THE DIRECTOR, MINISTRY OF COAL AND ORS.versusBIMLENDU KUMAR

A           THE DIRECTOR, MINISTRY OF COAL AND ORS.
                               v.
                       BIMLENDU KUMAR

                            OCTOBER 28, 1996

B             (K. RAMASWAMY AND G.B. PATTANA!K, JJ.]

         Service Law :

         Coal Mines Provident Fund (Employees Recruitment) Rules,1982:

c       Rule ?-Termination ofservice-Probation not extended beyond three
  years-Held: there was no express order ofconfirmation ofprobation and
  substantive appointment-Must therefore be deemed that after expiry of
  three years he remained to be a probationer-Satisfactory completion of
  probation and declaration of probation are two conditions precedent to
D eventual substantive appointment to the post in which he was recruited
  and appointed on probation-Direction regarding payment ofcompensation
  also not correct.

         Om Prakash Maurya v. UP. Cooperative Sugar Factories Federation,
    Lucknow and Ors., (1986] Supp. SCC 95, held inapplicable.
E
         CIVIL APPELLATE JURISDICTION : Civil Appeal No. I 4580 of          ••
    1996.

         From the Judgment and Order dated 24.11.94 of the Patna High
F Court in C.W.J.C. No.I II I of 1989(R)
         P.P. Malhotra, Ms. Indira Sawhney, Deepak Dewan and Arvind K.
    Sharma for the Appellants.

G        Brej K. Mishra and Ejaz Maqbool for the Respondent.

         The following Order of the Court was delivered:

         Leave granted.

H        We have heard learned counsel for the parties.
                                      24
            DIRECTOR, MIN. OF COAL v. BIMLENDU KR.                       25


      This appeal by special leave arises from the order of the Division        A
Bench of the Patna High Court made on 24.11.1994 in LPA No.35/91 and
the order of the learned single Judge made on 26.2.1991 in CWJC No.1111/
89.

       The admitted position is that the respondent was appointed on
probation to a temporary post under Ruic 7( 1) of the Coal Mines Provident B
Fund (Employees Recruitment) Rules, 1982 (for short, the 'Rules'). His
appointment was terminated on May 14, 1989 which was challenged by
contending that since his probation was not extended beyond three years
under Rule 7(6) of the Rules, the order of termination is bad in law. The
learned single Judge has held that he is a temporary appointee; therefore,
his termination is bad in law. He is accordingly entitled to the payment of C
the salary for the period of three years and three months. On appeal, the
Division Bench set aside the order of the learned single Judge and held
that the respondent should be deemed to have been confirmed and directed
payment of the wages amounting to six years salary. Thus, this appeal by
special leave.
                                                                                D
      The question is: whether the view taken by the Division Bench and
the learned single Judge is correct in Law? Rule 7( 1) contemplates that the
person appointed to a post by directed recruitment, with a view to his
eventual substantive appointment to that post, shall be on probation for a
period of two years. For an eventual substantive appointments, on successful
completion of pr~bation, Rule 7(6) contemplates thus:                           E
          "(6) the appointing authority may in suitable case extend the
          period of probation by not more than one year, but no person
          shall in any case by kept on probation for a total period exceeding
          three years in any post. In the case of extension of probationary
          period the employee shall be informed of his short coming well        F
          in advance to enable him to make special efforts for
          improvement."

      Sub-rule (7) of Rule 7 speaks of confirmation of the probationer
after completion of the period of probation. It envisages thus:                 G

          "(7) Confirmation of a probationer after completion of the period
          of probation shall not be automatic. As long as no specific order
          of confirmation or satisfactory completion of probation is issued
          to a probationer such probationer shall be deemed to have
          continued on probation notwithstanding sub-rule (6)."                 H
     26                      SUPREME COURT REPORTS (1996] SUPP. 8 s.c.R»


A        A conjoint reading of Rule 7(1 ), 7(6) and 7(7) would show that
  Rule 7(6) is subject to the operation of Rule 7(1). It is, no doubt, true, as
  contended by Mr. P.P. Malhotra, learned senior counsel for the appellants,         •
  that after the expiry of the period of two years, the appellant has power to
  extend the period of probation for more than three years to enable the
  probationer to improve his efficiency in the service so that he could improve
B his efficiency as may be pointed out, and improve his quality of service
  for confirmation. However, in view of the language in subrule (7) of Rule
  7, the operation of Rule 7(6) is subject to the confirmation on satisfactory
  completion of the probation. In this case, there is no express order of
  confirmation of probation and substantive appointment, after completion
  of the probation. It must be deemed that, after the expiry of three years,
C he remained to be a probationer. Therefore, the declaration that he was a
  confirmed probationer is bad in law. Learned counsel seeks to place reliance
  on the judgment of this Court in Om Prakash Maurya v. U.P. Cooperative
   Sugar Factories Federation, Lucknow and Ors. (1986) Supp. SCC 95 in
   particular, in paragraph 3 thereof. In that case, there was no provision
   similar to sub-rule (7) of Rule 7. That relates to appointment by promotion
D and the period of probation was prescribed for two years. Under this
   situation, this Court had held that after the expiry of two years, he cannot
   be reverted to the substantive post but deemed to be confirmed. The ratio
   therein has no application to the facts situation and the rule position in this
   case. The probationer appointed under Rule 7(1) requires to be appointed
   eventually to a substantive appointment by separate order. Therefore,
E satisfactory completion of the Confirmation are the declaration of the
   probation are two conditions precedent to eventual substantive appointment            •
   to the post in which he was recruited and appointed on probation.

           In the above legal position, the view taken by the Division Bench is
     clearly in error. The learned single Judge also was not right in directing to
·F   pay compensation for the period o(three years and three months in view
     of the fact that probation was terminated in terms of Rule 7(7) of the
     Rules.
           The appeal is accordingly allowed. The writ petition and the LPA
     stand dismissed. No costs.
G G.N.                                                          Appeal allowed.