Holding

Expiry of the probation period does not amount to deemed confirmation; the respondent remained a probationer and could be lawfully terminated by one‑month notice without an enquiry.

Summary

The respondent was appointed as a Lower Division Clerk of the Raipur Municipal Corporation on 22 September 1966 and placed on a two‑year probation. After the probation period expired on 21 September 1968, the corporation served him a one‑month notice of termination on 9 December 1968, effective 9 January 1969, without conducting an enquiry. He sued for a declaration that the termination violated Rule 9A of the Madhya Pradesh Civil Service Classification, Control and Appeal Rules and that he should be deemed a permanent employee with arrears. The trial court dismissed the suit, the High Court reversed, and the Supreme Court held that under Rule 8 of the Madhya Pradesh Government Servants' General Conditions of Service Rules a probationer who is neither confirmed nor discharged is deemed to continue as a probationer, subject to termination by one‑month notice, and that expiry of the probation period does not automatically confer deemed confirmation. Consequently, the termination was valid without an enquiry, the High Court’s decree was set aside, and the appeal was allowed.

Issues considered

Whether expiry of a two‑year probation period automatically results in deemed confirmation of the employee under the Municipal Officers and Servants Recruitment Rules.
Whether Rule 8 of the Madhya Pradesh Government Servants' General Conditions of Service Rules governs the respondent's status and permits termination by one‑month notice without an enquiry.
Whether the termination notice issued by the Municipal Corporation was violative of Rule 9A of the Madhya Pradesh Civil Service Classification, Control and Appeal Rules.

Legislation cited

Subjects

probationterminationconfirmationmunicipal corporationservice rulesdue processemployment lawdeemed confirmation

Judgment

MUNICIPAL CORPORATION, RAIPUR
A
v.
ASHOK KUMAR MISRA
APRIL 16, 1991

B [N.M. KASLIWA.L AND K. RAMASWAMY, JJ.)

Madhya Pradesh Government Servants' Central Conditions of
Service Rules, 1961: Rule 8-Probationer-Expiry of prescribed
period of probation-Termination of service-Whether Valid-
Whether entitled to right to deemed confirmation-Madhya Pradesh
Civil Services Classification. Control and Appeal Rules, 1966: Rule 9A ~,-
c and Municipal Officers' and Servants' Recruitment Rules: Rule 14-
Whether applicable.

The respondent was appointed in the appellant Corporation and
put on probation for a period of two years. About three months after
D the completion of two years' period he was served with one month's
notice for termination of his service. Challenging the termination order,
the respondent filed a suit for declaration that the termination without
enquiry and opportunity of being heard was violative of Rule 9A of the
Madhya Pradesh Civll Services Classification, Control and Appeal ;;,-
Rules 1%6 and that he became a permanent employee of the Corpora-
E tion with continuity of service and arrears of salary. The trial court
dismissed the suit, and on appeal, it was confmned. The High Court
allowed the respondent's second appeal and decreed the suit.

In the appeal, by special leave, before this Court, on behalf of the
appellant-Corporation it was contended that the respondent being a -.<
F probationer, would acquire permanent status only on confirmation,
that the High Court had committed manifest error in law in holding
that on the expiry of two years' period of probation, the respondent
must be deemed to have been confmned under Rule 14 of the Municipal
Officers' and Servants' Recruitment Rules, which were no longer in
force, and that Rule 8 of the Madhya Pradesh Government Servants'
G General Conditions of Service expressly provided confirmation of pro-
bation as a condition precedent and since notice terminating respon-
dent's service was issued, in terms of the rules, before confirmation, it
was valid in law.

On behalf of the respondent, it was contended that by operation of
H the resolution passed by the Municipal Corporation under Section 25 of

320
..
MUNICIPAL CORPORATION v. A.K. MISRA 321

the Central Provinces and Berar Municipality Act, 1922, the Municipal A
Officers and Servants was governed by recruitment rules thereunder,
that since no action was taken by the appellant Corporation to dispense
with the respondent's service, on the expiry of the period of two years,
as envisaged in Rule 14 of the Municipal Officers' and Servants'
Recruitment Rules, the respondent must be deemed to have been con-
firmed, and consequently, the only power the Corporation had was to
B
terminate the respondent's service in accordance with the Classifica-
tion, Control and Appeal Rules, after conducting an enquiry and giving
him reasonable opportunity, that too for misconduct, but since no such
procedure was adopted, the notice was illegal and the High Court was
justified in granting the decree.
c
Allowing the appeal, this Court,

HELD: 1.1 Under the Note to sub-rule (2) of Rule 8 of the Madhya
Pradesh Govt. servant's, General Conditions of Service Rules, 1961 if the
probationer is neither confirmed nor discharged from service at the end D
of the period of probation, he should be deemed to have been continued
in service as probationer subject to the condition of his service being ter-
minated on the expiry of a notice of one calendar month, given in
writing by either side. As per sub-rule (6) on passing the prescribed
departmental examination and on successful completion of the period of
probation, the probationer should be confirmed in the service or post to
which he has been appointed. Then he becomes an approved proba- E
tioner. 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. [37SF-H]

1.2 Comirmation of probation wonld be subject to satisfactory F
completion of the probation and pass in the prescrjbed examinations.
Expiry of the period of probation, therefore, does not entitle him with
a right to deemed comirmation. The rule contemplates to pass an
express order of confirmation in that regard. By issue of notice of one
calander month in writing by either side, the tenure conld be put to an
end, [326A-B] ·
G
1.3 If the rules do not empower the appointing authority t~
extend the period of probation beyond the prescribed period, or where
the rules are absent about confirmation or passing of the prescribed test
for confirmation of probation, inaction for a very long time may lead to
an indication of the satisfactory completion of probation. [3270-E]
H
1'

322 SUPREME COURT REPORTS [1991] 2 S.C.R.
•
1.4 Rule 8 expressly postulates otherwise. Hence mere expiry of
A
the initial period of probation which is subject to extension for another
period of one year does not automatically have the effect of deemed ~

confirmation, and the status of a deemed courmnation of the probation.
An express order in that regard on fnllilment of the conditions stlpu-
lated in the Rule only confers the status of approved probation. [327E-F]
B
State of Punjab v. Dharam Singh, [1968] 3 SCR 1; Om Prakash
>
Maurya v. U.P. Co-op. Sugar Factories Federation, Lucknow & Ors.,
[1986] Suppl. SCC 95; M.A. Agarwa/v. Gurgaon Bank & Ors., [1987]
Suppl. SCC 643 and State of Gujarat v. Akhilesh C. Bhargav & Ors.,
.
J:-
[ 1987] 3 SCR 1091, distinguished.
c 1.5 Note to sub-role (21 read with sub-role (6) Of Rule 8 manlfellt she
legislative intent that confirmation of the probation of the respondent
would be made only on successfnl completion of the probation and the
passing of the prescribed examinations. The respondent shall, there-
fore, be deemed to be continued on probation. Before confirmation the
D appointing authority is empowered to terminate the service of the pro-
bationer by issuing one calender month's notice in writing and on ,....
expiry thereof the service stands terminated without any Cnrther notice.
Within three months from the date of expiry of original two years
period of probation and within the extendable period of one year
the order of termination was made. Hence, the question of conduct-
E ing an inquiry under the Classification, Control and Appeal Rules
after giving an opportunity and that too for specific charges does not
arise. [327G-H, 328A]
-<
In the circumstances the High Court, committed manifest error or
law in decreeing the suit. [3288]
F
2. By virtue of the resolution passed by the Municipal Council,
which subsequently became Municipal Corporation, making a draft
bye-law, exercising power under section 173(2) or the Madhya Pradesh
Municipal Act, 1922 and confirmed under Section 25(1) or the Act,
adopting Government rules to regulate the conditions or service of olfi- ~
G cers and servants of the Municipal Committee, the Fundamental Rules,
Civil Service Regulations, Government Servants' Conduct Rules, and
General Book Circulars of the State Government, as amended Crom
time to time, etc. would apply to the officers of the Municipal Commit-
tee and the previous rules were superseded and were no longer In force.
Hence the reliance placed by the High Court on Rule 14 or the Munlcl-
H pal Officers' and Servants' Rules is wrong. [3241>-E, G-H]
MUNICIPAL CORPORATION v. A.K. MISRA (RAMASWAMY, J.] 323

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 722
A

- ~
of 1978.

From the Judgment and Decree dated 11.4. 1977 of the Madhya
Pradesh High Court in Second Appeal No. 315 of 1970.

S.K. Gambhir for the Appellant. B

S.S. Khanduja for the Respondent.

-J. The Judgment of the Court was delivered by

.~'.. K. RAMASWAMY, J. The facts in this appeal would lie in a
short compass. The appellant appointed the respondent as Lower
c
Division Clerk on September 22, 1966 and put him on probation for a
period of two years which expired on September 21, 1968. On
December 9, 1968, the appellant served him with one month's notice
terminating the services with effect from January ·9, 1969. Calling in
question the order of termination, the respondent laid the suit for D
~
declaration that the termination without enquiry and an opportunity of
being heard was violative of Rule 9A of the Madhya Pradesh Civil
Service Classification Control & Appeal (Rules), 1966 with conse-
q uential declaration that he became a permanent employee of the
Corporation with continuity of the service and arrears of salary. The
Trial Court dismissed the suit and on appeal it was confirmed. The E
High Court in Second Appeal No. 315/70 by judgment and decree
dated April 11, 1977 allowed the appeal and decreed the suit as prayed
T-·
for. On leave under Art. 136 the appellant filed this appeal.

Shri S.K. Gambhir, learned counsel for the appellant contended
that the respondent being a probationer, acquire.s permanent status F
only on confirmation. Before CO!Jfirmation the appellant had exercised
its power, in terms of the rules, and terminated the respondent's
service. The High Court committed manifest error of law in its finding
that on expiry of two years period of probation the respondent must be
. ... deemed to have been confirmed under Rule 14 of the Municipal Offi-
cers and Servants Recruitment Rules which no longer were in force. G
He further contended that rule 8 of the Madhya Pradesh Government
Servants' General Conditions of Service Rules, 1961 for short 'the
Rules' expressly provides confirmation of probation as a condition
precedent. Notice was issued terminating the service before confirma-
tion and so it is valid in law. Shri S.S. Khanduja, learned counsel for
the respondent contended that by operation of the resolution passed H
324 SUPREME COURT REPORTS [1991] 2 S.C.R.

A by the Municipal Corporation under s. 25 of the Central Provinces and
Berar Municipality Act, 1922, the Municipal Officers and Servants are
governed by recruitment rules thereunder. Rule 14 thereof, relied on _.., ,....
by the High Court expressly provided to put an employee on probation
for a period of two years subject to being confirmed. At the end of the
probationary period, if the probationer was found unfit, the Municipal
B
Committee shall, if he was a direct recruit,. to dispense with his service
and if he has been recruited by transfer, to revert to his original post.
On expiry of the period of two years, no action was taken by the
Municipal Corporation. Therefore, the respondent must be deemed to
have been confirmed. Thereafter the only power which the Corpora-
~-·
tion had was to terminate the service of the respondent in accordance
c with Classification Control and Appeal Rules after conducting an
enquiry and giving him reasonable opportunity that too for miscon-
duct. No such procedure was adopted. Therefore, the impugned notice
was illegal and the High Court was justified in granting the decree.

The first question is, which are the relevant rules that would be
D applicable to the respondent? Admittedly, the Municipal Council
became a Municipal Corporation on or after August 26, 1967. A reso- .--
lution was passed making a draft bye-law by a Municipal Council on
November 11, 1960, exercising the power under s. 178(3) of the
Madhya Pradesh Municipal Act, 1922 and confirmed the same under
s. 25(1) of the said Act, adopting Government Rules to regulate the
E conditions of service of officers and servants of the Municipal Commit-
tee which provides thus:

"The fundamental rules and the Civil Service regulations as --1"
amended from time to time in their applications to M.P.,
the M.P. Government Servants Conduct Rules 1959, as
amended from time to time and the General Book Circu-
tars of the Govt. of M.P .. as in force for the time being shall
apply to the officers and servants of the M.C. in the same
way as they apply to Govt. Servants".

Thus, it is clear that the Fundamental Rules, Civil Service Regula-
G tions, Govt. Servants Conduct Rules and the General Book Circulars • ,
of the Government of Madhya Pradesh as amended from time to time,
etc. shall apply to the officers and servants of the Municipal Commit-
tee. The previous rules were thus superseded and were no longer in
force. Reliance on Rule 14 referred to above made by the High Court
is, therefore, wrong. Rule 8 of the Rules reads thus:
H
MUNICIPAL CORPORATION v. A.K. MISRA [RAMASWAMY, J.I ,325

"Probation-( 1) A person appointed to a service or post by

-
A
direct recruitment shall ordinarily be placed on probation
).
for such period as may be prescribed.

(2) The appointing authority may, for sufficient reasons,
extend the .Period of probation by a further period not
exceeding one year. B

Note-A probationer whose period of probation is not
extended under this Sub-Rule but who has neither been
-).
confirmed nor discharged from service at the end of the
period of probation shall be deemed to have been con-
tinned in service, subject to the condition of his service
being terminable on the expiry of a notice of one calender · c
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. D

(4) and (5) are not relevant, hence omitted.

(6) On the successful completion of probation and the pas-
-,,-,;:- sing of the prescribed departmental examinations, the
probationer shall be confirmed in the services or post to E
which he has been appointed."

~ Thus, it is clear from Rule 8 of the Rules that the procedure to
place a direct recruit on probation for a prescribed period was pro-
vided. The appointing authority would be entitled to place a direct
recruit on probation for a specified period and for sufficient reasons F
may extend the period of probation to a further period not exceeding
one year. Under the note to sub-rule (2) if the probationer is neither
confirmed nor discharged from service at the end of the period of
probation, he shall be deemed to have been continued in service as
probationer subject to the condition of his service being terminated on
... the expiry of a notice of one calendar month given in writing by either G
side. As ·per sub-rule (6) on passing the prescribed departmental
examination and on successful completion of the period of probation,
the probationer shall be confirmed in the service or post to which he
has been appointed. Then he becomes an approved probationer.
Therefore, after the expiry of the period of probation and before its
confirmation, he would be deemed to have been continued in service H
326 SUPREME COURT REPORTS [1991] 2 S.C.R.

as probationer. Confirmation of probation .would be subject to
A
s~tisfactory compl.etion of the probation and to pass in the prescribed
examinations. Expiry of the period of probation, therefore, does not
entitle him with a righ.t to a deemed confirmation. The .rule contemp-
.., ::
!ates 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
B could be put to an end, which was done in thi.s case. In State of Punjab
v, Dharam Singh, [1968] 3 SCR 1 considering the effect of continuing a
probationer in service after the period of probation was completed,
the Constitution Bench held that there was no rule for the extension of
probation •after October 1, 1960 and it was not possible to presume the
,-
.
competent authority extended it beyond October 1, 1960. Thus ii\ the
above case there was no power to extend the probation in the rules
c beyond the specified period. It was held that:

"The initial period of probation of the respondents ended
on October 1, 1958. By allowing the respondents to con-
tinue in their posts thereafter without any express order of
D confirmation, the competent authority must be taken to
have extended the period of probation upto October 1,
,,_.
1960 by implication. But under the proviso to Rule 6(3),
the probationary period could not extend beyond October
1, 1960. In view of the proviso to Rule 6(3), it is not possi-
ble to presume that the competent authority extended the
E probationary period after October 1, 1960, or that there-
after the respondents continued to hold their posts as
probationars".
-r
Accordingly it was held that the respondent therein was deemed to
have been confirmed.
F
In Om Prakash Maurya v. U.P. Co-op. Sugar Factories Federa-
tion, Lucknow & Ors., [1986] Suppl. SCC 95 this Court held that U.P.
Co-op. Sugar Factories Federation Service Rules, 1976 made under
the U.P. Co-op. Societies Act were in force. Regu_lations 17 of 1975
Regulations does not permit continuance of an employee for a period
~
of more than two years. One year normally was the period of proba- \.'
G
tion and further being extended to a period of one more year. Rule 5
of 1976 Rules does not prescribe any limit on the extension of the
probationary period. In the light of the operation of those rules when
the probationary period was prescribed on promotion to the post of
Commercial Officer with a condition that his probationary period may
H be extended and he could be reverted to the post of Office Superinten-
MUNICIPAL CORPORATION v. A.K. MISRA [RAMASWAMY, J.) 327

dent without any notice, this Court held that the stipulation for exten-
A
sion of probationary period in the appointment order must be con-
sidered in accordance with the proviso to regulation 17(1) which
means that the probationary period could be extended for a period of
one year more and the probationary period was further extended to
one year during which period the service of the appellant was neither
terminated nor was he reverted to his substantive post, instead he was B
allowed to continue. On those facts this Court held that "since under
those regulations, appellant's probatioary period could not be

- extended beyond the maximum period of two years, he stood con-
firmed on the expiry of the maximum probationary period and there-
after he could not he reverted to lower post treating him on proba-
tion". In M.A. Agarwal v. Gurgaon Bank & Ors., [i987J Suppl. SCC
643 and in State of Gujarat v. Akhilesh C. Bhargav & Ors., [1987) 3 c
SCR lUl/ 1 this Court reiterated the same view.

Exercise of the power to extend the probation is hedged with the
existence of the rule in that regard followed by positive act of either
confirmation of the probation or discharge from ;ervice or reversion to D
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 pre-
scribed test for confirmation of probation and inaction for a very long
time may lead to an indication of the satisfactory completion of proba- E
tion. But in this case Rule 8 expressly postulates otherwise. The period
of probation is subiect to extension by order in writing for another
period of one year. Passing the prescribed examinations and successful
completion of probation and to make an order of confirmation are
condition precedent. Mere expiry of the initial period of probation
does not automatically have the ·effect of deemed confirmation and F
the status of a deemed confirmation of the probation. An express
order in that regard orily confers the status of an approved proba-
tioner. We are of the view that note to sub-rule (2) read with sub-rule
( 6) of Rule 8 manifests the legislative intent that confirmation of the

- probation of the respondent would be made only on successful comple-
tion of the probation and the passing of the prescribed examinations. G
It is not the respondent's case that he passed all the examinations. He
shall be deemed to be continued on probation. Before confirmation
the appointing authority is empowered to terminate the service of the
probationer by issuing one calender month's notice in writing and on
expiry thereof the service stands terminated without any further
notice. Within three months from the date of expiry of original two H
328 SUPREME COURT REPORTS [1991] 2 S.C.R.
A 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 giv-
ing an opportunity and that too for specific charges does not arise. The
High Court, therefore, committed manifest error of law in decreeing
B the suit. By an interim order passed by this Court, the respondent
received a sum of Rs.5,000 from the appellant. The appellant shall not
recover the same from him. The appeal is accordingly allowed. The
judgment and decree of the High' Court is set aside and that of the
Trial Court and the 1st Appellate Court are confirmed. But in the
...
circumstances parties are dfrected to bear their own costs.

N.P.V Appeal allowed.