Holding

The respondent had become a confirmed officer of the Gujarat IPS cadre, so Rule 12(bb) could not be used to discharge him; the discharge order was invalid.

Issues considered

Whether a probationer who continues in service beyond the prescribed probation period without a specific confirmation order is deemed a confirmed officer for purposes of the IPS (Probation) Rules.
Whether Rule 12(bb) of the IPS (Probation) Rules can be invoked to discharge a confirmed officer.
Whether administrative instructions issued by the Government to fill a gap in the Probation Rules are valid and can be relied upon.

Legislation cited

Constitution of Indias. Article 311(2)
Indian Police Service (Appointment by Competitive Examination) Regulations, 1955
Indian Police Service (Probation) Rules, 1954s. Rule 12(bb), s. Rule 3(1), s. Rule 3(3)

Subjects

ProbationConfirmationDischargeAdministrative instructionsService rulesArticle 311Indian Police ServiceCivil service law

Judgment

STATE OF GUJARAT A
v.
AKHILESH C. BHARGAV & ORS.

AUGUST 26, 1987

[RANGANATH MISRA AND MURARI MOHON DUTT, JJ.] B

Indian Police Service (Probation) Rules, 1954: Rules 3(1), 3(3)
and 12(bb)-Probationer continuing in service beyond period of

- probation-Effect of-Discharge from service of such probationer-
Whether valid.

Administrative Law:
c

Service Rules-Administrative Instructions issued 'to cover gap
where there be vacuum or lacuna-Whether valid.

The first respondent was appointed to the Indian Police Service on D
4. 7 .1969 and allotted to the Gujarat State Cadre. He was on probation
and there was no order of extention of probation. He was discharged by
the impugned order dated 9.4. 74.

The order of discharge was assailed by the first respondent. A
Single Judge of the High Court annulled the order. Two appeals were E
preferred by the Union of India and the State to the Division Bench
which came to the same conclusion, though for different reasons.

'( The State filed an appeal before this Court, which was resisted by
the respondent, contending that reference to Rule 12(bb) of the Indian
Police Service (Probation) Rules, 1954 brought into the otherwise F
innocuous order stigma in sufficient measure warranting a proceeding
of the nature contemplated under Article 311(2) of the Constitution of
India and that the respondent should have been treated as a confirmed
officer of the cadre al the time the order of discharge was made.

,,. On behalf of the State it was contended that no order of extension G
of probation was necessary to be made as the process of confirmation
was not automatic and even if the two year period as provided in Rule
3(1) of the Probation Rules had expired, confirmation would not ipso
facto follow and a special order had to be made.

Dismissing the appeal, this Court, H

1091
1092 SUPREME COURT REPORTS [1987] 3 S.C.R.
;
HELD: t. The first respondent having become a confirmed
A
officer of the Gujarat IPS cadre, under Rule 12(bb) of the Indian Police
Service Rules, 1954 his services could not be brought to an end by an
order of discharge since the said Rules bad no application for officer
confirmed in the cadre. Proceedings in accordance with law were,
therefore, necessary to terminate his ~ervice. [1096A-CJ ~
B
2.1 While the Probation Rules prescribed an initial period of two
years of probation they did not provide any optimum period of proba-
lion. Administrative instructions issued by the Government of India on
.
c
16th March, 1973 indicating the guidelines to be followed in the matter
laid down that, save for exceptional reasons, the period of probation
should not be extended by more than one year and no member of the
service should, by convention, be kept on probation for more than y
-
double the normal period i.e. 4 years. [1094F-G; 109SA-B)

2.2 Within the limits of executive powers under the Constitu-
tional scheme it is open to the apropriate Government to issue instruc-
D lions to cover the gap where there be any vacuum or lacuna. Since ~
instructions do not run counter to the mies in existence, the validity of
the instructions cannot be disputed., [109SC}

In the instant case, there was no order of extension and the order
of discharge is about five years after the appointment. The respondent,
E therefore, stood confirmed in the cadre on the relevant date when be
was discharged. [1096A)

Sant Ram Sharma v. State of Rajasthan and Anr., [1968] 1 SCR
111; State of Punjab v. Dharam Singh, [1968] 3 SCR 1 and Moti Ram
~·

y
-
Deka etc. v. General Manager, N.E.F. Railways, Maligaon, Pandu
p etc., [1964] 5 SCR 683, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1273
of 1979.

From the Judgment and Order dated 10.11.1978 of the Gujarat
G High Court in L.P.A. No. 206 of 1978. ~

T.U. Mehta, G.A. Shah, Mrs. H. Wahi, M.N. Shroff and
K.M.M. Khan for the Appellant.

S.N, Kacker, Anil Kumar Gupta, Brij Bhushan Sharma and
H N.P. Mahindra for Respondent No. 1.
STATE OF GUJARAT v. A.C. BHARGAV 1093

V .C. Mahajan, C. Ramesh and Miss A. Subhashini for Res· A
pondent No. 2.

The following Order of the Court was delivered:

This appeal by Special leave is against the appellate order of the B
Division Bench of the Gujarat High Court. Respondent No. 1 was
appointed to the Indian Police Service on 4.7.1969 and has been dis·
charged by the impugned order dated 9.4.1974. After he was

- appointed by the Union of India he was allotted to the State cadre of
Gujarat and the order of discharge has teen made on the basis of steps
taken by the State of Gujarat. The order of discharge was assailed by C
filing a writ petition under Article 226 of the Constitution. The Single
Judge annulled the order. To the Writ petition both the Union of India
and the State of Gujarat were party-respondents. Against the Single
Judge's decision, two appeals were preferred to the Division Bench.
The Division Bench for reasons mostly different from what had been
recorded by the learned Single Judge, came to the same conclusion. D
Before this Court, there is only one appeal by the State of Gujarat and
the Union of India has been joined as a respondent. Initially a prelimi·
nary objection had been raised regarding the maintainability of the
appeal in the absence of any appeal by the Union of India but Mr.
Kacker appearing for respondent No. 1 has given up the same. It is,
therefore, not necessary to go into that question. E

The order of discharge read as follows:

"Under clause (bb) of Rule 12 of the Indian Police Service
(Probation) Rules, 1954, the President hereby discharges
Shri A.C. Bhargav, a person appointed to the Indian Police F
Service, on probation, on the results of the I.A.S. etc.
Examination held in 1968, and allocated to the service
cadre of Gujarat from the said service with effect from the
date on which this order is served on the said Shri A.C.
Bhargav."
G

Reference to Rule 12(bb), it was contended on behalf of the respon·
dent, brought into the otherwise innocuous order stigma in sufficient
measure warranting a proceeding of the nature contemplated under
Article 311(2) of the Constitution. It is unnecessary for us to go into
that question as in our opinion the view expressed by the High Court is H
1094 SUPREME COURT REPORTS [1987] 3 S.C.R.
J.
quite sound. We may refer to the Constitution Bench decision of this
A
Court reported in the case of State of Orissa and Anr. v. Ram Narayan
Das, [ 1961] I SCR 606 wherein this Court considered the order
of discharge of a police officer on probation and held that in
the case of a probationer observation like 'unsatisfactory work and
conduct' would not amount to stigma. ~
B
The other aspect which has been convassed before us at length is
as to whether the respondent should have been treated as a confirmed
...
officer of the cadre at the time the order of discharge was made.

c
Admittedly, the order of discharge is about five years after the
appointment.

Rule 3( I) of the Indian Police Service (Probation) Rules, 1954, y
-
provides that every person recruited to the service in accordance with
Indian Police Service (Appointment by Competitive Examination)
Regulations, 1955, ...... shall be,appointed to the service on proba-
· tion for a period of two years. At the relevant time, sub-rule (3) of the
D said Rules provided that the Centtal Government may, if it so thinks )-..
fit in any case or class of cases extend the period of probation. Admit-
tedly, in this case there was no order of extention. It has been con-
tended that no order of extension is necessary to be made as the
process of confirmation is not automatic and even if the two year
period as provided in Rule 3(1) has expired confirmation would not
E ipso facto follow and a special order has to be made.
., ..-
Reliance has been placed on a series of decisions of this Court
which have held that an order of confirmation has to be made and
confirmation would not follow a11tomatically. The position here, how- r
ever, is somewhat different.
F
While the Probation Rules prescribed an initial period of two
years of probation it did not provide any optimum period of probation.
Administrative instructions were issued by the Ministry of Home
Affairs, Government of India, on 16th March, 1973, indicating the
guidelines to be followed in the matter. The relevant portion thereof
G may be extracted: '<f'

"

{ii) It is not desirable that a member of the service should
be kept on probation for years as happens occasionally at
H present. Save for exceptional reasons, the period of proba-
STATE OF GUJARAT v. A.C. BHARGAV 1095

tion should not, therefore, be extended by more than one A
year and no member of the se'tvice should, by convection,
be kept on probation for more than double the normal
period i.e. four years. Accordingly, a probationer, who
does not complete the probationers' final examination
within a period of four years, should ordinarily be dis-
charged from the service." B

It is not disputed that the circular of the Home Ministry was with
reference to the Indian Police Service (Probation} Rules. We have not

- been shown that these instructions run counter to the rules. It is well
settled that within the limits of executive powers under the Constitu-
tional scheme, it is open to the appropriate Government to issue
instructions to cover the gap where there be any vacuum or lacuna.
Since instructions do not run counter to the rules in existence, the
c

validity of the instructions cannot be disputed. Reliance has been
placed in the courts below on the constitution Bench Judgment of this
Court, and which reported in (1968] I SCR Ill (Sant Ram Sharma v.
State of Rajasthan and anr.) where Ramaswami J. speaking for the D
Court stated thus:

" ..... We are unable to accept this argument as correct. It is true
that there is no specific provision in the Rules laying down the
principle of promotion of junior or senior grade officers to selection
grade posts. But that does not mean that till statutory rules are E
framed in this behalf the Government cannot issue adminis~.ative
instructions regarding the principles to be followed in promotions of
the officers concerned to selection grade posts. It is true that
Government cannot amend or supersede statutory rules by adminis-
trative instructions, but if the rules are silent on any particular point
Government can fill up the gaps and supplement the mies and issue F
instructions not inconsistent with the rules already framed.

We are of the view that the rules read with instructions create a
situation as arose for consideration by this Court in the .case of State of
Punjab v. Dharam Singh, (1968] 3 SCR I. The Constitution Bench of
~· this Court in that case interpreted the Punjab Educational Service G
(Provincialised Cadre) Class III Rules and found that there was a
maximum limit of three years beyond which the period of probation
could not be extended. When an officer appointed initially on proba-
tion was found to be continuing in service beyond three years without a
written order of confirmation, this Court held that it tantamounts to
confirmation. In view of what we have stated above we are in argee- H
1096 SUPREME COURT REPORTS [1987] 3 S.C.R.
).
A ment with the High Court about the combined effect of the rules and
instructions. We hold that the respondent stood confirmed in the cadre
on the relevant date when he was discharged. For a confirmed officer
in the cadre, the Probation Rules did not apply and therefore, pro-
ceedings in accordance with law, were necessary to terminate service.
That exactly was the ratio of the decision in Moti Ram Deka etc. v.
B
General Manager, N.E.F. Railways, Maligaon, Pandu etc., [1964] 5
SCR 683. On the analysis indicated above, the net result, therefore, is
that the respondent No. 1 had become a confirmed officer of the
Gujarat I.P.S. cadre and under rule 12(bb) of the Probation Rules his

c
services could not be brought to an end by the impugned order of
discharge.

The appeal fails and is dismissed. There will be no order as to Y
-
costs.

N.P.V. Appeal dismissed.