Holding

An order of confirmation is a positive act required under Rule 24; the expiry of the maximum probation period does not by itself confer deemed confirmation, and termination after that period is valid if the officer is found unsuitable.

Summary

The respondents were appointed as Civil Judges (Trainee) under the Madhya Pradesh Judicial Service Rules, 1955 and placed on a two‑year probation that could be extended by another two years, making a maximum of four years. After the four‑year period their services were terminated because the Full Court of the High Court found them unsuitable for confirmation and they had not passed the prescribed departmental examinations. The High Court set aside the termination orders, holding that the respondents were deemed to have been confirmed after the expiry of the maximum probation period. On appeal, the Supreme Court held that confirmation is a positive act that must be expressly made by the appointing authority; mere continuance beyond the maximum period does not amount to deemed confirmation. Consequently, the termination orders were upheld and the writ applications dismissed. The Court emphasized that Rule 24(3) expressly empowers the Governor to dispense with services after probation if the officer is unsuitable, negating any implication of automatic confirmation.

Issues considered

The effect of the expiry of the maximum four‑year probation period under Rule 24 of the Madhya Pradesh Judicial Service Rules, 1955 – whether it results in a deemed confirmation of a judicial officer.
Whether the termination of the respondents' services after the expiry of the maximum probation period was valid in the absence of an express order of confirmation.

Subjects

service lawprobationdeemed confirmationjudicial officerstermination of serviceRule 24Madhya Pradesh Judicial Serviceconfirmation orderemployment law

Judgment

A HIGH COURT OF MADHYA PRADESH THRU.
REGISTRAR AND ORS.
v.
SATYA NARAYAN JHAVAR

AUGUST 14, 2001
B
[G.B. PATTANAIK, S.N. PHUKAN AND B.N. AGRAWAL, JJ.]

Service law :
.,
c Madhya Pradesh Judicial Service (Classification, Recruitment and
Conditions of Service) Rules, 1955 : Rule 24.

Judicial Officers-Appointed on probation-Ru/es stipulated 4 years
maximum period of probation-Such Judicial Officers found unsuitable for
confirmation-Hence, their services terminated after expiry of 4 years period
D of probation-Validity of-Held : Order of confirmation is a positive act on
the part of the employer-Mere continuance of the probationer beyond
maximum period ofprobation is not deemed confirmation-Hence, termination
order valid.

E The respondents were appointed as Civil Judges (Trainee), Class II,
temporarily on officiating basis under the provisions of Madhya Pradesh
Judicial Service (Classification, Recruitment and Conditions of Service)
Rules, 1955 and they were required to undergo six months training before
being appointed on probation for a period of two years. Under Rule 24 of the
Rules - the initial probation period of two years could be extended for a
F further period of two years, meaning thereby the maximum period of probation
under the Rules was four years. However, the services of the respondents
were terminated after expiry of four years period of probation. But the High
Court set aside the termination order of the respondents. Hence this appeal.

On behalf of the appellants it was contended that under Rule 24 of the
G Rules, after expiry of maximum period of probation, a judicial officer could
not be deemed to have been automatically confirmed and he could be confirmed
only if his service was found to be satisfactory and he had passed the
departmental examinations; and that since the Full Court of the High Court
did not find the respondents fit for confirmation their services were rightly
H terminated.
532
HIGH COURT OF M.I'. ,, SA TY A NARAYAN JHAVAR 533

Allowing the appeals, the Court A
HELD : 1. The question of confirmation can be considered at the end
of the period of probation, and on such consideration if the probationer is
found suitable by the appointing authority and he is found to have passed the
prescribed departmental examination then the appointing Authority may
... issue an order of confirmation. It is too well settled that an order of B
confirmation is a positive act on the part of the employer, which the employer
is required to pass in accordance with the Rules governing the question of
confirmation subject to a finding that the probationer is in fact fit for
confirmation. It is not possible to hold that since a maximum period of
probation has been provided under Rule 24 of the Madhya Pradesh Judicial C
Service (Classification, Recruitment and Conditions of Service) Rules, 1955,
at the end of that period the probationer must be deemed to be confirmed.
[560-D, E, F[

Samsher Singh v. State of Punjab, [1974[ 2 SCC 831 and State of
Punjab v. Dharam Singh, [1968[ 3 SCR I, followed. D
Om Prakash Maurya v. UP. Cooperative Sugar Factories Federation,
(1986[ Supp. SCC 95; MK Agarwal v. Gurgaon Gramin Bank, [1987[ Supp.
SCC 643; State of Gujarat v. Akhi/esh CBhargav, [1987[ 4 SCC 482;
Municipal Corporation v. Ashok Kumar Misra, (1991[ 3 SCC 325; Jai
Kishan v. Commissioner of Police, [19951 Supp. 3 SCC 364; State of Punjab E
v. Baldev Singh Khosla, [19961 9 SCC 190 and Chief General Manager,
State Bank of India v. Bijoy Kumar Mishra, [1997[ 7 SCC 550, relied on.

Shri Kedar Nath Bahl v. State of Punjab, [1974[ 3 SCC 21; Tarsem Lal
Verma v. Union of India, [1997[ 9 SCC 243 and Wasim Beg v. State of UP,,
(199813 sec 321, held inapplicable. F
Dayaram Dayal v. State of MP,, [1997[ 7 SCC 443, overruled.

2.1. Ordinarily a deemed confirmation of a probationer arises when
the letter of appointment so stipulates or the Rules governing service condition
so indicate. But it cannot be said that merely because a maximum period of G
probation has been provided in the Service Rules, continuance of the
probationer thereafter would ipso facto held to be a deemed confirmation.
[561-D-E[

Samsher Singh v. State of Punjab, [ 19741 2 SCC 831; Sukhbans Singh
v. State of Punjab, [196311SCR416; G.S Ramaswamy v. Inspector-General H
534 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A of Police, 119641 6 SCR 279 and State of U.P. v. Akbar Ali Khan, J1966J 3
SCR 821, followed.

2.2. Under Rule 24(3) the power for dispensing with services has been
conferred upon the Governor to be exercised at any time after the period of
probation if the probationer is found unsuitable or if he has failed to pass
B the prescribed departmental examination. This power of the Governor under
Rule 24(3) would become otiose if the probationer acquries a deemed
confirmation on the expiry of the maximum period of probation prescribed
under Rule 24(3). Rule 24(3) is, therefore, another inbuilt provision in the
Rules, which is a special provision to negative the inference of deemed
C confirmation on the expiry of the maximum period of probation indicated in
Rule 24(1). 1561-F, G, H; 562-AI

Samsher Singh v. State of Punjab, 119741 2 SCC 831; Sukhbans Singh
v. State of Punjab, 11963) I SCR 416; G.S.Ramaswamy v. Inspector-General
of Police, 11964) 6 SCR 279 and State of U.P. v. Akbar Ali Khan, 11966) 3
D SCR 821, followed.

Dayaram Dayal v. State of M.P., 119971 7 SCC 443, overruled.

2.3. Rule 24 does not provide for a deemed confirmation on expiry of
the maximum period of probation, and, on the other hand it contemplates
E positive order of confirmation to be passed by the appropriate authority, ifthe
authority concerned is satisfied about the fitness of the probationer for
confirmation, and ifthe probationer has passed the departmental examination,
as prescribed. Mere continuance of the probationer after considering his
case for confirmation during the period of probation and finding him unsuitable
for confirmation by the decision of the Full Court, by no stretch of imagination
F can be construed to be a confirmation by implication. J562-B, CJ

State of Punjab v. Dharam Singh, 11968) 3 SCR l, followed.

3. Subordinate Judiciary is the foundation on which the super-structure
is built. It would be the solemn duty of every authority on whom the
G administration of justice vests, to see that the said foundation is not shaken
by any process including the process of allowing adjudged unsuitable persons
to man the post. While interpreting Rule 24 and considering the question
whether a deemed confirmation can at all be conferred, the aforesaid principle
must be borne in mind and unless the Rules explicitly say so, by implication
H a status of deemed confirmation ought not to be granted, particularly when
HIGH COURT OF M P v. SATY A NARAYAN JHA VAR [AGRAWAL, L] 535
the Full Court of High Court has adjudged the Judicial Officers unsuitable. A
[562-F,G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5303 of
2001.

From the Judgment and Order dated 1.3.2000 of the Madhya Pradesh B
High Court in LPA No. 215of1998.
WITH

C.A. No. 5304-5309 of2001.

P.P. Rao, Satish K. Agnihotri, Rohit K. Singh and A.K. Pandey for the C
Appellants.

R.K. Jain, A.K. Chitale and Kailash Vasdev, Sushi! Kumar Jain, A.P.
Dhamija, Niraj Sharma, K. Sarada Devi and Prakash Shrivastava for the
Respondent.

The Judgment of the Court was delivered by
D

B.N. AGRA WAL, J. Leave granted.

Common judgment impugned in these appeals has been passed by
Madhya Pradesh High Court in Letters Patent Appeals preferred by the
respondents in these appeals, excepting Civil Appeal arising out of SLP (C) E
No. 11675 of2000, which was preferred by the present appellant, whereby the
Letters Patent Appeal preferred by the appellant has been dismissed and the
order of learned Single Judge allowing the writ application upheld, but other
appeals have been allowed and the judgment rendered by learned Single
Judge dismissing the writ applications has been set aside. F
Necessary facts giving rise to these appeals are that respondents in
these appeals, excepting Civil Appeals arising out of SLP (C) Nos. 11675 and
11704 of 2000, were appointed as Civil Judges (Trainee), Class II, on different
dates temporarily on officiating basis upon the recommendations of the State
Public Service Commission under the provisions of Madhya Pradesh Judicial G
Service (Classification, Recruitment and Conditions of Service) Rules, 1955
(hereinafter referred to as 'the Rules') and they were required to undergo six
months training before being appointed on probation for a period of two
years. After completion of six months' training, their probation period started
on different dates as per rule 24 of the Rules wherein the initial probation
period was two years which could be extended for a further period of two. H
536 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A years, meaning thereby the maximum period of probation under the Rules was
four years. Cases of these respondents were considered for confirmation
within a period of four years but they were not found fit by the Full Court, ,
as such the same were deferred on the first occasion and later on, after expiry
of four years period of probation. Case of only respondent in Civil Appeal
B arising out of SLP (C) No. 11457 of 2000 was considered only once and that
also after the probation period and he having not been found fit for confirmation,
upon the recommendation of the High Court, his service was terminated and
so far others are concerned, their cases for confirmation were considered,
even after probation period, every year for a couple of years, but, as inspite
of giving repeated opportunities to improve themselves, they could not
C improve, ultimately the Full Court recommended for terminating their services
whereupon the same were terminated. Services of the respondents in the
aforesaid five appeals, excepting Civil Appeals arising out of SLP (C) No.
11457/2000, were terminated after few years of expiry of four years period of
probation whereas the service of respondent in Civil Appeal arising out of
SLP (C) No. 11457/2000 was terminated within few months from the expiry of
D period of probation.

One Samarudas Banjare, whose heirs are respondents in Civil Appeal
arising out of SLP (C) No. 11675 of 2000, was appointed as Civil Judge
(Trainee) and he joined as such on 15.7.1976 and after completing six months'
E training his probation period started on 14.1.1977 and expired on 13.1.1981.
His case for confirmation was considered by the Full Court and he was not
found fit for confirmation. Therefore, on 29.8.1981 the Full Court recommended
to terminate his services whereupon on 19.11.1981 the same were terminated.
The said termination order was challenged before the High Court in a writ
application which was allowed and reinstatement order was passed whereupon
F he joined on 25.9.1985 and when the said order of reinstatement was challenged
before this Court, the same was upheld, but it was directed that Shri Banjare
should be kept under close watch for three years. Thereafter case of this
employee was considered every year, but he was not found fit for confirmation
and accordingly it wa~ resolved to terminate his services which were terminated
in the year 1992.
G
Respondent in Civil Appeal arising out of SLP (C) No. 11704/2000 was
appointed as Civil Judge (Trainee) on 27.10.1987 and after completing six
months' training she joined as probationer on 1.5.1988 and maximum period
of probation expired on 30.4.1992. Thereafter her case was considered by the
Full Court for confirmation and she having not been found fit, it was resolved
H to terminate her services which were terminated on 23.12.1993.
HIGH COURT OF M.P. v. SA TY A NARA YAN JHAVAR [AGRAWAL. J.] 537
Challenging the orders of termination, different writ applications were A
filed. Writ application of respondent in appeal arising out of SLP (C) No.11704
of 2000 was heard separately by a learned Single Judge of the High Court and
the same was dismissed. Other six writ applications were heard by another
learned Single Judge of the High Court and same were disposed of by a
common judgment whereby the writ application filed by Samardudas Banjare B
was allowed and order of his termination from service was quashed, but no
order of reinstatement was passed as during the pendency of the writ
application the said person died, whose heirs were substituted and it was
directed that they would be entitled to all arrears of emoluments from the date
of the order of termination till the date of his death. So far as other writ
applications are concerned, the same were dismissed. c
Challenging order passed in the writ application filed by Samarudas
Banjare, the High Court preferred a Letters Patent Appeal whereas others filed
separate appeals challenging the dismissal of their writ applications. All the
appeals were heard and disposed of by a common judgment. Appeal filed by
the High Court has been dismissed by the Division Bench with modification D
.. that heirs of Samarudas would be entitled to only 50% of the back wages
whereas other six appeals have been allowed, the orders of termination of the
respondents have been set aside and they have been directed to be reinstated
with 50% of the back wages. Hence separate petitions were filed for grant of
special leave to appeal. E
When the SLPs were placed for consideration before a two Judge
Bench, reliance was placed on behalf of the respondents upon an earlier two
Judge Bencltdecision of this Court in Dayaram Dayal v. State of MP. & Anr.,
[1997] 7 SCC 443, which was also a case under rule 24 of the Rules wherein
it was laid down that as no order of confirmation was passed within the F
maximum period of probation, the probationer - judicial officer would be
deemed to have been confirmed after expiry of four years period of probation,
therefore, after expiry of the period of probation his services could not have
been terminated on the ground that he was not found fit for confirmation by
the Full Court. As correctness of the said decision was doubted, the matter G
was referred to larger bench and accordingly it has been placed before us.

Shri P.P. Rao, learned senior Counsel appearing on behalf of the appellant-
High Court, in support of the appeal, submitted that in Dayaram Dayal's case
(supra) this Court failed to appreciate the correct ratio laid down by the
~onstitution Bench in the case of State of Punjab v. Dharam Singh, [ 1968] H
538 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A 3 SCR I, and seven Judge Bench decision of this Court in the case of Samsher
Singh V. State ofPunjab & Anr., [ 1974] 2 sec 831, which have been followed
in other cases. Acc@rding to learned counsel, under rule 24 of the Rules, after
expiry of maximum period of probation, a judicial officer cannot be deemed to
have been automatically confirmed and he can be confirmed only if his service
B is found to be satisfactory and he passes departmental examinations. Therefore,
in view of the fact that the High Court did not find them fit for confirmation,
their services were rightly terminated. Shri R.K. Jain, learned senior Counsel
appearing on behalf of the respondents, submitted that the case of Dayaram
Dayal (supra) has been correctly decided as after expiry of maximum period
of probation, the respondents were automatically confirmed and accordingly
C the Division Bench of the High Court was justified in quashing the order of
termination as after deemed confirmation services of a judicial officer could
not have been terminated in the exercise of powers under rule 24 of the Rules,
but the same could have been terminated only by following the procedure
prescribed for holding an inquiry in a departmental proceeding, which has not
been done in the case on hand. Learned counsel further submitted that in any
D view of the matter in terms of rule 24 of the Rules, order of termination could
have been passed immediately after expiry of four years maximum period of
probation and not after several months and years, as has been done in the
cases on hand. In view of the rival submissions, the question which we are
called upon to consider is as to whether decision· of this Court in Dayaram
E Dayal's case was correctly decided and rule 24 of the Rules postulates that
services of a judicial officer shall be deemed to have been confirmed on the
expiry of period of four years, which is the maximum period of probation,
when during the aforesaid period no order of termination was passed.

To appreciate the point in issue, it would be useful to refer to rule 24
F of the Rules which runs thus:-
"R.24(1) Every candidate appointed to the cadre shall undergo training
for a period of six months before he is appointed on probation for a
period of two years, which period may be extended for a further period
not exceeding two years. The probationers may, at the end of period
G of their probation, be confirmed subject to their fitness for
confirmation and to having passed, by the higher standard, all such
departmental examinations as may be prescribed.

(2) During the period of probation, he shall be required to do
magisterial work and acquire experience in office routine and procedure.
H
HIGH COURT OF M.P. v. SA TY A NARAYAN JHAVAR [AGRAWAL, J.] 539
(3) If during the period of probation he has not passed the A
prescribed departmental examinations, or has been found otherwise
unsuitable for the service, the Governor may, AT ANY TIME,
THEREAFTER, dispense with his services." [Emphasis added]

The question of deemed confirmation in service Jurisprudence, which
is dependent upon language of the relevant service rules, has been subject B
matter of consideration before this Court times without number in various
decisions and there are three lines of cases on this point. One line of cases
is where in the service rules or the letter of appointment a period of probation
is specified and power to extend the same is also conferred upon the authority
without prescribing any maximum period of probation and if the officer i~ C
continued beyond the prescribed or extended period, he cannot be deemed
to be confirmed. In such cases there is no bar against termination at any point
of time after expiry of the period of probation. Other line of cases is that where
while 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 inference in such cases is that D
officer concerned is deemed to have been confirmed upon expiry of the
maximum period of probation in case before its expiry order of termination has
not been passed. The last line of cases is where though under the rules
maximum period of probation is prescribed, but the same require a specific act
on the part of the employer by issuing an order of confirmation and of E
passing a test for the purposes of confirmation. In such cases, even if the
maximum period of probation has expired and neither any order of confirmation
has been passed nor the person concerned has passed the requisite test, he
canriot be deemed to have been confirmed merely because the said period has
expired.
F
Now we proceed to consider the first line of cases in which the earliest
one is Sukhbans Singh v. State of Punjab, [1963] I SCR 416. In that case the
Constitution Bench was considering the question of confj_i:mation under rule
22 of the Punjab Civil Service (Ex&utive Branch) Rules, 1930 which provides
that a candidate on first appointment to the service shall remain on probation G
for a period of I 8 months and proviso thereto enables the Governor to extend
the period of probation. Rule 24 of the said Rules provides that on the
completion of the period of probation prescribed or extended, a member of the
service shall be qualified for substantive appointment. It was laid down by
this Court that a probationer cannot automatically acquire the status of a
permanent member of service, unless of course the rules under which he is H
540 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A appointed expressly provide for such a result and the rules in that case did
not contain any such provision. Rules 22, 23 and 24 were interpreted to mean
that such a probationer is merely qualified for substantive permanent
appointment where a probationer is not reverted by the Government under
rule 23 on the ground that in the opinion of the Government his work or
B conduct was found to be unsatisfactory and where his service is not terminated
under rule 23, he continues to be a probationer, but requires the qualification
for substantive permanent appointment. According to the Rules, at the end
of the probationary period, a probationer who is neither terminated nor
absorbed in a substantive post will be eligible for being made permanent and
he will continue to be a probationer. The very fact that a person is a probationer
C implies that he has to prove his worth and suitability for the higher post in
which he is officiating. If his work is not found to be satisfactory, he is liable
to be reverted to his original post even without assigning any reason. In the
said case, this Court further observed that it would not be correct to say that
the probationer has any right to the higher post in which he is officiating or
a right to be confirmed and he being a probationer merely made eligible for
D being absorbed in a permanent post, is in no better position.

In G.S. Ramaswamy & Ors. v. Inspector-General of Police, Mysore,
[1964] 6 SCR 279, another Constitution Bench was considering a case of
promotion of Sub-inspector of Police under rule 486 of Hyderabad District
E Police Manual which provides that all officers who are promoted will be on
probation for a period of two years and they may be reverted at any time
during the aforesaid period if their work and conduct are not satisfactory, or
they are found unsuitable for the appointment to which they have been
promoted. This Court observed that the aforesaid provision in the Rules
negatives the contention that the concerned officers had an indefeasible right
F to promotion and they could not be reverted after they had once started
acting on the promoted post. By placing reliance upon the wordings of rule
486 which provides that promoted officer would be confirmed at the end of
the probationary period if he has given satisfaction, this Court observed that
according to the Rules when the probationary period is over and the promoted
G officer has given satisfaction during the whole of that period, he will be
confirmed and the fact that he is actually promoted, temporarily or as officiating,
does not give him any right to continuance even during the period of two
years' probation inasmuch as he will be liable to be reverted at any time even
during those two years if his work is found unsatisfactory and he can be
confirmed only when the authority concerned has found that his work and
H conduct were satisfactory during the probation period. In that case, it was
HIGHCOURTOF M.P. v. SA TY A NARAYAN JHAVAR [AGRAWAL, J.] 541

contended by placing reliance upon the following sentence in rule 486, namely, A
opromoted officers will be confirmed at the end of their probationary period
if they have given satisfaction that the said rule expressly provided for
automatic confirmation after the period of probation is over. This Court
repelled the contention and held that such a rule does not contemplate
automatic confirmation after the probationary period of two years, as a B
promoted officer can be confirmed under the rules only if he has given
satisfaction, which condition of giving satisfaction must be fulfilled before a
promoted officer can be confirmed under the rules and the same obviously
means that the authority competent to confirm an officer must pass an order
to the effect that the probationer has given satisfaction and is, therefore,
confirmed. C
Again Constitution Bench in the case of State of Uttar Pradesh v.
Akbar Ali Khan, (1966] 3 SCR 821, was considering the question of
confirmation of a probationer with reference to rules 12 and 14 of Uttar
Pradesh Subordinate Revenue Executive Service (Tehsildar) Rules, 1944 which
read thus:- D
"Rule.12 .-Every listed candidate on appointment in or against a
substantive vacancy shall be placed on probation. The period of
probation shall be two years".

"Rule 14.-If it appears at any time during or at the end of the period E
of probation that a person appointed on probation has not made
sufficient use of his opportunities or has failed to pass the departmental
examination completely or ifhe has otherwise failed to give satisfaction,
he may be reverted to his substantive appointment:

Provided that the Board may extend the period of probation to F
three years. An extension beyond this period shall require the sanction
of the Governor. Every extension whether granted by the Board or the
Governor shall specify the exact date up to which it is granted."

In the light of the aforesaid rules, the Court in that case while laying
down the law observed thus at pages 825 and 826:- G
"The respondent was posted as a Tahsildar, and placed on probation
for two years. The initial period of probation was liable to be extended
by the Board of Revenue or by the Governor. There is no rule that
on the expity of the period of probation the probationer shall be
deemed to have been confirmed in the post which he is holding as H
542 SUPREME COURT REPORTS [2001) SUPP. I S.C.R.

A a probationer. If a probationer was found not to have made sufficient
use of his opportunities or had failed to pass the departmental
examination completely or if he had otherwise failed to give satisfaction
he may be reverted to his substantive appointment: again confirmation
in the appointment at the end of the period of probation could only
be made if the probationer had passed the departmental examination
B for tahsildars completely and the Commissioner reported that he was
fit for confirmation and that his integrity was unquestionable. It is
common ground in this case that the respondent had not passed the
departmental examination before 1955. He had therefore not qualified
himself for confirmation.
c
The scheme of the rules is clear: confirmation in the post which a
probationer is holding does not result merely from the expiry of the period
of probation, and so long as the order of confirmation is not made, the
holder of the post remains a probationer. It has been held by this Court that
when a first appointment or promotion is made on probation for a specified
D period and the employee is allowed to continue in the post, after the expiry
of the said period without any specific order of confirmation he continues as
a probationer only and acquires no substantive right to hold the post. If the
order of appointment itself states that at the end of the period of probation
the appointee will stand confirmed in the absence of any order to the
E contrary, the appointee will acquire a substantive right to the post even
without an order of confirmation. In all other cases, in the absence of such
an order or in the absence of such a service rule, an express order of
confirmation is necessary to give him such a right. Where after the period
of probation an appointee is allowed to continue in the post without an
order of confirmation, the only possible view to take is that by implication
F the period ofprobation has been extended, and it is not a correct proposition
to sate that an appointee should be deemed to be confirmed from the mere
fact that he is allowed to continue after the end of the period of probation."
[Emphasis added]

In the case of Shri Kedar Nath Bahl v. The State of Punjab & Ors.,
G [1974] 3 sec 21, a person applied for the post and he was appointed on a
post which belonged to Punjab Provincial Service Class I and the post was
temporarily sanctioned upto February 28, 1955 and was likely to continue
thereafter. The post was extended from time to time upto November 4, 1958
when the same was discontinued and on the discontinuance, the appellant
H was reverted to his original post. When a writ application was filed before the
HIGH COURT OF M.P. v. SA TY A NARAYAN JHAVAR [AGRAWAL, J.] 543

High Court challenging the order of reversion, the same was dismissed and A
dismissal was upheld by Division Bench of the High Court in appeal as well
as this Court on further appeal being brought to this Court. While dismissing
the appeal, this Court laid down the law thus at page 26:-

"The law on the point is now well settled. Where a person is appointed
as a probationer in any post and a period of probation is specified, B
it does not follow that at the end of the said specified period of
probation he obtains confirmation automatically even if no order is
passed in that behalf. Unless the terms of appointment clearly indicate
that confirmation would automatically follow at the end of the
specified period, or there is a specific service rule to that effect, the C
expiration of the probationary period does not necessarily lead to
confirmation. At the end of the period of probation an order
confirming the officer is required to be passed and if no such order
is passed and he is not reverted to his substantive post, the result
merely is that he continues in his post as a probationer..... The terms
of appointment do not show that the appellant would be automatically D
confirmed on the expiry of the first six months of probation nor is any
rule brought to our notice which has the effect of confirming him in
the post after six months of probation. The position of the appellant,
therefore, till the abolition of the post on November4, 1958, was that
he continued to be a probationer and has no right to the post. It, E
therefore, follows that when the tenure of the post came to an end,
he was automatically reverted to his original post as an Inspector on
which he had the lien." [Emphasis added]

In the case of Tarsem Lal Verma v. Union ofIndia & Ors., [1997] 9 SCC
243, a person was occupying the post of Photographic Officer under Ministry F
of Defence, Armed Forces Film and Photo Division (Photographic Officer)
Recruitment Rules,_ 1982 whereby the probation period was fixed at two years
and no maximum period was prescribed. When the two years probation period
of the concerned officer expired, the probationer was not terminated from
service even though the work and conduct were found to be not satisfactory G
and in order to give him an opportunity to improve his performance, the
period of probation was extended beyond the period of two years by an
additional 550 days. In that case the person concerned claimed that as the
period of two years had expired, he would be deemed to have been
automatically confirmed. The Administrative Tribunal rejected the contention .
on the ground that the rules did not prescribe any maximum period of probation H
544 SUPREME COURT REPORTS (2001] SUPP. I S.C.R.

A and the probationer was allowed to continue in service even after expiry of
the probation period of two years to enable him to show improvement. When
the matter was brought to this Court, order of the Tribunal was affirmed in
view of observations aforementioned.

Amongst the other line of cases, the sheet anchor of the respondent
B is a Constitution Bench decision of this Court in the case of State of Punjab
v. Dharam Singh, (1968] 3 SCR l, which has been heavily relied upon. In that
case the Court was considering effect of a probationer continuing on the post
after expiry of the maximum period of probation prescribed under rule 6 of the
Punjab Educational Service (Provincialised Cadre) Class III Rules, 196 I which
C runs thus:-

"R.6. (1) Members of the Service, officiating or to be promoted against
permanent post, shall be on probation in the first instance for one
year.

(2) Officiating service shall be reckoned as period spent on
D probation, but no member who has officiated in any appointment for
one year shall be entitled to be confirmed unless he is appointed
against a permanent vacancy.

(3) On the completion of the period of probation the authority
competent to make appointment may confirm the member in his
E appointment or if his work or conduct during the period of probation
has been in his opinion unsatisfactory he may dispense with his
services or may extend his period of probation by such period as he
may deem fit or revert him to his former post if he was promoted from
some lower post.
F
Provided that the total period of probation including extension, if
any, shall not exceed three years.

(4) Service spent on deputation to a corresponding or higher post may
be allowed to count towards the period of probation, if there is a
G permanent vacancy against which such member can be confirmed."

The respondent in that case was appointed on I st October, 1957 on permanent
post and under rule 6(3) he continued to hold the post on probation in the
first instance for one year. Maximum period of probation fixed by the rule was
three years which expired on October 1, 1960, but the respondent continued
H to hold the post after October I, 1960 and no formal order confirming him in
HIGH COURT OF M.P. v. SA TY A NARAYAN JHAVAR [AGRAWAL. J.] 545
his post was passed. On February 10, 1963 service of the respondent was A
terminated and when the matter was challenged before the Punjab High Court
by filing a writ application, the same was rejected on the ground that the
respondent was a temporary employee. Thereafter, when the appeal was
preferred before the Division Bench, the same was allowed holding that the
respondent was not temporary employee, he held the post on probation and B
on the expiry of maximum period of three years of probation he must be
deemed to have been confirmed on his post, as such the order of tennination
was really an order of removal from service by way of punishment without
holding any inquiry as such violative of Article 311 of the Constitution. When
the matter was brought to this Court, appellate order of the High Court was
confirmed and it was held that under rule 6(3) referred to above, four courses C
of action were open to the appointing authority, namely, (a) to extend the
period of probation, provided the total period of probation, including
extensions, would not exceed three years, or (b) to revert the employee to his
former post if he was promoted from lower post, or (c) to dispense with his
services if his work or conduct during the period of probation was not ·
satisfactory, or (d) to confirm him in his appointment. It was held that though D
the initial period of probation of the respondent in that case expired on l st
October, l 958, by allowing him to continue in his post thereafter without any
express order of confirmation, the competent authority must be deemed to
have extended the period of probation upto October 1, 1960 by implication
which is the maximum period of probation, but under proviso to rule 6(3) the E
probation period could not extend beyond October l, 1960. The Court observed
that in view of the pr_oviso to rule 6(3) it was not possible to presume that
the competent authority extended the probation period after October l, 1960
or that thereafter the respondent continued to hold the post as probationer.
While laying down the law, this Court observed thus at pages 5-6:-
F
" ...... 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 G
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 such a case, it is permissible to draw the
inference that the employee allowed to continue in the post on
compleiion of the maximum period of probation has been confirmed H
546 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A in the post by implication." [Emphasis added)

While considering the matter, the Court further observed thus at pages
6-7:-
"Immediately upon completion of the extended period of probation on
B October 1, 1960, the appointing authority could dispense with the
services of the respondents if their work or conduct during the period
of probation was in the opinion of the authority unsatisfactory. Instead
of dispensing with their services on completion of the extended period
of probation, the authority continued them in their posts until sometime
in 1963, and allowed them to draw annual increments of salc:ry including
C the increment which fell due on October 1, 1962. The rules did not
require them to pass any test or to fi1/jil any other condition before
confirmation. There was no compelling reason for dispensing with
their services and re-employing them as temporary employees on
October 1, 1960, and the High Court rightly refused to draw the
inference that they were so discharged from service and re-employed.
D
In these circumstances, the High Court rightly held that the
respondents must be deemed to have been confirmed in their posts.
Though the appointing authority did not pass formal orders of
confirmation in writing, it should be presumed to have passed orders
of confirmation by so allowing them to continue in their posts after
E October I, 1960. After such confirmation, the authority had no power
to dispense with their services under r.6(3) on the ground that their
work or conduct during the period of probation was unsatisfactory.
[Emphasis added]

From the aforesaid passage, it would be clear that as rule 6 did not
F require a person to pass any test or to fulfill any other condition before
confirmation, this Court was of the view that upon the expiry of maximum
period of probation the probationer could be deemed to have been confirmed
which goes to show that if such provision would have been there in the rules,
the conclusion might have been otherwise.

G In the case of Wasim Beg v. State of U. P. & Ors., [ 1998] 3 SCC 321, a
person was selected for appointme~t as Divisional Manager by U.P. State
Leather Development and Marketing Corporation Limited under Model Service
Rules for State Enterprises which were adopted by the said Corporation. The
relevant rules relating to appointment on probation were as follows:-
H "Any employee regularly appointed for the first time or promoted to
HIGH COURT OF M.P. v. SA TY A NARAYAN JHAVAR [AGRAWAL, J.] 547
any post in the corporation shall be placed on probation for a period A
of one year from the_ date of joining the new post.

The performance of the employee in the new post will be watched
during the probation and the appointing authority will issue a certificate
of having satisfactorily completed the probation at the end of the
period. The appointing authority has discretion to extend the period B
of probation without assigning any reason therefor."

The relevant rules relating to confirmation were as follows:-

"Confirmation.- An employee directly appointed or promoted to any
post in the Corporation shall be deemed to have become a confirmed C
employee in that grade after he has successfuffy completed the period
of probation.

A confirmed employee may be discharged from the service of the
Corporation under the orders of the competent authority on three
months' notice or by giving 3 months' salary in lieu thereof. The D
competent authority for purposes of this rule will be the next higher
level than the appointing authority for that category of post. The
competent authority on getting a recommendation from the appointing
authority for the discharge of a confirmed employee with reasons
therefore, may gjve an opportunity to the employee concerned.for E
explaining himself before coming to a decision.

This provision in the Rules should obviously be sparingly and
discreetly used only to weed out inefficient employees who inspite of
a number of warnings and admonition have failed to correct themselves
or employees who are in the opinion of the Board of Directors or the F
Managing Directors as the case may be no suitable for continued
employment of the Corporation. The discharge shall be only on grounds
of continued inefficiency or dishonesty, serious dereliction of duty or
moral turpitude and is not to be considered as a punishment under
.the disciplinary proceedings ...... "
[Emphasis added] G

In the letter of appointment dated 10th January, 1978, it was mentioned that
the incumbent will be on probation for a period of one year which could be
extended at the discretion of the Managing Director and the service was liable
to be terminated on one month's notice or salary in lieu thereof. The person
concerned was allowed to work as Divisional Manager for a period of about H
548 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A 3 years when he was re-designated as Works Manager on 21st April, 1981.
Thereafter he continued on the said post and in April, 1983 he was allowed
to cross efficiency bar. Initially, work of the incumbent was good but
subsequently his work and performance deteriorated as a result of which the
Corporation had to suffer losses. As in spite of warning his performance did
B not improve, on 31.3.1985 the services were terminated and it was directed
that in lieu of three months notice he will be paid three months' pay. The said
order was unsuccessfully challenged before the High Court. Thereafter, when
appeal was preferred before this Court, the same was al!owed, order of the
High Court was set aside and the termination order was quashed, but in view
of the stand taken by the Corporation that the person concerned was going
C to superannuate within a few months, the Court did not pass an order of
reinstatement, but directed the Corporation to pay a lump sum of Rs. 2 lakhs
to him.

In the said case no maximum period of probation was prescribed either
by the letter of appointment or the rules. The rules laid down that an
D employee shall be deemed to have become a confirmed employee after he has
successfully completed the period of probation. From the affidavit filed by
the Corporation as well as the report of the Managing Director, it was clear
that the incumbent was considered by the Board as having satisfactorily
completed his period of probation on 9.1.1979 i.e., before expiry of one year
E period of probation and was considered as a regular egiployee from 10.1.1979.
From the affidavit filed by the Corporation it was clear that the services of
the incumbent were satisfactory for the first few years and work was very
good and only thereafter his work deteriorated as a result of which the
Corporation suffered losses. Thus in view of the stand taken that the incumbent
had successfully completed the period of probation, he was deemed to have
F become a confirmed employee, as enumerated in the rules referred to above.

The view taken in the case of Dharam Singh (supra) has been
consistently followed in the cases of Om Prakash Maurya v. U.P. Cooperative
Sugar Factories Federation, Lucknow & Ors., [1986] Suppl. SCC 95, M.K.
G Agarwal V. (Jurgaon Gram in Bank and Ors., [ 1987] Supp. sec 643, State of
Gujarat v. Akhi/esh C. Bhargav & Ors., [1987] 4 SCC 482, which are cases
in which a maximum period for extension of probation was prescribed and
termination after expiry of the said period was held to be invalid inasmuch as
the officer must be deemed to have been confirmed.

H In the last line of cases, we may first refer to a decision by seven Judges
HIGH COURT OF M.P. v. SATY A NARAYAN JHAVAR [AGRAWAL, J.] 549
Bench of this Court in the case of Shamsher Singh v. State of Punjab & Anr., A
[1974] 2 SCC 831, where the Court was considering a case under Punjab Civil
Services (Judicial Branch) Rules 1951 where maximum period of probation was
prescribed as three years. There one Shamsher Singh was appointed on May
I, 1964 as Subordinate Judge on probation. On March 22, 1967 a notice was
issued requiring him to show cause why his servjces be not terminated as he
was found unsuitable for the job as there were serious charges against him. B
After filing of show cause, the services were terminated. Another person-
Ishwar Chand Agrawal was appointed as Judicial Officer on probation initially
for a period of two years and the maximum period of three years expired on
November 11, 1968. Thereafter, as the High Court found that the work as well
as conduct of the Judicial Officer were unsatisfactory and there were serious C
charges against him, notice was given as to why his services be not terminated
and ultimately after submission of show cause, upon the recommendation of
the Full Court on 15th December, 1969, the services were terminated. Both the
incumbents challenged the order of termination by filing separate writ
applications before the Punjab High Court which were dismissed necessitating
filing· of appeals by special leave before this Court. In that case this Court D
was dealing with termination of services of the probationer under rule 9 of
Punjab Civil Services (Punishment and Appeal) Rules, 1952 and rule 7(3) of
the Punjab Civil Service~ Judicial Branch Rules, 1951. Services of Shamsher
Singh were terminated under rule 9 and that of Ishwar Chand Agrawal under
rule 7(3) referred to above. Rule 9 provided that where it is proposed to E
terminate the employment of a probationer, whether during or at the end of
the period of probation, for any specific fault or on account of unsatisfactory
record or unfavourable reports, implying the unsuitability for the service, the
probationer shall be apprised of the grounds of such proposal, and given an
opportunity to show cause against it, before orders are passed by the authority
competent to terminate the appointment. Thus it was held that rule 9 F
contemplates an inquiry into the grounds of proposal of termination of the
employment of the probationer. Rule 7(1) provided that every Subordinate
Judge in the first instance be appointed on probation for two years but this
period may be extended from time to time, expressly or impliedly, so that the
total period of probation, including extension, does not exceed three years. G
Explanation to rule 7(1) provided that the period of probation shall be deemed
to have been extended if a Subordinate Judge is not confirmed on the expiry
of his period of probation. Rule 7(3) prescribes that an order of confirmation
is necessary. It lays down that on completion of period of probation of any
member of service the Governor may, on the recommendation of the High
Court, confirm him in his appointment if he is working against a permanent H
550 SUPREME COURT REPORTS [2001) SUPP. I S.C.R.

A vacancy or if his work or conduct is reported by the High Court to be
unsatisfactory, dispense with the services or revert him to his former
substantive post, if any, or extend his period of probation and thereafter pass
such orders as he may have passed on the expiry of the first period of
probation. Rule 7 thus confers powers on the Governor on the recommendation
B of the High Court to confirm or to dispense with the services or to revert the
judicial officer or to extend his period of probation. In the case of Shamsher
Singh, law laid down by the Constitution Bench in the case of Dharam Singh
(supra) was approved, but it was distinguished because of language of the
relevant rule especially Explanation to rule 7(1) and it was held that the
provision prescribing the maximum period of probation as three years is
C directory and not mandatory and the period of probation shall be deemed to
have been extended even beyond the period of three years till proceeding
commenced by the notice came to an end either by confirmation or discharge
of the probationer. It was specifically laid down in that case that no confirmation
by implication can arise in view of the nature of relevant rules. But as it was
D found by the Court. therein that services of both the persons aforementioned
were terminated on serious charges of misconduct which could have been
done by holding an inquiry only as required under rule 9 and the same having
not been done, the orders of termination were held to be bad being in
infraction of the provisions of rule 9 of the aforesaid Rules as well as Article
3 I I of the Constitution and consequently the same were quashed by this
E Court.

In the case of Municipal Corporation, Raipur v. Ashok Kumar Misra,
[I 99 I] 3 SCC 325, the Court was considering the question of confirmation of
a probationer under Rule 8 of M.P.Govt. Servants' General Conditions of
Service Rules, I96 I, prescribing maximum period of probation which runs
F thus:-

"8. Probation.-(J)A person appointed to a service or post by direct
recruitment shall ordinarily be placed on probation for such period as
may be prescribed.

G (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
H be deemed to have been continued in service, subject to the condition
HIGH COURT OF M.P. v. SA TY A NARAYAN JHAVAR [AGRAWAL. J.] 55]
of his service being terminable on the expiry of a notice of one A
calendar 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.
B
(4) and (5) are not relevant, hence omitted.

(6) On the succes~ful 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.
[Emphasis added] C

There, the incumbent was appointed as lower division clerk in Raipur
Municipal Corporation on 22nd September, 1966 on probation for a period of
two years which expired on September 21, 1968. On December 9, 1968, he was
served with one months' notice terminating his services with effect from
January 9, 1969. The said order was challenged by filing a suit on the ground D
that order of termination having been passed without giving opportunity of
hearing was invalid as the person concerned became a confirmed employee
after expiry of period of probation. The suit was dismissed by the trial court
and the same was affirmed in appeal. Thereafter, when the matter was taken
to the High Court in second appeal, the same was allowed, suit was decreed E
and order of termination was quashed. Against the order of the High Court
when appeal was brought to this Court, the same was allowed, order of High
Court was set aside and the termination order was upheld. While considering
Rule 8, the Court observed thus at page 328:-

"Thus, it is clear from Rule 8 of the Rules that the procedure to place F
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 G
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 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 H
552 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A 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 as probationer.
Confirmation of probation would be subject to satisfactory completion
of the probation and to pass in the prescribed examinations. Expiry of
B the period of probation, therefore, does not entitle him with a right to
a 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,
which was done in this case. "
c
After referring to the Rule, the Court laid down the law at page 330
which runs thus:-

"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
D 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 then inaction for a very
E 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
F confirmation are condition precedent. Mere expiry of the initial
period of probation does not automatically have the effect of deemed
confirmation and the status ofa 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
G of the probation of the respondent would be made only on successful
completion of the probation 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
H the service of the probationer by issuing one calendar month's notice
HIGH COURT OF M.P. v. SATY A NARAYAN JHAVAR [AGRAWAL, J.] 553
in writing and on expiry thereof the service stands terminated without A
any further notice. Within three months from the date of expiry of
original two 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
B
law in decreeing the suit."
[Emphasis added]

In the case of Jai Kishan v. Commissioner of Police and another, [1995]
Supp 3 SCC 364, the Court was considering the question of deemed confirmation C
under Rule 5(e) of Central Services (Temporary Service) Rules, 1966 where the
maximum period of probation was three years. The said Rule runs thus:-

5(e) - (i) All direct appointments of employees shall be made initially
on purely temporary basis. All employees appointed to the Delhi
Police shall be on probation for a period of two years: D
Provided that the competent authority may extend the period of
probation but in no case shall the period of probation extend beyond
three years in all.

(ii) The services of an employee appointed on probation are liable E
to be terminated without assigning any reason.

(iii) After successful completion of period of probation, the
employee shall be confirmed in the Delhi Police by the competent
authority, subject to the availability of permanent post.

In that case, the concerned person was appointed as a temporary F
constable on 9th September, 1982. During the period of probation, the
incumbent was required to complete successfully the probation after complying
with the condition of passing the test. The confirmation into service was a
condition precedent for continuance as a member of Delhi Police Service. The
incumbent was given opportunity not only for a period of three years of G
probation but even thereafter two years more time was given to him to
improve his performance but as he could not improve, his services were
terminated which order was challenged before the Administrative Tribunal
and after rejection of the Review Petition, the matter was brought to th is Court
in appeal where it was contended that after expiry of period of three years,
the incumbent must be deemed to have been confirmed. This Court repelling H
554 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A the contention dismissed the appeal stating thus at page 365:-
"It is contended by the learned c~unsel for the appellant, placing
reliance on State ofPunjab v. Dharam Singh, AIR (1968) SC 1210, that
even if the appellant was not confirmed by passing any order, on
expiry of three years he must be deemed to have been confirmed as
B a member of the Service. Thereafter, the respondents had no jurisdiction
to terminate his service. It is difficult to accept the contention. Dharam
Singh case bears no relevance, as similar provision was not there in
the rule concerned. Successfiil completion ofprobation is a condition
precedent for confirmation as envisaged in clause (iii) of Rule 5(e)
of the Rules. The authorities have power to allow maximum period of
c three years of probation. In this case instead of giving him three
years, they have given a long 5 years' period so as to see whether
the appellant would improve his performance in the service. Since
they found that there was no satisfactory improvement, his probation
was terminated and he was removed from service as a probationer.
D Under these circumstances, we do not find any illegality in the action
taken by the respondents warranting interference."

In the case of State of Punjab v. Baldev Singh Khosla, [1996] 9 SCC
190, question of deemed confirmation was considered under Rule I0 of Punjab
State Cooperative Service (Class II) Rules, 1958, prescribing thereunder
E maximum period of probation as three years and the said Rule runs thus:-

"I 0. Probation.-All members of the service shall on appointment
remain on probation in the first instance for a period of two years,
provided that Government may allow service rendered on a post on
an identical cadre or in the higher post in another department to count
F for probation in the post in the service.
(2) Provided further that in the case of members promoted from the
State Service Class Ill continue officiating of four months or over
shall be reckoned as a period spent on probation.

G (3) If the work or conduct of any candidate or member during the
period of training or probation in the opinion of Government is not
satisfactory they may dispense with his service if he has been recruited
by direct appointment or may revert him to his former post if he has
been recruited by promotion or by transfer. On the conclusion of the
period of probation of any member of the service, Government, may,
H if vacancy exists, confirm him in his appointment; if his work or
HIGH COURT OF M.P. v. SA TY A NARAYAN JHAVAR [AGRAWAL, J.] 555
c.onduct has, in its opinion been satisfactory may extend his period A
of probation by such period as it may think fit and thereafter pass
such orders as it could have passed on the expiry of the first period
of probation, provided that the total period of probation, including
extension, shall not exceed three years in any case."

There, the person was promoted as an Assistant Registrar, Cooperative B
Societies by resolution dated 2 lst March, 1990 and he completed the period
of probation on 25th November, 1992 which was extended from time to time.
On 15th September, 1993, a show cause notice was issued to him as to why
he should not be reverted to the substantive cadre on the ground that in the
year 1991-92, i.e., during the initial period of probation, there were adverse C
remarks against him and he could not improve his performance even during
the year 1993-94 for which an opportunity was given in spite of the fact that
period of probation was extended by giving opportunity to him to improve
his performance. On consideration of the reply to the show cause notice,
order was passed on 11th February, 1994 reverting him to the substantive
post from which he was promoted. When the said order was challenged D
before the High Court in writ application, the same was allowed and the order
of termination was quashed on the ground that upon the expiry of three years
period of probation, he must be deemed to have been confirmed and, therefore,
the question of reversion did not arise. Thereafter the said order was challenged
before this Court in appeal, in which while repelling the contention of deemed E
confirmation, appeal was disposed of observing thus at page 191 :-

"Learned counsel for the respondent contends that since the rule
provides an outer limit of three years, if the respondent had not been
reverted within that period, he must be deemed to have been confirmed
and the High Court, therefore, was right in concluding that the F

- respondent is a confirmed probationer. We do not find force in the
contention. Sub-rule (3) of Rule 10 clearly envisages that on conclusion
of the period of probation of any member of the service the Government
may, if vacancy exists, confirm him in his appointment; if his work or

- conduct has, in its opir.ion, not been satisfactory, it may extend his
period of probation by such period as it may think fit and thereafter
pass such orders as could have been passed on the expiry of his
G

period of probation. It would thus be seen that the outer limit of three
years provided under the rules is an enabling provision to allow the
probationer to continue in service without being reverted or discharged
from service for failure to satisfactorily complete the period of probation, H
556 SUPREME COURT REPORTS [2001] SUPP. 1 S.C.R.

A but that would not mean that the probationer, on expiry of three years'
period, must be deemed to have been confirmed. The rule itself
envisages a positive order of confirmation. So long as the order of ...
confirmation is not made, even after expiry of probation, the
probationer may continue and remain in service, but by allowing
him to remain in service it cannot 'be concluded that he must be
B deemed to have been confirmed.

The rule also envisages that during the period of probation, the
appointing authority is required to see that the performance of the work done
by the probationer is to the satisfaction of the appointing authority. It is seen
C that for the years 1991 and 1992 there were adverse remarks made upon the
performance of the respondent. Obvious for that reason, his confirmation was
not made. On the other hand, the period of probation was further extended
as admitted by the respondent. Under these circumstances, he cannot be
deemed to have been confirmed. However, since the authorities had extended
the period of probation and given him chance to improve his performance
D during the year 1993-94, that period was not taken into consideration before
reverting the respondent from service. The appointing authority is, therefore,
directed to consider whether he is fit to be confirmed, on the basis of his
performance for the subsequent period and in case it considers that he may
be confirmed, it would be open to them to pass appropriate orders. In case,
E even after consideration of the performance for the year 1993-94, his record
is not found satisfactory, appropriate orders may be passed and communicated
to the respondent." [Emphasis added]

In the case of Chief General Manager, State Bank of India and another
v. Bijoy Kumar Mishra, [1997] 7 SCC 550, the question of deemed confirmation
F was considered under paragraphs 15 and 16 of State Bank of India Officers
(Determination of Terms and Conditions of Service) Order, 1979, prescribing
maximum period gf probation as three years which are as under:-

"Probation

15. (!) A person appointed as a Probationary Officer or a Trainee
G Officer shall be on probation for a period of two years
(2) Any other employee of the Bank promoted as an officer to the
Junior Management Grade shall be on probation for a period of one
year.
H (3) Any other person appointed to any grade including junior
HIGH COURT OF M.P. v. SA TY A NARAYAN JHAVAR [AGRAWAL. J.] 557
management grade shall be or. probation for such period as may be A
decided by the competent authority:

Provided that the competent authority may, in the case of any
officer, reduce or dispense with the period of probation.

Confirmation
B
16. (I) An officer referred in paragraph 15 shall be confirmed in the
service of the Bank, if, in the opinion of the competent authority, the
officer has satisfactorily completed the training in any institution, to
which the officer may have been deputed for training, and the in-
service training in the Bank: c
Provided that an officer directly recruited to the Junior Management
Grade may be required also to pass a test in a language other than
his mother-tongue.

(2) If, in the opinion of the competent authority, an officer has not D
satisfactorily completed either or both the trainings referred to in sub-
paragraph (I) or if the officer has not passed the test referred to
therein or an officer's service is not satisfactory, the officer's probation
may be extended by a further period not exceeding one year.

(3) Where during the period of probation, including the period of E
extension, if any, the competent authority is of the opinion that the
officer is not fit for confirmation: ·

(a) in the case of a direct appointee, his services may be terminated
by one month's notice or payment of one month's emoluments
in lieu thereof, and F
(b) in the case of a promotee from the Bank's service, he may be
reverted to the grade or cadre from which he was promoted."

There, the person concerned was appointed as a Probationary Officer
in the State Bank of India, on 24th October, 1980, joined duty on I 5th G
December, 1980 and maximum period of probation was to expire on 14th
December, 1983. During the initial period of two years of probation, the person
absented himself from duty from 2nd April, 198Jfor a long period and the last
date of his presence in the duty was in the first week of August, 1983 and
he remained absent till the year 1988. This shows that he remained absent
from much before the date of expiry of three years period of probation and H
558 SUPREME COURT REPORTS [2001) SUPP. 1 S.C.R.

A remained absent thereafter continuously for a period of five years. In the year
1986-87, he joined M.Phil Course in Punjab University without obtaining
permission of the bank. The Bank issued an order dated 4th October, 1988
terminating his services which necessitated filing of writ application before
the Orissa High Court challenging order of termination on the ground that the
B officer shall be deemed to have been confirmed upon expiry of three years
maximum period of probation as such the order of termination was invalid.
The High Court accepted the contention of deemed confirmation and quashed
the order, but the said order has been set aside by this Court on appeal being
preferred repelling the case of deeJl!ed confirmation on the ground that there
was no conduct of the employer allowing the employee to continue to work
C on the post even after expiry of maximum period of probation in view of the
fact that the incumbent remained absent from duty for a long period during
the period of probation, on the date of expiry of the maximum period of the
probation and even thereafter, as such there was no occasion for the bank
to allow him to continue to work after completion of the probation period. The
Court distinguished the case of Dharam Singh (supra) stating at page 555
D thus:-

"It is obvious that the decision in State of Punjab v. Dharam Singh,
[I 968] 3 SCR 1, can have no application in a case where the employee
was absent from duty from a date much prior to the expiry of the
maximum period of probation and remained absent even thereafter for
E
a long time. There was no occasion ir. such a case for the employer
to allow the employee (respondent) to continue to work on the post
after the expiry of the maximum period of probation because he was
absent and was not working on the post at the time of the expiry of
the period of probation. Deemed confirmation results from the conduct
F of the employer in permitting continuance in service after the expiry
of the maximum period of probation fixed by the rules. When there
is no such conduct of the employer, the very foundation for the
argument of deemed confirmation and reliance on Dharam Singh is
not existenl." [Emphasis added]
G In the case of Dayaram Dayal (supra), a two Judge Bench of this Court
was considering a case covered by Rule 24 of the Rules, in which the
incumbent was appointed as Civil Judge Class II in M.P.Subordinate Judicial
Service on 22nd October, 1985 and after completing six months' training, he
was put ·on probation for two years which period was completed on 22nd
H May, 1988. On 2nd March, 1990, he was placed under suspension pending
HIGH COURT OF M.P. v. SA TY A NARAYAN JHAVAR [AGRAWAL, J.] 559
some charges and in the year 1991 after inquiry, punishment of stoppage of A
two annual increments with cumulative effect was awarded. There were certain
adverse remarks in ACRs between the years 1987-88 and 1992-93. On 3rd May,
1992, the Full Court having not found him fit for confinnation, deferred the
matter to give one more opportunity. In the year 1993 again, the High Court
did not find him fit for confirmation as such his services were terminated by B
paying one month's salary in lieu of notice as required under Rule 24. When
the said order was challenged in a writ application, the same was dismissed
and order of dismissal was affirmed in appeal. Thereafter, when the matter was
challenged before this Court, the appeal was allowed, judgments of the High
Court were set aside and order of tenn ination was quashed holding that the
incumbent would be deemed to have J.?een confirmed on the expiry of four C
years maximum period of probation prescribed under the Rules following
Constitution Bench decision of this Court in the case of Dharam Singh
(supra) where Rules did not require an incumbent to pass any test or fulfill
any other condition before confirmation, as noticed by the Constitution
Bench itself in that case which goes to show that if the Rules would have
required a person to pass any test or fulfill any other condition before D
confirmation, it was not possible to draw an inference that merely because an
employee was allowed to continue on the post upon completion of the
maximum period of probation, he was confirmed by implication. There the
Court proceeded on the facts of that case, which do not show any assessment
of work and conduct of the probationer being made and he being not found E
fit for confirmation by the competent authority during the period of probation.
In the absence of any opinion formed after considering the performance of
probationer, it was presumed in that case that there being nothing adverse
against the officer, there was no compelling reason not to confirm him on the
post inasmuch as there was no plea on behalf of the State that his work and
conduct was not satisfactory. The Rules did not require any condition of F
assessment of work at the end of extended period of probation or passing of
departmental examination. In the said case, order of termination was issued
more than two years after the expiry of maximum period of probation which
was completed on 1st October, 1960 and the order oftermination was issued
in 1963 without any assessment of his performance. G
In the case on hand, correctness of the interpretation given by this
Court to rule 24 of the Rules in the case of Dayaram Dayal (supra) is the bone
of contention. In the aforesaid case, no doubt, this Court has held that a
maximum period of probation having been provided under sub-rule (I) of rule
24, if a probationer's service ·is not terminated and he is allowed to continue H
560 SUPREME COL'RT REPORTS (2001] SUPP. I S.C.R.

A thereafter it will be a case of deemed confirmation and the sheet anchor of
the aforesaid conclusion is the Constitution Bench decision of this Court in
the case of Dharam Singh (supra). But, in our considered opinion in the case
of Dayaram Dayal (supra), rule 24 of the Rules has not been interpreted in
its proper perspective. A plain reading of different sub-rules of rule 24 would
B indicate that every candidate appointed to the cadre will go for initial training
for six months whereafter he would be appointed on probation for a period
of 2 years and the said period of probation would be extended for a further
period not exceeding 2 years. Thus, under sub-rule (I) of rule 24 a maximum
period of 4 years' probation has been provided. The aforesaid sub-rule also
stipulates that at the end of the probation period the appointee could be
C confirmed subject to his fitness for confirmation and to have passed the
departmental examination, as may be prescribed. In the very sub-rule, therefore,
while a maximum period of probation has been indicated, yet the question of
confirmation of such a probationer is dependent upon his fitness for such
confirmation and his passing of the departmental examination by the higher
standard, as prescribed. It necessarily stipulates that question of confirmation
D can be considered at the end of the period of probation, and on such
consideration if the probationer is found suitable by the Appointing Authority
and he is found to have passed the prescribed departmental examination then
the Appointing Authority may issue an order of confirmation. It is too well
settled that an order of confirmation is a positive act on the part of the
E employer which the employer is required to pass in accordance with the Rules
governing the question of confirmation subject to a finding that the probationer
is in fact fit for confirmation. This being the position under sub-rule (I) of rule
24, it is difficult for us to accept the proposition, broadly laid down in the case
of Dayaram Dayal (supra), and to hold that since a maximum period of
probation has been provided thereunder, at the end of that period the
F probationer must be held to be deemed to be confirmed on the basis of the )-
judgment of this Court in the case of Dharam Singh (supra).

In the case of the Judicial Officers who are respondents before us, it
is the positive case of the High Court that their case for confirmation was
considered while they were continuing on probation but the Full Court did
G not consider them suitable for confirmation and they were given a further
opportunity of improving themselves. Even notwithstanding such opportunity
they having failed to improve themselves and the High Court having considered
them unsuitable for confirmation the order of termination emanated. It is
difficult for us to comprehend that a probationer while continuing on probation,
H on being considered 'is found unsuitable for confirmation by the Appointing
HIGH COURT OF M.P. v. SA TY A NARAYAN JHAVAR (AGRAWAL, J.] 561

Authority and yet it can be held to be a deemed confirmation because of A
maximum period of probation indicated in the rule, merely because instead of
termination of the services he was allowed to continue and was given an
opportunity for improving and even after the opportunity he failed to improve
and finally the Appropriate Authority finding him unsuitable directs termination
of his services. The very fact that sub-rule (I) of rule 24 while prescribing a B
maximum period of probation therein entitles a probationer for being considered
for confirmation and confers a right on the Appointing Authority to confirm
subject to the fitness of the probationer and subject to his passing the higher
standard of all departmental examination must be held to be an inbuilt provision
in sub-rule(!) which would negative the inference of a confirmation in the
post by implication, as interpreted by this Court in the case of Dharam Singh C
(supra) while interpreting rule 6 of the Punjab Educational Services
(Provincialised Cadre) Class III Rules, 196 l.

Ordinarily a deemed confirmation of a probationer arises when the letter
of appointment so stipulates or the Rules governing service condition so
indicate. In the absence of such term in the letter of appointment or in the D
relevant Rules, it can be inferred on the basis of the relevant Rules by
implication, as was the case in Dharam Singh (supra). But it cannot be said
that merely because a maximum period of probation has been provided in
Service Rules, continuance of the probationer thereafter would ipso facto
must be held to be a deemed confirmation which would certainly run contrary E
to Seven Judge Bench Judgment of this Court in the case of Samsher Singh
(supra) and Constitution Bench decisions in the cases of Sukhbans Singh
(supra), G.S. Ramaswamy (supra) and Akbar Ali Khan (supra).

Apart from sub-rule (I) of rule 24 of the Rules, the effect of sub-rule
(3) may also be considered. Under sub-rule (3), if a probationer has been F
found unsuitable for the service during the period of probation or he has
failed to pass the prescribed departmental examination then the Governor at
any time thereafter may dispense with his services. The power for dispensing
with services has been conferred upon the Governor to be exercised at any
time after the period of probation if the probationer is found unsuitable or if G
he has failed to pass the prescribed departmental examination. If the
interpretation given by this Court in the case of Dayaram Dayal (supra) to
sub-rule (I) of rule 24 is held to be correct then this power of the Governor
under sub-rule (3) would become otiose inasmuch as a probationer would
acquire a deemed confirmation on the expiry of the maximum period of
.probation provided in sub-rule (I). Sub-rule (3) of rule 24, therefore, is another H
562 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A inbuilt provision in th~ Rules which can be held to be a special provision to
negative the inference of deemed confirmation on the expiry of the maximum
period of probation indicated in sub-rule (I), as has been observed by this
Court in the case of Dayaram Dayal (supra) also and which is in conformity
with the decisions of this Court in the cases of Samsher Singh (supra),
B Sukhbans Singh (supra), G.S. Ramaswamy (supra) and Akbar Ali Khan
(supra). Rule 24, on a plain grammatical meaning being given to the words
used therein does not, provide for a deemed confirmation on expiry of the
maximum period of probation, and on the other hand it contemplates a positive
order of confirmation to be passed by the Appropriate Authority, if the
Authority concerned .is satisfied about the fitness of the probationer for
C confirmation, and if the probationer has passed the departmental examination,
as prescribed. Mere continuance of the probationer after considering his case
for confirmation during the period of probation and finding him unsuitable for
confirmation by the decision of the Full Court, by no stretch of imagination
a
can be construed to be confirmation by implication, as was held by this
Court in the case of Dharan1 Singh (supra) and that can never be the
D intention of the Rule Making Authority. If the Full Court would not have
considered the suitability of the probationer for confirmation while the
probation period was continuing, the matter might have stood on a different
footing.

E The importance of the suitability of the officer for confirmation need not
be emphasised and such suitability under the Rules is required io be adjudged
by the Full Court of the High Court. The Constitution itself while indicating
that the claims of Scheduled Castes and Scheduled Tribes to services and
posts shall be taken into consideration in Article 335, have further added that
such claim should be consistent with maintenance of efficiency of
F administration. The Subordinate judiciary is the foundation on which the
super-structure is built. It would be the solemn duty of every authority on
whom the administration of justice vests, to see that the said foundation is
not shaken by any process including the process of allowing adjudged
unsuitable person to man the post. While interpreting rule 24 and considering
the question whether a deemed confirmation can at all be conferred, the
G aforesaid principle m~st be borne in mind and unless the Rules explicitly say
so, by implication a status of deemed confirmation ought not to be granted,
particularly when the Full Court of the High Court has adjudged the Judicial
Officers unsuitable. In this view of the matter, we have no hesitation to come
to a conclusion, that the decision of th is Court in the case of Dayaram Dayal
H (supra) does not lay down the correct position with regard to the interpretation
HIGH COURT OF M.P. v. SATY A NARAYAN JHA VAR [AGRA WAL, J.] 563

of rule 24 of the Rules. As has been stated earlier in this batch of cases, the A
question of confirmation of each of the probationers was considered by the
Full Court within the maximum period of probation provided in sub-rule (I)
of rule 24, but the Full Court found them not fit for confirmation and instead
of adjudging them unsuitable and recommending for termination, the Court
deferred their case for further consideration and thereby granted further B
opportunity for proving their worth for confirmation. Such continuance of the
probationers, in our considered opinion, would not confer the status of
deemed confirmation, merely because a maximum period of probation has
been provided there in sub-rule (I) of rule 24.

In the result, the appeals are allowed, judgment passed by Division C
Bench of the High Court is set aside and all the writ applications stand
dismissed. In the circumstances of the case, we direct that the parties shall
bear their own costs.

vs.s. Appeals allowed.