Whether termination during PROBATION could be viewed as a punitive action?

Seven Judge Bench of Supreme Court, in the case of Shamsher v. State of Punjab (1974) 2 SCC 834 was concerned primarily, with the question whether termination during PROBATION could be viewed as a punitive action in some case or always has to be as discharge simplicitor during the said period. The Court expressed the view that no abstract proposition can be laid down that where the services of a PROBATIONer are terminated without saying anything more in the order of termination, it can never amount to punishment. In the facts and circumstances of the case if the PROBATIONer is discharged on the ground of insufficiecy or for similar reasons without a proper enquiry and without his getting a reasonable opportunity to show cause against his discharge it may in a given case amount to removal from service within Article 311(2) of the Constitution of India. But while dealing with this principle question the Bench even discussed, at some length, whether a PROBATIONer can automatically be confirmed on the expiry of period of PROBATION.

The Court considered the earlier judgment of this Court in Dharam Singh’s case (supra) discussing the case of appellant, who had completed his initial period of two years’ PROBATION on 11th November, 1967 and the maximum period of three years’ PROBATION on 11th November, 1968 and by reason of the fact that he continued in service after the expiry of the maximum period of PROBATION he became confirmed, was the contention raised before the Bench. In that case the relevant Rule 7(1) provided that every subordinate Judge, in the first instance, be appointed on PROBATION for two years but this period may be extended from time to time expressly or impliedly so that the total period of PROBATION does not exceed three years. Explanation to Rule 5(1) further provided that period of PROBATION shall be deemed to have been extended if a Subordinate Judge is not confirmed on the expiry of his period of PROBATION. The appellant had also placed reliance on Dharam Singh’ case (supra) to contend that the only view possible was that he would be deemed to have been confirmed. However, on the facts of the case before the Bench the Court held as under:

Confirmation by implication

Any confirmation by implication is negatived in the present case because before the completion of three years the High Court found prima facie that the work as well as the conduct of the appellant was unsatisfactory and a notice was given to the appellant on October 4, 1968 to show cause as to why his services should not be terminated. Furthermore, Rule 9 shows that the employment of a PROBATIONer can be proposed to be terminated whether during or at the end of the period of PROBATION. This indicates that where the notice is given at the end of the PROBATION the period of PROBATION gets extended till the inquiry proceedings commenced by the notice under Rule 9 come to an end. In this background the explanation to Rule 7(1) shows that the period of PROBATION shall be deemed to have been extended impliedly if a Subordinate Judge is not confirmed on the expiry of this period of PROBATION. This implied extension where a Subordinate Judge is not confirmed on the expiry of the period of PROBATION is not found in Dharam Singh’s case., AIR 1968 SC 1210 This explanation in the present case does not mean that the implied extension of the probationary period is only between two and three years. The explanation on the contrary means that the provision regarding the maximum period of PROBATION for three years is directory and not mandatory unlike in Dharam Singh case and that a PROBATIONer is not in fact confirmed till an order of confirmation is made.

In this context reference may be made to the proviso to Rule 7(3). The proviso to the rule states that the completion of the maximum period of three years’ PROBATION would not confer on him the right to be confirmed till there is a permanent vacancy in the cadre. Rule 7(3) states that an express order of confirmation is necessary. The proviso to Rule 7(3) is in the negative form that the completion of the maximum period of three years would not confer a right of confirmation till there is a permanent vacancy in the cadre. The period of PROBATION is therefore extended by implication until the proceedings commenced against a PROBATIONer like the appellant are concluded to enable the Government to decide whether a PROBATIONer should be confirmed or his services should be terminated. No confirmation by implication can arise in the present case in the facts and circumstances as also by the meaning and operation of Rules 7(1) and 7(3) as aforesaid.

It is necessary at this stage to refer to the second proviso to Rule 7(3) which came into existence on November 19, 1970. That proviso of course does not apply to the facts of the present case. That proviso states that if the report of the High Court regarding the unsatisfactory work or conduct of the PROBATIONer is made to the Governor before the expiry of the maximum period of PROBATION, further proceedings in the matter may be taken and orders passed by the Governor of Punjab dispensing with his services or reverting him to his substantive post even after the expiry of the maximum period of PROBATION. The second proviso makes explicit which is implicit in Rule 7(1) and Rule 7(3) that the period of PROBATION gets extended till the proceedings commenced by the notice come to an end either by confirmation or discharge of the PROBATIONer.

In the present case, no confirmation by implication can arise by reason of the notice to show cause given on October 4, 1968 the enquiry by the Director of Vigilance to enquire into allegations and the operation of Rule 7 of the Service Rules that the PROBATION shall be extended impliedly if a Subordinate Judge is not confirmed before the expiry of the period of PROBATION. Inasmuch as Ishwar Chand Agarwal was not confirmed at the end of the period of PROBATION confirmation by implication is nullified.

14. Before we discuss the subsequent judgment to these landmark judgments of this Court it will be quite appropriate to notice that the divergent views by different Benches of this Court and, more so, by different High Courts have been the subject matter of concern and have been noticed again by different Benches of this Court. In the case of Dayaram Dayal v. State of M.P., (1997) 7 SCC 443. The Court specifically noticed the two line of rulings pronounced by this Court in its different judgments. At the cost of some repetition, we may notice that one line of judgments held that mere continuation of service beyond the period of PROBATION does not amount to confirmation unless it was so specifically provided. The other line, though in very few cases, but, has been taken by this Court is that where there is provision in the Rules for initial PROBATION and extension thereof, a maximum period of such extension is also provided beyond which it is not permissible to extend PROBATION. However, the Bench dealing with the case of Dayaram Dayal’s case (supra) did demonstrate that there was not any serious conflict between the two sets of decisions and it depends on the conditions contained in the order of appointment and the relevant rules applicable. Though the Bench in that case held that there was confirmation of the employee and while setting aside the order of termination, granted liberty to hold departmental enquiry in accordance with law. In order to analyze the reasoning recorded by the Bench we may refer to the following paragraphs as they would throw proper insight into the discussion:

9. The other line of cases are those 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. A question as to its effect arose before the Constitution Bench in State of Punjab v. Dharam Singh, AIR 1968 SC 1210. The relevant rule there provided initially for a one-year PROBATION and then for extension thereof subject to a maximum of three years. The petitioner in that case was on PROBATION from 1-10-1957 for one year and was continued beyond the extended period of three years (in all four years) and terminated in 1963 without any departmental inquiry. A Constitution Bench of this Court referred Sukhbans Singh v. State of Punjab, AIR 1962 SC 1711; G.S. Ramaswamy v. Inspector General of Police, AIR 1966 SC 175 and State of U.P. v. Akbar Ali Khan, AIR 1966 SC 1842 cases and distinguished the same as cases where the rules did not provide for a maximum period of PROBATION but 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 Parkash Maurya v. U.P. Coop. Sugar Factories’ Federation, (1986) 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.

10. The decision of the Constitution Bench in State of Punjab v. Dharam Singh, AIR 1968 SC 1210 was accepted by the seven-Judge Bench in Samsher Singh v. State of Punjab, (1974) 2 SCC 831. However it was distinguished on account of a further special provision in the relevant rules applicable in Samsher Singh case. The rule there provided for an initial period of 2 years of PROBATION and for a further period of one year as the maximum. One of the officers, Ishwar Chand Agarwal in that case completed the initial period of 2 years on 11-11-1967 and the maximum on 11-11-1968, and after completion of total 3 years his services were terminated on 15-12-1969. But still Dharam Singh case was not applied because the Rules contained a special provision for continuation of the PROBATION even beyond the maximum of 3 years. The Explanation to Rule 7(1) stated (see p. 852) that the period of PROBATION shall be deemed extended if a Subordinate Judge is not confirmed on the expiry of his period of PROBATION. The Court held (p. 853) that this provision applied to the extended period of PROBATION. It observed: (SCC para 71)

71. … This explanation in the present case does not mean that the implied extension of the PROBATIONary period is only between two and three years. The explanation on the contrary means that the provision regarding the maximum period of PROBATION for three years is directory and not mandatory unlike in Dharam Singh case and that a PROBATIONer is not in fact confirmed till an order of confirmation is made.

(emphasis supplied)

Thus Samsher Singh case while it accepted Dharam Singh case is still not covered by that case because of the special Explanation which clearly deemed the PROBATION as continuing beyond the maximum period of PROBATION as long as no confirmation order was passed.

11. Similarly, the case in Municipal Corporation v. Ashok Kumar Misra, (1991) 3 SCC 325 accepted Dharam Singh case and the cases which followed it but distinguished that line of cases on account of another special provision in the rules. There the relevant rule provided for a maximum of one year for the extended period of PROBATION but there was a Note under Rule 8(2) of the Madhya Pradesh Government Servants General Conditions of Service Rules, 1961. Rule 8(2) of the Rules and the Note read:

8. (2) The appointing authority may, for sufficient reasons, extend the period of PROBATION by a further period not exceeding one year.

Note.–A PROBATIONer whose period of PROBATION is not extended under this sub-rule, but who has neither been confirmed nor discharged from service at the end of the period of PROBATION shall be deemed to have been continued in service, subject to the condition of his service being terminable on the expiry of a notice of one calendar month given in writing by either side.

It was held by this Court as follows: (SCC p. 328, para 4)

4. … Under the Note to Sub-rule (2) if the PROBATIONer is neither confirmed nor discharged from service at the end of the period of PROBATION, he shall be deemed to have been continued in service as PROBATIONer subject to the condition of his service being terminated on the expiry of a notice of one calendar month given in writing by either side.” The consequence of the Note was explained further as follows: (pp. 328-29)

As per Sub-rule (6), on passing the prescribed departmental examination and on successful completion of the period of PROBATION, the PROBATIONer shall be confirmed in the service or post to which he has been appointed. Then he becomes an approved PROBATIONer. Therefore, after the expiry of the period of PROBATION and before its confirmation, he would be deemed to have been continued in service as a PROBATIONer. Confirmation of PROBATION would be subject to satisfactory completion of the PROBATION and to pass in the prescribed examinations. Expiry of the period of PROBATION, therefore, does not entitle him with a right of deemed confirmation. The rule contemplates to pass an express order of confirmation in that regard. By issue of notice of one calendar month in writing by either side, the tenure could be put to an end, which was done in this case.

(emphasis supplied)

This Court had an occasion to review, analyse critically and clarify the principles on an exhaustive consideration of the entire case-law in two recent decisions reported in Dayaram Dayal v. State of M.P., (1997) 7 SCC 443 and Wasim Beg v. State of U.P., (1998) 3 SCC 321. One line of cases has held that if in the rule or order of appointment, a period of PROBATION is specified and a power to extend PROBATION is also conferred and the officer is allowed to continue beyond the prescribed period of PROBATION, he cannot be deemed to be confirmed and there is no bar on the power of termination of the officer after the expiry of the initial or extended period of PROBATION. This is because at the end of PROBATION he becomes merely qualified or eligible for substantive permanent appointment. The other line of cases are those where even though 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 Constitution Bench which dealt with the case reported in State of Punjab v. Dharam Singh, AIR 1968 SC 1210 while distinguishing the other line of cases held that the presumption about continuation, beyond the period of PROBATION, as a PROBATIONer stood negatived by the fixation of a maximum time- limit for the extension of PROBATION. Consequently, in such cases the termination after expiry of the maximum period up to which PROBATION could be extended was held to be invalid, inasmuch as the officer concerned must be deemed to have been confirmed.

11. The principles laid down in Dharam Singh case though were accepted in another Constitution Bench of a larger composition in the case reported in Samsher Singh v. State of Punjab, (1974) 2 SCC 831 the special provisions contained in the relevant Rules taken up for consideration therein were held to indicate an intention not to treat the officer as deemed to have been confirmed, in the light of the specific stipulation that the period of PROBATION shall be deemed to be extended if the officer concerned was not confirmed on the expiry of his period of PROBATION. Despite the indication of a maximum period of PROBATION, the implied extension was held to render the maximum period of PROBATION a directory one and not mandatory. Hence, it was held that a PROBATIONer in such class of cases is not to be considered confirmed, till an order of confirmation is actually made. The further question for consideration in such category of cases where the maximum period of PROBATION has been fixed would be, as to whether there are anything else in the rules which had the effect of whittling down the right to deemed confirmation on account of the prescription of a maximum period of PROBATION beyond which there is an embargo upon further extension being made, and such stipulation was found wanting in Dayaram Dayal case.

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14. As indicated by us, the Regulation deals with two different categories of cases — one about the “PROBATION” of an appointee other than by way of promotion and the other relating to “officiation” of a person appointed on promotion. The similarity of purpose and identity of object apart, of such provision, there is an obvious difference and positive distinction disclosed in the manner they have to be actually dealt with. The deliberate use of two different phraseology “PROBATION” and “officiation” cannot be so lightly ignored obliterating the substantial variation in the method of handling such categories of persons envisaged by the Regulations. The mere fact that a reference is made to Sub-regulation (3) also in the later part of Sub-regulation (8) of the Regulation could not be used to apply all the provisions relating to the category of appointees on “officiation” to the other category of appointees on “PROBATION”. The stipulation in Sub-regulation (8) of the Regulation when making the passing of an order, a condition precedent for satisfactory completion specifically refers only to the completion of “period of officiation”. Similarly, notwithstanding a reference made to Sub- regulation (3) along side Sub-regulation (4), in stipulating the consequences of any delay in making an order declaring satisfactory completion, the reference is confined only to deemed satisfaction and completion of “the period of officiation”, and not of PROBATION. Sub-regulation (9) of the Regulation insofar as it provides for confirmation as a sequel to declaration, only deals with a promotee to a temporary post and not of the other category. While dealing with the termination of a candidate, not found suitable for the post, Sub-regulation (3) of the Regulation envisages such termination being made at any time “within the period of PROBATION”, and not at any time after the completion of such maximum period of PROBATION. Consequently, the cases on hand also would fall within the category of cases dealt with in Dayaram Dayal case and Wasim Beg case and the services of the respondents could not be put an end to except by means of departmental disciplinary proceedings, after following the mandatory requirements of law. Therefore, the High Court cannot be faulted for interfering with the orders of termination of the services of the respondents.

Therefore, the appeals referred by the Corporation came to be dismissed as the employee had attained the status of confirmed employee.

Deemed confirmation in service

The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the 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 in 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. The 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 the officer concerned is deemed to have been confirmed upon expiry of the maximum period of PROBATION in case before its expiry the 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 requires 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 has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.

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35. In the case on hand, correctness of the interpretation given by this Court to Rule 24 of the Rules in the case of Dayaram Dayal v. State of M.P., (1997) 7 SCC 443 is the bone of contention. In the aforesaid case, no doubt, this Court has held that a maximum period of PROBATION having been provided under Sub-rule (1) of Rule 24, if a PROBATIONer’s service is not terminated and he is allowed to continue thereafter it will be a case of deemed confirmation and the sheet anchor of the aforesaid conclusion is the Constitution Bench decision of this Court in the case of State of Punjab v. Dharam Singh, AIR 1968 SC 1210. But, in our considered opinion in the case of Dayaram Dayal. Rule 24 of the Rules 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 his having 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 necessarily stipulates that the 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 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.

17. This view was followed by another two Judge Bench of this Court in a subsequent judgment relating to judicial officers in Registrar, High Court of Gujarat v. C.G. Sharma, (2005) 1 SCC 132 holding that termination was proper, no opportunity ought need to be granted because it was a matter of pure subjective satisfaction relating to overall performance. Referring to Rule 5(4) of Gujarat Judicial Service Recruitment Rules, 1961 the Court held as under:

26. A large number of authorities were cited before us by both the parties. However, it is not necessary to go into the details of all those cases for the simple reason that Sub-rule (4) of Rule 5 of the Rules is in pari materia with the Rule which was under consideration in the case of State of Maharashtra v. Veerappa R. Saboji (1979) 4 SCC 466 and we find that even if the period of two years expires and the PROBATIONer is allowed to continue after a period of two years, automatic confirmation cannot be claimed as a matter of right because in terms of the Rules, work has to be satisfactory which is a prerequisite or precondition for confirmation and, therefore, even if the PROBATIONer is allowed to continue beyond the period of two years as mentioned in the Rule, there is no question of deemed confirmation. The language of the Rule itself excludes any chance of giving deemed or automatic confirmation because the confirmation is to be ordered if there is a vacancy and if the work is found to be satisfactory. There is no question of confirmation and, therefore, deemed confirmation, in the light of the language of this Rule, is ruled out. We are, therefore, of the opinion that the argument advanced by learned Counsel for the respondent on this aspect has no merits and no leg to stand. The learned Single Judge and the learned Judges of the Division Bench have rightly come to the conclusion that there is no automatic confirmation on the expiry of the period of two years and on the expiry of the said period of two years, the confirmation order can be passed only if there is vacancy and the work is found to be satisfactory. The Rule also does not say that the two years’ period of PROBATION, as mentioned in the Rule, is the maximum period of PROBATION and the PROBATION cannot be extended beyond the period of two years. We are, therefore, of the opinion that there is no question of automatic or deemed confirmation, as contended by the learned Counsel for the respondent. We, therefore, answer this issue in the negative and against the respondent.

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43. But the facts and circumstances in the case on hand are entirely different and the administrative side of the High Court and the Full Court were right in taking the decision to terminate the services of the respondent, rightly so, on the basis of the records placed before them. We are also satisfied, after perusing the confidential reports and other relevant vigilance files, etc. that the respondent is not entitled to continue as a judicial officer. The order of termination is termination simpliciter and not punitive in nature and, therefore, no opportunity needs to be given to the respondent herein. Since the overall performance of the respondent was found to be unsatisfactory by the High Court during the period of PROBATION, it was decided by the High Court that the services of the respondent during the period of PROBATION of the respondent be terminated because of his unsuitability for the post. In this view of the matter, order of termination simpliciter cannot be said to be violative of Articles 14, 16 and 311 of the Constitution. The law on the point is crystallised that the PROBATIONer remains a PROBATIONer unless he has been confirmed on the basis of the work evaluation. Under the relevant Rules under which the respondent was appointed as a Civil Judge, there is no provision for automatic or deemed confirmation and/or deemed appointment on regular establishment or post, and in that view of the matter, the contentions of the respondent that the respondent’s services were deemed to have been continued on the expiry of the PROBATION period, are misconceived.

18. On a clear analysis of the above enunciated law, particularly, the Seven Judge Bench judgment of this Court in the case of Samsher Singh (supra) and three Judge Bench judgments, which are certainly the larger Benches and are binding on us, the Courts have taken the view with reference to the facts and relevant Rules involved in those cases that the principle of ‘automatic’ or ‘deemed confirmation’ would not be attracted. The pith and substance of the stated principles of law is that it will be the facts and the Rules, which will have to be examined by the Courts as a condition precedent to the application of the dictum stated in any of the line of the cases afore noticed. There can be cases where the Rules require a definite act on the part of the employer before officer on PROBATION can be confirmed. In other words, there may a Rule or Regulation requiring the competent authority to examine the suitability of the PROBATIONer and then upon recording its satisfaction issue an order of confirmation. Where the Rules are of this nature the question of automatic confirmation would not even arise. Of course, every authority is expected to act properly and expeditiously. It cannot and ought not to keep issuance of such order in abeyance without any reason or justification. While there could be some other cases where the Rules do not contemplate issuance of such a specific order in writing but merely require that there will not be any automatic confirmation or some acts, other than issuance of specific orders, are required to be performed by the parties, even in those cases it is difficult to attract the application of this doctrine. However, there will be cases where not only such specific Rules, as noticed above, are absent but the Rules specifically prohibit extension of the period of PROBATION or even specifically provide that upon expiry of that period he shall attain the status of a temporary or a confirmed employee. In such cases, again, two situations would rise: one, that he would attain the status of an employee being eligible for confirmation and second, that actually he will attain the status of a confirmed employee. The Courts have repeatedly held that it may not be possible to prescribe a straight jacket formulae of universal implementation for all cases involving such questions. It will always depend upon the facts of a case and the relevant Rules applicable to that service.