Holding

The termination was not mala fide, no right to automatic confirmation exists upon expiry of probation, and no hearing was required as termination was based on overall unsuitability, thus no violation of Article 311(2).

Summary

The appellant, appointed as a Sales Tax Officer on a two‑year probation, continued in service without a confirmation order and was terminated after three years. He challenged the termination before the Gujarat High Court, which dismissed his writ petition and the subsequent appeal. The Supreme Court examined three contentions: that the termination was mala fide and violated Article 311(2) of the Constitution; that the expiry of the probation period conferred a right to confirmation; and that the appellant was entitled to a hearing before termination. The Court found no evidence of mala fides, held that the recruitment rules allow extension of probation beyond the initial two years and that no automatic right to confirmation arises, and observed that a hearing is not required where termination is based on an overall assessment of unsuitability rather than misconduct. Consequently, the appeal was dismissed.

Issues considered

Whether the termination of the appellant's services was mala fide and in violation of Article 311(2) of the Constitution.
Whether the expiry of the two‑year probation period creates a legal right to confirmation of appointment.
Whether principles of natural justice, specifically the right to be heard, apply to a probationer before termination of service.

Legislation cited

Constitution of Indias. Article 311(2)

Subjects

probationconfirmationservice terminationArticle 311natural justicemala fiderecruitment rulesadministrative law

Judgment

632
A

DHANJIBHA! RAMJIBHAI
B
v.

STATE OF GUJARAT

January 22, 1985
c
[R.S. PATHAK, E.S. VENKATARAMIAH AND V.B. ERADI, JJ.]

Service /aw-Tennlnation simpliciter of the services of a probationer with·
out confirming him after allowing hin1 to continue after the initial period of
Probation-Right to confirmation-The termination cannot be set to be as ma/a
fide or in violation. of provisions of Clause (2) of Article 311 of the Consitution-
Constitution of India, Article 136-lnierference by the Supreme Court. D

The services of the appellent who was appointed to the post of Sales Tax
Officer, by an order dated March 22, 1972 on probation for a p.:riod of two years;
but continued thereafter in service without any order confirming him in his
appointment were terminated on March 31, 1975. The writ petitL·n filed in the
High Court of Gujarat, chailenging the said termination was dismissed, by a E
judgment dated April 21, 1976. Finding no basis for the allegation of ma/a fide
on facts the court held that there was no right to confirmation on the expiry of f
the period of probation, and therefore, there was no violation of the provisions
of Clause (2) Article 311 of the Constitution. An appeal filed by the appellant
was dismissed by the Division Bench, on March 28, 1977. Hence the appeal, by
special leave 1Jf the Court.

Dismissing the appeal, the Court, F

HELD 1.1. The allegation of mala fides is wholly baseless and has not
been established. Where a finding of fact has been rendered by a learned Single
Judge of the High Court as a Court of first instance and thereafter affirmed in
appeal by an Appellate Bench of that High Court, the Supreme Court should be
reluctant to interfere with the finding unless there is very strong reasan to do so.
[635C-D]
G
2.1 When the order of appointment recited that the appe11ant would be
on probation for a period of two years, it conformed to Rule 5 of the Recruitment
Rules which prescribes such period of probation. Under the Rule the period of
probation may be extended in accordance with the rules, The period of two
years specified in the Rule is merely the initial period for which an officer may be
appointed on probation and does not represent the maximum Period of probation
In terms of the said rule the period of probation may be extended. [635E·F) H
DHANJJBHAI v. GUJARAT (Pathak, J.) 633

2.2 The power to extend the period of probation must not be confused
A
with the manner in which the extension may be effected. The one relates to power,
~ the other to mere procedure. Merely because procedural ru'es have not been fram·
ed does not imply a negation of the power. In the absence of any rule indicating
the manner for extending the period of probation, it is sufficient that the poweJ
is exercised fairly and reasonably, having regard to the context in which the
power has been granted. [635G-Hl B

3.1 There is no question of any legitimate expectation of being confirmed
or even right to confirmation on the expiry of two years of probation and on
successfully completing the qualifying tests and training undergpne by a Govern-
ment employee. It was open to the StateGovernment to consider the entire record
• of service rendered by its employee ahd to determine whether he was suitable for
confirmation or his services should be terminated. The function of confirmation c
implies the exercise of judgment of the confirming authori,y on the overall
suitability of the e1nployee for permanent absorption in service. [636A-B]

3.2 The contention that the appellant should have been heard before his
services were terminated is not correct since the order of termination does not
,,, contain any stigma or refer to any charge of misconduct on the part of the appel- D
--.1. ]anti.and the tennination was on the basis of an overal_I appreciation of bis record
of service disentitling him to be absorbed in the service. (6360; F)

3.3. No distinction lies between a probationer whose services are termina-
ted on the expiry of two years and a probationer who has completed the normal
span of two years and whose services ar~ terminated some time later after he has
put in a further period of service. It is perfectly possible that during the initial
E
period of probation the confirming authority may be unable to reach a definite
conclusion on whether the candidate!should be confirmed or his services should be
terminated. Such candidate may be allowed to continue beyond the initial perod
of two years in order to aUow the confirming authority to arrive at a definite
, opinion. A candidate does not enjoy any greater right to confirmation if he
is allowed to continue beyond the intitial period of probation. [6360-H; 637A-B]

F
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2480 of 1977

From the Judgment and Order dated 28.3.77 of the Gujarat
High Court in L.P.A. No. 232 of 1976.

R.N. Karanjawala and P.H Parekh for the appellant.

M.N. Phadke, S.C. Patel and R.N. Poddar for the respondents. G

The Judgment of the Court was delivered by

,). PATHAK, J. This appeal by special leave arises out of a writ
petition filed by the appeHant in the Gujarat High Court challenging
an order terminating his services. H
634 SUPREME COURT REPORTS f198)] 2 S.C.R.
A
The appellant was appointed to the post of Sales Tax Officer
by an order dated March 22, 1972. The order recited that the
appointment was on probation for a period of two years. The period
of two years expired, and the appellant continued in service and no
order was m"de confirming his appointment. On March 31, 1975
B the appellant's services were terminated.

Aggrieved by the termination of his services, the appellant
filed a writ petition in the High Court of Gujarat, but by his judg-
ment and order dated April 21, 1976 a learned Single Judge dismissed
the writ petition. An appeal was filed by the appellant, and an
c Appellate Bench of the High Court dismissed the appeal by its judg-
ment and order dated March 28, 1977.

Three points have been raised before us in this appeal. The
first contention is that the order terminating the appellant's services
D was passed ma/a fide, the second is that on the expiry of the period
of probation the appellant must be deemed to have been confirmed,
and inasmuch as his services have been terminated without complying
with clause (2) of Article 311 the order is invalid. The last contention
is that the principles of natural justice were violated inasmuch as on
the facts of the present case the appellant, even as a probationer, was
E entitled to be heard before his services were terminated.
. t
On the first contention, the learned Single Judge as well as
the Appellate Bench examined the material on the record and came
concurrently to the conclusion that the allegation of ma/a fide was
without foundation. Learned counsel for the appellant has taken
F us through the record and has endeavoured to show that the appellant
had discharged his duties ably and with integrity, and there was
no reason for terminating his services. Various particulars were set
forth in the special leave petition filed in this Court in support of
that assertion. Now, it appears that substantially the same allega-
tions were set forth by the appellant in his writ petition, but in the
G affidavit filed in reply by the State Government those allegations were
denied. On the contrary, it was asserted that the appellant's services
were terminated entirely because of his unsatisfactory record and that
the order was not vitiated by any illegality or unfairness. Jn support
of the plea of malafides, the appellant alleged that his services had
been terminated because he had taken proceedings against an assessee,
Messrs. Shriraj & Company who, according to the appellant, enjoyed
H political favour and influence with the authorities. The allegation
DHANJIBHAI V. GU)Al\AT (Pathak, J.)

A
has been denied in the counter-affidavit. During the hearing of the
special leave petition this Court directed the State Government to
file a specific affidavit relating to the facts alleged in the writ petition
regarding a confidential enquiry initiated by the Government. The
affidavit filed in reply admits th:t an enquiry was initiated against the
appellant on the complaint of the said assessee, but it maintains that B
there was no ma/a fides on the part of the Ministers concerned and
that a persual of the record relating to that enquiry shows that the
allegation of ma/a fides is wholly baseless. We have considered the
matter carefully and we find no sufficient reason to differ from the
• finding of the High Court that the allegation of ma/a fides is not
established. We think it desirable to observe that where a finding c
of fact has been rendered by a learned Single Judge of the High
Court as a Court of first instance and thereafter affirmed in appeal
by an Appellate Bench of that High Court, this Court should
be reluctant to interfere with the finding unless there is very strong
reason to do so.
D
The second contention on behalf of the appellant is that the
appellant must be deemed to have been confirmed inasmuch as he
was allowed to continue in service even after the expiry of the period
of probation of two years specified in the order of appointment. We
are of opinion that when the order of appointment recited that the E
petitioner would be on probation for a period of two years, it
conformed to Rule 5 of the Recruitment Rules which prescribes
such period of probation. The Rule states further that the period
of probation may be extended in accordance with the rules. The
period of two years specified in the Rule is merely the initial period
for which an officer may be appointed on probation. As the terms
of the same Rule indicate, the period of probation may be extended. F
The period of two years does not represent the maximum period of
probation.

It is next urged that as no rules have been framed indicating the
manner for extending the period of probation, there is no power to
extend the period of probation. The argument suffers from a fallacy. G
The power to extend the period of probation must not be confused
with the manner in which the extension may be affected. 1 he one
relates to power, the other to mere procedure. Merely because
procedural rules have not been framed does not imply a negation of
the power. In the absence of such rules, it is sufficient that the
power is exercised fairly and reasonably, having regard lo the oontext
in which the power have been granted. H
636 SUPREME COURT REPORTS (19~5] 2 s.C.R.
A
It is then submitted that the appellant enjoyed a legitimate
expectation of being confirmed on the expiry of two years of proba-
tion and on successfully completing the qualifying tests and training
undergone by him. We are not impressed by that contention. It
was open to the State Government to consider the entire record of
B service rendered by the appellant and to determine whether he was
suitable for confirmation or his services should be terminated.
There was no right in the appellant to be confirmed merely because
he had completed the period of probation of two years and had
passed the requisite tests and completed the prescribed training. The
function of confirmation implies the exercise of judgment by the
confirming authority on the overall suitability of the employee for
c
permanent absorption in service.

The second contention must also be rejected.

The last contention is that the appellant should have been
D heard before his services were terminated. The order of termination
does not contain any stigma or refer to any charge of misconduct on
the part of the appellant. It is said that the State Government
terminated the appellant's services because a complaint had been
made against him by Messrs. Shriraj & Company, whose case had
been dealt with by him, and that the appellants should have been
E given a hearing to show that there was no basis for the complaint.
There would have been substance in this contention if the appellant's
services had been terminated on the ground of misconduct committed
in connection with the case of Messrs. Shriraj & Company. On the
contrary, it appears from the record before us that the appellant's
services were terminated because on an overall appreciation of his
F
record of service he was found unsuitable for being absorbed in the
service.

A distinction is sought to be drawn between a probationer
whose services are terminated on the expiry of the period of two
G years and a probationer, who has completed the normal span of two
years and whose services are terminated some time later after
he has put in a further period of service. We are unable to
see any distinction. It is perfectly possible that during the initial
period of probation the confirming authority may be unable
H to reach a definite conclusion on whether the candidate should be
DHANJIBHAI v. GUJARAT (Pathak, J.) 637

confirmed or his services should be terminated. Such candidate may A
be allowed to continue beyond the initial period of two years in
order to allow the confirming authority to arrive at a definite
opm1on. It seems to us difficult to hold that a candidate enjoys any
greater right to confirmation if he is allowed to continue beyond the
period of probation. B

In our judgment there is no force in this appeal, and it is dis-
missed but in the circumstances without any order as to costs .

•

S.R • Appeal dismissed.

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