Om Prakash Maurya Vs. U.P. Cooperative
Sugar Factories Federation, Lucknow & Ors [1986] INSC 116 (9 May 1986)
SINGH, K.N. (J) SINGH, K.N. (J) REDDY, O.
CHINNAPPA (J)
CITATION: 1986 AIR 1844 1986 SCR (3) 78 1986
SCC Supl. 95 JT 1986 370 1986 SCALE (1)1211
CITATOR INFO:
F 1988 SC 286 (4) D 1991 SC1402 (5) E&D
1992 SC2093 (16)
ACT:
U.P. Cooperative Societies Act, 1975,
Sections 121 and 122, scope of the scheme under-if two sets of service Rules
are prevalent, which would prevail-Whether the U.P.
Cooperative Sugar Factories Federation
Service Rules, 1976 override the U.P. Cooperative Societies' Employees Service
Regulations 1975.
Deemed Confirmation-Whether an employee who
has completed the statutory maximum period of probation could be deemed to have
been confirmed-U.P. Cooperative Societies Employees Service Regulations 1975,
Regulations 17 and 18- Whether reversion to substantive post in such a case,
valid.
HEADNOTE:
In the State of Uttar Pradesh there are two
sets of service rules (i) The U.P. Cooperative Societies Employees Service
Regulations 1975 framed by the U.P. Cooperative Institutional Authority
constituted by the State Government through a Notification dated March 4, 1978
as an authority for the recruitment, training and disciplinary control of the
employees of the Apex Level Societies Central or Primary Societies and; (2) the
U.P. Cooperative Sugar Factories Federation Employees' Service Rules 1976
framed by the cane commissioner by virtue of the power vested under section
122(1) of the U.P. Cooperative Societies Act which provided that they shall
apply to all the employees of the U.P.
Cooperative Sugar Factories Federation Ltd.
While the proviso to Regulation 17 restricts the power of the appointing
authority in extending the period of probation beyond the period of one year
and in case of an employee appointed against a regular vacancy beyond two
years, Rule 5 of the Federation Service Rules 1976 does not place any such
restriction on the appointing authority's power to extend the period of probation
and in the absence of a confirmation order, the employee shall continue to be a
probation for indefinite period. Again while the Regulations framed by the
Institutional Service Board require approval of the State 79 Government under
sub-section 2 of section 122 of the Act, the Rules do not provide for an
approval. Section 2(a-4) which defines "Apex Level Societies"
specifies the U.P.
Cooperative Sugar Factories Federation Ltd.
as an Apex Level Society.
The appellant joined service in Kisan Sahkari
Chini Mills Ltd. Bisalpur District Pilibhit, a Sugar Factory run and managed by
the U.P. Cooperative Mills Federation. While working as an Office
Superintendent, he was selected for promotion to the post of commercial officer
and by an order dated 29.8.80 appointed on probation for a period of one year
which was extended by another order dated 2.10.81 till 4.9.82. No further order
either extending the period of probationary period or confirming him on the
post was issued and while so continuing he was reverted, by an order dated
2.9.83, to the post of office Superintendent. The appellant challenged the
validity of the reversion order before the High Court of U.P. (Lucknow Bench)
on the sole ground that on the expiry of the probationary period he stood confirmed
and he could not be reverted treating him on probation. The High Court held
that on the expiry of the probationary period, the appellant could not be
deemed to be confirmed as there was no rule prohibiting the extension of the
probationary period. Hence the appeal by special leave.
Allowing the appeal, the Court ^
HELD: 1.1 Since the appellant's services were
regulated by the U.P. Cooperative Societies Employees Service Regulations, 1975
under which his services could not be extended beyond the maximum period of two
years, he stood confirmed by implication on the expiry of maximum probationary
period and thereafter, he could not be reverted to a lower post treating him on
probation. The order of reversion is illegal. [87D-E]
1.2 Reading Regulations 17 and 18 together it
is clear that an employee appointed against a regular vacancy cannot be placed
on probation for a period more than two years and if during the period of
probation the appointing authority is of the opinion that the employee has not
made use of opportunity afforded to him he may discharge him from service or
revert him to his substantive post but he has no power to extend the period of
probation beyond the period of two years. Regulation 18 stipulates confirmation
of an employee by an express order on the completion of the probationary
period. The regulations do not expressly lay down as to what would be the
status of an employee on the 80 expiry of maximum period of probation where no
order of confirmation is issued and the employee is allowed to continue in
service. Since Regulation 17 does not permit continuation of an employee on
probation for a period more than two years the necessary result would follow
that after the expiry of two years probationary period, the employee stands confirmed
by implication. This is implicit in the scheme of Regulation 17 and 18. [82D-H]
State of Punjab v. Dharam Singh [1968] 3 SCR 1 applied.
1.3 It is well settled that where appointment
on promotion is made on probation for a specific period and the employee is
allowed to continue in the post after expiry of the probationary period without
any specific order of confirmation he would be deemd to continue on probation
provided the Rules do not provide contrary to it. In that sense, if Rule 5 of
the U.P. Cooperative Federation Service Rules, 1976 were to apply, the
appellant, no doubt could not acquire the status of a confirmed employee in the
post of commercial officer. But the scheme of sections 121 and 122 of the U.P.
Cooperative Societies Act, 1965 postulates that primacy has to be given to
Regulations framed by the Authority under section 122 of the Act and if there
are two sets of rules regulating the conditions of service of employees of
Cooperative Societies the Regulations framed under section 122 and approved by
the State Government shall prevail. In this view, the provisions of the U.P. Cooperative
Sugar Factories Federation Service Rules do not override Service Regulations
1975 which is further evidenced by Government's Notification dated 6.8.1977.
Since the Institutional Service was conferred power to frame regulations
regulating the conditions of service of the employees of Apex Level Societies,
the regulations framed by the Board alone will apply to the employees of the
U.P.
Cooperative Sugar Factories Federation Ltd.
so long as such a power has not been withdrawn. Further, constituting the
commissioner and Secretary of the Cane Development Department as the competent
authority for framing regulations for the recruitment, training and disciplinary
control of the employees of the U.P. Cooperative Sugar Factories Federation
Ltd. is of no consequence to the applicability of 1975 Regulations. [84D-E;
86D-E; 85F; 86G]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 491
of 1985 From the Judgment and Order dated 26th July, 1984 of the Allahabad High
Court in W.P. No. 4899 of 1983.
81 Pankaj Kalra for the Appellant.
Rameshwar Dial and Sarv Mitter for the
Respondents.
The Judgment of the Court was delivered by
SINGH, J: This appeal is directed against the order of the High Court of
Allahabad (Lucknow Bench) dismissing the appellant's writ petition made under
Art. 226 of the Constitution challenging the Order dt. 2.9.1983 reverting the
appellant from the post of Commercial Officer to that of Superintendent.
The appellant joined service in Kisan Sahkari
Chini Mills Ltd., Bisalpur District Pilibhit, a sugar factory run and managed
by the Uttar Pradesh Co-operative Mills Federation. While the appellant was
working as Office Surperintendent, he was selected for promotion to the post of
Commercial Officer and by Order dt. August 29, 1980 appointed on probation for
one year against a regular vacancy with a condition that his probationary
period may be extended further and during the period of probation he could be
reverted to the post of Office Superintendent without any notice. On 2.7.1981
the appellant was transferred from Bisalpur to Majohla Sugar Factory where he
continued to work as Commercial Officer. By an Order dt. 2.10.1981 the
appellant's probationary period was extended for one year till 4.9.1982, the
period so extended expired on 4.9.82 but no further order either extending the
probationary period or confirming him on the post was issued, and the appellant
continued to work as Commercial Officer. The Managing Director of the U.P.
Co-operative Sugar Mill Federation Ltd.
a "Co-operative society" registered
under the U.P. Co- operative Societies Act, 1965, which runs and manages a
number of sugar factories in the State of Uttar Pradesh issued order on 2.9.83
reverting the appellant to the post of Office Superintendent. The appellant
challenged the validity of the reversion order before the High Court on the
sole ground that on the expiry of the probationary period he stood confirmed,
and he could not be reverted treating him on probation. The High Court held
that on the expiry of the probationary period the appellant could not be deemed
to be confirmed as there was no rule prohibiting the extension of probationary
period.
The U.P. Co-operative Institutional Service
Board constituted by the State of Uttar Pradesh in accordance with sub-sec. (2)
of sec. 122 of the U.P. Co-operative Societies Act, 1965 has framed the U.P.
82 Co-operative Societies Employees Service
Regulations 1975 which regulate the condition of service of employees of all
the co-operative societies placed under the purview of the Institutional
Service Board by the Government Notification No. 366-C/XIIC-3-36-71 dt. March
4, 1972. These regulations contain provisions for recruitment, probation,
confirmation, seniority and disciplinary control. Regulation 17 provides for
probation, it lays down that all persons on appointment against regular
vacancies shall be placed on probation for a period of one year. Proviso to the
Regulation lays down that the appointing authority may, in individual cases,
extend the period of probation in writing for further period not exceeding one
year, as it may deem fit. Clause (ii) of the Regulation provides that if, at
any time, during or at the end of the period of probation or the extended
period of probation, it appears to the appointing authority that the employee
placed on probation, has not made sufficient use of the opportunity offered to
him or has otherwise failed to give satisfaction, he may be discharged from
service, or reverted to the post held by him substantively, if any, immediately
before such appointment. Regulation 18 provides for confirmation of an employee
on the satisfactory completion of the probationary period. Regulation 17 and 18
read together, provide that appointment against a regular vacancy is to be made
on probation for a period of one year, this probationary period can be extended
for a period of one year more. The proviso to Regulation 17 restricts the power
of the appointing authority in extending period of probation beyond the period
of one year. An employee appointed against a regular vacancy cannot be placed
on probation for a period more than two years and if during the period of
probation the appointing authority is of the opinion that the employee has not
made use of opportunity afforded to him he may discharage him from service or
revert him to his substantive post but he has no power to extend the period of
probation beyond the period of two years. Regulation 18 stipulates confirmation
of an employee by an express order on the completion of the probationary
period. The regulations do not expressly lay down as to what would be the
status of an employee on the expiry of maximum period of probation where no
order of confirmation is issued and the employee is allowed to continue in
service. Since Regulation 17 does not permit continuation of an employee on
probation for a period more than two years the necessary result would follow
that after the expiry of two years probationary period, the employee stands
confirmed by implication. This is implicit in the scheme of Regulation 17 and
18. In State of Punjab v. Dharam Singh [1968] 3 SCR 1, a Constitution Bench of
this Court held, 83 "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
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 scuh 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." In the instant case the order of appointment
promoting the appellant on the post of Commercial Officer merely indicated that
his probationary period could be extended and he could be reverted to the post
of Office Superintendent without any notice. Stipulation for extension of
probationary period in the appointment order must be considered in accordance
with the proviso to Regulation 17(1) which means that the probationary period
could be extended for a period of one year more. Undisputably on the expiry of
the appellant's initial probationary period of one year, the appointing
authority extended the same for another period of one year which also expired
on 4.9.82. During the period of probation appellant's services were neither
terminated nor was he reverted to his substantive post instead he was allowed
to continue on the post of Commercial Officer. On the expiry of the maximum
probationary period of two years, the appellant could not be deemed to continue
on probation, instead he stood confirmed in the post by implication. The
appellant acquired the status of a confirmed employee on the post of Commercial
Officer and the appointing authority could not legally revert him to the lower
post of Superintendent.
Learned Counsel appearing for the U.P.
Co-operative Sugar Factories Federation urged that the U.P. Co-operative
Societies Employees Service Regulations 1975 do not apply to the appellant as
he was an employee of the U.P. Co-operative Sugar Factories Federation, as the
condition of service of the appellant and other employees of the U.P.
Co-operative Sugar Factories Federation are regulated by the U.P. Co- operative
Sugar Factories Federation Service Rules 1976 84 framed by Cane Commissioner in
exercise of his powers under sub-sec. (1) of sec. 121 of the Act published in
the U.P. Gazette. September 4, 1976. Rule 3 of the U.P. Co- operative Sugar
Factories Federation Service Rules 1976 (herein after referred to as the
Federation Service Rules) provides that these Rules shall apply to all the
employees of the Federation. Rule 5 provides that every employee shall be
appointed on probation for such period as the appointing authority may specify
and the period of probation may be extended by the appointing authority from
time to time, the rule does not prescribe any limit on the extension of the
probationary period. Rule 6 provides that upon satisfactory completion of
probationary period an employee shall be eligible for confirmation. Placing
reliance on rule 5 learned counsel for the respondents urged that since there
was no order of confirmation the appellant's probationary period stood
extended, therefore, he could be reverted at any time to his substantive post.
It is true that rule 5 of the Federation Service Rules does not place any
restriction on the appointing authority's power to extend the probationary period,
it may extend the probationary period for an unlimited period and in the
absence of Confirmation Order the employee shall continue to be on probation
for indefinite period. It is well settled that where appointment on promotion
is made on probation for a specific period and the employee is allowed to
continue in the post after expiry of the probationary period without any
specific order of confirmation he would be deemed to continue on probation
provided the Rules do not provide contrary to it. If Rule 5 applies to the
appellant he could not acquire the status of a confirmed employee in the post
of Commercial Officer and he could legally be reverted to his substantive post.
There are two set of rules (i) The U.P.
Co-operative Societies Employees Service Regulations, 1975, (ii) the U.P.
Co-operative Sugar Factories Federation
Employees Service Rules, 1976. The question is which of the rules apply to the
employees of the Co-operative Sugar Factories Federation.
While considering this question it is necessary
to advert to the relevant provisions of the Act and the Rules framed thereunder
and the Notifications issued from time to time.
Section 121 of the Act confers power on the
Registrar, (an officer appointed as such by the State Government under sec.
3) to frame regulations to regulate the
emoluments and conditions of service of employees in a Co-operative Society or
class of Co-operative Societies. Section 3(2) confers power on the State
Government to appoint officers to assist the Registrar and to confer on them
all or any of the powers of the Registrar. An officer on whom powers of Re 85
gistrar are conferred by the State Government, has authority to frame rules
regulating conditions of service under sec.
121(1) of the Act. Section 122(1) confers
power on the State Goverment to constitute an authority for the recruitment,
training and disciplinary control of the employees of the Co-operative
societies or class of co-operative societies and it may further require such
authority to frame regulations regarding recuritment, emoluments, terms and
conditions of service including disciplinary control of such employees.
Regulations so framed require approval of the State Government under sub-sec.
(2). Once approval is granted, the regulations take effect from the date of
publication. The State Government in exercise of its powers under sec. 122(1)
issued a Notification No. 366-C/XIIC-3-36- 71 dt. March 4, 1972 constituting
the U.P. Co-operative Institutional Service Board as an authority for the
recruitment, training and disciplinary control of the employees of the Apex
Level Societies Central or Primary Societies, and it further conferred power on
the Institutional Service Board to frame regulations regarding recruitment,
emoluments, terms and conditions of service of the employees of the
co-operative societies of the Apex Level Societies Central or Primary
Societies. In pursuance thereof the Institutional Service Board framed the U.P.
Co- operative Societies Employees Service Regulations 1975 regulating the conditions
of service of the employee of these Co-operative Societies which were placed
under the purview of the Institutional Board by the Government Notification No.
366-C/XII-C-3-36-71 dt. March 4, 1972. This Notification states that the Board
shall have authority to frame regulations for the recruitment, training and
disciplinary control of the employees of the Apex Level Societies, Central, or
Primary Societies. Section 2(a-4) which defines "Apex Level
Societies", expressly specifies the U.P. Co-operative Sugar Factories
Federation Ltd. as an Apex Level Society. Since the Institutional Service Board
was conferred power to frame regulations regulating the conditions of service
of the employees of Apex Level Societies, the regulations framed by the Board
apply to the employees of the U.P. Co-operative Sugar Factories Federation Ltd.
The respondents have failed to place any Notification before the Court to show
that the power of the Institutional Service Board to frame regulations,
regulating the conditions of service of the employees of Apex Level Societies
including that of U.P. Co-operative Sugar Factories Federation Ltd. was ever
with-drawn.
The U.P. Co-operative Sugar Factories
Federation Service Rules 1976 have been framed by the Cane Commissioner under sub-sec.
(1) 86 of sec. 122 of the Act. These Rules provide that they shall apply to all
the employees of the U.P. Co-operative Sugar Factories Federation Ltd., but the
question is whether rules so framed by the Cane Commissioner would override the
Service Regulations 1975. As noted earlier, the Institutional Service Board was
constituted an authority under sec. 122(1) of the Act and authorised to frame
regulations regulating the conditions of service of employees of the
Co-operative Societies including those of Apex Level Societies. Sub-section (2)
of sec. 122 provides that on approval of the Regulations by the State
Government any rule or regulations framed by the Registrar in exercise of its
powers under sec. 121(1) would stand superseded. Sub- section (1) of sec. 121
confers power on the Registrar which may include any other sub-ordinate officer
or authority to frame rules regulating the condition of service of employees of
Co-operative Societies, such rules do not require approval of the State
Government. While a regulation framed by an authority constituted under
sub-sec. (1) of sec. 122 requires approval of the State Government and on such
approval the regulation so framed supersedes any rules made under sec. 121. The
scheme of sec. 121 and sec. 122 postulates that primacy has to be given to
regulations framed by the authority under sec. 122 of the Act. If there are two
sets of rules regulating the conditions of service of employees of Cooperative
societies the regulations framed under sec. 122 and approved by the State
Government shall prevail. In this view the provisions of the U.P. Co- operative
Sugar Factories Federation Service Rules 1976 do not override Service
Regulations of 1975. It appears that this position was realised by the State
Government and for that reason it issued Notification No. U.O. 402(II)/C-I-76
dt. August 6, 1977 constituting the Commissioner and Secretary Sugar Industry
and Cane Development Department as authority under sub-sec. (1) of sec. 122 for
the recruitment, training and disciplinary control of employees of the U.P.
Co-operative Factories Federation Ltd.
The learned counsel for the respondent urged
that since the Government had constituted the Commissioner and Secretary of the
Development Department as the competent authority for framing regulations for
the recruitment, training and disciplinary control of the employees of the U.P.
Co-operative Sugar Factories Federation Ltd. 1975 Regulations framed by the
Institutional Service Board do not apply. We find no merit in this submission.
Firstly, the Notification dt. August 6, 1977 merely designates the Commissioner
and Secretary Sugar Industry and Cane Development Department as the authority
for the recruitment, training and disciplinary control of the employees of the
87 U.P. Co-operative Sugar Factories Federation, it does not confer power on
the authority to frame any rule or regulations regulating the conditions of
service of the employees of Sugar Factories Federation Ltd. But even if any
such power can be inferred, admittedly no rules or regulations regulating the
conditions of service of the employees of the Co-operative Sugar Factories
Federation have as yet been framed. Learned counsel for the respondents
conceded that draft service regulations have been prepared but those have not
been approved by the Government as required by sub-sec. (2) of the Act. In
absence of approval of the State Government as required by sub-sec. (2) of sec.
122, regulations, if any, framed by the Commissioner and Secretary Sugar
Industry and Cane Development Department do not acquire any legal force. In
this view 1975 Regulations framed by the Institutional Service Board continue
to apply to the employees of the U.P. Co-operative Sugar Factories Federation
Ltd.
In view of the above discussion it is
manifestly clear that the appellant's services were regulated by the U.P. Co-
operative Societies Employees Service Regulations, 1975.
Since under those Regulations appellant's
probationary period could not be extended beyond the maximum period of two years,
he stood confirmed on the expiry of maximum probationary period and thereafter
he could not be reverted to a lower post treating him on probation. The Order
of reversion is illegal. We accordingly allow the Appeal, set aside the order
of the High Court and quash the order of reversion dt. 2.9.1983 and direct that
the appellant shall be treated in service and paid his wages and other
allowances. The appellant is entitled to his costs which is quantified as Rs.
1,000.
S.R. Appeal allowed.
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