Pratap Singh Vs. Union Territory of
Chandigarh & ANR  INSC 165 (3 September 1979)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
SEN, A.P. (J)
CITATION: 1980 AIR 57 1980 SCR (1) 487 1979
SCC (4) 263
Punjab Police Rules-Rule 12.8(1)-Appointment
on a temporary basis against a temporary vacancy-Services terminated after
three years-Termination-Validity of.
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
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
3. in the State of Punjab v. Dharam Singh,
 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 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  3 SCR
Supdt. of Police Ludhiana and Anr. v. Dwarka
etc. A.I.R. 1979 S.C. 336 over-ruled.
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 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. In 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
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.