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PETITIONER: PRATAP SINGH

       Vs.

RESPONDENT: UNION TERRITORY OF CHANDIGARH AND ANR.

DATE OF JUDGMENT03/09/1979

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KAILASAM, P.S. SEN, A.P. (J)

CITATION:  1980 AIR   57            1980 SCR  (1) 487  1979 SCC  (4) 263

ACT:      Punjab  Police   Rules-Rule  12.8(1)-Appointment  on  a temporary  basis   against  a   temporary   vacancy-Services terminated after three years-Termination-Validity of.

HEADNOTE:      The services  of the appellant, who was appointed as an Assistant Sub-Inspector  of Police  on  July  2,  1973  were terminated in  September 1977.  The High  Court rejected his petition impugning the order of termination of his services.      In appeal  to this  Court  it  was  contended  that  on completion  of   the  three  year  period  of  probation  in accordance with  r. 12.8(1)  of the  Punjab Police Rules the appellant should  be deemed  to have  been confirmed  in the post  and  that  the  order  terminating  his  services  was illegal.      Dismissing the appeal, ^      HELD.: There  is no  legal error in the order passed by the  Senior   Superintendent  of   Police  terminating   the appellant’s services. [490C]      1. It  is well  settled that  a person  is appointed on probation only  when he  is appointed  against a substantive post.  The   appellant,  having  been  appointed  against  a temporary vacancy,  was not  on probation.  Rule 12.8, which deals with  officials appointed on probation, does not apply to this case. [489 F-G]      2. Assuming  that r.  12.8 was  applicable, the officer could not be deemed to be confirmed unless there is any rule providing that,  in the  absence of an order of confirmation at the  end of  the probation, the employee must be presumed to be  confirmed. There  is no such provision in the present rules and  hence the period of probation must be presumed to have been extended.      3. in the State of Punjab v. Dharam Singh, [1968] 3 SCR 1 this  Court held  that when a first appointment is made on probation for  a specific  period  a  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

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original order  of appointment or the Service Rules. In such a case,  an express  order of  confirmation is  necessary to give the employee a substantive right to the post. [489B-C]      In the  instant case since no order of confirmation had been passed  after the  appellant completed  three years, it must be presumed that his probation had been extended 488 State of Punjab v. Dharam Singh [1968] 3 SCR applied.      Supdt. of  Police Ludhiana  and Anr. v. Dwarka Das etc. etc. A.I.R. 1979 S.C. 336 over-ruled.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 924 of 1970.      Appeal by  special leave  from the  Judgment and  order dated 19-10-1977  of the  Punjab and  Haryana High  Court in Civil Writ Petition No. 3219/77.      Appellant in person.      H.S. Marwah,  R.N. Sachthey  and A.  Sachthey  for  the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J. This appeal by special leave is directed against the  judgment of  the Punjab  & Haryana  High  Court dismissing the  Writ Petition filed by the appellant against the  order   of  his   termination  passed   by  the  Senior Superintendent of  Police. The appellant was appointed on 2- 7-1973 as  a temporary Assistant Sub-Inspector of Police. On 26-9-1977,  his  services  were  terminated  by  the  Senior Superintendent of  Police. Against this order, the appellant moved the  High Court  of Punjab  & Haryana but his petition was rejected.  Thereafter, he  came to  this Court and after obtaining special  leave from his Court, the appeal has been placed before us for hearing.      The short  point taken  by the appellant in this appeal is that  under Rule  12.8(1) of  Punjab  Police  Rules,  the petitioner must  be considered  to be  on  probation  for  a period of  three years and as the appellant has crossed this period or  three years,  he must  be  deemed  to  have  been confirmed  and,   therefore,  his   services  could  not  be terminated. In  support  of  this  submission,  reliance  is placed by the appellant on a Division Bench Judgment of this Court in  case of The Superintendent of Police, Ludhiana and Anr. etc.  etc. v.  Dwarka Das  etc. etc.  Where Shinghal J. speaking for the Court observed as follows:-           "So if  Rules 12.2(3) and 12.21 are read together,      it will  appear that the maximum period of probation in      the case  of a  police officer of the rank of constable      is  three  years,  for  the  Superintendent  of  Police      concerned has  the power  to discharge  him within that      period. lt  follows that  the power of discharge cannot      be exercised  under Rule  12.21 after the expiry of the      period of three years."      It is  true that  the observations  made by  this Court support the  contention of  the appellant to all extent. But in our opinion, the 489 Division Bench  decision was not correctly decided as it has not considered the Five Bench decision of this Court in case of State  of Punjab  v. Dharam Singh where after considering the number of cases, the Court observed thus:           "This Court  has consistently  held  that  when  a      first appointment or promotion is made on probation for      a specific  period  and  the  employee  is  allowed  to

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    continue in  the past  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. Tn  such a case 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 or probation it is not      possible to  hold that he should be deemed to have been      confirmed.           The reason  for this  conclusion is  that where on      the completion of the specified period of probation the      employee is  allowed to continue in the post without an      order of  confirmation, the  only possible view to take      in the  absence of  anything to  the  contrary  in  the      original order  of  appointment  or  promotion  or  the      service rules,  is that the initial period of probation      has been extended by necessary implication."      In the instant case, the appellant was appointed purely on a  temporary basis  and not  on probation and, therefore, Rule 12.8  which deals  with officials  who are appointed on probation does  not apply  to this  case at  all. It is well settled that  a person  is appointed on probation only if he is appointed  against a  substantive vacancy. In the instant case, it  is not  disputed that  the appellant was appointed only against  a temporary  vacancy. Assuming,  however, that Rule  12.8  of  the  Punjab  Police  Rules  applies  to  the appellant’s case  and he is governed by Rule 12.8 even after the probation  of three  years is  over, the  police officer shall not be deemed to be confirmed unless there is any rule which provides  that in  absence of an order of confirmation at the  end of  the probation? the employee must be presumed to be  confirmed. There  is no such provision in the present rules. In  these circumstances,  therefore, as  held by this Court in  the case  of Dharam Singh, it must be held that if no express order of confirmation was 490 passed after the appellant completed three years, it must be presumed that his probation was extended.      In this  view of  the matter,  as the  appellant was  a temporary hand,  the services  could be  terminated  at  any time. It  appears that the attention of this Court is Dwarka Das’s Case  was not  drawn to the case of State of Punjab v. Dharam Singh  (supra) which  has been  decided by  a  larger Bench and  therefore, the  later decision  rendered by  this Court in Dwarka Das is directly opposed to the view taken by the larger  Bench and  must, therefore,  be  overruled.  For these reasons,  therefore, we  are unable  to find any legal error in  the order  passed by  the Senior Superintendent of Police in terminating the services of the appellant      The appeal is accordingly dismissed.      A request has been made by the appellant that he may be allowed to  retain the Govt. quarter which has been allotted to him for some time so as to enable him to find alternative accommodation. Mr.  Marwah, Counsel  for the  State, has  no objection if a reasonable time is given to the appellant for this purpose.  We, therefore, give three months’ time to the appellant to  vacate the  government quarter allotted to him on his  furnishing an  undertaking  to  the  Sr.  Supdt.  of Police. P.B.R.                                      Appeal dismissed 491

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