19 April 1996
Supreme Court
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STATE OF PUNJAB Vs BALDEV SINGH KHOSLA

Bench: RAMASWAMY,K.
Case number: C.A. No.-007793-007793 / 1996
Diary number: 52 / 1995
Advocates: Vs P. N. PURI


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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: BALDEV SINGH KHOSLA

DATE OF JUDGMENT:       19/04/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 AIR 2093            JT 1996 (5)    78  1996 SCALE  (4)452

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      This appeal  by special  leave arises from the order of the High  Court of  Punjab &  Haryana made  on September 14, 1994 in  CWP No.  11874. The  respondent was  promoted as an Assistant  Registrar   of  the   Cooperative  Societies   by proceedings dated March 21,1990. Rule 10 of the Punjab State Co- operative  Service (Class  II) Rules,  1958 enjoins that the promotee or direct recruit would be put on probation for a period of two years provided that the Government may allow service rendered  on a  post on an identical cadre or in the higher post  in another department to count for probation in the said service. Rule 10 reads as under:      "10. Probation.  All members of the      service shall on appointment remain      on probation  in the first instance      for a period of two years, provided      that Govt. an identical cadre or in      the   higher    post   in   another      department to  count for  probation      in the post in the service.      2. Provided  further  that  in  the      case of  members promoted  from the      State Service  Class  III  continue      officiating of  four months or over      shall be reckoned as a period spent      on probation.      3. If  the work  or conduct  of any      candidates  or  member  during  the      period of  training or probation in      the  opinion   of  Government   not      satisfactory they may dispense with      his  service,   if  he   has   been      recruited by  direct appointment or      may reverr  him to  his former post

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    if  he   has  been   recruited   by      promotion or  by transfer.  On  the      conclusion   of   the   period   of      probation of  any  members  of  the      service,   government,    may,   if      vacancy exists,  confirm him in his      appointment; if his work or conduct      has,    in    it    opinion    been      satisfactory may  extend his period      of probation  by such  period as it      may think  fit and  thereafter pass      such orders as it could have passed      on the  expiry of  the first period      of  probation,  provided  that  the      total    period    of    probation,      including  extension,   shall   not      exceed three years in any case."      Though  respondent   had  completed  his  probation  on November 25, 1992, a however, his probation was extended, in the meanwhile  form time  to time.  On September 15, 1993, a show cause  notice was issued to him as to why he should not be reverted  to the  substantive cadre.  On consideration of the reply  to show  cause notice, order came to be passed on February 11, 1994 reverting him to the substantive post from which he was promoted. Consequently, he filed writ petition. The High  Court has  allowed the  writ petition holding that since he was not reverted before expiry  of 3 years, he must be deemed  to have  been confirmed  and that, therefore, the reversion order  was held bad in law. The High Court did not express any  opinion on  the adverse  remarks commented upon the performance  of the  respondent. Thus,  this  appeal  by special leave.      Learned counsel  for the respondent contends that since the rule  provides an  outer limit  of three  years, if  the respondent had not been reverted within that period, he must be deemed  to have  been confirmed  and  the  High  Court  , therefore, was  right in concluding that the respondent is a confirmed  probationer.   We  do   not  find  force  in  the contention. Sub-rule  (3) of  Rule 10 clearly envisages that on conclusion  of the  period of  probation of any member of the service  the Government  may, if vacancy exists, confirm him in  his appointment;  if his work or conduct has, in its opinion, not  been satisfactory, it may extend his period of probation by  such period as it may think fit and thereafter pass such  orders as could have been passed on the expiry of his period  of probation  . It  would thus  be seen that the outer limit  of three  years provided  under the rules is an enabling provision  to allow  the probationer to continue in service without  being reverted  or discharged  from service for  failure   to  satisfactorily  complete  the  period  of probation, but  that would not mean that the probationer, on expiry of  three years’  period, must be deemed to have been confirmed. The  rule itself  envisages a  positive order  of confirmation. So  long as  the order  of confirmation is not made, even  after expiry  of probation,  the probationer may continue and  remain in  service, but  by  allowing  him  to remain in  service it  cannot be  concluded that  he must be deemed to have been confirmed.      The rule  also envisages  that  during  the  period  of probation, the  appointing  authority  is  required  to  the performance of  the work  done by  the  probationer  to  the satisfaction of  the appointing  authority. It  is seen that for the  year 1991  and 1992 there were adverse remarks made upon the  performance of  the respondent.  Obvious for  that reason, his  confirmation was  not made.  On the other hand,

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the period  of probation was further extended as admitted by the respondent.  Under these  circumstances,  he  cannot  be deemed  to   have  been   confirmed.  However,   since   the authorities had  extended the  period of probation and given him chance  to improve his performance during the year 1993- 94, that  period was  not taken  into  consideration  before reverting  the   respondent  from  service.  The  appointing authority is,  therefore, directed to consider whether he is fit to be confirmed, on the basis of his performance for the subsequent period  and in case it consider whether he is fit to be  confirmed, on  the basis  of his  performance for the subsequent period  and in  case it  considers that he may be confirmed, it  would be  open to  them to  pass  appropriate orders. In case, even after consideration of the performance for the  year 1993-94, his record is not found satisfactory, appropriate orders  may be  passed and  communicated to  the respondents.      The appeal is accordingly disposed of. No costs.