1996 JTR(SC) 828
1996 AIR(SC) 2093 ; 1996 AIR(SCW) 2518 ; 1996 73 FLR 1568 ; 1996 5 JT 78 ; 1996 LIC 1739 ; 1996 4 Scale 452 ; 1996 9 SCC 190 ; 1996 SCC(L&S) 1210 ; 1996 2 SCJ 602 ; 1996 Supp1 SCR 600 ; 1996 3 SCT 337 ; 1996 4 SLR 37 ; 1996 2 UJ 206 ; 1996 KHC 1175 ; 1996 4 Supreme 705
1996(4) Supreme 705
SUPREME COURT OF INDIA
K. Ramaswamy and G.B. Pattanaik, JJ.
State of Punjab -Appellant
versis
Baldev Singh Khosla -Respondent
Civil Appeal No. 7793 of 1996
(Arising out of SLP (C) No. 10899 of 1995)
Decided on 19-4-1996
IMPORTANT POINT
So long as the order of confirmation is not made, even after expiry of probation, the probationer may continue and remain in service, but by allowing him to remain in service it cannot be concluded that he must be deemed to have been confirmed as the Rule 10 of the Punjab State Co-operative Service (Class II) Rules itself envisages a positive order of confirmation.
Act Referred :PUNJAB STATE CO-OPERATIVE SERVICE CLASS II RULES : R.10, R.10(3)
A) The Punjab State Co-operative Service (Class II) Rules, 1958, specifically Rule 10, govern the probationary regime for members appointed to the service, providing that upon appointment a member shall remain on probation for two years, subject to extension, and allowing prior service in an identical cadre or higher post in another department to count toward probation. These rules contemplate that the appointing authority must make an express order of confirmation only after assessing satisfactory work and conduct during the probationary period, with a maximum outer limit of three years. The present appeal arises from an impugned reversion order passed after the probation period had extended beyond three years, invoking these rules to determine the consequences of non-confirmation. (B) Key legal principles include that the outer limit of three years is an enabling provision to permit continued service without confirmation or discharge, and does not operate as a mandatory confirmation upon expiry of three years; confirmation requires a positive order by the appointing authority; extension of probation is permissible if performance is unsatisfactory; and the benefit of continued service during the extended period does not equate to deemed confirmation. (C) Facts of the case:
The respondent was promoted as Assistant Registrar of Cooperative Societies, completed his initial probation, had his probation extended periodically, received adverse remarks regarding performance for 1991 and 1992, was issued a show cause notice seeking reasons for reversion, and was ultimately reverted to the substantive cadre after the High Court allowed his writ petition holding that reversion beyond three years without confirmation was bad in law. (D) Findings of Court:
The High Court erred in not considering adverse remarks and in treating non-reversion after three years as automatic confirmation; the authority retained the power to assess fitness for confirmation even after the extended period; and the reversion order was legally flawed. (E) Issues:
Whether non-confirmation and continued service beyond three years under Rule 10 operates as deemed confirmation; whether the High Court was correct in setting aside the reversion order without examining performance; and whether the appointing authority must reconsider confirmation based on subsequent performance. (F) Ratio Decidendi:
The outer limit of three years under Rule 10 is permissive and does not mandate deemed confirmation; confirmation requires a positive order, and the authority must reassess fitness based on performance during the extended period before concluding whether reversion or confirmation is appropriate. (G) Result:
The appeal is disposed of without costs, the High Courts order is effectively set aside, and the respondent is directed to await reconsideration of confirmation by the appointing authority based on cumulative assessment including the period 1993-94.
A) The Punjab State Co-operative Service (Class II) Rules, 1958, specifically Rule 10, govern the probationary regime for members appointed to the service, providing that upon appointment a member shall remain on probation for two years, subject to extension, and allowing prior service in an identical cadre or higher post in another department to count toward probation. These rules contemplate that the appointing authority must make an express order of confirmation only after assessing satisfactory work and conduct during the probationary period, with a maximum outer limit of three years. The present appeal arises from an impugned reversion order passed after the probation period had extended beyond three years, invoking these rules to determine the consequences of non-confirmation. (B) Key legal principles include that the outer limit of three years is an enabling provision to permit continued service without confirmation or discharge, and does not operate as a mandatory confirmation upon expiry of three years; confirmation requires a positive order by the appointing authority; extension of probation is permissible if performance is unsatisfactory; and the benefit of continued service during the extended period does not equate to deemed confirmation. (C) Facts of the case:
The respondent was promoted as Assistant Registrar of Cooperative Societies, completed his initial probation, had his probation extended periodically, received adverse remarks regarding performance for 1991 and 1992, was issued a show cause notice seeking reasons for reversion, and was ultimately reverted to the substantive cadre after the High Court allowed his writ petition holding that reversion beyond three years without confirmation was bad in law. (D) Findings of Court:
The High Court erred in not considering adverse remarks and in treating non-reversion after three years as automatic confirmation; the authority retained the power to assess fitness for confirmation even after the extended period; and the reversion order was legally flawed. (E) Issues:
Whether non-confirmation and continued service beyond three years under Rule 10 operates as deemed confirmation; whether the High Court was correct in setting aside the reversion order without examining performance; and whether the appointing authority must reconsider confirmation based on subsequent performance. (F) Ratio Decidendi:
The outer limit of three years under Rule 10 is permissive and does not mandate deemed confirmation; confirmation requires a positive order, and the authority must reassess fitness based on performance during the extended period before concluding whether reversion or confirmation is appropriate. (G) Result:
The appeal is disposed of without costs, the High Courts order is effectively set aside, and the respondent is directed to await reconsideration of confirmation by the appointing authority based on cumulative assessment including the period 1993-94.
ORDER
Leave granted.
2. This appeal by special leave arises from the order of the High Court of Punjab & Haryana made on September 14, 1994 in CWP No. 11874. The respondent was promoted as an Assistant Registrar of the Cooperative Societies by proceedings dated March 21, 1990. Rule 10 of the Punjab State Co-operative Service (Class II) Rules, 1958 enjoins that the promotee or direct recruit would be put on probation for a period of two years provided that the Government may allow service rendered on a post on an identical cadre or in the higher post in another department to count for probation in the said service. Rule 10 reads as under :
"10. Probation. All members of the service shall on appointment remain on probation in the first instance for a period of two years, provided that Govt. may allow service rendered on a post on an identical cadre or in the higher post in another department to count for probation in the post in the service.
2. Provided further that in the case of members promoted from the State Service Class III continue officiating of four months or over shall be reckoned as a period spent on probation.
3. If the work or conduct of any candidates or member during the period of training or probation in the opinion of Government not satisfactory they may dispense with his service, if he has been recruited by direct appointment or may revert him to his former post if he has been recruited by promotion or by transfer. On the conclusion of the period of probation of any members of the service, government, may, if vacancy exists, confirm him in his appointment; if his work or conduct has, in its opinion been satisfactory may extend his period of probation by such period as it may think fit and thereafter pass such orders as it could have passed on the expiry of the first period of probation, provided that the total period of probation, including extension, shall not exceed three years in any case."
3. Though respondent had completed his probation on November 25, 1992, however, his probation was extended, in the meanwhile from time to time. On September 15, 1993, a show cause notice was issued to him as to why he should not be reverted to the substantive cadre. On consideration of the reply to show cause notice, order came to be passed on February 11, 1994 reverting him to the substantive post from which he was promoted. Consequently, he filed writ petition. The High Court has allowed the writ petition holding that since he was not reverted before expiry of 3 years, he must be deemed to have been confirmed and that, therefore, the reversion order was held bad in law. The High Court did not express any opinion on the adverse remarks commented upon the performance of the respondent. Thus, this apeal by special leave.
4. Learned counsel for the respondent contends that since the rule provides an outer limit of three years, if the respondent had not been reverted within that period, he must be deemed to have been confirmed and the High Court, therefore, was right in concluding that the respondent is a confirmed probationer. We do not find force in the contention. Sub-rule (3) of Rule 10 clearly envisages that on conclusion of the period of probation of any member of the service the Government may, if vacancy exists, confirm him in his appointment; if his work or conduct has, in its opinion, not been satisfactory, it may extend his period of probation by such period as it may think fit and thereafter pass such orders as could have been passed on the expiry of his period of probation. It would thus be seen that the outer limit of three years provided under the rules is an enabling provision to allow the probationer to continue in service without being reverted or discharged from service for failure to satisfactorily complete the period of probation, but that would not mean that the probationer, on expiry of three years period, must be deemed to have been confirmed. The rule itself envisages a positive order of confirmation. So long as the order of confirmation is not made, even after expiry of probation, the probationer may continue and remain in service, but by allowing him to remain in service it cannot be concluded that he must be deemed to have been confirmed.
5. The rule also envisages that during the period of probation, the appointing authority is required to the performance of the work done by the probationer to the satisfaction of the appointing authority. It is seen that for the year 1991 and 1992 there were adverse remarks made upon the performance of the respondent. Obvious for that reason, his confirmation was not made. On the other hand, the period of probation was further extended as admitted by the respondent. Under these circumstances, he cannot be deemed to have been confirmed. However, since the authorities had extended the period of probation and given him chance to improve his performance during the year 1993-94, that period was not taken into consideration before reverting the respondent from service. The appointing authority is, therefore, directed to consider whether he is fit to be confirmed, on the basis of his performance for the subsequent period and in case it considers that he may be confirmed, it would be open to them to pass appropriate orders. In case, even after consideration of the performance for the year 1993-94, his record is not found satisfactory, appropriate orders may be passed and communicated to the respondents.
6. The appeal is accordingly disposed of. No costs.
Appeal disposed of.
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