http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: AKHILESH C. BHARGAV & ORS.

DATE OF JUDGMENT26/08/1987

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DUTT, M.M. (J)

CITATION:  1987 AIR 2135            1987 SCR  (3)1091  1987 SCC  (4) 482        1987 SCALE  (2)428

ACT:     Indian  Police  Service (Probation) Rules,  1954:  Rules 3(1),  3(3)  and 12(bb)--Probationer continuing  in  service beyond period of probation--Effect of--Discharge from  serv- ice of such probationer-Whether valid. Administrative Law:     Service  Rules--Administrative  Instructions  issued  to cover gap where there be vacuum or lacuna--Whether valid.

HEADNOTE:     The first respondent was appointed to the Indian  Police Service on 4.7.1969 and allotted to the Gujarat State Cadre. He  was on probation and there was no order of extention  of probation.  He  was discharged by the impugned  order  dated 9.4.74.     The  order  of discharge was assailed by the  first  re- spondent.  A  Single Judge of the High  Court  annulled  the order. Two appeals were preferred by the Union of India  and the  State  to  the Division Bench which came  to  the  same conclusion, though for different reasons.          The State filed an appeal before this Court,  which was resisted by the respondent, contending that reference to Rule 12(bb) of the Indian Police Service (Probation)  Rules, 1954  brought into the otherwise innocuous order  stigma  in sufficient  measure  warranting a proceeding of  the  nature contemplated  under  Article 311(2) of the  Constitution  of India and that the respondent should have been treated as  a confirmed  officer  of the cadre at the time  the  order  of discharge was made.     On behalf of the State it was contended that no order of extension  of  probation  was necessary to be  made  as  the process  of confirmation was not automatic and even  if  the two  year period as provided in Rule 3(1) of  the  Probation Rules had expired, confirmation would not ipso facto  follow and a special order had to be made. Dismissing the appeal, this Court, 1092     HELD: 1. The first respondent having become a confirmed officer  of the Gujarat IPS cadre, under Rule 12(bb) of  the Indian Police Service Rules, 1954 his services could not  be brought  to an end by an order of discharge since  the  said Rules had no application for officer confirmed in the cadre.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

Proceedings  in accordance with law were, therefore,  neces- sary to terminate his service. [1096A-C]     2.1  While  the Probation Rules  prescribed  an  initial period  of two years of probation they did not  provide  any optimum  period  of probation.  Administrative  instructions issued by the Government of India on 16th March, 1973  indi- cating the guidelines to be followed in the matter laid down that, save for exceptional reasons, the period of  probation should  not be extended by more than one year and no  member of  the service should, by convention, be kept on  probation for  more  than  double  the normal  period  i.e.  4  years. [1094F-G; 1095A-B]     2.2  Within  the limits of executive  powers  under  the Constitutional  scheme it is open to the apropriate  Govern- ment  to issue instructions to cover the gap where there  be any vacuum or lacuna. Since instructions do not run  counter to the rules in existence, the validity of the  instructions cannot be disputed. [1095C]     In the instant case, there was no order of extension and the  order  of discharge is about five years after  the  ap- pointment. The respondent, therefore, stood confirmed in the cadre on the relevant date when he was discharged. [1096A]     Sant Ram Sharma v. State of Rajasthan and Anr., [1968] 1 SCR 111; State of Punjab v. Dharam Singh, [1968] 3 SCR 1 and Moti  Ram  Deka etc. v. General  Manager,  N.E.F.  Railways, Maligaon, Pandu etc., [1964] 5 SCR 683, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1273  of 1979.     From  the  Judgment and Order dated  10.11.1978  of  the Gujarat High Court in L.P.A. No. 206 of 1978.     T.U.  Mehta,  G.A. Shah, Mrs. H. Wahi, M.N.  Shroff  and K.M.M. Khan for the Appellant.     S.N.  Kacker, Anil Kumar Gupta, Brij Bhushan Sharma  and N.P. Mahindra for Respondent No. 1.          1093     V.C.  Mahajan,  C.  Ramesh and Miss  A.  Subhashini  for Respondent No.2. The following Order of the Court was delivered:     This  appeal by Special leave is against  the  appellate order  of  the  Division Bench of the  Gujarat  High  Court. Respondent No. 1 was appointed to the Indian Police  Service on  4.7. 1969 and has been discharged by the impugned  order dated 9.4.1974. After he was appointed by the Union of India he was allotted to the State cadre of Gujarat and the  order of  discharge has been made on the basis of steps  taken  by the State of Gujarat. The order of discharge was assailed by filing  a writ petition under Article 226 of  the  Constitu- tion.  The  Single  Judge annulled the order.  To  the  Writ petition  both the Union of India and the State  of  Gujarat were party-respondents. Against the Single Judge’s decision, two appeals were preferred to the Division Bench. The  Divi- sion  Bench for reasons mostly different from what had  been recorded  by  the  learned Single Judge, came  to  the  same conclusion.  Before this Court, there is only one appeal  by the State of Gujarat and the Union of India has been  joined as a respondent. Initially a preliminary objection had  been raised  regarding the maintainability of the appeal  in  the absence  of any appeal by the Union of India but Mr.  Kacker appearing for respondent No. 1 has given up the same. It is, therefore, not necessary to go into that question. The order of discharge read as follows:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

             "Under  clause (bb) of Rule 12 of  the  Indian               Police  Service (Probation) Rules,  1954,  the               President hereby discharges Shri A.C. Bhargav,               a person appointed to the Indian Police  Serv-               ice,  on  probation,  on the  results  of  the               I.A.S.  etc.  Examination held  in  1968,  and               ,allocated  to  the service cadre  of  Gujarat               from  the  said service with effect  from  the               date on which this order is served on the said               Shri A.C. Bhargav." Reference to Rule 12(bb), it was contended on behalf of  the respondent,  brought  into  the  otherwise  innocuous  order stigma in sufficient measure warranting a proceeding of  the nature  contemplated under Article 311(2) of  the  Constitu- tion.  It is unnecessary for us to go into that question  as in our opinion the view expressed by the High Court is 1094 quite sound. We may refer to the Constitution Bench decision of  this Court reported in the case of State of  Orissa  and Anr. v. Ram Narayan Das, [1961] 1 SCR 606 wherein this Court considered  the  order of discharge of a police  officer  on probation and held that in the case of a probationer  obser- vation  like  ’unsatisfactory work and  conduct’  would  not amount to stigma.     The  other aspect which has been convassed before us  at length  is  as to whether the respondent  should  have  been treated as a confirmed officer of the cadre at the time  the order  of discharge was made. Admittedly, the order of  dis- charge is about five years after the appointment.     Rule  3(1)  of  the Indian  Police  Service  (Probation) Rules,  1954,  provides that every person recruited  to  the service  in accordance with Indian Police Service  (Appoint- ment by Competitive Examination) Regulations, 1955,   ...... shall be appointed to the service on probation for a  period of two years. At the relevant time, sub-rule (3) of the said Rules  provided  that the Central Government may, if  it  so thinks  fit in any case or class of cases extend the  period of probation. Admittedly, in this case there was no order of extention. It has been contended that no order of  extension is  necessary to be made as the process of  confirmation  is not automatic and even if the two year period as provided in Rule  3(1)  has expired confirmation would  not  ipso  facto follow and a special order has to be made.     Reliance  has  been placed on a series of  decisions  of this Court which have held that an order of confirmation has to be made and confirmation would not follow  automatically. The position here, however, is somewhat different.     While  the Probation Rules prescribed an initial  period of  two  years of probation it did not provide  any  optimum period of probation. Administrative instructions were issued by  the  Ministry of Home Affairs, Government of  India,  on 16th  March, 1973, indicating the guidelines to be  followed in the matter. The relevant portion thereof may be  extract- ed:               ".......               (ii) It is not desirable that a member of  the               service should be kept on probation for  years               as  happens occasionally at present. Save  for               exceptional reasons, the period of proba-                     1095               tion  should  not, therefore, be  extended  by               more than one year and no member of the  serv-               ice  should, by convertion, be kept on  proba-               tion  for more than double the  normal  period               i.e.  four years. Accordingly, a  probationer,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

             who does not complete the probationers’  final               examination  within  a period of  four  years,               should  ordinarily  be  discharged  from   the               service."     It is not disputed that the circular of the Home  Minis- try was with reference to the Indian Police Service  (Proba- tion) Rules. We have not been shown that these  instructions run counter to the rules. It is well settled that within the limits of executive powers under the Constitutional  scheme, it  is open to the appropriate Government to issue  instruc- tions to cover the gap where there be any vacuum or  lacuna. Since instructions do not run counter to the rules in exist- ence,  the validity of the instructions cannot be  disputed. Reliance has been placed in the courts below on the  consti- tution Bench Judgment of this Court, and which reported in [ 2968]  1 SCR 111 (Sant Ram Sharma v. State of Rajasthan  and anr.) where Ramaswami J. speaking for the Court stated thus:               "   .....  We are unable to accept this  argu-               ment  as correct. It is true that there is  no               specific  provision in the Rules  laying  down               the principle of promotion of junior or               senior  grade  officers  to  selection   grade               posts. But that does not mean that till statu-               tory  rules  are  framed in  this  behalf  the               Government  cannot  issue  administrative  in-               structions  regarding  the  principles  to  be               followed  in promotions of the  officers  con-               cerned  to selection grade posts. It  is  true               that  Government  cannot  amend  or  supersede               statutory  rules  by  administrative  instruc-               tions,  but  if the rules are  silent  on  any               particular  point Government can fill  up  the               gaps  and supplement the rules and  issue  in-               structions  not  inconsistent with  the  rules               already framed.     We are of the view that the rules read with instructions create a situation as arose for consideration by this  Court in the case of State of Punjab v. Dharam Singh, [1968] 3 SCR 1. The Constitution Bench of this Court in that case  inter- preted the Punjab Educational Service (Provincialised Cadre) Class III Rules and found that there was a maximum limit  of three  years beyond which the period of probation could  not be  extended. When an officer appointed initially on  proba- tion  was  found to be continuing in  service  beyond  three years  without a written order of confirmation,  this  Court held that it tantamounts to confirmation. In view of what we have stated above we are in argee- 1096 ment  with the High Court about the combined effect  of  the rules  and instructions. We hold that the  respondent  stood confirmed  in  the cadre on the relevant date  when  he  was discharged. For a confirmed officer in the cadre, the Proba- tion  Rules  did  not apply and  therefore,  proceedings  in accordance  with law, were necessary to  terminate  service. That exactly was the ratio of the decision in Moti Ram  Deka etc.  v. General Manager, N.E.F. Railways,  Maligaon,  Pandu etc., [1964] 5 SCR 683. On the analysis indicated above, the net  result,  therefore, is that the respondent  No.  1  had become  a confirmed officer of the Gujarat I.P.S. cadre  and under rule 12(bb) of the Probation Rules his services  could not be brought to an end by the impugned order of discharge. The appeal fails and is dismissed. There will be no order as to costs. N.P.V.                                          Appeal  dis- missed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

1097