State of Punjab Vs. Dharam Singh [1968] INSC 27 (2 February 1968)

02/02/1968 BACHAWAT, R.S.

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 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 sometime 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 respondents 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.

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 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 Educational (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 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 State of Punjab(1), G. S. Ramaswamy v. The InspectorGeneral 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 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 probation 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 completion 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 fulfill 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 constitutional 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.

V.P.S. Appeals dismissed.

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