Very Important Point
The decision of 2 Judge Bench of Supreme court in Dayaram Dayal’s case (1997) 8 Supreme 8 was not correctly decided regarding interpretation of Rule 24 of M.P. Judicial Service (Classification, Recruitment and Conditions of Service) Rules 1955. The correct interpretation is that the rule 24 does not postulate that services of a judicial officer shall be deemed to have been confirmed on the expiry of period of 4 years, which is the maximum period of probation, when during the aforesaid period an order of termination was passed. The confirmation is subject to fitness and passing Deptt. Examinations during the probation period. Services can be terminated after expiry of Probation period if judicial officer is found unfit during probation period.

Headnote:Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955—Rules 24(1) and 24(3)—Respondents, Judicial Officers, appointed temporarily to cadre of Civil Judge—Rule 24(1) providing training of 6 months and maximum probation of 2+2=4 years—Confirmation subject to fitness and having passed Deptt. examinations—Rule 24(3) providing that if he is not found fit or having not passed Deptt. Examinations the Governor may AT ANY TIME THEREAFTER dispense with his services— Respondents not found fit during first 2 years of probation—Again not found fit in 2nd period of probation —Services terminated a few months ,in same cases, few years after expiry of maximum probation—Challenged in High Court—Single Judge dismissed—D.B. allowed—Appeals against to Supreme Court—Whether decision of Supreme Court in Dayaram Dayal’s case was correctly decided that Rule 24 of the Rules postulates that the services of Judicial Officers shall be deemed to have been confirmed as the expiry of probation period of four years, which is the maximum period of probation, when during the aforesaid period no order of termination was passed? (No)— Case law discussed—Appeal allowed.
       Held : The question of deemed confirmation in service Jurisprudence, which is dependent upon language of the relevant service rules, has been subject matter of consideration before this Court times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. Other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry order of termination has not been passed. The last line of cases is where though under the rules maximum period of probation is prescribed, but the same require a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor the person concerned has passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired. (Para 11)
       Regarding correct ratio of Constitution Bench decision in State of Punjab v. Dharam Singh :
       Held : From the aforesaid passage, it would be clear that as rule 6 did not require a person to pass any test or to fulfil any other condition before confirmation, this Court was of the view that upon the expiry of maximum period of probation the probationer could be deemed to have been confirmed which goes to show that if such provision would have been there in the rules, the conclusion might have been otherwise. (Para 20)
       Regarding correct ratio of 7 Judge Bench decision in Shamsher Singh v. State of Punjab & Anr. :
       Held : In the case of Shamsher Singh, law laid down by the Constitution Bench in the case of Dharam Singh was approved, but it was distinguished because of language of the relevant rule especially Explanation to rule 7(1) and it was held that the provision prescribing the maximum period of probation as three years is directory and not mandatory and the period of probation shall be deemed to have been extended even beyond the period of three years till proceeding commenced by the notice came to an end either by confirmation or discharge of the probationer. It was specifically laid down in that case that no confirmation by implication can arise in view of the nature of relevant rules. But as it was found by the Court therein that services of both the persons aforementioned were terminated on serious charges of misconduct which could have been done by holding an inquiry only as required under rule 9 and the same having not been done, the orders of termination were held to be bad being in infraction of the provisions of rule 9 of the aforesaid Rules as well as Article 311 of the Constitution and consequently the same were quashed by this Court. (Para 25)
       Regarding Dayaram Dayal case :
       Held : In our considered opinion in the case of Dayaram Dayal (supra), rule 24 of the Rule has not been interpreted in its proper perspective. A plain reading of different sub-rules of rule 24 would indicate that every candidate appointed to the cadre will go for initial training for six months whereafter he would be appointed on probation for a period of 2 years and the said period of probation would be extended for a further period not exceeding 2 years. Thus, under sub-rule (1) of rule 24 a maximum period of 4 years’ probation has been provided. The aforesaid sub-rule also stipulates that at the end of the probation period the appointee could be confirmed subject to his fitness for confirmation and to have passed the departmental examination, as may be prescribed. In the very sub-rule, therefore, while a maximum period of probation has been indicated, yet the question of confirmation of such a probationer is dependent upon his fitness for such confirmation and his passing of the departmental examination by the higher standard, as prescribed. It necessary stipulates that question of confirmation can be considered at the end of the period of probation, and on such consideration if the probationer is found suitable by the Appointing Authority and he is found to have passed the prescribed departmental examination then the Appointing Authority may issue an order of confirmation. It is too well settled that an order of confirmation is a positive act on the part of the employer which the employer is required to pass in accordance with the Rules governing the question of confirmation subject to a finding that the probationer is in fact fit for confirmation. This being the position under sub-rule (1) of rule 24, it is difficult for us to accept the proposition, broadly laid down in the case of Dayaram Dayal (supra), and to hold that since a maximum period of probation has been provided thereunder, at the end of that period the probationer must be held to be deemed to be confirmed on the basis of the judgment of this Court in the case of Dharam Singh (supra). (Para 36)
       Held further : In the case of the Judicial Officers who are respondents before us, it is the positive case of the High Court that their case for confirmation was considered while they were continuing on probation but the Full Court did not consider them suitable for confirmation and they were given a further opportunity of improving themselves. Even notwithstanding such opportunity they having failed to improve themselves and the High Court having considered them unsuitable for confirmation the order of termination emanated. It is difficult for us to comprehend that a probationer while continuing on probation, on being considered is found unsuitable for confirmation by the Appointing Authority and yet it can be held to be a deemed confirmation because of maximum period of probation indicated in the rule, merely because instead of termination of the services he was allowed to continue and was given an opportunity for improving and even after the opportunity he failed to improve and finally the Appropriate Authority finding him unsuitable directs termination of his services. The very fact that sub-rule (1) of rule 24 while prescribing a maximum period of probation therein entitles a probationer for being considered for confirmation and confers a right on the Appointing Authority to confirm subject to the fitness of the probationer and subject to his passing the higher standard of all departmental examination must be held to be an inbuilt provision in sub-rule (1) which would negative the inference of a confirmation in the post by implication, as interpreted by this Court in the case of Dharam Singh (supra) while interpreting rule 6 of the Punjab Educational Services (Provincialised Cadre) Class III Rules, 1961. Ordinarily a deemed confirmation of a probationer arises when the letter of appointment so stipulates or the Rules governing service condition so indicate. In the absence of such term in the letter of appointment or in the relevant Rules, it can be inferred on the basis of the relevant Rules by implication, as was the case in Dharam Singh (supra). But it cannot be said that merely because a maximum period of probation has been provided in Service Rules, continuance of the probationer thereafter would ipso facto must be held to be a deemed confirmation which would certainly run contrary to Seven Judge Bench Judgment of this Court in the case of Samsher Singh (supra) and Constitution Bench decisions in the cases of Sukhbans Singh (supra), G.S.Ramaswamy (supra) and Akbar Ali Khan (supra). Apart from sub-rule (1) of rule 24 of the Rules, the effect of sub-rule (3) may also be considered. Under sub-rule (3), if a probationer has been found unsuitable for the service during the period of probation or he has failed to pass the prescribed departmental examination then the Governor at any time thereafter may dispense with his services. The power for dispensing with services has been conferred upon the Governor to be exercised at any time after the period of probation if the probationer is found unsuitable or if he has failed to pass the prescribed departmental examination. If the interpretation given by this Court in the case of Dayaram Dayal (supra) to sub-rule (1) of rule 24 is held to be correct then this power of the Governor under sub-rule (3) would become otiose inasmuch as a probationer would acquire a deemed confirmation on the expiry of the maximum period of probation provided in sub-rule (1). Sub-rule (3) of rule 24, therefore, is another inbuilt provision in the Rules which can be held to be a special provision to negative the inference of deemed confirmation on the expiry of the maximum period of probation indicated in sub-rule (1), as has been observed by this Court in the case of Dayaram Dayal (supra) also and which is in conformity with the decisions of this Court in the cases of Samsher Singh (supra), Sukhbans Singh (supra), G.S. Ramaswamy (supra) and Akbar Ali Khan (supra). Rule 24, on a plain grammatical meaning being given to the words used therein does not provide for a deemed confirmation on expiry of the maximum period of probation, and on the other hand it contemplates a positive order of confirmation to be passed by the Appropriate Authority, if the Authority concerned is satisfied about the fitness of the probationer for confirmation, and if the probationer has passed the departmental examination, as prescribed. Mere continuance of the probationer after considering his case for confirmation during the period of probation and finding him unsuitable for confirmation by the decision of the Full Court, by no stretch of imagination can be construed to be a confirmation by implication, as was held by this Court in the case of Dharam Singh (supra) and that can never be the intention of the Rule Making Authority. If the Full Court would not have considered the suitability of the probationer for confirmation while the probation period was continuing, the matter might have stood on a different footing. The importance of the suitability of the officer for confirmation need not be emphasised and such suitability under the Rules is required to be adjudged by the Full Court of the High Court. The Constitution itself while indicating that the claims of Scheduled Castes and Scheduled Tribes to services and posts shall be taken into consideration in Article 335, have further added that such claim should be consistent with maintenance of efficiency of administration. The Subordinate judiciary is the foundation on which the super-structure is built. It would be the solemn duty of every authority on whom the administration of justice vests, to see that the said foundation is not shaken by any process including the process of allowing adjudged unsuitable person to man the post. While interpreting rule 24 and considering the question whether a deemed confirmation can at all be conferred, the aforesaid principle must be borne in mind and unless the Rules explicitly say so, by implication a status of deemed confirmation ought not to be granted, particularly when the Full Court of the High Court has adjudged the Judicial Officers unsuitable. In this view of the matter, we have no hesitation to come to a conclusion, that the decision of this Court in the case of Dayaram Dayal (supra) does not lay down the correct position with regard to the interpretation of rule 24 of the Rules. As has been stated earlier in this batch of cases, the question of confirmation of each of the probationers was considered by the Full Court within the maximum period of probation provided in sub-rule (1) of rule 24, but the Full Court found them not fit for confirmation and instead of adjudging them unsuitable and recommending for termination, the Court deferred their case for further consideration and thereby granted further opportunity for proving their worth for confirmation. Such continuance of the probationers, in our considered opinion, would not confer the status of deemed confirmation, merely because a maximum period of probation has been provided there in sub-rule (1) of rule 24. (Paras 37, 38, 39 & 40)
       Held finally : In the result, the appeals are allowed, judgment passed by Division Bench of the High Court is set aside and all the writ applications stand dismissed. In the circumstances of the case, we direct that the parties shall bear their own costs. (Para 41)

Judgment

B.N. Agrawal, J.—Leave granted.

2. Common judgment impugned in these appeals has been passed by Madhya Pradesh High Court in Letters Patent Appeals preferred by the respondents in these appeals, excepting Civil Appeal arising out of SLP (C) No. 11675 of 2000, which was preferred by the present appellant, whereby the Letters Patent Appeal preferred by the appellant has been dismissed and the order of learned Single Judge allowing the writ application upheld, but other appeals have been allowed and the judgment rendered by learned Single Judge dismissing the writ applications has been set aside.

3. Necessary facts giving rise to these appeals are that respondents in these appeals, excepting Civil Appeals arising out of SLP (C) Nos. 11675 and 11704 of 2000, were appointed as Civil Judges (Trainee), Class II, on different dates temporarily on officiating basis upon the recommendations of the State Public Service Commission under the provisions of Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955 (hereinafter referred to as ‘the Rules’) and they were required to undergo six months training before being appointed on probation for a period of two years. After completion of six months’ training, their probation period started on different dates as per rule 24 of the Rules wherein the initial probation period was two years which could be extended for a further period of two years, meaning thereby the maximum period of probation under the Rules was four years. Cases of these respondents were considered for confirmation within a period of four years but they were not found fit by the Full Court, as such the same were deferred on the first occasion and later on, after expiry of four years period of probation. Case of only respondent in Civil Appeal arising out of SLP (C) No. 11457 of 2000 was considered only once and that also after the probation period and he having not been found fit for confirmation, upon the recommendation of the High Court, his service was terminated and so far others are concerned, their cases for confirmation were considered, even after probation period, every year for a couple of years, but, as in spite of giving repeated opportunities to improve themselves, they could not improve, ultimately the Full Court recommended for terminating their services whereupon the same were terminated. Services of the respondents in the aforesaid five appeals, excepting Civil Appeals arising out of SLP (C) No. 11457/2000, were terminated after few years of expiry of four years period of probation whereas the service of respondent in Civil Appeal arising out of SLP (C) No. 11457/2000 was terminated within few months from the expiry of period of probation.

4. One Samarudas Banjare, whose heirs are respondents in Civil Appeal arising out of SLP (C) No. 11675 of 2000, was appointed as Civil Judge (Trainee) and he joined as such on 15.7.1976 and after completing six months’ training his probation period started on 14.1.1977 and expired on 13.1.1981. His case for confirmation was considered by the Full Court and he was not found fit for confirmation. Therefore, on 29.8.1981 the Full Court recommended to terminate his services whereupon on 19.11.1981 the same were terminated. The said termination order was challenged before the High Court in a writ application which was allowed and reinstatement order was passed whereupon he joined on 25.9.1985 and when the said order of reinstatement was challenged before this Court, the same was upheld, but it was directed that Shri Banjare should be kept under close watch for three years. Thereafter case of this employee was considered every year, but he was not found fit for confirmation and accordingly it was resolved to terminate his services which were terminated in the year 1992.

5. Respondent in Civil Appeal arising out of SLP (C) No. 11704/2000 was appointed as Civil Judge (Trainee) on 27.10.1987 and after completing six months’ training she

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2001 Supreme(SC) 1092

Cases Referred (14)