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1997(8) Supreme 8
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
Mrs. Sujata V. Manohar and M. Jagannadha Rao, JJ.
Dayaram Dayal -Appellant
versus
State of M.P. & Anr. -Respondents
Civil Appeal No. 9569 of 1995
Decided on 28-8-1997
Counsel for the Parties :
For the Appellant : Prakash Srivastava, Advocate for Ms. Pratibha Jain, Advocate.
For the Respondents : S.K. Agnihotri, Advocate.
Held that if the rule, as in the case before them provided for a maximum, then that was an implication that the officer was not in the position of a probationer after the expiry of the maximum period. The presumption of his continuing as a probationer was negatived by the fixation of a maximum time-limit for the extension of probation. The termination after expiry of four years, that is after the maximum period for which probation could be extended was held to be invalid. This view has been consistently followed in Om Prakash Maurya v. U.P. Coop. Sugar Factories Federation (1956 Suppl. SCC 95); M.K. Agarwal v. Gurgaon Gramin Bank (1987 Suppl. SCC 643), and State of Gujarat v. Akhilesh C. Bhargav (1987(4) SCC 482), which are all cases in which a maximum period for extension of probation was prescribed and termination after expiry of the said period was held to be invalid inasmuch as the officer must be deemed to have been confirmed. (Para 9)
Further held, even though the maximum period for extension could lead to an indication that the officer is deemed to the confirmed, still special provisions in such rules could negative such an intention. (Para 12)
It is, therefore, clear that the present case is one where the Rule has prescribed an initial period of probation and then for the extension of probation subject to a maximum, and therefore the case squarely falls within the second line of cases, namely, Dharam Singh s case and the provision for a maximum is an indication of an intention not to treat the officer as being under probation after the expiry of the maximum period of probation. It is also significant that in the case before us the effect of the rule fixing a maximum period of probation is not whittled down by any other provision in the rules such as the one contained in Samsher Singh s case or in Ashok Kumar Mishra s case. Though a plea was raised that termination of service could be effected by serving one months notice or paying salary in lieu thereof, there is no such provision in the order of appointment nor was any rule relied upon for supporting such a contention. (Para 13)
The termination order is set aside and it will be deemed that the appellant s services were confirmed on the expiry of 4 years of probation as Civil Judge i.e. w.e.f. 22.5.1990 and the appellant is reinstated into service w.e.f. 22.5.1990 and will be entitled to all arrears of emoluments from the date of termination, namely, 8.11.1993 upto the date of reinstatement and he shall also be entitled to all consequential benefits, in accordance with law. It will be open to the respondents to hold a departmental enquiry and terminate his services or otherwise punish him if charges are proved against him. (Para 16)
JUDGMENT
M. Jagannadha Rao, J.-The appellant, after going through the process of selection by the Public Service Commission, was appointed as Civil Judge, Class 2 in the Madhya Pradesh Subordinate Judicial Service by an order dated 22.10.1985. The order stated that he would have to undergo training for six months and be on probation for 2 years. The appellant completed training on 29.5.1986 and was put on probation for 2 years. He completed probation by 22.5.1988. On 2.3.1990, he was placed under suspension pending same charges. The charges were served on 3.3.1990, an inquiry report was given by the District Judge on 12.4.1991 and the High Court, in its Full Court Meeting dated 27/28.4.1991 resolved to impose a punishment of stoppage of two annual increments with cumulative effect. On 7.8.1991, the suspension was revoked and he resumed duties as Civil Judge Class II w.e.f. 7.8.1991. There were certain adverse remarks in the ACRs during 1987-88, 88-89, 89-90, 91-92 and 92-93. The inspection Judge of the High Court who inspected appellant s court on 26.2.92 also referred to certain irregularities. In the Full Court Meeting dated 3.5.92, the appellant was not found fit for confirmation and his case for promotion as Civil Judge, Class I was postponed. In a subsequent Full Court Meeting date 30.4.93, 1st, 2nd May, 1993, it was decided that appellant was not fit for confirmation and looking at his overall performance, his services should be terminated after giving him one month s salary in lieu of notice. The resolution was forwarded to the Madhya Pradesh State Government on 19.7.1993. The State Government by orders dated 8.11.1993, terminated the appellant s services by paying one month s salary in lieu of notice. The order was served on 17.12.1993. The writ petition filed by the appellant being MP 627/94 was dismissed by the learned Single Judge on 25.4.1994.
2. The learned Single Judge held that during the period of probation, the appellant was found guilty and punished by orders dated 23.8.1991 by stoppage of 2 increments with cumulative effect; that the appellant s court was inspected by the inspection Judge and the appellant s work was not found satisfactory and adverse remarks were made and duly communicated to the appellants; that the overall performance was considered by the Full Court Meeting and it was decided to "discharge" him from service by giving him one months salary in lieu of notice and that this was not illegal. In LPA 27/94, the Division Bench in its judgment dated 7.7.1994 dismissed the appeal. It was contended in the appeal that the appellant was appointed in 1985 prescribing a period of 2 years probation, that according to the M.P. Judicial Services (Classification, Recruitment & Condition of Service) Rules, 1955, probation cannot be extended beyond 2 years in addition to the initial period of 2 years (i.e. in all four years) and that therefore the appellant must be deemed to have been confirmed and hence a simple order of termination by issuing one month s notice or one month salary in lieu of notice, was not sufficient. This contention was rejected stating that "the 1955 Rules are not applicable" and that therefore, the "so called limitation on the extension of probation period cannot be accepted". The charges framed against the appellant were acts of misconduct from April, 1989, which were well within the period of four years of service of the appellant. It was held that, in the circumstances, there could be no presumption that by not extending the probation or by not confirming him within the period of four years, it was intended to confirm him it service. The contention as to lack of opportunity was rejected. It is against this judgment that the appeal has been filed by the writ petitioner.
3. In this appeal, it is contended by the learned counsel for the appellant that the relevant rule in Madhya Pradesh applicable to Judicial Officers Class II, namely, Rule 24 of the M.P. Judicial Services (Classifica
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