Holding

The termination was unconstitutional; the petitioner is entitled to another opportunity to appear for the confirmation test and reinstatement with 50% back‑wages.

Summary

Astamija Dash, a Management Trainee at Punjab National Bank, was terminated after failing to pass the bank's confirmation test despite being given three attempts and citing pregnancy‑related health issues. She claimed discrimination because another trainee, Indubala, was allowed a fourth attempt. The High Court held in her favour, and the Supreme Court affirmed that the Bank's service regulations did not prescribe a confirmation test or limit the number of attempts, and as a State entity under Article 12 it must act with reasonableness and fairness. The Court found the Bank’s policy of a three‑attempt limit and the termination to be violative of Article 14, granting the petitioner a further opportunity to sit the test and ordering her reinstatement with 50% back‑wages. The bank's appeal was dismissed and the cross‑appeal allowed.

Issues considered

The validity of termination for failure to pass a confirmation test not provided for in the Punjab National Bank (Officers) Service Regulations, 1979.
Whether the bank's policy of limiting confirmation test attempts to three is lawful.
Whether the petitioner was discriminated against vis‑à‑vis a similarly situated employee, violating Article 14 of the Constitution.
Whether the bank, as a State within the meaning of Article 12, must comply with the doctrine of reasonableness and fairness in service matters.
Whether expiry of the probation period results in implied confirmation of service.
Applicability of the Maternity Benefit Act, 1961 and Regulation 36 of the Bank's service regulations.

Legislation cited

Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970s. Sec.12, s. Sec.19
Constitution of Indias. Art.12, s. Art.14, s. Art.16, s. Art.21
Indian Penal Code, 1860s. Sec.303
Maternity Benefit Act, 1961s. Sec.4, s. Sec.6, s. Sec.9

Subjects

service lawterminationconfirmation testdiscriminationArticle 14equalityreasonablenessbanking serviceprobationmaternity benefitreinstatement

Judgment

[2008] 7 S.C.R. 365

PUNJAB NATIONAL BANK BY CHAIRMAN & ANR. A
v
ASTAMIJA DASH
(Civil Appeal Nos. 3125-3126 of 2008}
APRIL 30, 2008
~
B
..,l.. (S.B. SINHA AND V.S. SIRPURKAR, JJ.)

Service Law:
Banking Service - Termination - Of Management c
Trainee - On ground that she failed to qualify the confirmation
test as prescribed in letter of appointment inspite of three
opportunities - Prayer for another chance to clear the
confirmation test dismissed by Appellate Authority - Writ
petition - Allowed by High Court on ground of discriminatory
D
treatment vis-a-vis '/', a similarly situated employee, who was
granted opportunity to appear in confirmation test for the 4th
time - Held: The Service Regulations did not speak of any
confirmation test - Offer of appointment also did not speak
about the number of chances to be given for passing the
confirmation test - Doctrine of reasonableness and fairness · E
required to be complied with by the Bank keeping in view its
status of a State within meaning of Art. 12 of the Constitution -
On facts, case of aggrieved employee on much stronger
foundation than that of '/' - She was entitled to another
~ opportunity to appear at the test - Direction for reinstatement F
-- in service with 50% back-wages - Punjab National Bank
(Officers) Service Regulations, 1979 - Constitution of India,
1950 - Arts. 12, 14 and 16 - Doctrines - Doctrine of
reasonableness and fairness.
G
Constitution of India, 1950-Art.14- Held: Does not apply
in a vacuum - Whereas persons absolutely similarly situated,
should be treated equally, equal treatment to persons dis-
similarly situated would also attract the wrath of Art. 14.
365 H
366 SUPREME COURT REPORTS (2008] 7 S.C.R.

A The writ petitioner before High Court {hereinafter
called the "writ petitoner" had been appointed as a
Management Trainee in Punjab National Bank. She was
terminated from service on the ground that she failed to
qualify the Bank's confirmation test as prescribed in the
B letter of appointment. The writ petitioner was given three ?

opportunities to appear in the confirmation test; on the ....
first occasion she did not qualify; the second time she
did not appear for the test as she was in advanced stage
of pregnancy and, having had miscarriages on two
c previous occasions, was medically advised not to move,
while the third time she again failed to qualify. The
termination order was passed after expiry of the extended
period of probation. The writ petitioner filed appeal before
the Appellate Authority for another chance to clear the
confirmation test stating that similarly situated employees
0
including one 'I' had been given another chance to appear
at the examination. The appeal was dismissed.
In the writ petition before High Court, it was inter alia,
contended by the writ petitioner that in terms of the Punjab
E National Bank (Officers) Service Regulations, 1979
insistence of passing the confirmation test was illegal;
that as the extended period of probation had already
expired she should be deemed to have been confirmed
in service and further that she had been subjected to
F discriminatory treatment vis-a-vis 'I' who was granted an
opportunity to appear in the confirmation test for the 4th ....
time on the ground of illness of her mother. The High Court
had rejected the first two contentions but accepted the
third and allowed the writ petition on the said premise.
G In the present cross-appeals, it was submitted on
behalf of the Bank that although the Regulations did not
provide for a confirmation test, the said writ petitioner
having accepted the conditions of appointment, she
cannot be permitted to approbate or reprobate; that her
H services having not been expressly confirmed, the
PUNJAB NATIONAL BANK BY CHAIRMAN & ANR. v. 367
ASTAMIJA DASH
......
doctrine of implied confirmation was not applicable and A
that reliance placed by the High Court on the case of 'I'
was misplaced and in any event no legal right can be
claimed on the basis of an illegality committed by the
employer as Article 14 of the Constitution speaks of a
positive right. It was further submitted on behalf of the B
~
.... Bank that the competent authority had formulated a policy
of not permitting anybody to appear in the test more than
thrice. Strong reliance in this behalf was placed on the
decision of the Executive Committee of the Bank deciding
that maximum number of 3 chances should be given to c
Management Trainees for qualifying in the confirmation
test failing which services of such trainees/ probationers
be terminated.
Per contra, the writ petitioner submitted that the
impugned order of termination could not have been 0
~·
passed on the premise that the she did not pass the
confirmation test; that having regard to Regulations 15
and 16 of the Regulations, her services having been
terminated after the extended period of the period of
probation expired, she would be deemed to have been E
confirmed in service and that in any event she had clearly
been discriminated against inasmuch as an employee who
was similarly situated had been given a fourth opportunity
to clear the said confirmation test, whereas the writ
petitioner was not. F
•
Dismissing the appeal filed by the Bank and allowing
the cross-appeal filed by the writ petitioner, the Court
HELD: 1.1. The Punjab National Bank (Officers)
Service Regulations, 1979 does not speak of any
G
confirmation test. The offer of appointment does not speak
about the number of chances to be given for passing the
-..;.
confirmation test. A decision was taken in this behalf when
the writ petitioner had already appeared on one occasion.
The decision even otherwise was to give atleast three
H
368 SUPREME COURT REPORTS [2008] 7 S.C R

A opportunities to a candidate must be real and effective
one. Such a contention must be considered having regard
to the doctrine of reasonableness and fairness, which the
Bank is required to comply with keeping in view its status
of a State within the meaning of Article 12 of the
B Constitution. As a 'State' the Bank was bound to follow
the equity clause contained in Articles 14 and 16 of the
Constitution. Its action even in relation to its own
employees is expected to be not only fair but also non-
arbitrary. [Para 37] [386-G, H; 387-A, B]
C 1.2. The attitude on the part of the State in exercise
of its power of discretion should be commensurate with
the doctrine of reasonableness. A State, even for applying
the constitutional scheme of equality would not enforce
its decision only upon taking into consideration the cases
D of the different parties before it. A woman who had
undergone miscarriages was entitled to a different
treatment. Article 14 indisputably is a positive concept.
Applicability of the doctrine of equality as a positive
concept, therefore, should have been the premise that as
E a woman having regard to the state of affairs in which the
writ petitioner was placed, she was entitled to obtain a
different treatment from the employer. Article 14 does not
apply in a vacuum. Whereas persons absolutely similarly
situated, should be treated equally, equal treatment to the
F persons dis-similarly situated would also attract the wrath
of Article 14. It is from that point of view that the writ
petitioner's case ought to have been considered vis-a-
vis 'I'. If the appellate authority was entitled to exercise its
power of relaxation, which in the absence of any statutory
G interdict (presumably it was entitled to), it should have
considered the case of the petitioner vis-'-vis 'I', whose
case stood at a much weaker foundation. Thus, Article 14
must be held to have been violated; the power of
relaxation having been conceded to the appellate
H authority. [Para 47] [394-F, G, H; 395-A, B, C]
PUNJAB NATIONAL BANK BY CHAIRMAN & ANR. v. 369
.;#.._..,
ASTAMIJA DASH
1.3. The Executive Committee of the Bank had fixed A
the number of chances to be given to an employee in the
confirmation test. If it is enforced against the writ petitioner
having regard to her physical position, to appear in the
second examination, the provisions thereof, keeping in
.,., mind the principle underlying the statutory provisions of B
_... Maternity Benefit Act, may not be held to be applicable.
She was, thus, entitled to another opportunity to appear
at the examination. The Executive Committee or for that
matter the appellate authority cannot exercise the power
of relaxation in a discriminatory manner. It was expected
to act judiciously, assuming that the employer had a c
discretion in this behalf. Discretion cannot be equated
with whims and caprices. [Para 52] [396-A, B, C]
1.4. The submission, that it was for the employer to
decide as to how many chances have to be given to each
D
+ employee and the Bank cannot be deprived of such.
discretionary jurisdiction, cannot be accepted. [Para 53]
[396-D]
1.5. The writ petitioner is directed to be reinstated in
service forthwith. She, however, may be paid only 50% of E
the back wages. This order is being passed keeping in
view that her services had been terminated on 9th
November, 1990. [Para 55] [396-F]
Nagar Mahapalika, Kanpur vs. Smt. Vibha Shukla and
~

..... Ors. (2007)8 SCALE 361 ; State of Orissa and Ors. vs. Prasana F
Kumar Sahoo (2007) 6 SCALE 236 and Vice Chancellor, MD.
University, Rohtak vs. Jahan Singh (2007) 4 SCALE 226 -
relied on.
General Manager, Punjab National Bank and others vs.
Khar Bhan Ram(1995) II LLJ 93 All; Municipal Corporation, G
Raipur vs. Ashok Kumar Misra (1991) 3 SCC 325; State of
Punjab vs. Dharam Singh (1968) 3 SCR 1; Om Pakash
Maurya vs. U. P Co-operative Sugar Federation, Lucknow 1986
Suppl. SCC 95; Municipal Corporation, Raipur vs. Ashok
Kumar Misra (1991) 3 sec 325; Samsher Singh VS. State of H
370 SUPREME COURT REPORTS [2008] 7 S.C.R

A Punjab vs. State of Punjab (1974) 2 SCC 831; Chief GM,
State Bank of India vs Bijoy Kumar Mishra (1997) 7 SCC 550;
EP Royappa vs State of Tamil Nadu and another (1974) 4
SCC3; Mithu vs. State of Punjab (1983) 2 SCC 277, TR.
Kothandaraman and Ors. vs. Tamil Nadu Water Supply &
B Drainage BO and Ors. (1994) 6 SCC 282; T Sham Bhat vs.
Union of India (UOI) and Anr 1994 Supp (3) SCC 340, Delhi
Transport Corporation vs 0 TC. Mazdoor Congress and
others (1991) Supp (1) SCC 600; Bombay Dyeing and Mfg.
Co Ltd. vs. Bombay Environmental Action Group and Ors
C (2006) 3 SCC 434; Vasu Dev Singh and Ors. vs. Union of
India and Ors. (2006) 11 SCALE 108; Employees State
Insurance Corporation vs H. MT Ltd. and another (2008) 1
SCALE 341 and Nehru Yuva Kendra Sangathan vs Mehbub
Alam Laskar (2008) 1 SCALE 590- referred to.

D CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3125 of 2008.
From the Judgment and Order dated 20.5.2005 of the High
Court of Orissa at Cuttack in O.J.C. No.2333/1991.

E WITH
Civil Appeal No. 3126 of 2008.
S.B. Upadhyay, Dhruv Mehta, Harshvardhan Jha, Yashraj
Singh Deora, Gulshan Sharma (for Mis. K.L. Mehta & Co.) I-

F Santosh Mishra and Sharmila Upadhyay for the appearing
parties.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted in both the matters.
G 2. These two appeals arise out of a judgment and order
dated 20 1h May. 2005 rendered by the Division Bench of the
Orissa High Court at Cuttack in WP No. 2333 of 1991.
3. Writ Petitioner (Respondent in appeal arising out of SLP
H © No. 18997 of 2005 and Appellant in the connected appeal)
PUNJAB NATIONAL BANK BY CHAIRMAN & ANR v. 371
ASTAMIJA DASH [S.B. SINHA, J ]
,....
was appointed as a Management Trainee in the Punjab National A
Bank (Bank). She was duly selected by the Banking Service
Recruitment Board, Delhi. An offer of appointment was made
to her favour on or about 28th July, 1986 inter alia on the following
terms and conditions :-
..
.J,.
"2. TRAINING/PROBATION/CONFIRMATION B

"You will be on training/probation for a period of 2 years
from the date of your joining the Bank and you will be
considered for confirmation in the service, subject to your
satisfactory report on your training, passing Bank's c
confirmation test and receipt of satisfactory report from
the Police authorities about your character and
antecedents. You may also be required to pass a test in
a language other than your mother tongue before
confirmation.
D
..... 3. During the period of probation your services can be
terminated by giving one month's notice or payment of
one month's emoluments in lieu thereof. The Bank may,
however, in its discretion extend your probation by a further
period not exceeding one year. If you desire to leave the E
services of the Bank at any time during the period of
probation, including the extended period thereof, if any,
you shall give a month's notice or in lieu thereof, you shall
pay a month's emoluments to the bank."

4. She joined the services of the Bank immediately F
,~
"
thereafter.

Pursuant to the condition that she must pass the
confirmation test, she appeared in the said examination on 29th
May, 1988. She did not pass the said examination. She was,
G
however, again asked to appear in the examination on 1st
October, 1989. By a letter dated 5th September, 1989 she
-.(
expressed her inability to do so, stating :-
" I invite a kind reference to your letter dated 18th August,
1989 wherein I was advised to appear in the confirmation H
372 SUPREME COURT REPORTS [2008] 7 S C.R

A test scheduled to be held on 1 October, 1989 in Central
Staff College, Delhi. In this context, I would like to inform
you that I am passing through the period of pregnancy and
am advised by the doctor not to undertake long journey
during the period of pregnancy till delivery as a result of
B which I will not be able to appear the test.
._;.
I, therefore, request you to kindly consider my case
sympathetically and permit me to appear the test on the
next schedule date, in future. I enclose a medical certificate
for your information and favourable consideration."
c
5. She had two mis-carriages. She was asked again to
appear in the examination on 19th August, 1990. She appeared
in the said test, but could not succeed. In the meanwhile the
probation period expired on 28th July, 1988. It was extended by
another year i.e. till 28th July, 1989.
D
6. Indisputably, she had otherwise completed her period -~

of probation. She also fulfilled the other conditions of service.
Her services, however, were terminated by an order dated 9th
November, 1990 stating :-
E "You were appointed as a Management Trainee on
25.8.1986. One of the terms of your appointment stipulates
that:
"3. CONFIRMATION
F You will be considered for confirmation in the Bank service •
after two years on :
a) Satisfactory report of your training.
b) Passing Bank's confirmation Test.
G
c) You may also be required to pass a test in language
other than your mother tongue before confirmation.
In the event of your not satisfactorily completing the training
referred to in sub para 3(a) or failure to qualify the Bank's
H confirmation test within the training/probation period of
PUNJAB NATIONAL BANK BY CHAIRMAN & ANR. v. 373
ASTAMIJA DASH [S.B. SINHA, J.]

two years or to pass the test in a language other than your A
mother tongue, your probation may be extended by a further
period not exceeding one year.
If during the period of probation, including the period of
extension, if any, the competent authority is of the opinion
that you are not fit for confirmation to be retained in the B
~

bank service, your services shall be liable to be terminated
by one month's notice or payment of one month's
emoluments in lieu thereof.

You had appeared in the confirmation test held on c
29.5.1988 but you did not qualify the same. In the
confirmation test held on 1.10.1989, you have been
.... advised to appear for the test but you had remained
absent. Although the Bank would have been justified in
terminating your services in accordance with your terms
,.... D
of appointment, a lenient view was taken and you were
given a last and final opportunity for qualifying the
confirmation test in August, 1990. You appeared in the
Bank's confirmation test held on 19.8.1990 but did not
qualify the test."
E
7. She preferred an appeal thereagainst before the
appellate authority asking for another chance to clear the
confirmation test stating thatsimilarly situated employees
including one lndubala had been given another chance to
~-
appear at the examination. However, the said appeal was F
dismissed by an order dated 28 1h November, 1990.
8. She filed a writ petition before the High Court, inter alia,
contending:-
i) In terms of the Punjab National Bank (Officers)
G
Service Regulations, 1979 insistence of passing the
--{ confirmation teat was illegal.
ii) As the extended period of probation expired on 28th
July, 1989 she should be deemed to have been
confirmed in service. H
374 SUPREME COURT REPORTS [2008] 7 S.C.R.
.;...

A iii) She had been subjected to discriminatory treatment
viz-a-vis. lndubala who was granted an opportunity
to appear in the confirmation test for the 4th time on
the ground of illness of her mother.
9. The High Court rejected the first two contentions raised
B by the writ petitioner herein but accepted the third. The writ
>
petition was allowed on the said premise.
Ill
10. Both the parties, being aggrieved, are before us.
11. Mr. Dhruv Mehta, learned counsel appearing on behalf
c of the Bank would submit:-
i) Although Regulations do not provide for a
confirmation test, the writ petitioner having accepted
...
the conditions of appointment, she cannot be
permitted to approbate or reprobate.
D
·~
ii) Her services having not been expressly confirmed,
the doctrine of implied confirmation is not applicable
in view of the decision of the Division Bench of the
Allahabad High Court in General Manager, Punjab
E National Bank and others vs. Khar Bhan Ram :
(1995) II LLJ 93 All.
iii) Reliance placed by the High Court on the case of ""
lndubala was misplaced as an affidavit explaining
the situation had not been taken into consideration
F "'
and in any event no legal right can be claimed on the fl!
basis of an illegality committed by the employer as
Article 14 of the Constitution of India speaks of a
positive right.

G 12. Mr. S.S. Upadhyay, learned Senior Counsel,
appearing on behalf of the writ petitioner, on the other hand,
would submit:- "
i) The order of termination being not based on
unsatisfactorily completion of the in-house training
H or the non-passing of a language test, which only
PUNJAB NATIONAL BANK BY CHAIRMAN & ANR. v. 375
ASTAMIJA DASH [S.B. SINHA, J.]

have been provided for in the Regulations, the A
impugned order of termination could not have been
-\
passed on the premise that the writ petitioner did not
pass the confirmation test.
ii) Having regard to Regulations 15 and 16 of the
Regulations, her services having been terminated on 9th B
November, 1990 i.e., after the extended period of the period of
probation upto 281h July, 1989 expired, she would be deemed
to have been confirmed in service.
iii) In any event she had clearly been discriminated c
against inasmuch as an employee who was similarly situated ,
had been given a fourth opportunity to clear the said confirmation
test, whereas the writ petitioner was not.
13. The Bank is a scheduled Bank within the meaning of
the provisions of the Banking Companies (Acquisition and D
Transfer of Undertakings) Act, 1970. It has various statutory
powers. It has inter alia power to frame Regulations. In exercise
of its powers conferred upon it by Section 19 read with sub-
section (2) of Section 12 of the Banking Companies (Acquisition
and Transfer of Undertakings) Act, 1970, the Board of Directors E
of the Punjab National Bank, in consultation with the Reserve
Bank of India and with the previous sanction of the Central
Government made Regulations known as the Punjab National
Bank (Officers') Service Regulations, 1979 (for short
Regulations). Applicability of the said Regulations to the case F
of the writ petitioner is not in dispute.
14. Regulations 15, 16 and 36, which are relevant for our
purposes may be noticed.
In terms of sub-regulation (1) of Regulation 15, the period G
of probation is two years. Sub-regulation (1) of Regulation 16
provides for confirmation of service, if in the opinion of the
competent authority, the officer has satisfactorily completed the
training in any institution to which he might have been deputed
for training and in the in-service training in the bank. The proviso H
appended thereto provides for passing a test in a language
376 SUPREME COURT REPORTS [2008) 7 S.C.R.

A other than the mother tongue of the office. Sub-regulation (2) of
Regulation 16 provides for extension of the period of probation
only in the event the officer does not satisfactorily complete either
or both the trainings referred to in sub-regulation ( 1) or fails to
pass the test referred tci therein. Extension of the period of
B probation, however, could not exceed a further period of one
year. Sub-regulation (3) of Regulation 16 provides that service
of an employee can be terminated in the case of a direct
appointee, by one month's notice or payment of one month's
emoluments in lieu thereof only when during the period of
C probation, including the period of extension, if any, the competent
authority is of the opinion that the officer is not fit for promotion.

Regulation 36 provides for maternity regulation in terms
whereof leave upto a period of six months can be granted.

16. Indisputably, the Regulations do not provide for passing
0
of any confirmation test. Such a confirmation test had been
prescribed only in the letter of appointment. Ordinarily, although
when conflict occurs between an executive order and a statutory
Regulation, the latter will prevail; we will proceed on the premise
that such a condition could be imposed by the competent
E authority.

17. We, for the time being, would also assume that having
regard to the doctrine of approbation and reprobation as also
the doctrine of election, the writ petitioner could not question
F the validity or otherwise of the said executive action.
18. While saying so, however, we are r.ot unmindful of the
observations made by this Court in Municipal Corporation,
Raipur vs. Ashok Kumar Misra: (1991) 3 SCC 325.
"6. Exercise of the power to extend the probation is hedged
G
with the existence of the rule in that regard followed by
positive act of either confirmation of the probation or
discharge from service or reversion to the substantive
post within a reasonable time after !he expiry of the period
of probation. If the rules do not empcwer the appointing
H authority to extend the probation beyond the prescribed
PUNJAB NATIONAL BANK BY CHAIRMAN & ANR. v. 377
,,..... ASTAMIJA DASH [S.B. SINHA, J.]
period, or where the rules .are absent about confirmation A
or passing of the prescribed test for confirmation of
probation then inaction for a very long time may lead to an
indication of the .satisfactory completion of probation."
..,, 19. The period of probation is governed by a statutory
-l. provision. The appointing authority is bound thereby. The initial B
period of probation is two years, subject only to non compliance
of the conditions laid down under. sub-regulation (1) of
Regulation 16, namely failure to complete satisfactorily either
or both the trainings referred to therein or passing of a language
test, the period of probation can be extended. The statute c
mandates that it can be extended for a period not exceeding
one year. The total period of probation, therefore, can be three
years and not more. No doubt for confirming the services of an
officer of the bank, the competent authority must satisfactorily
form an opinion that the officer had completed the trainings in D
any institution to which the officer had been deputed as also the
in-service training in the bank. It is not the case of the appellant-
bank that the proviso appended thereto is applicable in the case
of the writ petitioner.
20. Extension of the period of probation limited to one year, E
however, is circumscribed by the conditions specified in sub-
regulation (2). What is apparent, has been made explicit by sub-
regulation (3) as the competent authority has to form an opinion
k
that the officer is not fit for confirmation only within the period of
probation including the period of extension and not beyond the F
same.
21. The High Court, as noticed hereinbefore, has relied
upon the decision of the Division Bench of the Allahabad High
Court in the case of appellant-bank itself.
G
Chief Justice S.S. Sodhi, speaking for the Division Bench,
distinguished the cases of State of Punjab vs. Dharam Singh
:1968 (3) SCR 1 and Om Pakash Maurya vs. UP Co-operative
Sugar Federation, Lucknow: 1986 Suppl. SCC 95 to hold:-
H
378 SUPREME COURT REPORTS [2008] 7 S.C.R.

A "It may be mentioned here that both Dharam Sigh and Om
Prakash's cases (supra) were later distinguished by the
Supreme Court in Municipal Corporation, Raipur v. Ashok
Kumar Misra (1991-11-LLJ-343), where the facts were
somewhat similar as here in that the relevant service rules,
B besides requiring successful completion of probation for 'T

confirmation in service, also laid down, as an essential ....
pre-condition, the passing of the departmental test. It was
held that mere expiry of the period of probation did not
automatically have the effect of deemed confirmation. Both
c the earlier judgments of the Supreme Court in Dharam
Singh and Om Prakash cases (supra) were noticed and
distinguished. Seen in this light, there can be no escape
from the conclusion that in the circumstances here, mere
expiry of the period of probation, without the respondent
having qualified in the confirmation test, did not entitle him
D
to confirmation in service.
22. The decisions of this Court in Dharam Singh (supra)
and Om Prakash Maurya (supra), on the one hand, and
Municipal Corporation, Raipur vs. Ashok Kumar Misra : (1991)
E 3 sec 325, on the other, as would appear from the discussions
made hereinafter had set the legal principles differently.
23. In Dharam Singh, a Constitution Bench of this Court
categorically held that:-
,,.

F "Where on the completion of the specified period of .
probation the employee is allowed to continue in the post
without an order of confirmation., the only possible view to
take in the absence of anything to the contrary in the original
order of appointment or promotion or the service rules, is
that the initial period of probation has been extended by
G
necessary implication."
What is, therefore, evident is that the matter must be
governed by the statutory rules.
24. The Rule in question which was applicable in Oharam
H
PUNJAB NATIONAL BANK BY CHAIRMAN & ANR. v. 379
ASTAMIJA DASH [S.B. SINHA, J.]

Singh (supra) was sub-rule (3) of Rule 6 of the Punjab A
Educational Service (Provincialised Cadre) Class Ill Rules, 1961
which was in the following terms :-
"6(3) On the completion of the period of probation the
authority competent to make appointment may confirm
the member in his appointment or if his work or conduct 8
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. C
Provided that the total period of probation including
extensions, if any, shall not exceed three years."
In view of the said Rule it was held :-
0
"This Court has consistently held that when a first
appointment or promotion is made on probation for a
specific period and the employee is allowed to continue
in the post after the expiry of the period without any specific
order of confirmation, he should be deemed to continue in
his post as a probationer only, in the absence of any E
indication to the contrary in the original order of
appointment or promotion or the service rules. In such a
case, an express order of confirmation is necessary to
give the employee a substantive right to the post, and
from the mere fact that he is allowed to continue in the F
post after the expiry of the specified period of probation
it is not possible to hold that he should be deemed to have
been confirmed."
It was further held:-
G
"In the present case, r. 6(3) forbids extension of the period
of probation beyond three years. Where, 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 H
380 SUPREME COURT REPORTS [2008] 7 S. C.R.

A is allowed to continue in that post after completion of the --
maximum period of probation without an express order of
confirmation, he cannot be deemed to continue in that
post as a probationer by implication. The reason is that
such an implication is negatived by the service rule
B 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 completion of the
maximum period of probation has been confirmed in the
c post by implication."
25. The said principle was reiterated by a seven Judge
Bench of this Court in Samsher Singh vs. State of Punjab vs.
State of Punjab: (1974) 2 SCC 831 stating:
"71. Any confirmation by implication is negatived in the
D
present case because before the completion of three
years the High Court found prima facie that the work as
well as the conduct of the appellant was unsatisfactory
and a notice was given to the appellant on October 4,
1968 to show cause as to why his services should not be
E terminated. Furthermore, Rule 9 shows that the
employment of a probationer can be proposed to be
terminated whether during or at the end of the period of
probation. This indicates that where the notice is given at
the end of the probation the period of probation gets
·F :..
extended till the inquiry proceedings commenced by the
notice under Rule 9 come to an end. In this background
the explanation to Rule 7(1) shows that the period of
probation shall be deemed to have been extended
impliedly if a Subordinate Judge is not confirmed on the
G expiry of this period of probation. This implied extension
where a Subordinate Judge is not confirmed on the expiry
of the period of probation is not found in Dharam Singh
case . This explanation in the present case does not
mean that the implied extension of the probationary
H period is only between two and three years. The
PUNJAB NATIONAL BANK BY CHAIRMAN & ANR. v. 381
ASTAMIJA DASH [S.B. SINHA, J.]

explanation on the contrary means that the provision A
regarding the maximum period of probation for three
years is directory and not mandatory unlike in Dharam
Singh case and that a probationer is not in fact confirmed
till an order of confirmation is made."
B
.... (Emphasis supplied)

26. In Om Parkash Maurya 11s. UP. Coop. Sugar
Factories Federation :_(1986) Suppl. SCC 95 following Dharam
Singh, this Court held :-

"4. In the instant case the order of appointment promoting c
the appellant to the post of Commercial Officer merely
indicated that his probationary period could be extended
and he could be reverted to the post of Office
Superintendent without any notice. Stipulation for extension
of probationary period in the appointment order must be D
..... considered in accordance with the proviso to Regulation
17(1) which means that the probationary period could be
extended for a period of one year more. Indisputably on
the expiry of the appellant's initial probationary period of
one year, the appointing authority ext~nded the same for E
another period of one year which also expired on
September 4, 1982. During the period of probation
appellant's services were neither terminated nor was he
reverted to his substantive post instead he was allowed to
k continue on the post of Commercial Officer. On the expiry F
.> •
of the maximum probationary period of two years, the
appellant could not be deemed to continue on probation,
instead he stood confirmed in the post by implication.
The appellant acquired the status of a confirmed employee
on the post of Commercial Officer and the appointing
G
authority could not legally revert him to the lower post of
Superintendent."
(Emphasis supplied)
27. The said principle, we may notice, was again reiterated
H
382 SUPREME COURT REPORTS [2008] 7 S.C.R.

A in Chief G.M., State Bank of India vs. Bijoy Kumar Mishra :
(1997) 7 sec 550 wherein this Court had the occasion to
consider a pari materia rule, stating :-
"10. There can thus be no doubt that the deemed
confirmation which is inferred from the employer's conduct
B is permissible only when it follows from the positive act of
the employer permitting the employee to continue to work
on the post even after completion of the maximum period
of probation permitted under the Service Rules since no
other inference is possible in such a situation from the
c employer's conduct of continuing to take work from the
employee after that period."
28. We may, having noticed the legal principles enunciated
by this Court, consider the decision of this Court in Ashok Kumar
Misra (supra). The relevant Rule which was involved therein was
0
Rule 8 of Madhya Pradesh Government Servants' General
Conditions of Service Rules, 1961 which was in the following
terms:-
"8. Probation . - (1) A person appointed to a service or
E post by 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.
F
Note . - A probationer whose period of probation is not
extended under this sub-rule, but who has neither been
confirmed nor discharged from service at the end of the
period of probation shall be deemed to have been
continued in service, subject to the condition of his service
G
being terminable on the expiry of a notice of one 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
H probation as may be prescribed.
PUNJAB NATIONAL BANK BY CHAIRMAN & ANR. v. 383
ASTAMIJA DASH [S.B. SINHA, J.]

(4) and (5) are not relevant, hence omitted. A
(6) On the successful completion of probation and the
passing of the prescribed departmental examinations, the
probationer shall be confirmed in the services or post to
which he has been appointed."
B
..(.
29. The note appended to sub-rule (2) of Rule 8 as also
sub-rule (6) thereof made all the difference. In terms of note
appended to sub-rule (2) a legal fiction was created in terms
whereof upon completion of the extended period of probation
the employee would have been continued in service, subject to c
the condition that the same would be terminable on the expiry
of a notice of one calendar month and furthermore an express
order confirming the service would be necessary.
In the aforementioned situation Dharam Singh (supra) and
Om Prakash Maurya (supra) were distinguished opining :- D

"6. Exercise of the power to extend the probation is hedged
with the existence of the rule in that regard followed by
positive act of either confirmation of the probation or·
discharge from service or reversion to the substantive
E
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 long time may lead to an F
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 G
probation and to make an order of confirmation are
~ condition precedent. Mere expiry of the initial period of
probation does not automatically have the effect of deemed
confirmation and the status of a deemed confirmation of
the probation. An express order in that regard only confers H
384 SUPREME COURT REPORTS [2008] 7 S.C.R.

A the status of an approved probationer. We are of the view
that note to sub-rule (2) read with sub-rule (6) of Rule 8
manifests the legislative intent that confirmation of the
probation of the respondent would be made only on
successful completion of the probation and the passing of
B the prescribed examinations. It is not the respondent's
case that he passed all the examinations. He shall be ...
deemed to be continued on probation. Before confirmation
the appointing authority is empowered to terminate the
service of the probationer by issuing one calendar month's
c notice in writing and on expiry thereof the service stands
terminated without any further notice. Within three months
from the date of expiry of original two years period of
probation and within one year's period, the order of
termination was made. In this view the question of
conducting an inquiry under the Classification, Control ar.d
D
Appeal (Rules) after giving an opportunity and that too for
specific charges does not arise."
30. The order of termination in that case was, therefore
passed within the extended period of probation in service. Ashok
E Kumar Misra (supra), therefore, in our opinion did not speak in
a different tone and is in conformity with the legal principles laid
down in Dharam Singh (supra) and others.
31. The High Court, therefore, in our opinion was not correct
in relying upon the decision of the Division Bench of the
F ,.
Allahabad High Court in the case of the appellant bank. It, with
utmost respect, did not lay down the correct law and is, therefore,
liable to be over-ruled.
32. So far as the question of discrimination meted out to
the writ petitioner is concerned, we may notice that the High
G
Court had come down heavily on the bank and, in our opinion,
rightly so. ~ '
33. In the affidavit affirmed by one Rabi Shankar Sabat
(Manager Personnel) of the Bank the lndubala case was sought
H to be distinguished stating:-
PUNJAB NATIONAL BANK BY CHAIRMAN & ANR. v. 385
ASTAMIJA DASH [S.B. SINHA, J.]
"5. That as regards the case of petitioner vis-a-vis case of A
one Ms. lndubala is concerned it is submitted that both the
cases stand absolutely on different footing. Ms. lndubala
is not a batchmate of petitioner. Ms. lndubala joined the
bank as Management Trainee on 12.11.1984 and she
~·
was called for confirmation test of Management Trainee B
_..
held by the bank on 13.7.1986. She did not appear in the
said test. She was given another chance for confirmation
test held on 26.4.1987 who appeared in the said test but
failed. Ms. lndubala was again called for confirmation test
held on 29.5.1988, as per the decision of the Executive c
Committee of the bank, however, she could not take the
confirmation test this time due to her illness and
accordingly her services were terminated by the Bank on
29.5.1988. On appeal by Ms. lndubala the matter was put
up before the Executive Committee of the bank and the
D
Executive Committee in its meeting held on 16.8.89
decided that in view of the fact that Ms. lndubala could not
avail of the last i.e. 3rd chance due to her illness, she may
be afforded another opportunity to appear in the
confirmation test and this is how Ms. lndubala was given
one more chance. Copy of decision of the Committee E
dated 16.8.89 is filed herewith asAnnexure-F. On the other
hand the petitioner joined the Bank as Management
Trainee on 25.8.1986 and she failed to appear in the
confirmation test held in April, 1988 and October, 1989 .
.» • She was also given the 3rd chance the last chance where F
she did appear and failed to qualify. It may be noted here
that Ms. lndubala was given the 3rd chance but she could
not appear in the 3rd and last chance due to her illness. So
both the cases stand on a different footing as such
petitioner cannot claim any benefit on the basis of Ms. G
lndubala's case. Besides, that was a solitary case and as
\ the Principle that one wrong cannot justify another wrong
the petitioner cannot claim any advantage relying on the
same."
H
386 SUPREME COURT REPORTS [2008] 7 S.C.R.

A 34. At once we may notice that the said statement
contained a factual error which has been very fairly conceded
by Mr. Mehta as the ground for giving another opportunity to
lndubala to appear at the confirmation test for the 4th time was
not on the ground of her own illness but on her mother's illness.
B 35. Was the fact situation in lndubala's case is different .;,

from that of the writ petitioner? The answer must be found in the
judgment of the High Court, wherein it was held that the writ
petitioner's case stands on a much better footing. As she could
not appear in the third chance on account of the illness of her
c mother which did not depict the correct state of affairs whereas
the writ petitioner underwent a mis-carriage of her conception
in the month of April, 1988, she had to remain alone at the place
of posting and could not prepare for the examination. At the
time when she was called upon to appear in the examination
D for the second time, she was in the advance stage of pregnancy
and she was medically advised not to move, as she had
miscarriages at two previous occasions. That is the reason why
she could not appear in the test. When she was called upon to
appear for the third examination, she having undergone
caesarian delivery, she was advised rest by the doctor. At the
E
time of her examination, her son was only six month's old and
was not keeping good health.
36. Submission of the Bank is that the competent authority
had formulated a policy of not permitting anybody to appear the
F in the test more than thrice. Strong reliance in this behalf is placed ..
on the decision of the Executive Committee of the Bank dated
19th June, 1990 deciding that maximum number of 3 chances
should be given to the Management Trainee for qualifying in the
confirmation test failing which services of the probationer be
G
terminated.
37. Regulation does not speak of any confirmation test.
The offer of appointment does not speak about the number of
chances to be given for passing the confirmation test. A decision
was taken in this behalf when the writ petitioner had already
H appeared on one occasion. The decision even otherwise was
PUNJAB NATIONAL BANK BY CHAIRMAN & ANR. v. 387
A ASTAMIJA DASH [S.B. SINHA, J.]
to give atleast three opportunities to a candidate must be real A
and effective one. Such a contention must be considered having
regard to the doctrine of reasonableness and fairness, which
the Bank is required to comply with keeping in view its status of
a State within the meaning of Article 12 of the Constitution of
... India. As a 'State' the Bank was bound to. follow the equity clause B
~-
contained in Articles 14 and 16 of the Constitution of India. Its
action even in relation to its own employees is expected to be
not only fair but also non-arbitrary.
38. In E.P Royappa vs. State of Tamil Nadu and another
: (1974) 4 SCC3, a Constitutional Bench of this court as regards c
the argument that the petitioner was appointed to a post that
was inferior to the status and office of the Chief Secretary , thus
offending Articles 14 and 16 of the Constitution, opined :-
"Article 16 embodies the fundamental guarantee that there
+ D
shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under
the State. Though enacted as a distinct and independent
fundamental right because of its great importance as a
principle ensuring equality of opportunity in public
employment which is so vital to the building up of the new E
classless egalitarian society envisaged in the Constitution,
Article 16 is only an instance of the application of the
concept of equality enshrined in Article 14. In other words,
,._ Article 14 is the genus while Article 16 is a species, Article
• 16 gives effect to the doctrine or equality in all matters F
relating to public employment The basic principle which,
therefore, informs both Articles 14 and 16 is equality and
inhibition against discrimination. Now, what is the content
and reach of this great equalising principle? It is a founding
faith, to use the words of Bose, J., "a way of life", and it G
must not be subjected to a narrow pedantic or lexicographic
--<
approach. We cannot countenance any attempt to truncate
its all-embracing scope and meaning, for to do so would
be to violate its activist magnitude. Equality is a dynamic
concept with many aspects and dimensions and it cannot H
388 SUPREME COURT REPORTS [2008) 7 S.C.R.

A be "cribbed, cabined and confined" within traditional and
doctrinaire limits. From a positivistic point of view, equality
is antithetic to arbitrariness. In fact equality and
arbitrariness are sworn enemies; one belongs to the rule
of law in a republic while the other, to the whim and caprice
B of an absolute monarch. Where an act is arbitrary it is
implicit in it that it is unequal both according to political
logic and Constitutional law and is therefore violative of
Article 14, and if it affects any matter relating to public
employment, it is also violative of Article 16. Articles 14
c and 16 strike at arbitrariness in State action and ensure
fairness and equality of treatment. They require that State
action must be based on equivalent relevant principles
applicable alike to all similarly situate and it must not be
guided by any extraneous or irrelevant considerations
because that would be denial of equality. Where the
D
operative reason for State action, as distinguished from
motive inducing from the antechamber of the mind, is not
legitimate and relevant but is extraneous and outside the
area of permissible considerations, it would amount to
mala fide exercise of power and that is hit by Articles 14
E and 16. Mala fide exercise of power and arbitrariness are
different lethal radiations emanating from the same vice :
in fact the latter comprehends the former. B0th are inhibited
by Articles 14 and 16."

F It was further h€1d:
"It is also necessary to point out that the ambit and reach
of Articles 14 and 16 are not limited to cases where the
public servant affected has a right to a post. Even if a
public servant is in an officiating position, he can complain
G of violation of Articles 14 and 16 if he has been arbitrarily
or unfairly trea~ed or subjected to mala fide exercise of
power by the State machine."
39. In the Constitution Bench decision of this court in Mithu
vs. State of Punjab : "1983) 2 SCC 277, the issue to be decided
H
J PUNJAB NATIONAL BANK BY CHAIRMAN & ANR. v. 389
ASTAMIJA DASH [S.B. SINHA, J.]
,,;.-
was the vires of Section 303 of the Indian penal Code vis-a-vis A
Article 21 of the Constitution. It was held that the same was
unconstitutional as it violated the guarantee of equality clause
contained in Article 1.4 and 21 since a person who is sentenced
to life imprisonment incurs the mandatory penalty of death under
.,. Section 303 if he commits a murder while he is under the B
~ sentence of life imprisonment defied logic.
40. In TR. Kothandaraman and Ors. vs.· Tamil Nadu
Water Supply & Drainage BO and Ors. : (1994) 6 SCC 282,
the issue before this court was as regards what Article 16 has
to say when the right to be considered for promotion is either c
barred or restricted on the basis of educational qualifications.
<'
Thus, the validity of Rule 2(b), which prescribed the ratio of 3:2
-[
for direct recruits and promotees, the former being degree-
holders and later diploma-holders was challenged as being
violative of the guarantee of equality embodied in Article 16 D
Citing with approval Justice Krishna Iyer in State of Jammu &
K~shmlr v. Trilokinath Khosa : ( 1974) 1 SCC 19, it was thus
.... stated:
"Krishna Iyer, J., stated that the social meaning of Articles
14 and 16 is neither dull uniformity nor specious 'telentism'. E
Further, the soul of Article 16 is the promotion of the
common man's capabilities, opening up full opportunities
to develop without succumbing to the sophistic argument
of the elite that talent is the privilege of the few and they

. ,.. must rule. But then, personnel policy does require an eye F
on efficiency; and so, though 'chill penury" should not
'repress their noble rage', technical proficiency cannot be
sacrificed at the altar of wooden equality. All these call for
a striking of balance between the long hunger for equal
chance of the lowlier and the disturbing concern of the
·f G
community for higher standards of performance. Even so,
mini-classifications based on micro-distinctions are false
•-(
t() our egalitarian faith; and over-doing of classification
would be undoing of equality: The Court has to function
always as a sentinel on the qui vive."
H
390 SUPREME COURT REPORTS (2008) 7 S.C.R.

_.....
A Thus, dismissing the writ petition, it was held that a
harmony would thus be struck, by maintaining reasonableness
in the ratio, between the call of social justice and the need for
higher education, without in any way jeopardising the principal
object of classifintion, by the impugned rule.
B 41. In T Sham Bhat vs. Union of India (UOI) and Anr. T

1994 Supp (3) SCC 340, the vi res of Regulation 2 of the Indian ~

Administrative Service (Appointment by Selection) Second
Amendment Regulatio~. 1989 - the IAS Second Amendment ii
Regulations was challenged before this court.
c
It inter-alia referred to the following judgments: '
"16. Venkatashwara Theatre vs. State of Andhra Pradesh '\
and Ors. : (1993) 3 ~CC 677, is a decision of this Court ....
which points out, as to how discrimination can arise, if
D persons who are unequals are treated as equals, thus:
_.
"Just as a difference in the treatment of persons similarly
situate leads to discrimination, so also discrimination can
arise if persons who are unequals, i.e... differently placed,
I
are treated similarly.... A law providing for equal treatment
E of unequal objects, transactions or persons would be
condemned as discriminatory if there is absence of
rational relation to the object intended to be achieved by ;.
the law."

F Food Corporation of India vs. Kamdhenu Cattle Feed ~ r,
A
Industries : (1993) 1 SCC 71, is a decision of this Court
where it is pointed out that requirement of non-arbitrariness
in a State action, if ought to conform to Article 14 of the .
);.;;

Constitution, due weight must be given to reasonable or
legitimate expectations of the persons likely to be affected
G
by such action, thus:
"To satisfy this requirement of non arbitrariness in a State >-•
action, it is, therefore, necessary to consider and give due
weight to the reasonable or legitimate expectations of the
H persons likely to be affected by the decision or else that
PUNJAB NATIONAL BANK BY CHAIRMAN & ANR. v. 391
'
(
ASTAMIJA DASH [S.B. SINHA, J.]
unfairness in the exercise of the power may amount to an A
abuse or excess of power apart from affecting the bona
fides of the decision in a given case. The decision so
made would be exposed to challenge on the ground of
arbitrariness."
Thus, holding the classification between the increase in B
number of years of continuous service of non-State Civil Service
Class-I officers to make them eligible for selection to the Indian
Administrative service which deprived them of the right to be
considered for selection under the IAS Selection Regulations
which held the field for over 33 years, as unjust, arbitrary, C
unreasonable and that which arbitrarily affected the legitimate
and normal expectations of non-State Civil Service C.lass-1
officers and was inhibited by Article 14 of the Constitution! the
regulation was struck down as unconstitutional.
42. Delhi Transport Corporation vs. 0. T. C. Mazdoor D
Congress and others: 1991 Supp (1) SCC 600, dealt with the
+ question of constitutional validity of the right of the employer to
terminate the services of permanent employees without holding
any inquiry in certain circumstances by reasonable notice or
pay in lieu of notice. After referring to a plethora of decisions of E
this court on the application of Article 14 and 16 in cases of
• public employment, it was opined:
"Thus it could be hold that Article 14 read with 16(1) accords
right to an equality or an equal treatment consistent with
the principles of natural justice. Any law made or action F.
taken by the employer, corporate statutory or
instrumentality under Article 12 must act fairly, justly and
reasonably. Right to fair treatment is an essential inbuilt of
natural justice. Exercise of unbridled and uncanalised
discretionary power impinges upon the right of the citizen; G
vesting of discretion is no wrong provided it is exercised
purposively judiciously and wilhout prejudice. Wider the
· discretion, the greater the chances of abuse. Absolute
,' discretion is destructive of freedom than of man's other
inventions. Absolute discretion marks the beginning of the H
•

. ·- .~
392 SUPREME COURT REPORTS [2008] 7 S.C.R.

A end of the liberty. The conferment of absolute power to
dismiss a permanent employee is antithesis to justness
or fair treatment. The exercise of discretionary power wide "
of mark would bread arbitrary, unreasonable or unfair
actions and would not be consistent with reason and
B justice. The provisions of a statute, regulations or rules
that empower an employer or the management to dismiss, ~

remove or reduce in rank of an employee, must be .>

consistent with just, reasonable and fair procedure. It
would, further, be held that right to public employment which
includes right to continued public employment till the
c employee is superannuated as per rules or compulsorily
retired or duly terminated in accordance with the procedure
established by law is an integral part of right to livelihood
which in turn is an integral facet of right to life assured by
Article 21 of the Constitution. Any procedure prescribed
D to deprive such a right to livelihood or continued
employment must be just, fair and reasonable procedure.
-+
In other words an employee in a public employment also
must not be arbitrarily unjustly and unreasonably be
deprived of his/her livelihood which is ensured in continued
E employment till it is terminated in accordance with just,
fair and reasonable procedure. Otherwise any law or rule
in violation thereof is void."

43. We have noticed hereinbefore the plight of the writ
petitioner. as to why she could not prepare well or appear at the
F second test. In such a situation an employee in certain
A
establishments would be governed by the Maternity Benefit Act,
1961. All shops and establishments were brought within the
purview of the said Act by Act No. 61of1988 w.e.f. 10th January,
1989. In terms of the provisions of the said Act, a woman is
G prohibited from working in an establishment during the period
of six weeks from immediately following the day of her delivery,
miscarriage or medical termination of pregnancy. She, if a
>-· .J
request is made by her in this behalf, even would not be asked
to work for the period specified in sub-section (4) of Section 4.
H Apart from the right to payment of maternity benefits, she would
PUNJAB NATIONAL BANK BY CHAIRMAN & ANR. v. 393

..
ASTAMIJA DASH [S.B. SINHA, J.]

be entitled to the benefits of Sections 6 and 9 thereof. Section A
9 reads as under:-
"9. Leave for miscarriage, etc. - In case of miscarriage or
medical termination of pregnancy, a woman shall, on
production of such proof as may be prescribed, be entitled
to leave with wages at the rate of maternity benefit, for a B
period of six weeks immediately following the day of her
miscarriage, or, as the case may be, her medical
termination of pregnancy."

44. Mr. Mehta has, however, drawn our attention to c
Regulation 36 of the Regulations to contend that maternity leave
was. admissible upto a period of 6 months only, on and from the
1st day of April,· 2000. A statutory Regulation, as is well known,
is subject to the provisions of a Parliamentary Act. Regulations
framed by the Board of Directors of the Bank fail to provide for
0
grant of maternity leave and other benefits to which a woman
employee would be entitled to in terms of the Maternity Benefit
Act, 1961. A subordinate legislation, as is well known, must be
made in conformity with the Parliamentary Act.
45. In Bombay Dyeing and Mfg. Co. Ltd. vs. Bombay E
Environmental Action Group and.Ors. : (2006) 3 SCC 434,
this court opined:
"By reason of any legislation whether enacted by the
legislature or by way of subordinate legislation, the State
gives effect to its legislative policy. Such legislation, · F ·
however, must not be ultra vires the Constitution. A
subordinate legislation apart from being intra vires the
Constitution, should not also be ultra vires the parent Act
under which it has been made. A subordinate legislation,
it is trite, must be reasonable and in consonance with the G
legislative policy as also give effect to the purport and
object of the Act and in good faith."
46. Similarly, in Vasu Dev Singh and Ors. vs. Union of
India and Ors. : 2006 (11) SCALE 108, wherein the Validity of H
394 SUPREME COURT REPORTS [2008] 7 S.C.R.

.....
......

A Section 3 of the East Punjab Urban Rent Restriction Act, 1949
was challenged, this court after referring to a large number of
decisions on subordinate legislation, held:
"A statute can be amended, partially repealed or wholly
B
repealed by the legislature only. The philosophy underlying . •
.>
a statut~ or the legislative policy, with the passage of time, ,;.

may be altered but therefore only the legislature has the
requisite power and not the executive. The delegated
legislation must be exercised, it is trite, within the
parameters of essential legislative policy. The question
c must be considered from another angle. Delegation of
essential legislative function is impermissible. It is essential
for the legislature to declare its legislative policy which
can be gathered from the express words used in the statute
or by necessary implication, having regard to the attending
D circumstances. It is impermissible for the legislature to
abdicate its essential legislative functions. The legislature
cannot delegate its power to repeal the law or modify its
essential features."
[See also Employees State Insurance Corporation vs.
E H. M. T Ltd. and eynother : 2008 (1) SCALE 341 ..]

47. We, however, are not oblivious of the fact that the
contention as regards the applicability of the Maternity Benefit
.
Act, 1961 had not been raised before the High Court. We will ).
F assume for the sake of arguments that the said Act is not
applicable. However, we intend to emphasize that the attitude
on the part of the.
State
. .
in exerCise of its power of discretion
should otherwise be commensurate with the doctrine .of
reasonableness. A $tate, even. for applying the constitutional .
scheme of equqlity would not enforce its decision only upon
G
taking into consideration the cases of the different parties before
~· )
it. A woman who ~ad undergone miscarriages, in our opinion, ......
was entitled to a different treatment. Artie!~ 14 indisputably is a
positive concept. Applicability of the doctrine of equality as a
positive concept, therefore, should have been the premise that
H
PUNJAB NATIONAL BANK BY CHAIRMAN & ANR v. 395
ASTAMIJA DASH [S.S. SINHA, J.]
as a woman having regard to the state of affairs in which the? A
1
I
I writ petitioner was placed, she was entitled to obtain a different
treatment from the employer. Article 14 does not apply in a
vacuum. Whereas persons absolutely similarly situated, should
be treated equally, equal treatment to the persons dis-similarly
situated would also attract the wrath of Article 14. It is from that B
point of view that the writ petitioner's case ought to have been
considered vis-a-vis lndubala. If the appellate authority was
entitled to exercise its power of rela!{ation, which in the absence
of any statutory interdict (presumabfy it was entitled to), it should
have considered the case of the petitioner vis-a-vis lndubala, C
whose case, was rightly been found by the High Court stood at
a much weaker foundation. Thus, Article 14 must be held to have
been violated; the power of relaxation having been conceded
to the appellate authority.
48. This aspect of the matter has been considered by this o
Court in Nehru Yuva Kendra Sangathan vs. Mehbub Alam
Laskar: 2008 (1) SCALE 590.
"A 'State' within the meaning of Article 12 of the Constitution
of India should have placed full facts before the High Court.
Only in its anxiety to show that the case of Ajay Kumar E
Gupta was different from that of the respondent, it came
out with the truth that the r.espondent was guilty of a serious
misconduct."
49. We are not unmindful that as a positive concept, Article
14 would not apply in illegality. F
50. In Nagar Mahapalika, Kanpur vs. Smt. Vibha Shukla
and Ors.: 2007 (8) SCALE 361, the court on the issue of
regularization of services opined:
"Equality .is a positive concept. Therefore, it cannot be G
invoked where .any illegality has been committed or where no
: ;-< legal right is established."
.
51. Similar opinion was expressed in State of Orissa and
Ors. vs. Prasana Kumar Sahoo : 2007 (6) SCALE 236 at H
396 SUPREME COURT REPORTS [2008] 7 S.C.R.

.A.
A paragraphs 23 and 24 and in Vice Chancellor, MD. University,
Rohtak vs. Jahan Singh: 2007 (4) SCALE 226 at paragraph 28.
52. The Executive Committee of the Bank had fixed the
number of chances to be given to an employee in the
confirmation test. If it is enforced against the writ petitioner having
B regard to her physical position, to appear in the second .,
~
examination, the provisions thereof, keeping in mind the
principle underlying the statutory provisions of Maternity Benefit
Act, may not be held to be applicable. She was, thus, entitled to
another opportunity to appear at the examination. The Executive
c Committee or for that matter the appellate authority cannot
exercise the power of relaxation in a discriminatory manner. It
was expected to act judiciously, assuming that the employer
had a discretion in this behalf. Discretion cannot be equated
with whims and caprices.
D
53. We. for the reasons abovementioned, are not in a .....
position to accept the submission of Mr. Mehta that it was for
the employer to decide as to how many chances have to be
given to each employee and the Bank cannot be deprived of
such discretionary jurisdiction.
E
54. For the views we have taken we need not deal with the
question as to whether the insistence of confirmation test is not
in accordance with the Regulations.

55. For the reasons abovementioned appeal filed by the
F Bank is dismissed and that of the writ petitioner is allowed. The ).

writ petitioner shall be reinstated in service forthwith. She,
however, may be paid only 50 % of the back wages. This order
we are passing keeping in view that her services had been
terminated on 9th November, 1990. The writ petitioner is also
G entitled to costs. Counsel's fee assessed at Rs.50,000/-.

B.B.B. Civil Appeal No. 3125 of 2008 dismissed
and Civil Appeal No. 3126 of 2008 allowed.

H