Full Judgment Text
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PETITIONER:
MUNICIPAL CORPORATION, RAIPUR
Vs.
RESPONDENT:
ASHOK KUMAR MISRA
DATE OF JUDGMENT16/04/1991
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
KASLIWAL, N.M. (J)
CITATION:
1991 AIR 1402 1991 SCR (2) 320
1991 SCC (3) 325 JT 1991 (2) 599
1991 SCALE (1)753
ACT:
Madhya Pradesh Government Servants’ Central Conditions
of Service Rules, 1961: Rule 8 - Probationer - Expiry of
prescribed period of probation - Termination of service -
Whether Valid - Whether entitled to right to deemed
confirmation - Madhya Pradesh Civil Services Classification.
Control and Appeal Rules, 1966: Rule 9A and Municipal
Officers’ and Servants’ Recruitment Rules: Rule 14- Whether
applicable.
HEADNOTE:
The respondent was appointed in the appellant
Corporation and put on probation for a period of two years.
About three month’s after the completion of two years’
period he was served with one month’s notice for termination
of his service. Challenging the termination order the
respondent filed a suit for declaration that the termination
without enquiry and opportunity of being heard was violative
of Rule 9A of the Madhya Pradesh Civil Services
Classification, Control and Appeal Rules 1966 and that he
became a permanent employee of the Corporation with
continuity of service and arrears of salary. The trail court
dismissed the suit, and appeal, it was confirmed. The High
Court allowed the respondent’s second appeal and decreed the
suit.
In the appeal, by special leave, before this Court, on
behalf of the appellant-Corporation it was contended that
the respondent being a probationer, would acquire permanent
status only on confirmation, that the High Court had
committed manifest error in law in holding that on the
expiry of two years’ period of probation, the respondent
must be deemed to have been confirmed under Rule 14 of the
Municipal Officers’ and Servants’ Recruitment Rules, which
were no longer in force, and that Rule 8 of the Madhya
Pradesh Government Servants’ General Conditions of Service
expressly proved confirmation of probation as a condition
precedent and since notice terminating respondent’s service
was issued, in terms of the rules, before confirmation, it
was valid in law.
On behalf of the respondent, it was contended that by
operation of the resolution passed by the Municipal
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Corporation under Section 25 of
321
the Central Provinces and Bearer Municipality Act, 1922, the
Municipal Officers and Servants was governed by recruitment
rules thereunder, that since no action was taken by the
appellant Corporation to dispense with the respondent’s
service, on the expiry of the period of two years, as
envisaged in Rule 14 of the Municipal Officers’ and
Servants’ Recruitment Rules, the respondent must be deemed
to have been confirmed, and consequently, the only power the
Corporation had was to terminate the respondent’s service in
accordance with the classification, Control and Appeal
Rules, after conducting an enquiry and giving him reasonable
opportunity, that too for misconduct, but since no such
procedure was adopted, the notice was illegal and the High
Court was justified in granting the decree.
Allowing the appeal, this Court,
HELD: 1.1 Under the Note to sub-rule (2) of Rule 8 of
the Madhya Pradesh Govt. Servant’s, General Conditions of
Service Rules, 1961 if the probationer is neither confirmed
nor discharged from service at the end of the period of
probation, he should be deemed to have been continued in
service as probationer subject to the condition of his
service being terminated on the expiry of a notice of one
calendar month, given in writing by either side. As per sub-
rule (6) on passing the prescribed departmental examination
and on successful completion of the period of probation, the
probationer should be confirmed in the service or post to
which he has been appointed. Then he becomes an approved
probationer. Therefore, after the expiry of the period of
probation and before its confirmation, he would be deemed to
have been continued in service as probationer. [375F-H]
1.2 Confirmation of probation would be subject to
satisfactory completion of the probation and pass in the
prescribed examinations. Expiry of the period of probation,
therefore, does not entitle him with a right to deemed
confirmation. The rule contemplates to pass an express order
of confirmation in that regard. By issue of notice of one
calendar month in writing by either side, the tenure could
be put to an end. [326A-B]
1.3 If the rules do not empower the appointing
authority to extend the period of probation beyond the
prescribed period, or where the rules are absent about
confirmation or passing of the prescribed test for
confirmation of probation, inaction for a very long time may
lead to an indication of the satisfactory completion of
probation. [327D-E]
322
1.4 Rule 8 expressly postulates otherwise. Hence mere
expiry of the initial period of probation which is subject
to extension for another period of one year does not
automatically have the effect of deemed confirmation, and
the status of a deemed confirmation of the probation. An
express order in that regard on fulfillment of the
conditions stipulated in the Rule only confers the status of
approved probation.[327E-F]
State of Punjab v. Dharam Singh [1968] 3 SCR 1; Om
Prakash Maurya v. U.P. Co-op. Sugar Factories Federation,
Lucknow & Ors. [1986] Suppl.SCC 95; M.A. Agarwal v. Gurgaon
Bank & Ors.,[1987] Suppl. SCC 643 and State of Gujarat v.
Akhilesh C. Bhargav & Ors., [1987] 3 SCR 1091,
distinguished.
1.5 Note to sub- rule (2) read with sub-rule (6) of
Rule 8 manifest she legislative intent that confirmation of
the probation of the respondent would be made only on
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successful completion of the probation and the passing of
the prescribed examinations. The respondent shall,
therefore, be deemed to be continued an probation. Before
confirmation the appointing authority is empowered to
terminate the service of the probationer by issuing one
calendar month’s notice in writing and on expiry thereof the
service stands terminated without any further notice. Within
three months from the date of expiry of original two years
period of probation and within th extendable period of one
year the order of termination was made. Hence, the question
of conducting an inquiry under the Classification, Control
and Appeal Rules after giving an opportunity and that too
for specific charges does not arise. [327G-H, 328A]
In the circumstances the High Court, committed manifest
error of law in decreeing the suit. [328B]
2. By virtue of the resolution passed by the Municipal
Council, which subsequently became Municipal Corporation,
making a draft bye-law , exercising power under section
173(2) of the Madhya Pradesh Municipal Act, 1922 and
confirmed under Section 25(1) of the Act, adopting
Government rules to regulate the conditions of service of
officers and servants of the Municipal Committee, the
Fundamental Rules, Civil Service Regulations, Government
Servants’ Conduct Rules, and General Book Circulars of the
State Government, as amended from time to time, etc. would
apply to the officers of the Municipal Committee and the
previous rules were superseded and were no longer in force.
Hence the reliance placed by the High Court on Rule 14 of
the Municipal Officers’ and Servants’ Rules is wrong. [324D-
E, G-H]
323
JUDGMENT:
CIVIL APPELLANT JURISDICTION: Civil Appeal No. 722 of
1978.
From the Judgment and Decree dated 11.4.1977 of the
Madhya Pradesh High Court in Second Appeal No. 315 of 1970.
S.K.Gambhir for the Appellant.
S.S. Khanduja for the Respondent .
The Judgment of the Court was delivered by
K.RAMASWAMY,J. The facts in this appeal would lie in a
short compass. The appellant appointed the respondent as
Lower Division Clerk on September 22, 1966 and put him on
probation for a period of two years which expired on
September 21, 1968. On December 9, 1968, the appellant
served him with one month’s notice terminating the services
with effect from January 9, 1969. Calling in question the
order of termination, the respondent laid the suit for
declaration that the termination without enquiry and an
opportunity of being heard was violative of Rule 9A of the
Madhya Pradesh Civil Service Classification Control & Appeal
(Rules), 1966 with consequential declaration that he became
a permanent employee of the corporation with cotiuity of
service and arrears of salary. The Trial Court dismissed the
suit and on appeal it was confirmed. The High Court in
Second Appeal No. 315/70 by judgment and decree dated April
11, 1977 allowed the appeal and decreed the suit as prayed
for. On leave under Art. 136 the Appellant filed this
appeal.
Shri S.k.Gambhir, learned counsel for the appellant
contended that the respondent being a probationer, acquires
permanent status only on confirmation. Before confirmation
the appellant had exercised its power, in terms of the
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rules, and terminated the respondent’s service. The High
Court committed manifest error of law in its finding that on
expiry of two years period of probation the respondent must
be deemed to have been confirmed under Rule 14 of the
Municipal Officers and Servants Recruitment Rules which no
longer were in force. He further contended that rule 8 of
the Madhya Pradesh Government Servants’ General Conditions
of Service Rules, 1961 for short ’the Rules’ expressly
provides confirmation of probation as a condition precedent.
Notice was issued terminating the service before
confirmation and so it is valid in law. Shri S.S. Khanduja,
learned counsel for the respondent contended that by
operation of the resolution passed
324
by the Municipal Corporation under s. 25 of the Central
Provinces and Berar Municipality Act 1922 the Municipal
Officers and Servants are governed by recruitment rules
thereunder. Rule 14 thereof, relied on by the High Court
expressly provided to put an employee on probation for a
period of two years subject to being confirmed. At the end
of the probationary period, if the probationer was found
unfit, the Municipal Committee shall, if he was a direct
recruit, to dispense with his service and if he has been
recruited by tranfer, to revert to his original post. On
expiry of the period of two years, no action was taken by
the Municipal Corporation. Therefore, the respondent must be
deemed to have been confirmed. Thereafter the only power
which the Corporation had was to terminate the service of
the respondednt in accordance with Classification Control
and Appeal Rules after conducting an enquiry and giving him
reasonable opportunity that too for misconduct. No such
procedure was adopted. Therefore, the impugned notice was
illegal and the High Court was justified in granting the
decree.
The first question is, which are the relevant rules
that would be applicable to the respondent? Admittedly, the
Municipal Council became a Municipal Corporation on or after
August 26, 1967. A resolution was passed making a draft bye-
law by a Municipal Council on November 11, 1960, exercising
the power under s. 178(3) of the Madhya Pradesh Municipal
Act, 1922 and confirmed the same under s. 25 (1) of the said
Act, adopting Government Rules to regulate the conditions of
service of officers and servants of Municipal Committee
which provides thus:
"The fundamental rules and the Civil Service
regulations as amended from time to time in their
applications to M.P., the M.P.Government Servants
Conduct Rules 1959, as amended from time to time
and the General Book Circulars of the Govt. of
M.P. as in force for the time being shall apply to
the officers and servants of the M.C. in the same
way as they apply to Govt. Servants".
Thus, it is clear that the Fundamental Rules, Civil Service
Regulations, Govt, Servants Conduct Rules and the General
Book Circulars of the Government of Madhya Pradesh as
amended from time to time, etc. shall apply to the officers
and servants of the Municipal Committee. The Previous rules
were thus superseded and were no longer in force. Reliance
on Rule 14 referred to above made by the High Court is,
therefore, wrong. Rule 8 of the Rules reads thus:
325
"Probation-(1) A person appointed to a service or
post by direct recruitment shall ordinarily be
placed on probation for such period as may be
prescribed.
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(2) The appointing authority may, for sufficient
reasons, extend the period of probation by a
further period not exceeding one year.
Note - A probationer whose period of probation is
not extended under this Sub-Rule but who has
neither been confirmed nor discharged from service
at the end of the period of probation shall be
deemed to have been continued in service, subject
to the condition of his service being terminable
on the expiry of a notice of one calender month
given in writing by either side.
(3) A probationer shall undergo such training and
pass such departmental examinations during the
period of his probation as may be prescribed.
(4) and (5) are not relevant, hence omitted.
(6) On the successful completion of probation and
the passing of the prescribed departmental
examinations, the probationer shall be confirmed
in the services or post to which he has been
appointed."
Thus, it is clear from Rule 8 of the Rules that the
procedure to place a direct recruit on probation for a
prescribed period was provided. The appointing authority
would be entitled to place a direct recruit on probation for
a specified period and for sufficient reasons may extend the
period of probation to a further period not exceeding one
year. Under the note to sub-rule (2) if the probationer is
neither confirmed nor discharged from service at the end of
the period of probation, he shall be deemed to have been
continued in service as probationer subject to the condition
of his service being terminated on the expiry of a notice of
one calender month given in writing by either side. As per
sub-rule (6) on passing the prescribed departmental
examination and on successful completion of the period of
probation, the probationer shall be confirmed in the service
or post to which he has been appointed. Then he becomes an
approved probationer. Therefore, after the expiry of the
period of probation and before its confirmation, he would be
deemed to have been continued in service
326
as probationer. Confirmation of probation would be subject
to satisfactory completion of the probation and to pass in
the prescribed examinations. Expiry of the period of
probation, therefore, does not entitle him with a right to a
deemed confirmation. The rule contemplate to pass an
express order of confirmation in that regard. By issue of
notice of one calender month in writing by either side, the
tenure could be put to an end, which was done in this case.
In State of Punjab v.Dharam Singh, [1968] 3 SCR 1
considering the effect of continuing a probationer in
service after the period of probation was completed, the
Constitution Bench held that there was no rule for the
extension of probation after October 1, 1960 and it was not
possible to presume the competent authority extended it
beyond October 1, 1960.Thus in the above case there was no
power to extend the probation in the rules beyond the
specified period. It was held that:
"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
upto October 1, 1960 by implication. But under the
proviso to Rule 6(3), the probationary period
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could not extend beyond October 1, 1960. In view
of the proviso to Rule 6(3), it is not possible to
presume that the competent authority extended the
probationary period after October 1, 1960, or that
there after the respondents continued to hold
their posts as probationers".
Accordingly it was held that the respondent therein was
deemed to have been confirmed.
In Om Prakash Maurya v. U.P. Co-op.Sugar Factories
Federation, Lucknow & Ors. [1986] Suppl. SCC 95 this Court
held that U.P. Co-op. Sugar Factories Federation Service
Rules, 1976 made under the U.P. Co-op. Societies Act were
in force. Regulations 17 of 1975 Regulations does not permit
continuance of an employee for a period of more than two
years. One year normally was the period of probation and
further being extended to a period of one more year. Rule 5
of 1976 Rules does not prescribe any limit on the extension
of the probationary period. In the light of the operation of
those rules when the probationary period was prescribed on
promotion to the post of Commercial Officers with a
condition that his probationary period may be extended and
he could be reverted to the post of Office Superinten-
327
dent without any notice, this Court held that the
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 and the probationary period was further extended
to one year during which period the service of the appellant
was neither terminated nor was he reverted to his
substantive post, instead he was allowed to continue. On
those facts this Court held that "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
there after he could not be reverted to lower post treating
him on probation". In M.A. Agarwal v. Gurgaon Bank & Ors.,
[1987] Suppl. SCC 643 and in State of Gujarat v. Akhilesh C.
Bhargav & Ors. [1987] 3 SCR 1091 this Court reiterated the
same view.
Exercise of the power to extend the probation is hedged
with the existence of the rule in that regard followed by
positive act of either confirmation of the probation or
discharge from service or reversion to the substantive post
within a reasonable time after the expiry of the period of
probation. If the rules do not empower the appointing
authority to extend the probation beyond the prescribed
period, or where the rules are absent about confirmation or
passing of the prescribed test for confirmation of probation
and inaction for a very long time may lead to an indication
of the satisfactory completion of probation. But in this
case Rule 8 expressly postulates otherwise. The period of
probation is subject to extension by order in writing for
another period of one year. Passing the prescribed
examinations and successful completion of probation and to
make an order of confirmation are condition precedent. Mere
expiry of the initial period of probation does not
automatically have the effect of deemed confirmation and the
status of a deemed confirmation of the probation. An express
order in that regard only confers the status of an approved
probationer. We are of the view that note to sub-rule (2)
read with sub-rule (6) of Rule 8 manifests the legislative
intent that confirmation of the probation of the respondent
would be made only on successful completion of the probation
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and the passing of the prescribed examinations. It is not
the respondent’s case that he passed all the examinations.
He shall be deemed to be continued on probation. Before
confirmation the appointing authority is empowered to
terminate the service of the probationer by issuing on
calender month’s notice in writing and on expiry thereof the
service stands terminated without any further notice.
Within three months from the date of expiry of original two
328
years period of probation and within one year’s period, the
order of termination was made. In this view the question of
conducting an inquiry under the Classification Control and
Appeal (Rules) after giving an opportunity and that too for
specific charges does not arise. The High Court, therefore,
committed manifest error of law in decreeing the suit. By an
interim order passed by this court, the respondent received
a sum of Rs. 5,000 from the appellant. The appellant shall
not recover the same from him. The appeal is accordingly
allowed. The judgment and decree of the High Court is set
aside and that of the Trial Court and the Ist Appellate
Court are confirmed. But in the circumstances parties are
directed to bear their own costs.
N.P.V. Appeal allowed.
329