Karnataka State Road TPT. Corporation
& ANR Vs. S. Manjunath [2000] INSC 241 (24 April 2000)
Doraiswami Raju, S.S.Ahmad
Raju, J.
These three appeals are dealt with together
since not only they involve a common question of law but also for the reason
that they were dealt with in common in the High Court and submissions have been
also in common before us.
The respondent in Civil Appeal No.113/98 was
appointed as Assistant Traffic Manager in Karnataka State Road Transport
Corporation (for short `KSRTC) pursuant to a Select List of candidates prepared
and published on 13/15-12-82 for a period of two years and was placed on
probation. On 10.1.85, due to certain lapses, which were pending inquiry, an
order postponing one increment was passed. On 7.8.85, the period of probation
was extended upto 14.6.86. Ultimately, on 13.1.88 his services came to be
terminated for the reason that his Performance Report during the period of
probation was not satisfactory and he also failed to show any improvement
despite having been given a chance to do so. Aggrieved, Writ Petition
No.4273/88 was filed before the High Court challenging the said order of
termination and for consequential benefits.
The respondent in Civil Appeal No.114/98
joined the service in KSRTC as a Clerk on 5.3.63. Thereafter, he was considered
for appointment and included in a Select List for appointment (not by way of
promotion) as Assistant Traffic Manager. On 22.11.82, the respondent was
offered appointment as such initially for a period of two years and was placed
on probation for a period of two years. On 13/15-12-82, the appointment order
came to be issued as Assistant Traffic Manager and he was also placed on
probation for two years. On 14.12.84 when the period of probation was over, he
was continued in service without passing any order of confirmation since he was
found to be indifferent to the job for which action appears to have also been
taken resulting in a punishment of censure and subsequently also of withholding
one increment. His appointment as Assistant Traffic Manager came to be
terminated and he was reverted to his substantive post of Junior Assistant.
This was challenged by means of a Writ Petition in the High Court.
The respondent No.1 in Civil Appeal No.115/98
was selected for appointment as Assistant Mechanical Engineer Class-II and on
28.11.81 he was also appointed as such and placed on probation. He had incurred
certain adverse remarks on deficiency being noticed in his performance. On
6.12.83 though the period of two years had come to an end, the same was
extended on 19.4.84 for a period of six months and further extended on 7.6.84
for another six months.
During his service, he was found to have been
guilty of various acts of misconduct and ultimately on 16.11.85 his services
were terminated on the ground of unsuitability as also misconduct. Aggrieved,
the respondent filed a Writ Petition before the High Court.
All the three Writ Petitions were initially
heard by a learned Single Judge of the Karnataka High Court and by a common
order dated 3.11.95 those Writ Petitions were allowed on the view that there
was an implicit term in the scheme of Regulation governing their services that
on the expiry of the period of probation beyond the maximum term provided
therein, an employee will be deemed to have been confirmed inasmuch as the
Corporation cannot terminate their services on the expiry of such period. In
coming to such a conclusion, the learned Single Judge followed an earlier
decision of a Division Bench dated 5.2.82 in Writ Appeal Corporation, aggrieved
by such orders, pursued the matter on Appeal before a Division Bench in Writ
Appeal Nos.36-38/96.
The Division Bench adverted to the decisions
of this Court observed that the position in the appeals is no different from
the one dealt with in those decisions of this Court and consequently confirmed
the order of the learned Single Judge. Hence, the above appeals.
The sheet-anchor of attack for the appellants
is based upon Regulation 11, particularly clause (8) of the said Regulation and
it is contended that notwithstanding the completion of the period of probation,
having regard to the stipulation therein no automatic confirmation or status of
a `permanent employee could be claimed to have been acquired by the
respondents. According to the learned counsel, the principles laid down in
those decisions of this Court were not properly appreciated and applied with
particular reference to the Regulation governing the services of the
respondents in the Corporation and, therefore, the orders of termination passed
by the Corporation could not have been interfered with. Reliance has been
placed on the decisions Singh Khosla [(1996) 9 SCC 190]. Regulation 11 (6) has
also been relied upon to urge that a specific order of confirmation by the
Competent Authority is a condition precedent for claiming confirmation in
service or completion of the probation and on account of a mere lapse or delay
on the part of the Competent Authority in passing the orders declaring the
successful completion of probation, status of confirmation could not be claimed
to have accrued to the respondents automatically after the expiry of the period
of probation or its extended period.
The learned counsel for the respondents
contended that Regulation No.11 has been properly construed by the High Court
in the light of the principles laid down in similar cases where almost
identical type of service rules/regulations came to be considered by this Court
and, therefore, the decisions under challenge do not call for interference.
Reliance has also been placed in this regard U.P. & Ors. [(1998) 3 SCC
321], besides inviting our attention to some of the case law referred to
therein. The impugned orders of termination of services of the respondents,
though claimed to be orders terminating the probation and consequently their
services are in substance only orders of punishment without following the
mandatory procedure therefor or giving any opportunity to show- cause or
conducting any inquiry in this regard. Argued the learned counsel for the
respondents further that the High Court was right in setting aside such orders
and the appeals are devoid of any merit.
To appreciate the grievance projected on
either side, it is necessary to refer to Regulation No.11, which reads as
follows :-
11. Probation 1. Every candidate appointed
against a permanent post shall be on probation for a period of two (2) years.
This term may be extended at the discretion of the Appointing Authority for
reasons to be recorded in writing by a further period not exceeding one (1)
year. The period of probation shall not be further extended.
2. On the satisfactory completion of the
period of probation and his passing the prescribed tests, if any, within the
Period of Probation the candidate shall become eligible for confirmation.
3. If the candidate appointed on probation is
not found suitable for the post, his services may at the discretion of the
appointing authority, be terminated at any time within the period of probation.
In case of an employee of the Corporation, who is appointed on probation on
selection such termination shall mean reversion to the post held by him
regularly prior to such appointment.
4. All appointments by promotions shall be on
an officiating basis for a period of one year which may for reasons to be
recorded in writing be extended by the appointing authority by a period not
exceeding SIX MONTHS.
5. At the end of the period of officiation
the appointing authority shall consider the suitability of the person so
promoted to hold the post to which he was promoted.
6. If the Appointing Authority considers that
the work of the person so promoted during the period of officiation is
satisfactory, it shall, as soon as possible, issue an order declaring the
person to have satisfactorily completed the period of officiation and is
confirmed in the promoted post. Such an order shall have effect from the date
of completion of officiation.
7. If at the end of the period of officiaiton
or the extended peirod of officiation under Sub-Regulation 4 of this
Regulation, as the case may be, the Appointing Authority considers that the
person is not suitable for the post to which he is promoted it shall, by order
revert, the person to the post which he held prior to his promotion.
8. A person shall not be considered to have
satisfactorily completed the period of officiation unless a specific order to
that effect is made. Any delay in the issue of an order under Sub-Regulation 3
or Sub-Regulation 4 of this Regulation, shall not entitle the person to be
deemed to have satisfactorily completed the period of officiation.
9. A person who has been declared to have
satisfactorily completed his officiation under Sub-Regulation (4) shall be
confirmed in the category for which he was promoted, at the earliest
opportunity, Provided that where the appointment is made by promotion to a
temporary post in any service the person concerned shall be continued on an
officiating basis in the temporary post.
The law on the subject has been varying,
depending upon the peculiar pattern of the service rules/regulations concerned
and the scheme underlying the same inspite of more than one Constitution Bench
judgments of this Court declaring the general and basic principles governing
the rights of a probationer. There was always a keen tussle between the
employer and employee in the application of those principles to individual or
class or category of cases.
This Court had an occasion to review, analyse
critically and clarify the principles on an exhaustive consideration of the
entire case law in two recent decisions reported in Dayaram Dayals case (supra)
and Wasim Begs case (supra). One line of cases has held that if in the Rule or
Order of appointment, a period of probation is specified and a power to extend
probation is also conferred and the officer is allowed to continue beyond the
prescribed period of probation, he cannot be deemed to be confirmed and there
is no bar on the power of termination of the officer after the expiry of the
initial or extended period of probation. This is because, at the end of
probation he becomes merely qualified or eligible for substantive permanent
appointment. The other line of cases are those where even though there is a
provision in the rules for initial probation and extension thereof, a maximum
period for such extension is also provided beyond which it is not permissible
to extend probation. The Constitution Bench which dealt with the case reported
in State of Punjab vs Dharam Singh (AIR 1968 SC 1210), while distinguishing the
other line of cases held that the presumption about continuation, beyond the
period of probation, as a probationer stood negatived by the fixation of a
maximum time limit for the extension of probation. Consequently, in such cases
the termination after expiry of the maximum period upto which probation could
be extended was held to be invalid, inasmuch as the officer concerned must be
deemed to have been confirmed.
The principles laid down in Dharam Singhs
case (supra) though were accepted in another Constitutional Bench of a larger
composition in the case reported in Samsher Singh, etc. vs State of Punjab
& Anr. [(1974) 2 SCC 831], the special provisions contained in the relevant
rules taken up for consideration therein were held to indicate an intention not
to treat the officer as deemed to have been confirmed, in the light of the
specific stipulation that the period of probation shall be deemed to be
extended if the officer concerned was not confirmed on the expiry of his period
of probation. Despite the indication of a maximum period of probation, the
implied extension was held to render the maximum period of probation a
directory one and not mandatory. Hence, it was held that a probationer in such
class of cases is not to be considered confirmed, till an order of confirmation
is actually made. The further question for consideration in such category of
cases where the maximum period of probation has been fixed would be, as to
whether there are anything else in the rules which had the effect of whittling
down the right to deemed confirmation on account of the prescription of a
maximum period of probation beyond which there is an embargo upon further
extension being made, and such stipulation was found wanting in Dayaram Dayals
case (supra).
The decision in Wasim Begs case (supra) also
purported to classify these type of cases into three categories, on a review of
the entire gamut of law. It was observed therein as follows:
15. Whether an employee at the end of the
probationary period automatically gets confirmation in the post or whether an
order of confirmation or any specific act on the part of the employer
confirming the employee is necessary, will depend upon the provisions in the
relevant Service Rules relating to probation and confirmation. There are
broadly two sets of authorities of this Court dealing with this question. In
those cases where the Rules provide for a maximum period of probation beyond
which probation cannot be extended, this Court has held that at the end of the
maximum probationary period there will be a deemed confirmation of the employee
unless Rules provide to the contrary. This is the line of cases starting with
State of Punjab vs Dharam Singh, M.K. Agarwal vs Gurgaon Gramin Bank, Om
Parkash Maurya vs U.P. Coop. Sugar Factories Federation, State of Gujarat vs
Akhilesh C. Bhargav.
16. However, even when the Rules prescribe a
maximum period of probation, if there is a further provision in the Rules for
continuation of such probation, beyond the maximum period, the courts have made
an exception and said that there will be no deemed confirmation in such cases
and the probation period will be deemed to be extended. In this category of
cases we can place Samsher Singh vs State of Punjab which was the decision of a
Bench of seven Judges where the principle of probation not going beyond the
maximum period fixed was reiterated but on the basis of the Rules which were
before the Court, this Court said that the probation was deemed to have been
extended. A similar view was taken in the case of Municipal Corpn. vs Ashok
Kumar Mishra. In Satya Narayan Athya vs High Court of M.P. although the Rules
prescribed that the probationary period should not exceed two years, and an
order of confirmation was also necessary, the termination order was issued
within the extended period of probation. Hence the termination was upheld.
17. The other line of cases deals with Rules
where there is no maximum period prescribed for probation and either there is a
Rule providing for extension of probation or there is a Rule which requires a
specific act on the part of the employer (either by issuing an order of
confirmation or any similar act) which would result in confirmation of the
employee. In these cases unless there is such an order of confirmation, the
period of probation would continue and there would be no deemed confirmation at
the end of the prescribed probationary period. In this line of cases, one can
put Sukhbans Singh vs State of Punjab, State of U.P. vs Akbar Ali Khan, Kedar
Nath Bahl vs State of Punjab, Dhanjibhai Ramjibhai vs State of Gujarat and
Tarsem Lal Verma vs Union of India, Municipal Corpn. vs Ashok Kumar Misra and
State of Punjab vs Baldev Singh Khosla. In the recent case of Dayaram Dayal vs
State of M.P. (to which one of us was a party) all these cases have been
analysed and it has been held that where the Rules provide that the period of
probation cannot be extended beyond the maximum period there will be a deemed
confirmation at the end of the maximum probationary period unless there is
anything to the contrary in the Rules.
In the light of the position of law, thus
laid down it has to be seen under what class or category the cases before us
will fall and whether despite of the fixation of the maximum period of
probation there are any special provision in the rules which could negate or
nullify the inevitable consequence of a deemed confirmation, arising out of a
ceiling fixed firmly on the period of probation and extension to be made
thereafter, if any. Since much stress has been laid by the counsel on either
side on the purport to be of Regulation 11, it becomes necessary to consider
the ambit and scope of the stipulations therein. The Regulation deals with the
period of probation of an appointee, other than by way of promotion [clauses
(1) to (3) of Regulation 11] and also about the period of officiation in respect
of an appointee by way of promotion [clauses (4) to (9)]. The Regulation does
make, in our view, substantial difference, for purposes of confirmation between
an appointee by promotion and one appointed, otherwise than on promotion, and
purport to deal with these two categories distinctly and separately, in all
respects - the relevant period, subsequent extension and consequences arising
out of expiry of such maximum period coupled with the action or inaction on the
part of the competent authority for the purposes of the Regulation. The learned
counsel for the appellant corporation could not easily get over the dichotomy
maintained throughout in the various clauses of this Regulation among the two
categories or method of appointment. But, what was strongly pleaded was that
Clause (8) of the Regulation takes care of both categories and, therefore,
unless a specific order has been made by the competent authority, the person
concerned shall not be considered to have satisfactorily completed his period
of probation and any delay in the issue of an order shall not entitle the
person to be deemed to have satisfactorily completed the probation.
As indicated by us, the Regulation deals with
two different categories of cases - one about the probation of an appointee
other than by way of promotion and the other relating to officiation of a
person appointed on promotion. The similarity of purpose and identity of object
apart, of such provision, there is an obvious difference and positive
distinction disclosed in the manner they have to be actually dealt with. The
deliberate use of two different phraseology probation and officiation cannot be
so lightly ignored obliterating the substantial variation in the method of
handling such categories of persons envisaged by the Regulations. The mere fact
that a reference is made to Clause (3) also in the later part of Clause (8) of
the Regulation could not be used to apply all the provisions relating to the
category of appointees on officiation to the other category of appointees on
probation. The stipulation in Clause (8) of the Regulation when making the
passing of an order, a condition precedent for satisfactory completion
specifically refers only to the completion of period of officiation. Similarly,
notwithstanding a reference made to Clause (3) alongside Clause (4), in
stipulating the consequences of any delay in making an order declaring
satisfactory completion, the reference is confined only to deemed satisfaction
and completion of the period of officiation, and not of probation. Clause (9)
of the Regulation insofar as it provides for confirmation as a sequel to
declaration, only deals with a promotee to a temporary post and not of the
other category. While dealing with the termination of a candidate, not found
suitable for the post, clause (3) of the Regulation envisage such termination
being made, at any time within the period of probation, and not at any time
after the completion of such maximum period of probation. Consequently, the
cases on hand also would fall within the category of cases dealt with in
Dayaram Dayals case (supra) and Wasim Begs case (supra) and the services of the
respondents could not be put an end to except by means of departmental
disciplinary proceedings, after following the mandatory requirements of law.
Therefore, the High Court cannot be faulted
for interfering with the orders of termination of the services of the
respondents.
For all the reasons stated above, we see no
merit in the challenge made to the judgment of the High Court and these appeals
fail and are hereby dismissed. No costs.
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