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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: DHARAM SINGH

DATE OF JUDGMENT: 02/02/1968

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. WANCHOO, K.N. (CJ) SHELAT, J.M. MITTER, G.K. VAIDYIALINGAM, C.A.

CITATION:  1968 AIR 1210            1968 SCR  (3)   1  CITATOR INFO :  D          1972 SC1004  (80)  D          1974 SC2192  (70,71)  F          1977 SC 355  (6)  RF         1979 SC1073  (9)  RF         1980 SC  42  (6,7)  F          1980 SC  57  (3,4,5)  RF         1986 SC1844  (3)  R          1987 SC2135  (7)  F          1988 SC 286  (4)  D          1991 SC1402  (4)

ACT: Punjab Educational Service (Provincialised Cadre) Class III, Rules,  1961,  r. 6(3)--Probationer against  permanent  post allowed to continue after period of  probation--Effect--When amounts to confirmation.

HEADNOTE: The respondents, who were teachers in District Board Schools were taken over by the State of Punjab with effect from  1st October 1957 when the Local Bodies Schools in the State were provincialised.     The    Punjab    Educational     Service (Provincialised  Cadre) Class III Rules were framed in  1961 but were deemed to have come into force on 1st October 1957. Under  r.  6(1)  of  the Rules  the  respondents,  who  were officiating  in permanent posts against permanent  vacancies were  deemed to have held their posts on probation,  in  the first instance, for one year from 1st October 1957.  On  the completion  of  this  initial period  of  probation  on  1st October  1958.  four  courses of action  were  open  to  the ’appointing  authority under r. 6(3), namely, (a) to  extend the  period  of  probation, provided  the  total  period  of probation,  including  extensions, would  not  exceed  three years,  or (b) to revert the employee to his former post  if he  was  promoted from some lower post, or (c)  to  dispense with  his services if his work or conduct during the  period of  probation was unsatisfactory, or (d) to confirm  him  in his appointment.  As, the respondents were not promoted from lower  posts there was no question of their  reversion.   No

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other order was however passed. but the authority  continued them  in  their  posts for three years, that  is,  upto  1st October  1960  and  even thereafter; allowed  them  to  draw annual  increments of salary including the  increment  which fell  due  on  1st  October 1962; and  some  time  in  1963, terminated  their services.  The orders of termination  were passed without holding any departmental enquiry and  without giving   the  respondents  any  opportunity  to   make   any representation. The  writ petitions filed by the respondets challenging  the orders were allowed by the High Court.  The High Court  held that  the respondents were not temporary employees  that  on the expiry of three years’ period of probation they must  be deemed  to  have  been confirmed in their  posts,  that  the impugned orders having deprived them of their right to those posts amounted to removal from service by way of  punishment and  were  passed in violation of Art. 311  and  the  Punjab Civil Services (Punishment and Appeal) Rules, 1952. In appeal to this Court, HELD  :  The impugned orders were rightly set aside  by  the High Court. [7 E] Where on the completion of the specified period of probation an  employee is allowed to continue in the post  without  an order  of  confirmation, in the absence of anything  to  the contrary  in the original order of appointment or  promotion or  the Service Rules,- the initial period of  Probation  is deemed to be extended by necessary implication.  But, where, as  in  the present case, the Service Rules  fix  a  certain period of time beyond which the 2 probationary  period  cannot be extend-ad, and  an  employee appointed  or promoted to a post on probation is allowed  to continue  in that post after the completion of  the  maximum period   of   probation   without  an   express   order   of confirmation,  he cannot be deemed to continue in that  post as a probationer.  The reason is that such an implication is negatived  by the service rule forbidding extension  of  the probationary  period beyond the maximum period fixed by  it. In such a case, it is permissible to draw the inference that the employee’ allowed to continue in the post on  completion of the maximum period of probation has been confirmed in the post by implication. [5 C, G; 6 A-B] Case law refereed to. Narain  Singh Ahluwalia v. State of Punjab C.A. No.  492  of 1963 dated 29th January 1964, explained and followed.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION :  Civil Appeal  No.  787  of 1966. Appeal  by special leave from the judgment and  order  dated November 26, 1964 of the Punjab High Court in Letters Patent Appeal No.     354  of  1963 and Civil Appeal  No.  1017  of 1966. Appeal  by special leave from the judgment and  order  dated January  7,1965 of the Punjab High Court in  Letters  Patent Appeal No.     162 of 1964. Vikram  Mahajan and S. P. Nayar, for the appellant (in  C.A. No. 787 of 1966). R.  N.  Sachthey,  for the appellant (in C.A.  No.  1017  of 1966). Mohan Behari Lal, for the respondent (in both the appeals). The Judgment of the Court was delivered by Bachawat,  J.  These two connected appeals  raise  a  common

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question  of construction of r. 6 of the Punjab  Educational Service (Provincialised Cadre) Class III Rules, 1961, Before October  1, 1957, Dharam Singh and Dev Raj, the  respondents to  these  appeals, were junior teachers in  District  Board schools.   The District Board schools  were  provincialised, and  the services of the respondents were taken over by  the Punjab  State with effect from October 1, 1957 in  pursuance of a scheme of provincialisation of Local Bodies schools  in the State.  On February 13, 1961, the Governor of Punjab  in exercise of the powers conferred by the proviso to Art.  309 of  the Constitution framed the Punjab  Educational  Service (Provincialised Cadre) Class III Rules, 1961 regulating  the conditions  of service of the teaching staff taken  over  by the  State  Government from the local authorities.   Rule  1 provides  that  the rules will be deemed to have  come  into force with effect from October 1, 1957.  Rule 3 created  the Punjab Educa- 3 tional  (provincialised Cadre) Class III Service  consisting of the posts shown in Appendix A. It is common case that the posts held by the respondents are included in Appendix A and carry time scales of pay.  Rule 6 is in these terms:               "6(1).  Members of the Service, officiating or               to be promoted against permanent posts,  shall               be on probation in the first instance for  one               year.               (2)  Officiating service shall be reckoned  as               period  spent on probation, but no member  who               has officiated in any appointment for one year               shall be entitled to be confirmed unless he is               appointed against a permanent vacancy.               (3)  On  the  completion  of  the  period   of               probation  the  authority  competent  to  make               appointment  may  confirm the  member  in  his               appointment, or if his work or conduct  during               the  period  of,  probation has  been  in  his               opinion  unsatisfactory he may  dispense  with               his  services  or  may extend  his  period  of               probation by such period as he may deem fit or               revert  him  to  his former  post  if  he  was               promoted from some lower post.               Provided  that the total period  of  probation               including extensions, if any, shall not exceed               three years.               (4)   Service   spent  on  deputation   to   a               corresponding or higher post may be allowed to               count  towards  the period  of  probation,  if               there  is  a permanent vacancy  against  which               such member can be confirmed." The  respondents  were officiating in  permanent  posts  and under  r.  6(3)  they  continued  to  hold  those  posts  on probation  in the first instance for one year.  The  maximum period of probation fixed by the rules was three years which expired  on October 1, 1960.  The respondents  continued  to hold  their posts after October 1, 1960, but  formal  orders confirming them in their posts were not passed.  Under r. 7, the   Director  of  Public  Instruction,  Punjab   was   the appointing  authority.   By two separate  orders  passed  on February   10,  1963  and  April  4,  1963,   the   Director terminated.  their services.  The order in each case  stated that  the services of the respondent concerned  "are  hereby terminated  in accordance with the terms of his  employment. The order shall take effect after one month from the date it is served on him." Rule 12 provides that in matters relating to  discipline,  punishment  and  appeals,  members  of  the

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service  shall  be  governed by the  Punjab  Civil  Services (Punishment  and  Appeal)  Rules, 1952.   The  orders  dated February  10 and April 4, 1963, were passed without  holding any departmental enquiry and without giving the  respondents ;any  opportunity  of  making  representations  against  the action 4 taken  against  them.  The respondents filed  separate  writ petitions in the Punjab High Court challenging the aforesaid orders  on  the ground that they  had  acquired  substantive rights  to  their  posts, and that the  orders  amounted  to removal  from service, and were passed in violation of  Art. 311  of the Constitution.  The appellants pleaded that  the, respondents  were temporary employees, that  their  services were  terminated  in  accordance with  the  terms  of  their employment,  and that the impugned orders did not amount  to removal from service and were not in violation of Art. 31 1. Learned  single  Judges  of  the  High  Court  rejected  the respondents’  contentions and dismissed the writ  petitions. The  respondents  filed  separate  Letters  Patent   appeals against  these judgments.  The appellate Court  allowed  the appeals  and set aside the impugned orders.   The  appellate Court   held  that  the  respondents  were   not   temporary employees,  that they held the posts on probation,  that  on the expiry of three years’ period of probation they must  be deemed  to  have  been confirmed in their  posts,  that  the impugned orders having deprived them of their right to those posts amounted to removal from service by way of  punishment and  were  passed in violation of Art. 311  and  the  Punjab Civil  Services (Punishment and Appeal) Rules, 1952.  It  is against these appellate orders that the present appeals have been filed after obtaining special leave. The  High Court found that the respondents were  officiating in   permanent   posts  against   permanent   vacancies   as contemplated by r. 6     and  that on the coming into  force of  the rules, they must be deemed to have held their  posts under  r. 6 (1) on probation in the first instance for  on-, year  from  October  1,  1957.   The  correctness  of  these findings is not disputed by the appellants.  The High  Court also  held that in the circumstances of these cases, on  the completion of three years’ period of probation on October 1, 1960, the respondents must be deemed to have been  confirmed in their appointments.  The appellants attack this  finding. They  submit  that  in  the  absence  of  formal  orders  of confirmation   the  respondents  must  be  deemed  to   have continued   in   their  posts  as  probationers.    In   the alternative, they submit that on completion of three  years’ period of probation, the respondents must be deemed to  have been  discharged from service and re-employed  as  temporary employees.  We are unable to accept these contentions. 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 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 original order of appointment or  promotion or the service rules.  In, such a case, 5 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 of probation  it  is  not possible  to  hold  that  he  should  deemed  to  have  been confirmed.   This  view was taken in sukhbans Singh  v.  The

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State  of  Punjab(1),  G. S. Ramaswamy  v.    The  Inspector- General of Police, Mysore State, Bangalore(2) The Accountant General,   Madhya   Pradesh,   Gwalior   v.   Beru    Prasad Bhatnagar(3),  D.  A.  Lyall v. The  Chief  Conservator  of. Forests,  U.P.  and  others(4) and State of  U.P.  v.  Akbar Ali(5).  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 all these cases, the conditions of  service of  the  employee permitted extension  of  the  probationary period for an indefinite time and there was no service  rule forbidding its extension beyond a certain maximum period. The same view was taken in Narain Singh Ahluwalia v.  State, of Punjab and another(6) It was suggested before us that the service rules in that case provided for a maximum period  of probation of two years beyond which the probationary  period could  not be extended.  The judgment in that case does  not refer ’to such a rule, nor does it appear from the  judgment that  before the. appellant was reverted to his  substantive post,  the maximum period of probation in the post to  which he had been promoted had expired.  A reference to the  paper book  in  that  case,  shows  that  in  November,  1957  the appellant  was promoted as a superintendent and on June  26, 1959 before the expiry of the maximum period of probation he was reverted to his substantive post.  He thus continued  to hold  the post of superintendent as a probationer  when  the order of reversion was passed. In the present case, r. 6(3) forbids extension of the period of  probation beyond three years.  Where, as in the  present case, the service rules fix a certain period of time  beyond which  the  probationary period cannot be extended,  and  an employee  appointed  or promoted to a post on  probation  is allowed  to  continue in that post after completion  of  the maximum  period  of probation without an  express  order  of confirmation, he cannot be deemed to (1) [1963] (1) S.C.R. 416, 424-426 (2) [1964] 6 S.C.R. 278, 288-289 (3) C.A. No. 548 of 1962 decided on January 23, 1964. (4) C.A. No. 259 of 1963 decided on February 24,1965. (5) [1966] 3 S.C.R. 821, 825-826. (6)  C.A. No. 492 of 1963 decided on January 29, 1964. 6 continue in that post as a probationer by implication.   The reason  is  that  such an implication is  negatived  by  the service rule forbidding extension of the probationary period beyond  the maximum period fixed by it.  In such a case,  it is  permissible  to  draw the inference  that  the  employee allowed to continue in the post on completion of the maximum period  of  probation  has been confirmed  in  the  post  by implication. The employees referred to in r. 6(1) held their posts in the first  instance  on probation for one year  commencing  from October  1, 1957.  On completion of the one year  period  of probation of the employee, four courses of action were  open to  the appointing authority under r. 6(3).   The  authority could either (a) extend the period of probation provided the total  period  of probation including extensions  would  not exceed three years, or (b) revert the employee to his former post  if  he  was  promoted from some  lower  post,  or  (c) dispense with his services if his work or conduct during the period  of probation was unsatisfactory, or (d) confirm  him

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in  his appointment.  It could pass one of these  orders  in respect  of the respondents on completion of their one  year period  of  probation.  But the authority  allowed  them  to continue in their posts thereafter without passing any order in  writing  under r. 6(3).  In the absence  of  any  formal order, the question is whether by necessary implication from the  proved  facts of these cases, the authority  should  be presumed to have passed some order under r. 6(3) in  respect of the respondents, and if so, what order should be presumed to have been passed. The respondents were not promoted from lower posts and there was  no  question of their reversion to, such posts  at  any time under r. 6(3). The initial period of probation of the respondents ended  on October 1, 1958.  By allowing the respondents to continue in their   posts  thereafter  without  any  express  order   of confirmation, the competent authority must be taken to  have extended  the period of probation up to October 1,  1960  by implication.   But  under  the  proviso  to  r.  6(3),   the probationary period could not extend beyond October 1, 1960. In  view  of the proviso to r. 6(3), it is not  possible  to presume   that   the  competent   authority   extended   the probationary   period  after  October  1,  1960,   or   that thereafter the respondents continued to hold their posts  as probationers. Immediately  upon completion of the extended period of  pro- bation  on October 1, 1960, the appointing  authority  could dispense with the services of the respondents if their  work or conduct during-the period of probation was in the opinion of the authority unsatisfactory.  Instead of dispensing with their services on com- 7 pletion  of the extended period of probation, the  authority continued  them in their posts until sometime in  1963,  and allowed  them to draw annual increments of salary  including the increment which fell due on October 1, 1962.  The  rules did not require them to pass any test or to fulfil any other condition  before  confirmation.  There  was  no  compelling reason  for dispensing with their services and  re-employing them as temporary employees on October 1, 1960, and the High Court  rightly refused to draw the inference that they  were so  discharged  from  service  and  re-employed.   In  these circumstances,   the  High  Court  rightly  held  that   the respondents must be deemed to have been confirmed. in  their posts.  Though the appointing authority did not pass  formal orders of confirmation in writing, it should be presumed  to have  passed orders of confirmation by so allowing  them  to continue in their posts after October 1, 1960.  After such c confirmation,  the, authority had no power to dispense  with their  services under r. 6(3) on the ground that their  work or   conduct   during   the   period   of   probation    was unsatisfactory.   It  follows  that  on  the  dates  of  the impugned orders, the respondents had the right to hold their posts.  The impugned orders deprived them of this right  and amounted to removal from service by way of punishment.  The’ removal from service could not be made without following the procedure laid down in the Punjab Civil Services (Punishment and  Appeal) Rules, 1952 and without conforming to the  con- stitutional  requirements of Art. 311 of  the  Constitution. As  the’  procedure laid down in the Punjab  Civil  Services (Punishment and Appeal) Rules, 1952 was not followed and  as the constitutional protection of Art. 311 was violated,  the impugned orders’ were rightly set aside by the High Court. In the result, the appeals are dismissed with costs.   There will be one hearing fee.

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V.P.S.                         Appeals dismissed. 8