No.  329  of  

2005.   By  the  impugned  judgment  and  order,  the  appeal  was  

allowed and judgment and order of the learned Single Judge was  

set aside and the writ petition filed by the present appellant  

was dismissed.  The appellant, therefore, has filed the present  

appeal as against the said impugned judgment and order in which  

we have heard learned counsel appearing for the parties who have  

taken  us  through  the  records  as  also  the  relevant  rule  

concerning the service of the appellant as also the decisions  

which are referred to and relied upon by the learned Single  

Judge as also by the Division Bench of the High Court.   

9. The  contention  of  Ms.  Purnima  Bhat,  learned  counsel  

appearing for the appellant is that the service of the appellant  

must be accepted as a case of deemed confirmation on expiry of  

the period of probation of two years as held by the learned  

Single  Judge.  In  support  of  the  aforesaid  contention,  the  

counsel has relied upon the decision of this Court in  Dharam  

Singh(supra).  She has also drawn our attention to the decision  

of this Court in the case of  M.K. Agarwal Vs.  Gurgaon Gramin  

Bank and Others 1987 Suppl. SCC 643.

5

10. Learned counsel appearing for the respondent nos. 1 and 2  

Mr. Anis Suhrawardy and Mr. Shrish Mishra respectively, however,  

has drawn our attention to the aforesaid correspondences between  

respondent  no.  1  and  the  appellant.   In  support  of  their  

submission  that  the  service  of  the  appellant  continued  on  

probation  they  referred  to  the  contents  of  the  order  of  

appointment  and  the  series  of  the  letters.   In  terms  and  

conditions of his appointment, his services could be terminated  

without assigning any reason or on the ground of suitability at  

any point of time.  In support of their contentions, they have  

also relied upon the decisions of this Court in State of Uttar  

Pradesh Vs.  Akbar  Ali  Khan AIR  1968  SC  1842  and  also  the  

decision in the case of Kedar Nath Bahl Vs. The State of Punjab  

and  Others 1974(3)SCC  21.  In  the  light  of  the  aforesaid  

submissions of the learned counsel appearing for the parties, we  

have considered the records.

11.  There is no dispute with regard to the fact that the  

appointment of the appellant as the Assistant Teacher in the  

primary  Section  of  the  aforesaid  school  was  on  probation  

initially for a period of one year.  The appointment letter also  

specifically conveys the position and the stipulation that his  

services  could  be  regularised  only  if  his  performance  during  

probation period was found to be good/satisfactory.  Rule 26 to  

which  reference  was  made  again  and  again  is  extracted  

hereunder:-

6

“The  appointment  of  a  candidate  against  the  permanent  vacancy  shall  be  made  on  probation.   The  period  of  probation  shall  be  one  year.   It  can  be  extended  by  one  year.   Before  the  completion  of  probation period, the Committee of Management shall be  entitled to pass an order for removal from service.”

12. Having considered the language of the aforesaid rule, we  

are of the considered opinion that the decision in the case of  

Dharam  Singh(supra)  is  not  applicable  to  the  facts  and  

circumstance of the present case.  In fact, the aforesaid Rule  

26 is somewhat similar to the Rule which was considered by this  

Court in the case of  Akbar Ali Khan(supra).  A constitution  

Bench  of  this  Court  in  the  case  of  Akbar  Ali  Khan (supra)  

examined relevant provisions contained in Rules 12 and 14 of the  

UP  Subordinate  Revenue  Executive  Service  (Tahsildar)  Rules  

dealing with the provision of probation period.  The said rule  

provided that the period of probation would be two years which  

could be extended by the Board to three years.  The Constitution  

Bench of this Court considered as to whether a probationer stood  

confirmed  after  the  expiry  of  the  period  of  probation  in  

paragraph 5 of the said judgment.  This Court held in paragraph  

5 as follows:-  

“The respondent was posted as a Tehsildar and  placed on probation for two years.  The initial period  of probation was liable to be extended by the Board of  Revenue or by the Governor.  There is no rule that on  the expiry of the period of probation the probationer  shall be deemed to have been confirmed in the post  which he is holding as a probationer.  If a probationer  was  found  not  to  have  made  sufficient  use  of  his  opportunities or had failed to pass the departmental  examination “completely” or if he had otherwise failed  to  give  satisfaction  he  may  be  reverted  to  his  substantive  appointment  again  confirmation  in  the

7

appointment at the end of the period of probation could  only  be  made  if  the  probationer  had  passed  the  departmental  examination  for  tahsildars  “completely”  and  the  Commissioner  reported  that  he  was  fit  for  confirmation and that his integrity was unquestionable.  It is common ground in this case that the respondent  had  not  passed  the  departmental  examination  before  1955.   He  had  therefore  not  qualified  himself  for  confirmation.”

13. Having  held  thus,  this  Court  recorded  its  opinion  in  

paragraph 6 in the following manner:-

“The scheme of the rules is clear: confirmation  in the post which a probationer is holding does not  result  merely  from  the  expiry  of  the  period  of  probation, and so long as the order of confirmation is  not made, the holder of the post remains a probationer.  It  has  been  held  by  this  Court  that  when  a  first  appointment or promotion is made on probation for a  specified  period  and  the  employee  is  allowed  to  continue in the post, after the expiry of the said  period without any specific order of confirmation he  continues  as  a  probationer  only  and  acquires  no  substantive right to hold the post.  If the order of  appointment itself states that at the end of the period  of probation the appointee will stand confirmed in the  absence of any order to the contrary, the appointee  will  acquire  a  substantive  right  to  the  post  even  without an order of confirmation.  In all other cases,  in the absence of such an order or in the absence of  such a service rule, an express order of confirmation  is necessary to give him such a right.  Where after the  period of probation an appointee is allowed to continue  in the post without an order of confirmation, the only  possible view to take is that by implication the period  of probation has been extended, and it is not a correct  proposition to state that an appointee should be deemed  to be confirmed from the mere fact that he is allowed  to continue after the end of period of probation.”

14. The aforesaid rule which is referred to in the case of  

Akbar Ali Khan(supra) appears to be similar to the case in hand.  

So far the case of Dharam Singh(supra) which is relied upon by  

the learned counsel appearing for the appellant is concerned,  

the rule which was considered in that case was rule 6(3).  A

8

bare perusal of the said rule would indicate that by adding a  

proviso to the substantive rule, a maximum period of probation  

was provided and in that context, this Court has held that in  

view of the aforesaid proviso, the Rule postulates that there  

would be an automatic confirmation after expiry of the period  

mentioned in Rule 6(3).  Because a maximum period of probation  

was  provided  in  the  service  rules  in  the  case  of  Dharam  

Singh(supra), therefore, in that decision, it was held by this  

Court that continuation of the probationer thereafter would ipso  

facto be held as deemed confirmation.  The said decision is,  

therefore, not applicable to the present case and is clearly  

distinguishable.

15. The  correspondences  which  are  on  record  also  indicate  

that  the  service  of  the  appellant  was  also  found  to  be  not  

satisfactory  by  the  respondent  and  the  said  fact  was  also  

brought  to  the  notice  of  the  appellant  continuously  and  

repeatedly  so  as  to  give  him  an  opportunity  to  improve  his  

performance.  However, despite the said opportunity granted and  

also extension, his performance and service were not improved  

and, therefore, the service was terminated under the aforesaid  

letter dated 3.4.1993.

16. In the case of  Kedar Nath Bahl Vs.  The State of Punjab  

and Others reported in 1974 (3) SCC 21, this Court clearly laid  

down the proposition of law that where a person is appointed as

9

a  probationer  in  any  post  and  a  period  of  probation  is  

specified,  it  does  not  follow  that  at  the  end  of  the  said  

specified  period  of  probation  he  obtains  confirmation  

automatically even if no order is passed on that behalf.  It was  

also held in that decision that unless the terms of appointment  

clearly indicate that confirmation would automatically follow at  

the end of the specified period or that there is a specific  

service rule to that effect, the expiration of the probationary  

period does not necessarily lead to confirmation.  This Court  

went on to hold that at the end of the period of probation an  

order confirming the officer is required to be passed and if no  

such  order  is  passed  and  if  he  is  not  reverted  to  his  

substantive post, the result merely is that he continues in his  

post as a probationer.

17. In our considered opinion, the ratio of the aforesaid  

decision is also clearly applicable to the facts of the present  

case.  In the present case, in the appointment letter issued to  

the appellant, it was specifically mentioned that his service  

would  be  regularised  only  when  his  performance  during  the  

probation period is found to be good/satisfactory.

18. In view of the aforesaid stipulation, so long an order is  

not passed holding that the service of the appellant is good and  

satisfactory, it could not have been held that his service could  

be regularised automatically by a deeming provision.  

10

19. In that view of the matter, we find no merit in these  

appeals which are dismissed leaving the parties to bear their  

own costs.

......................J. (DR. MUKUNDAKAM SHARMA)

......................J. (ANIL R. DAVE)

NEW DELHI SEPTEMBER 08, 2011.