The decision emphasizes that the terms of appointment and Rules governing probation play a crucial role in determining the validity of probation extension and automatic confirmation.

Rajiv Sahai Endlaw, J.

1. The petition impugns the Office Order dated 14th December, 2010 of the Respondent No. 2 Kendriya Bhandar according sanction for extending the probation of the Petitioner for a period of one year with effect from 16th July, 2010, for the reason of some complaints against the Petitioner being under investigation in Vigilance Division.

2. The Petitioner was appointed to the post of Assistant Manager in the Respondent No. 2 vide appointment letter dated 1st July, 2008, Clause 2 whereof was as under:

2. You will be on probation for a period of two years in the first instance, which will be extendable at the discretion of the Management during which one month notice from either side will be necessary before leaving / termination of the services. After satisfactory completion of the probation period, your services will be confirmed in the grade / post and thereafter three months notice will be necessary from either side before leaving / terminating the services.

3. The contention of the Petitioner is that he completed the period of probation of two years on 16th July, 2010; that he has very good ACR; that he was not communicated prior to 16th July, 2010 or immediately thereafter of extension of his probation; that he is thus deemed to have been confirmed and the order dated 14th December, 2010 extending his probation by one year retrospectively with effect from 16th July, 2010, issued six months after the expiry of two years of probation period is mala fide. He contends that the notice of the petition should be issued and the Respondents should be asked to explain as to why the period of his probation has been extended, that too after six months of completion of initial period of two years and as to why he has not been confirmed. Reliance is placed on Rajinder Singh Chauhan v. State of Haryana (2005) 13 SCC 179 and on the Office Memorandums dated 15th April, 1959 and 30th August, 2010 of the Ministry of Home Affairs and Ministry of Personnel respectively of the Government of India, relating to "probation".

4. The question whether there can be any automatic/deemed confirmation pursuant to the completion of probation period has recently been revisited in Kazia Mohammed Muzzammil v. State of Karnataka (2010) 8 SCC 155 which judgment also formed the basis for issuance of the Office Memorandum dated 30th August, 2010 (supra). The Apex Court noticed that though jurisprudence has for sometime past recognized automatic or deemed confirmation after an employee has completed the maximum probation period provided under the Rules where after his entitlement and conditions of service are placed at parity with the confirmed employee but there would be no deemed confirmation after completion of maximum probation period if not so provided under the Rules governing the employee. It was held that the period of probation remains in force till a written document of successful completion of probation is issued by the competent authority. It was further held that where the Rules require a definite act on the part of the employer before an officer on probation can be confirmed, there can be no deemed or automatic confirmation. Deemed / automatic confirmation was held to be applicable where the Rules do not contemplate issuance of such specific order in writing but merely require the probationer to take an exam or clear some other test for being confirmed, upon passing / clearing the said test.

5. Seen in the aforesaid light, the term of appointment in the present case clearly provided for extension of probation "after the period of two years in the first instance" and also provided for confirmation after satisfactory completion of probation period. In the present case, admittedly there has been no act of confirmation till now.

6. As far as the judgment in Rajinder Singh Chauhan (supra) relied upon by the counsel for the Petitioner is concerned, the same was a case of continuing even after the maximum period of probation. In the p