Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
PETITIONER:
KARNATAKA STATE ROAD TPT. CORPORATION & ANR.
Vs.
RESPONDENT:
S. MANJUNATH
DATE OF JUDGMENT: 24/04/2000
BENCH:
Doraiswami Raju, S.S.Ahmad
JUDGMENT:
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
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
No.100/91 (M. Balachandra Rao Vs. KSRTC & Anr.). The
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
reported in State of Punjab Vs. Dharam Singh [AIR 1968 SC
1210]; Paramjit Singh Vs. Ram Rakha [1979 (3) SCC 478] and
M.K. Agarwal Vs. Gurgaon Gramin Bank [AIR 1988 SC 286] and
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
reported in Jai Kishan Vs. Commissioner of Police & Anr.
[1995 Supp. (3) SCC 364] and State of Punjab Vs. Baldev
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,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
therefore, the decisions under challenge do not call for
interference. Reliance has also been placed in this regard
on the decisions reported in Dayaram Dayal Vs. State of
M.P. & Anr. [(1997) 7 SCC 443] and Wasim Beg Vs. State of
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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
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.