Central Administrative Tribunal - Delhi
Suresh Chand Meena vs M/O Finance on 22 September, 2025
Central Administrative Tribunal
Principal Bench,
New Delhi
O.A. No.962 of 2020
Orders reserved on : 12.09.2025
Orders pronounced on : 22.09.2025
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Suresh Chand Meena
S/o Sh. Nand Kishor Meena
R/o D -904, Suncity Heavens,
Raiyadhar Road,
Rajkot Gujarat-360 007
...Applicant
(By Advocate: Shri Ajesh Luthra)
VERSUS
1. Ministry of Finance
Through the Revenue Secretary
North Block
New Delhi-110 001
2. Central Board of Direct Taxes,
Through its Chairman
North Block, Secretariat Building
New Delhi -110 001
...Respondents
(By Advocate: Ms. Anuparma Bansal)
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Item No.14/C-2 2 OA No.962/2020
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):
By filing the instant OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
"A. PASS an order quashing/setting aside the Final Order discharging the Applicant (Mr. Suresh Chand Meena) from the post of ACIT, dated 15 July 2020 passed by Respondent No. 1;
B. PASS an order directing the Respondents to re-instate the Applicant w.e.f. from 15 July 2020 with all consequential benefits;
C. PASS an order quashing I setting aside the Impugned Suspension Order dated 08 May 2019 passed by Respondents placing the Applicant under suspension along with Impugned First Extension of Suspension Order dated 31 August 2019 and Impugned Second Extension of Suspension Order dated 31 January 2020;
D. PASS any appropriate order or direction which this Hon'ble Tribunal may deem fit in the facts and circumstances of the present case."
2. Pursuant to notice issued by this Tribunal, the respondents have filed their reply opposing the claim of the applicant and thereafter the applicant has also filed rejoinder refuting the averments of the reply filed by the respondents. FACTS OF THE CASE
3. The applicant, having successfully qualified the Civil Services (Main) Examination, 2014 conducted by the Union Public Service Commission, secured the 829th rank. On the basis of his rank, he was allocated to the Indian Revenue Service (IRS) vide Offer of Appointment dated 17 December 2015 (Annexure A-1). The said Offer of Appointment stipulated various terms and conditions, including those relating to the duration of probation.
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3.1 As a direct recruit IRS officer, the applicant is governed by the Indian Revenue Service Rules, 2015 (hereinafter referred to as the IRS Rules) (Annexure A-2). Rule 10 of the IRS Rules, being relevant, is extracted below for ready reference:
"10. Probation.- (1) Every officer on appointment to the Service, either by direct recruitment or by promotion to the post of Assistant Commissioner of Income Tax, shall be on probation for a period of two years.
Provided that the Controlling Authority may extend the period of probation in accordance with the instructions issued by the Government from time to time.
Provided further that any decision for extension of the period of probation shall ordinarily be taken within eight weeks after expiry of the previous period of probation and communicated in writing to the concerned officer together with the reasons for doing so within the said period.
(2) On completion of the period of probation or any extension thereof, officers shall, if considered fit for permanent appointment, be retained in their appointment on regular basis and be confirmed in due course against the available substantive vacancy, as the case may be.
(3) If, during the period of probation or any extension thereof, as the case may be, the Government is of the opinion that an officer is not fit for permanent appointment, the Government may discharge or revert the officer to the post held by him prior to his appointment in the service, as the case may be.
(4) During the period of probation or any extension thereof, as the case may be, the officer may be required by the Government to undergo such course of training and instructions and to pass such examination and tests, including examination in Hindi, as Government may deem fit, as a condition to satisfactory completion of the probation.
(5) As regards other matters relation to probation, the members of the Service shall be governed by the orders or instructions issued by the Government from time to time."
3.2 It is further stated that in terms of Rule 10(1) of the IRS Rules, the probation of the applicant started from 29.12.2015, i.e., the date when the appointed joined as ACIT (under Training) at the National Academy of Direct Taxes, Nagpur, and he was under
probation for a period of two (2) years i.e. till 28.12.2017. During RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 4 OA No.962/2020 this period of probation, the applicant successfully qualified the First Departmental Examination on 13.02.2017 and the Second Departmental Examination on 11.04.2017, which were conducted by the National Academy of Direct Taxes, Nagpur, for Assistant Commissioner of Income Tax (Probationers) - 2015 Batch.
3.3 As on 28.12.2017, i.e., on completion of period of probation of two (2) years, the applicant had qualified both the Departmental Examinations and had no adverse report whatsoever against him in his Annual Performance Appraisal Report (in short 'APAR') (Annexure A-3).
3.4 Since two years probation period in terms of Rule 10 (1) had expired on 28.12.2017 and no order of confirmation was passed, the respondents were required to issue a communication to the applicant within a period of eight weeks, citing reasons for extending the probation in compliance with second proviso to Rule 10 (1) of the IRS Rules. However, the Respondents in its wisdom neither issued an order confirming the service of the applicant nor did they issue a communication to the applicant with regard to extension of his probation along with reasons for doing so.
3.5 On 16.12.2018, FIR being I-26/2018 was registered by the Anti-Corruption Bureau (ACB), Ahmedabad City Police Station under Sections, 7, 12 and 13 (2) of the Prevention of Corruption Act, 1988, on receipt of oral complaint of one Mr. Gulamhusen Muhmmad Rashid Kureshi, who claimed that the applicant had demanded a bribe of Rs. 8 Lacs from him during his assessment.
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The complainant claimed that the money was paid to Mrs. Namita Singhania, W/o Mr. Sumit Shyamsundar Singhania in a shopping mall.
3.6 The applicant surrendered in the Court of Ms. Prema C. Chauhan, Ld. Additional Sessions Judge, City Sessions Court, Ahmedabad, on 05.02.2019 and was sent to judicial custody. The applicant was then released on regular bail by the said learned Additional Sessions Judge, Ahmedabad, vide its order dated 22.04.2019 (Annexure A-4).
3.7 The applicant was placed under suspension w.e.f.
06.02.2019 vide order dated 08.05.2019 (Annexure A-5) under the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as 'the Rules of 1965').
3.8 On 11.03.2019, the Ministry of Personnel, PG & Pensions, Government of India, notified Master Circular on Probation/confirmation on Central Services (in short 'Master Circular 2019") (Annexure A-6). As per paragraph 27 of the said Master Circular 2019, the probation of an employee on probation cannot be extended beyond a period of eight weeks from double the time period of probation prescribed under the relevant rules. It is further states that in case, there is no order of discharge/confirmation/reversion passed by the competent authority within eight weeks from completion of a time period which is twice the probation period, then the employee would RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 6 OA No.962/2020 "deemed" to have successfully completed the probation period, tthe said para 27 provides as under:-
"27. The date from which confirmation should be given effect is the date following the date of satisfactory completion of the prescribed period of probation or the extended period of probation, as the case may be. The decision to confirm the probationer or to extend the period of probation as the case may be should be communicated to the probationer normally within 6 to 8 weeks. Probation should not be extended for more than a year and, in no circumstance, an employee should be kept on probation for more than double the normal prescribed period of probation. The officer will be deemed to have successfully completed the probation period if no order confirming, discharging or reverting the officer is issued within eight weeks after expiry of double the normal period of prescribed probation."
(Emphasis supplied) 3.9 The suspension of the applicant was extended for a further period of 180 days vide order dated 05.08.2019 (Annexure A-7).
3.10 The Respondent No.1 issued a communication dated 22.11.2019 to all Principal Chief Commissioners of Income Tax seeking information about the leaves taken and date of joining for the officers enlisted in the attachment as Direct Recruit Indian Revenue Services officers of 2015 batch were to be considered for confirmation by the Departmental Promotion Committee (DPC). The name of the applicant was duly mentioned at serial number 127 of the attached list ((Annexure A- 8).
3.11 On 28.12.2019, the applicant completed four (4) years as a probationer IRS officer. Under Rule 10(1) of the IRS Rules, the prescribed probation period is two (2) years. Accordingly, by 28.12.2019, the applicant had completed double the stipulated RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 7 OA No.962/2020 probation period. On 31.12.2019, the respondents issued a list of confirmed IRS officers of the 2015 batch, granting confirmation with effect from the date of their joining in 2015 (subject to adjustment for leave, etc.). Similarly placed officers, i.e., those who had joined service on 29.12.2015 along with the applicant were confirmed with effect from 29.12.2017 (Annexure A - 9). 3.12 On 31.01.2020, respondent No.1 extended the applicant's suspension for a further period of 180 days (Annexure A-10). 3.13 The eight weeks' time period from 28.12.2019 ended on 24.02.2020. The date of 24.02.2020 is critical and of importance as on this day, the applicant has "deemed" to have successfully completed probation in terms of paragraph 27 of the Master Circular on Probation. Paragraph 27 of the Master Circular 2019 further stresses and emphasizes that the exception to deemed completion of probation is only when the competent authority has already issued an order of discharge/reversion/confirmation qua the said employee. Once the probation is complete, the applicant became a confirmed employee w.e.f. 25.02.2020. 3.14 Without taking into consideration the fact that the applicant had already become a permanent employee and was no more a probationer, respondent No. 1 discharged the applicant from service by passing the impugned discharge Order under Rule 10 (3) of the IRS Rules. The applicant is aggrieved by the Impugned Discharge Order, as he could not have been discharged from service under the IRS Rules as the said rules were not RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 8 OA No.962/2020 applicable to the applicant on account of his being a "deemed" confirmed employee w.e.f. 25.02.2020 (Annexure A -11). Hence, this OA.
CONTENTIONS OF THE APPLICANT'S COUNSEL
4. Learned counsel for the applicant argued that the Constitution Bench of the Hon'ble Supreme Court in the matter of State of Punjab v. Dharam Singh, reported in AIR 1968 SC 1210, had categorically held that once an employee is permitted to continue beyond the maximum prescribed period of probation, the said employee is deemed to have been confirmed. Reliance has been placed on para 5 of the said judgment, which reads as under:-
"5. In the present case, Rule 6(3) forbids extension of the period of probation beyond three years. Whereas in the present case, the service rules fix a certain period of time beyond which the probation period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in the post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negative by the service rule forbidding extension of the probatory period beyond the maximum period fixed by the it. In such a case. it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication."
(Emphasis supplied) In the present case, paragraph 27 of the Master Circular on Probation 2019 expressly prohibits extension of probation beyond double of prescribed time period, as quoted above. The Rule 10 (1) of the IRS Rules prescribes a two-year probation period and hence in terms of the Master Circular on Probation 2019, the maximum RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 9 OA No.962/2020 period of probation could be four years from the date of appointment.
4.2 Learned counsel for the applicant argued that the impugned discharge order is in clear violation of paragraph 27 of the Master Circular, 2019, which mandates that if no order of discharge/confirmation/termination is passed within a period of eight weeks after completion of four years of probation, the officer shall be deemed to have successfully completed probation. Accordingly, the applicant ought to have been treated as a regular employee and was no longer governed by Rule 10 of the IRS Rules relating to probation. Once the applicant stood confirmed on 23.02.2020, he became entitled to the protection and benefits of Article 311 of the Constitution of India, 1950, and therefore, could not have been dismissed without a proper inquiry. 4.3 Learned counsel submitted that the applicant had legitimate expectation to be confirmed after completion of maximum period of probation i.e. four years from 28.12.2015 in absence of any adverse AP AR Report and upon successfully qualifying the two departmental examinations. 4.4 Learned counsel further submitted that the impugned discharge order is in gross violation of Rule 10(3) of the IRS Rules, which permits discharge or reversion of an officer only during the period of probation or extended probation. In the present case, even assuming a deemed extension, the applicant's probation period stood completed on 28.12.2019. No discharge order was RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 10 OA No.962/2020 passed within that period. Upon the expiry of a further eight weeks on 23.02.2020, the applicant stood deemed confirmed in service. Consequently, he ceased to be a probationer and could not have been discharged under the provisions of Rule 10(3) of the IRS Rules by the impugned order. As such the discharge of the applicant under Rule 10 (3) of the IRS Rules is illegal, arbitrary and colorable exercise of power, as on the date of passing of impugned discharge order dated 15.07.2020,the applicant had ceased to be a probationer and hence, could not have been dismissed without an inquiry in terms of the provisions of Article 311 (2) of the Constitution of India.
4.5 Learned counsel also argued that the applicant had duly fulfilled the conditions mandated under Rule 10 (4) of the IRS Rules, which reads as under:
"10 (4) - During the period of probation or any extension thereof, the officer may be required by the Government to undergo course of training and instructions and to pass such examinations and tests, including examinations in Hindi, as Government may deem, as a condition to satisfactory completion of the probation."
The applicant duly completed his training course at NADT, Nagpur, and also successfully passed both departmental examinations. Having thus fulfilled all the conditions prescribed under Rule 10(4) of the IRS Rules, and in the absence of any discharge order under Rule 10(3), the applicant had a legitimate expectation that the respondents would act in accordance with the Master Circular on Probation, 2019, and treat him as a confirmed employee. 4.6 Learned counsel further argued that the conduct of the respondents in isolating the applicant, while confirming his RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 11 OA No.962/2020 batchmates, demonstrates mala fides and an intent to harass him. In this regard, reference was made to Notification No. 9 dated 31.12.2019 (Annexure A-9), which shows that all candidates, except the applicant, were confirmed with retrospective effect. However, the applicant was treated as continuing on probation until his discharge. In the ordinary course, the applicant too ought to have been confirmed with retrospective effect from 28.12.2017. 4.7 Learned counsel also raised another argument that without prejudice to the challenge raised by the applicant to applicability to Rule 10(3) of the IRS Rules in light of paragraph 27 of the Master Circular on Probation, 2019 that the Impugned Discharge Order is stigmatic and is in the form of punishment rather than being a simple order of discharge and hence, the same is not sustainable in the eyes of law. In this regard, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Gujarat Steel Tubes Limited v. Mazdoor Sabha, reported in (1980) 2 SCC 593.
4.9 Learned counsel also submitted that throughout the probation period, the service record of the applicant is excellent having regard to the APARs of the applicant.
4.10. Learned counsel also argued that the impugned suspension order is bad in law as the applicant was never informed about the grounds for suspension. As such the initial suspension order and subsequent extension of suspension order were passed without application of mind as no reasons whatsoever were RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 12 OA No.962/2020 mentioned in the said orders for suspension and extension of suspension of the applicant. According to the applicant, he is entitled to know the reason for his prolonged suspension, more so when there was no departmental inquiry being conducted against him. Therefore, the impugned suspension order as well as extension of suspension order are arbitrary and hence, are liable to be set aside.
4.11 Learned counsel for the applicant reiterated that the conduct of Respondents in segregating the applicant from his batch mates of 2015 batch while considering them for confirmation amounts to violation of right to be treated equally amongst equals guaranteed under Article 14 of the Constitution of India, as all confirmed officers, who had joined on 29.12.2015 along with the applicant, have been confirmed w.e.f. 29.12.2017 and the respondents have not given any justification whatsoever for singling out the applicant and not confirming him w.e.f. 29.12.2017.
4.12 Learned counsel also argued that treating the applicant separately viz-a-viz his batch mates while considering him for promotion amounts to violation of Article 16 (1) of the Constitution of India as the applicant had a fundamental right to be considered for confirmation from the same date as his batchmates of 69th course, who had joined as Assistant Commissioner of Income Tax (Under Training) on 29.12.2019.
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REPLY OF THE RESPONDENTS
5. Learned counsel for the respondents submitted that the applicant was placed under suspension vide order dated 08.05.2019 with effect from 06.02.2019, which was subsequently extended for a period of 180 days by orders dated 05.08.2019 and 31.01.2020. The Government of India also granted sanction to the ACB, Gujarat, vide order dated 22.03.2020, to prosecute the applicant. While the applicant was under suspension, a decision was taken with the approval of the Appointing Authority to discharge him from service on the basis of the recommendations of the RDPC, which had concluded that the applicant was not fit for confirmation in the grade of ACIT. Accordingly, order dated 15.07.2020 was issued under Rule 10(3) of the IRS Rules, 2015. It was, therefore, contended that the plea of the applicant that he stood confirmed w.e.f. 25.02.2020 in terms of para 27 of DoP&T O.M. dated 11.03.2019 is unsustainable, as the applicant had already been placed under suspension well before 25.02.2020. At this stage, learned counsel submitted that, in terms of Fundamental Rule 54-B (7), the period of suspension shall not be treated as duty unless specifically directed by the competent authority for any specified purpose.
5.1 Learned counsel further submitted that the Departmental Promotion Committee (DPC) constituted to assess the suitability of Direct Recruit Officers of the 2015 batch for confirmation in the grade of ACIT had deferred the applicant's case after considering RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 14 OA No.962/2020 the vigilance remarks of DGIT (Vig.), New Delhi. The Committee took note of para 27 of DoP&T O.M. No. 28020/3/2018-Estt.(C) dated 11.03.2019 and directed that the applicant's case be resubmitted for review within eight weeks from 28.12.2019, i.e., on the expiry of double the normal prescribed period of probation. The minutes of the DPC were thereafter forwarded to the Ad.VI Section of CBDT on 23.12.2019 for issuance of necessary orders with the approval of the Competent Authority. A review DPC (RDPC) was accordingly convened within eight weeks from 28.12.2019. The Committee noted that vigilance clearance in the case of the applicant was withheld and decided not to confirm him in the grade of ACIT. The minutes of the RDPC meeting were forwarded to DGIT (HRD) on 20.02.2020 and placed before the Competent Authority, which accorded approval on 21.04.2020. 5.2 Learned counsel also contended that, in any case, the RDPC, constituted under the IRS Rules, 2015 to assess the suitability of the 2015 batch officers for confirmation in the grade of ACIT, after taking note of the fact that vigilance clearance had been withheld due to the applicant's suspension, recommended on 14.02.2020 not to confirm him in the grade of ACIT. The approval of the Appointing Authority was received in the Ad.VI Section on 22.04.2020. Thus, the recommendations of the DPC were well within the time frame prescribed under DoP&T's O.M. dated 11.03.2019. It was further submitted that had the RDPC recommended confirmation of the applicant, a decision of the Competent Authority would have been required regarding RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 15 OA No.962/2020 regularization of his pay and allowances and the treatment of his suspension period under FR 54-B. However, no such order under FR 54-B has been passed till date in respect of the applicant. 5.3 Learned counsel also submitted that the applicant had been discharged from the Indian Revenue Service (IRS) under Rule 10 of the IRS Rules as per the extant law and procedure. As per practice, the confirmation of direct recruit officers was being done just before their promotion to Senior Time Scale. This practice was regularly being followed for all batches of IRS officers. For instance, 2011 Batch confirmation order was passed on 01.04.2016, for 2012 Batch, it was passed on 29.03.2017, for 2013 Batch, the confirmation order was passed on 30.03.2017, for 2014 Batch on 31.12.2018 and for 2015 Batch on 31.12.2019. Therefore, due to practice, no explicit order of extension of probation period was passed for any of the officers.
5.4 Learned counsel also submitted that the applicant was placed under suspension vide Order dated 08.05.2019 w.e.f. 06.02.2019, which was subsequently extended for a period of 180 days vide orders dated 05.08.2019 and 31.01.2020 respectively. Since the applicant was placed under suspension vide Order dated 08.05.2019 w.e.f. 06.02.2019, therefore, the probation of applicant was also suspended. In absence of the applicant from work, during the second probation, no effective evaluation of his merit could be done. Therefore, the respondents were not bound to issue an order for confirmation or extension of the applicant's probation.
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5.5 Learned counsel also submitted that the applicant was
placed under suspension much before the 25.02.2020 and the Order of applicant's suspension was extended in terms of Rule 10 (6) of the CCS (CCA) Rules, 1965 by passing a reasoned Order. Moreover, the letter dated 22.11.2019 was circulated among all Pr. CCsIT seeking the joining and long leave status of all officers of 2015 Batch of IRS and explicitly indicated in the letter that the list was tentative and was an internal list of all officers of the batch for ascertaining eligibility of the officers. The final eligibility was examined subsequently and accordingly, the officer was excluded. Thus, having the name of the officer in the tentative list in no way implies that the officer was fit for confirmation. 5.6 Learned counsel for the respondents reiterated that the suspension of the applicant vide order dated 08.05.2019 w.e.f. 06.02.2019 and extension of suspension vide orders dated 05.08.2019 and 31.01.2020 had been issued with the approval of Competent Authority under relevant provisions of Rule 10 of CCS (CCA) Rules, 1965 after due application of mind and due consideration of relevant facts on record.
5.7 Learned counsel also submitted that allegations made in the FIR or other material has not been used as a 'foundation' for termination in the impugned order. The 'motive' behind the simpliciter order is purely based on the general unsuitability of applicant. Further, the principle highlighted in Gujarat Steel Tubes Limited v. Mazdoor Sabha (1980 2 SCC 593 does not RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 17 OA No.962/2020 apply in the present case as the order dated 15.07.2020 vide which the applicant was discharged is a reasoned order and is in accordance with the law. It is reiterated that the applicant cannot claim to have a vested right of confirmation, as the confirmation/ permanent is done only in case the probationer is considered 'fit for permanent appointment' in terms of the provisions of Rule 10(2) of the IRS Rules, 2015. Further, the applicant was under
suspension for a substantial period of time and the said time period cannot be treated on duty unless specific order under FR 54 B is passed by the Appointing Authority. Therefore, by counting his length of service for purpose of deemed confirmation, the applicant is also counting the period of suspension which is not correct and O.M. dated 11.03.2019 could have been applicable on him only if he could have rendered continuous service.
REJOINDER
6. In the rejoinder, apart from refuting the averments made in the reply filed by the respondents, the applicant has reiterated the submissions contained in the Original Application. 6.1 Learned counsel for the applicant submitted that the applicant had already completed the maximum prescribed period of probation and, therefore, could not have been treated as a probationer beyond 25.02.2020. The factum of the applicant's suspension is already under challenge in the present OA and cannot, by itself, constitute a valid basis for justifying his discharge from service. Rule 10 of the IRS Rules, 2015, has no application in RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 18 OA No.962/2020 the present matter, as suspension cannot be a ground for extending the period of probation. Likewise, Fundamental Rule 54-B(7) is wholly inapplicable, as it pertains solely to the exclusion of the suspension period for the limited purpose of regulating allowance and salary. The non-issuance of any order under FR 54-B(7) cannot, therefore, be relied upon to justify the applicant's discharge. On the contrary, the applicant's case is that his probation could not have been extended beyond four years, and hence he stood deemed to have been confirmed upon completion of the maximum prescribed period. The alleged facts sought to be projected by the respondents in their reply are nothing but an afterthought to counter the applicant's claim. Rule 54B has no applicability in the present case since Rule 54B is applicable only when the arrears of period of suspension are to be calculated. The present case revolves around the legality of discharge order issued by the Respondents rather than calculation of arrears for the period of suspension, which would be a consequential relief to the main relief of setting aside of the Impugned Orders is granted. 6.2 Learned counsel further contended that the respondents cannot justify their action merely on the ground of it being in line with a so-called general practice. Rule 10(1) of the IRS Rules, which the respondents themselves have repeatedly relied upon, clearly mandates that reasons and justifications in writing must be furnished to the officer concerned before extending the term of probation. The respondents cannot evade this statutory obligation by sheltering behind the submissions made in their reply. It is thus RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 19 OA No.962/2020 evident that the respondents have acted in utter violation of their duties and obligations under the Rules and cannot sustain their defence by any interpretation other than the plain intention of the Rule itself.
6.3 Learned counsel further argued that the impugned orders of extended suspension are already under challenge in the present OA. While passing the First Extension of Suspension as well as the Second Extension of Suspension, the respondents failed to provide any explanation or justification for extending the applicant's probation period and acted in an arbitrary manner at their own convenience. Such suspension cannot be regarded as valid, as the applicant was not afforded a fair opportunity to present his case. Firstly, the suspension was extended from time to time without assigning any reasons or communicating them to the applicant. Every officer, including the applicant and others similarly situated, has a basic right to know the grounds for punitive actions taken against them. Secondly, in the absence of reasons, the extensions are unsustainable in law and cannot justify keeping the applicant off duty. Thirdly, the decision to suspend and to further extend the suspension was based solely on a false FIR registered against the applicant, which has resulted in attaching unwarranted stigma to him. Learned counsel emphasized that since the applicant was not accorded the constitutional safeguard guaranteed under Article 311(2), the respondents alone are responsible for placing the applicant in such a prejudicial situation without any fault on his part.
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6.4 Learned counsel further submitted that the Master
Circular issued by the DoP&T vide O.M. dated 11.03.2019 cannot be disregarded at the expediency of the respondents. Paragraph 27 of the said circular clearly stipulates that, in the absence of any express intimation regarding confirmation or discharge within eight weeks after completion of the probation period, the officer shall be deemed to have been confirmed. In the present case, no clarity was provided by the respondents with respect to the applicant's suspension or its subsequent extensions, nor was the applicant afforded any opportunity of being heard. Consequently, the impugned orders are liable to be set aside as being bad in law. It is pertinent to note that the applicant completed four years of probation on 28.12.2019 and, thereafter, received no adverse report or any notice of confirmation or discharge from the respondents. Therefore, by operation of Paragraph 27 of the Master Circular, the applicant automatically stood confirmed as an IRS officer. Furthermore, there is no document on record to demonstrate that the applicant's probation was specifically suspended or extended. Hence, the respondents cannot now be permitted to contend that the applicant was not deemed to have been confirmed upon the lapse of eight weeks from the completion of his four-year probation period.
6.5 Learned counsel also contended that the applicant's suspension was founded solely on the registration of the FIR against him. It is settled law that a probationer cannot be made to undergo probation for more than twice the prescribed period. The RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 21 OA No.962/2020 respondents cannot circumvent this mandate by contending that the probation period stood frozen upon the applicant's suspension and continued until his discharge. If such a position were to be accepted, it would confer arbitrary powers upon the Government to act whimsically and irrationally, which is impermissible in law.
7. The applicant has also filed written submissions in which it is stated that on 29.12.2015, the applicant joined as Assistant Commissioner Income Tax (Under Training) at the National Academy for Direct Taxes, Nagpur as a direct recruit after qualifying the Civil Services (Main) Examination, 2014 and underwent the mandatory two-year probation period in terms of the Rule 10(1) of the IRS Rules, 2015. On 17.04.2017, the applicant was relieved as ACIT (UT) from NADT, Nagpur and on 18.04.2017, the applicant joined as ACIT (On Special Duty) in the office of Principal CCIT, Gujarat. On 12.05.2017, the applicant assumed charge of Circle 5(1), Ahmedabad as ACIT. Subsequently, the applicant was transferred from Circle 5(1) and assumed charge of Circle 6(1), Ahmedabad on 20.06.2017. On 28.12.2017, the applicant completed the two-year probation period as provided for in the IRS Rules, 2015.
7.1 On 16.12.2018, an FIR bearing no. I-26/2018 was registered at Ahmedabad City Police Station under Sections 7, 12 and 13(2) of the Prevention of Corruption Act, 1988 alleging that one Ms. Namita Singhania W/o Mr. Sumit Singhania had accepted RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 22 OA No.962/2020 a bribe of INR 8 Lacs on behalf of the Applicant. On 05.02.2019, the applicant surrendered in the court of Ld. ASJ, Ahmedabad. 7.2 The Department of Personnel & Training, Ministry of Personnel & Training issued a Master Circular on Probation / Confirmation on 11.03.2019. The charge-sheet was filed by the prosecution on 05.04.2019 and the applicant was enlarged on bail by the Ld. ASJ, Ahmedabad on 22.04.2019. Thereafter on 08.05.2019, the respondent No. 1 placed the applicant under suspension retrospectively w.e.f. 06.02.2019 by invoking Rules 10(1)(b) and 10(2)(a) of the CCS (CCA) Rules, 1965. Incidentally, the applicant was allowed to draw subsistence allowance in respect of Rule 53(1) read with 53(2) of the Fundamental Rules. 7.3 The Respondent No.1 extended the applicant's suspension by 180 days on 05.08.2019 (First Extension). On 22.11.2019, the applicant was enlisted for consideration with regards to confirmation in the grade of ACIT along with other officers of 2015 (CSE 2014 Batch). Subsequently, on 28.12.2019, the applicant completed 4 years under probation which is twice the prescribed probation period of two-years and also the maximum permissible period for probation as per the Master Circular on Probation/Confirmation of Central Services dated 11.03.2019. The Respondent No.2, on 31.12.2019, released a list of officers, who were confirmed in service with retrospective effect, however, the name of the applicant was not mentioned in the said list. Further, another list of even date was released by the Respondent No.2 RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 23 OA No.962/2020 promoting officers from Junior Time Scale to Senior Time Scale, and this list did not mention the name of the applicant either. On 31.01.2020, the Respondent No.1 further extended the suspension of the applicant by 180 days (Second Extension). On 22.02.2020, the applicant completed the 4 years and 8 weeks period prescribed under the Master Circular on Probation/Confirmation of Central Services dated 11.03.2019 as per which the applicant was now deemed to be confirmed in service. On 06.07.2020, the applicant made a representation to the Respondent No. 2 for revocation of the suspension as the applicant had been implicated in a false case, however, no reply was received to the representation. The applicant made another detailed representation to the Respondent No. 2 on 14.07.2020. Thereafter, the applicant received an Order dated 15.07.2020 from the Respondent No.1 discharging the applicant from service under Rule 10(3) of the IRS Rules, 2015. 7.4 Learned counsel submitted that the Impugned Discharge Order is bad in law as the same is punitive in nature and is therefore liable to be set aside, as the Impugned Discharge Order gives detailed reasoning, mentions clearly the material which has been relied upon by the Respondents and goes to the extent of stating that on the basis of FIR, Chargesheet, Witness Statements, the applicant has been found to be unfit for confirmation. In support of the said contention, reliance has been placed on the Hon'ble Supreme Court Constitution Bench judgment in the matter of Jagdish Mitter v. Union of India, reported at AIR 1964 SC 449, wherein the Hon'ble Apex Court held as under:
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"22. No doubt the order purports to be one of discharge and as such, can be referred to the power of the authority to terminate the temporary appointment with one month's notice. But it seems to us that when the order refers to the fact that the appellant was found undesirable to be retained in government service, it expressly casts a stigma on the appellant and in that sense, must be held to be an order of dismissal and not a mere order of discharge. ...
...When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character, As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be: does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must be held, in substance, to amount to dismissal. That being so, we are satisfied that the High Court was in error in coming to the conclusion that the appellant had not been dismissed, but had been merely discharged. It is conceded that if the impugned order is construed as one of dismissal, the appellant has been denied the protection guaranteed to temporary servants under Section 240(3) of the Government of India Act, 1935, or Article 311(2) of the Constitution, and so, the order cannot be sustained."
Further the landmark decision of three Hon'ble Judges of the Hon'ble Supreme Court in Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha, reported at (1980) 2 SCC 593, wherein it has been held that :
"53. Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If thus scrutinized the; order has a punitive flavor in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. A termination effected because the master is satisfied of the misconduct and of the consequent desirability RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 25 OA No.962/2020 of terminating the service of the delinquent servant, it is a dismissal even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination are given and non- injurious terminology is used."
7.5 Learned counsel further submitted that as a direct recruit, the applicant is subject to and governed under Rule 10 of the IRS Rules, 2015 but only during the period of probation. The Rule 10 of IRS Rules, 2015 is extracted for ease of reference as under:
"10. Probation - (1) Every officer Every officer on appointment to the Service, either by direct recruitment or by promotion to the post of Assistant Commissioner of Income Tax, shall be on probation for a period of two years.
Provided that the Controlling Authority may extend the period of probation in accordance with the instructions issued by the Government from time to time.
Provided further that any decision for extension of the period of probation shall ordinarily be taken within eight weeks after expiry of the previous period of probation and communicated in writing to the concerned officer together with the reasons for doing so within the said period.
(2) On completion of the period of probation or any extension thereof, officers shall, if considered fit for permanent appointment, be retained in their appointment on regular basis and be confirmed in due course against the available substantive vacancy, as the case may be.
(3) If, during the period of probation or any extension thereof, as the case may be, the Government is of the opinion that an officer is not fit for permanent appointment, the Government may discharge or revert the officer to the post held by him prior to his appointment in the service, as the case may be.
(4) During the period of probation or any extension thereof, as the case may be, the officer may be required by the Government to undergo such course of training and instructions and to pass such examination and tests, including examination in Hindi, as Government may deem fit, as a condition to satisfactory completion of the probation.
(5) As regards other matters relation to probation, the members of the Service shall be governed by the orders or instructions issued by the Government from time to time."
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By referring to the above Rule, learned counsel emphasized the applicant joined as Assistant Commissioner Income Tax (Under Training) on 29.12.2015 and the two-year probation period began and as per Rule 10(1) of the Rules ibid, the applicant completed the two-year probation period on 28.12. 2017.
7.6 Learned counsel referred to the Master Circular on Probation/Confirmation dated 11.03.2019 prescribed the maximum permissible period for probation after which an officer would be deemed to be confirmed. Paragraph 27 of the said Master Circular is extracted for ease of reference as under:
"27. The date from which confirmation should be given effect is the date following the date of satisfactory completion of the prescribed period of probation or the extended period of probation, as the case may be. The decision to confirm the probationer or to extend the period of probation as the case may be should be communicated to the probationer normally within 6 to 8 weeks. Probation should not be extended for more than a year and, in no circumstance, an employee should be kept on probation for more than double the normal prescribed period of probation. The officer will be deemed to have successfully completed the probation period if no order confirming, discharging or reverting the officer is issued within eight weeks after expiry of double the normal period of prescribed probation."
(Emphasis supplied) By referring to above Para, learned counsel for the applicant submitted that the applicant completed twice the prescribed probation period, which is 4 years, on 28.12.2019 and the applicant completed 4 years plus 8 weeks period on 21.02.2020. As on 22.02.2020, the applicant was deemed to be confirmed/permanent as per aforesaid provisions of the Master Circular. Therefore, the applicant was illegally discharged from service on 15.07.2020 under Rule 10(3) of IRS Rules, 2015, as he was no longer governed under RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 27 OA No.962/2020 Rule 10 of the Rules ibid. As the said Rule only applicable to the officers under probation and when in fact the applicant was deemed to be confirmed/permanent on 22.02.2020 the applicant was no longer governed by Rule 10 of the IRS Rules, 2015. The Applicant was entitled to the protection and benefit under Article 311 of the Indian Constitution. In this regard, reliance has been placed on the Constitution Bench judgment of the Hon'ble Supreme Court in the matter of State of Punjab v. Dharam Singh, reported in AIR 1968 SC 1210, wherein the Hon'ble Supreme Court held as under:
"5. In the present case, Rule 6(3) forbids extension of the period of probation beyond three years. Whereas in the present case, the service rules fix a certain period of time beyond which the probation period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in the post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negative by the service rule forbidding extension of the probatory period beyond the maximum period fixed by the it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication."
7. We have heard learned counsel for the parties and perused the pleadings as well as the judgments relied upon by the learned counsel for the parties.
ANALYSIS
8. From the pleadings and arguments advanced by both sides as noted above, the following issues arise for adjudication:
(I) Whether the applicant stood deemed confirmed on completion of the maximum prescribed probation period of four years plus eight weeks under Rule 10 of the IRS Rules, RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 28 OA No.962/2020 2015 read with Para 27 of the DoP&T Master Circular dated 11.03.2019?
(II) Whether the suspension of the applicant could have the effect of freezing or extending the probation period beyond the maximum permissible limit?
(III) Whether the impugned discharge order dated 15.07.2020 passed under Rule 10(3) of the IRS Rules, 2015 is sustainable in law once the applicant had already acquired the status of a deemed confirmed employee?
(IV) Whether the suspension orders and their extensions were legally sustainable in the absence of reasons or opportunity to the applicant? and (V) Whether the action of the respondents in excluding the applicant from confirmation, while confirming his batchmates, is violative of Articles 14 and 16 of the Constitution of India?
9. Issue No. 1: Deemed Confirmation : Rule 10(1) of the IRS Rules, 2015 provides a probation period of two years, extendable with reasons recorded in writing. The proviso mandates that any such extension must be communicated within eight weeks. 9.1 Para 27 of the DoP&T Master Circular dated 11.03.2019 lays down that no probationer can be kept on probation for more than double the prescribed period and that, in the absence of an express order of confirmation/discharge within eight weeks of expiry of such maximum period, the officer shall be deemed confirmed.
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9.2 The applicant joined on 29.12.2015. The double period of probation ended on 28.12.2019. Eight weeks thereafter ended on 24.02.2020. It is admitted position that no order of discharge/extension/confirmation was passed by then. Hence, by operation of law, the applicant stood deemed confirmed w.e.f. 25.02.2020.
9.3 The Hon'ble Supreme Court in State of Punjab v. Dharam Singh, reported in (AIR 1968 SC 1210), held as follows:-
"8. The initial period of probation of the respondents ended on October 1, 1958. By allowing the respondents to continue in their posts thereafter without any express order of confirmation, the competent authority must be taken to have extended the period of probation up to October 1, 1960 by implication. But under the proviso to Rule 6(3), the probationary period could not extend beyond October 1, 1960. In view of the proviso to Rule 6(3), it is not possible to presume that the competent authority extended the probationary period after October 1, 1960, or that thereafter the respondents continued to hold their posts as probationers.
9. Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct during the period of probation was in the opinion of the authority unsatisfactory. Instead of dispensing with their services on completion of the extended period of probation, the authority continued them in their posts until sometime in 1963, and allowed them to draw annual increments of salary including the increment which fell due on October 1, 1962. The rules did not require them to pass any test or to fulfil any other condition before confirmation. There was no compelling reason for dispensing with their services and re-employing them as temporary employees on October 1, 1960, and the High Court rightly refused to draw the inference that they were so discharged from services and re-employed. In these circumstances, the High Court rightly held that the respondents must be deemed to have been confirmed in their posts. Though the appointing authority did not pass formal orders of confirmation in writing, it should be presumed to have passed orders of confirmation by so allowing them to continue in their posts after October 1, 1960. After such confirmation, the authority had no power to dispense with their services under Rule 6(3) on the ground that their work or conduct during the period of probation was unsatisfactory. It follows that on the dates of the impugned orders, the respondents had the right to hold their posts. The impugned orders deprived them of this right and amounted to removal from service by way of punishment. The removal from service could RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 30 OA No.962/2020 not be made without following the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and without conforming to the constitutional requirements of Article 311 of the Constitution. As the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 was not followed and as the constitutional protection of Article 311 was violated, the impugned orders were rightly set aside by the High Court.
(emphasis supplied) 9.4 Further, in Om Prakash Maurya v. U.P. Cooperative Sugar Factories Federation, reported in (1986 Supp SCC 95), the Hon'ble Supreme Court held that where an employee is permitted to continue in service even after the expiry of the maximum period of probation, he shall be deemed to have been confirmed. The relevant observations of the Hon'ble Apex Court are as under:--
"9. In view of the above discussion it is manifestly clear that the appellant's services were regulated by the U.P. Cooperative Societies Employees Service Regulations, 1975. Since under those Regulations appellant's probationary period could not be extended beyond the maximum period of two years, he stood confirmed on the expiry of maximum probationary period and thereafter he could not be reverted to a lower post treating him on probation. The order of reversion is illegal. We accordingly allow the appeal, set aside the order of the High Court and quash the order of reversion dated September 2, 1983 and direct that the appellant shall be treated in service and paid his wages and other allowances...."
9.5 Keshav Chandra Joshi v. Union of India, reported in 1992 Supp (1) SCC 272, the Hon'ble Supreme Court held that confirmation cannot be indefinitely delayed; beyond maximum period, deemed confirmation ensues. The relevant portion of the said judgment reads as under:-
"8. Rule 14 prescribes the period of probation, discharge, etc. All appointments to the service in a substantive vacancy shall be made on probation. The period of probation shall be two years and will count from the date of taking over charge of appointment, provided that the Governor may extend the period of probation. Any such extension shall specify the date up to which the extension is granted. Sub-rules (2) and (3) are not necessary."
(emphasis supplied) RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 31 OA No.962/2020 9.6 Further, we observe that under Rule 10 of the Rules ibid, it is incumbent upon the competent authority to pass a specific order extending the probation of an employee on the expiry of the initial period of two years, if such extension is considered necessary. In the present case, there is nothing on record to indicate that upon completion of two years of probation on 28.12.2017 (the applicant having been appointed on 29.12.2015), or even within the permissible period of six or eight weeks thereafter, any order was issued by the respondents extending the applicant's probation. In view of above dicta, we are of the view that the applicant cannot be treated as probationer even after 25.02.2020.
9.7 The requirement of a timely order of extension being mandatory, failure to do so has the legal consequence that the applicant's probation stood completed by efflux of time on 28.12.2017. Accordingly, we hold that the applicant shall be deemed to have been confirmed on the post with effect from 28.12.2017.
10. Issue No. 2: Effect of Suspension on Probation : The respondents have contended that the probation of the applicant stood "frozen" during the period of suspension. However, neither the IRS Rules, 2015 nor the Master Circular provides for any concept of "freezing" probation. The legal effect of suspension is limited to subsistence allowance and pay as governed by FR 54-B. It does not, unless specifically provided in the rules, operate to stop the running of probation. In this regard, we deem it appropriate to refer to the Constitution Bench decision of the Hon'ble Supreme Court in Dharam Singh (supra), wherein it was categorically held that once RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 32 OA No.962/2020 the maximum period of probation is prescribed, it is absolute and cannot be circumvented either by implication or administrative device. The principle has been consistently followed. In State of Punjab v. Baldev Singh Khosla, reported in (1996) 9 SCC 190, the Hon'ble Supreme Court reiterated that continuation beyond the maximum probation period without express extension results in deemed confirmation. If suspension were construed to indefinitely "freeze" probation, it would defeat this settled safeguard and vest unbridled discretion in the employer to extend probation arbitrarily, contrary to the mandate laid down by the Hon'ble Apex Court in above cited cases. Accordingly, we hold that suspension cannot, in law, operate to extend or freeze probation unless the service rules expressly so provide.
11. Issue No. 3: Validity of Discharge Order : Rule 10(3) IRS Rules permits discharge only during probation. Once the applicant stood deemed confirmed, the operation of Rule 10(3) of the Rules ceased to have any application to the facts of the present case.After confirmation, termination can only be through a disciplinary proceeding under Article 311(2) of the Constitution, which provided as under:-
"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a Slate shall be dismissed or removed by a authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 33 OA No.962/2020 which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges;
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply--
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."
11.1 The impugned order dated 15.07.2020 was passed after the applicant had attained confirmed status. It is, therefore, without jurisdiction and in violative of the above provisions of Article 311 of the Constitution of India.
11.2 In Parshotam Lal Dhingra v. Union of India, reported in AIR 1958 SC 36, the Hon'ble Supreme Court ruled that once an employee is confirmed, termination amounts to dismissal and requires protection under Article 311 of the Constitution of India. The relevant portion of the said judgment reads as under:-
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"28. The position may, therefore, be summed up as follows : Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. Union of India [(1953) 1 SCC 420 : (1953) SCR 655]. Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311(2), as has also been held by this Court in Shyam Lal v. State of Uttar Pradesh [(1955) 1 SCR 26] . In either of the two abovementioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh v. Union of India [LR 58 Bom 673 : AIR (1956) Bom 455] wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forefeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 35 OA No.962/2020 by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression "terminate" or "discharge" is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant."
11.3 Before applying the above tests to the present case, we deem it appropriate to reproduce the contents of the impugned discharge Order dated 15.07.2020, which read as under:-
"F. No. C-29016/19.2020. Ad.VI(A) Government of lndia Ministry of Finance Department of Revenue (Central Board of Direct Taxes) New Delhi, the 15th July, 2020 ORDER
1. Whereas, as per the IRS rules, 2015, every officer on appointment to the service by direct recruitment to the grade of Assistant Commissioner of Income Tax, shall be on probation for a period of 2 years unless the Controlling Authority extends the period of probation in accordance with the instructions issued by the government from time to time. Thus, an officer, who has successfully completed the probation period of 02 years may be considered for confirmation, subject to the clearing of Departmental Examination and completion of probation. This is in consonance with the IRS Rules, 2015.
2. AND WHEREAS, A complaint against Shri Suresh Chand Meena, IRS (IT: 15139) for demanding bribe from an assessee and accepting bribe through a courier was received. It is alleged that complainant met Sh. Suresh Chand Meena, RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 36 OA No.962/2020 ACIT, who allegedly told him to give Rs. 10 lakh in his case if he did not want to pay huge tax amount which would be determined in his case. After negotiation, Sh. Suresh Chand Meena, ACIT allegedly asked the complainant to pay Rs. 8 lakhs. Sh. Suresh Chand Meena, ACIT allegedly told the complainant to give the money to Mr. Sumit Shyamsunder Singhania and also gave his mobile number. Sh. Suresh Chand Meena, ACIT further allegedly told the Complainant to give Rs. 50,000 (Fifty Thousand) to Mr. Sunil Patni, Tax Assistant in the 0/o Sh. Suresh Chand Meena, ACIT. The complainant gave Rs. 50,000 (Fifty Thousand) to Mr. Sunil Patni. The complainant had recorded the entire talk with Sh. Suresh Chand Meena, ACIT and Sh. Sunil Patni in his voice recorder.
3. AND WHEREAS, the complainant filed a complaint against Shri Suresh Chand Meena, ACIT and Shri Sunil Patni with the ACB Gujarat. On the basis of the above complainant, the ACB Ahmedabad laid a trap.
4. AND WHEREAS, Mr Sumit Singhaniya allegedly directed the complainant to give Rs. 8 Lakh to his wife Mrs. Namrata Singhaniya who came to Devoram complex and met the complainant. Mrs Namrata Singhaniya from her own mobile phone called Mr. Sumit Singhaniya and told that she has received the money. Mrs. Namrata Singhaniya confessed before the panchs that her husband (Mr. Sumit Singhaniya) had called her directing to accept the bribe of Rs. 8 Lakh from the complainant.
5. AND WHEREAS, on the basis of the said verification and complainant in FIR u/s 7, 12 & 13(2) of the Prevention of Corruption Act, 2018 (Amended) was registered against Shri Suresh Chander Meena, ACIT vide Regular case no. CR26/2018, Ahmedabad city, ACB Police Station, Anand. Shri Suresh Chand Meena, ACIT in the 0/o Pr. CIT-6, Ahmedabad was arrested by ACB, Police Station, Anand, Gujarat on 06.02.2019 at 19:15 hrs from Narayan Chamber, Ashram Road, Ahmedabad on the basis of the above FIR.
6. AND WHEREAS, the aforesaid act of Shri Suresh Chand Meena while working as Assistant Commissioner of Income Tax in the 0/o the Pr. CIT- 6, Ahmedabad constitutes offence punishable under Section 201 & 511 of IPC and Section 7, 12, 13(2) of the Prevention of Corruption Act, 2018 (Amended) and substantive offence thereof.
7. AND WHEREAS, Shri Suresh Chand Meena, ACIT has been placed under suspension vide order F. No. C-11017/112019- V&L dated 05.08.2019.
8. AND WHEREAS, on the request of ACB, Gujarat, government of India has given permission wide sanction order F. No. C- 14011/14/2020-V&L dated 22.03.2020 to prosecute Shri Suresh Chand Meena in the court of law.
9. AND WHEREAS, Review Departmental Promotion Committee (RDPC) formed in accordance with IRS rules, 2015, in its meeting held true circulation to assess the suitability of Direct Recruit Office of 2015 batch for confirmation in the grade of ACIT, after consideration of vigilance clearance withheld in the case of Shri Suresh Chand Meena, IRS (IT:15139) recommended not to confirm the Suresh Chand Meena in the grade of Assistant Commissioner of Income Tax.
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10. AND WHEREAS, as per the Rule 10(3) of IRS Rules, 2015 the Government is empowered to discharge the service of an officer, if during the period of probation or extension thereof, as the case maybe, the Government is of the opinion that an officer is not fit for permanent appointment.
11. AND WHEREAS, after fully and carefully considering the facts and circumstances of the case and after going through the FIR, Panchnamas, statement of witnesses, recorded conversations, documents and other material, it is evident that the conduct of Shri Suresh Chand Meena has not been above board and suspect. The officer has also acted in a manner which is unbecoming of a Government servant under rule 3(1)(iii) of the Central Services (Conduct) Rules, 1964. Therefore, the Disciplinary Authority has found Shri Suresh Chand Meena, ACIT unfit for permanent appointment in terms of Rule 10(3) of Indian Revenue Service Rules, 2015.
12. NOW THEREFORE, the President, in exercise of the powers conferred by Rule 10(3) of Indian Revenue Service Rules 2015, hereby discharge Shri Suresh Chand Meena from Indian Revenue Service with immediate effect."
(BY ORDER AND IN THE NAME OF THE PRESIDENT) Sd/-
(D.K. Verma) Deputy Secretary to the Government of India"
11.4 Applying the above tests to the present case, we find that the impugned order cannot be treated as a mere discharge in exercise of administrative discretion. The order has the clear effect of penal consequences and the applicant has been deprived of his right to continue in service, suffered forfeiture of pay and allowances, and has been visited with a stigma which prejudicially affects his future prospects. Thus, the order squarely falls within the mischief of dismissal/removal under Article 311 of the Constitution of India, and the protection guaranteed thereunder could not have been denied without due compliance with the mandatory procedure prescribed by law. Consequently, the termination in the instant case is punitive in character, and therefore vitiated.
11.5 Further, the Hon'ble Apex Court in State Bank of India v.
Palak Modi, reported in (2013) 3 SCC 607, held that discharge RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 38 OA No.962/2020 after deemed confirmation is illegal without due inquiry. The relevant portion of the said judgment reads as under:-
"14. The question whether termination of the service of a temporary employee or a probationer can be treated as punitive even though the order passed by the competent authority does not contain any stigma has been considered in a series of judgments.
15. In Parshotam Lal Dhingra v. Union of India [AIR 1958 SC 36 : 1958 SCR 828] , which can be considered as an important milestone in the development of one facet of service jurisprudence in the country, the Constitution Bench was called upon to decide whether the order of reversion of an official holding a higher post in an officiating capacity could be treated as punitive. After elaborate consideration of the relevant provisions of the Constitution and judicial decisions on the subject, the Constitution Bench observed: (AIR p. 49, para 28) "28. ... In short, if the termination of service is founded on the right flowing from contract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with."
16. In State of Punjab v. Sukh Raj Bahadur [AIR 1968 SC 1089 : (1968) 3 SCR 234] Mitter, J. considered several precedents and culled out the following propositions: (AIR pp. 1094-95, para 16) "(1) The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.
(2) The circumstances preceding or attendant on the order of termination have to be examined in each case, the motive behind it being immaterial.
(3) If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.
(4) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution. (5) If there be a full-scale departmental enquiry envisaged by Article 311 i.e. an enquiry officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article."
17. In State of Bihar v. Shiva Bhikshuk Mishra [(1970) 2 SCC 871] the three-Judge Bench considered the question whether the respondent's RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 39 OA No.962/2020 reversion from the post of Subedar-Major to that of Sergeant in the backdrop of an inquiry made into the allegation of assault on his subordinate was punitive. On behalf of the appellant, reliance was also placed on the judgments in State of Punjab v. Sukh Raj Bahadur [AIR 1968 SC 1089 : (1968) 3 SCR 234] and Union of India v. R.S. Dhaba [(1969) 3 SCC 603] and it was argued that the order of reversion cannot be treated as punitive because it did not contain any word of stigma and the High Court committed an error by relying upon the inquiry conducted by the Commandant for coming to the conclusion that the order of reversion was punitive. While rejecting the contention, this Court observed: (Shiva Bhikshuk Mishra case [(1970) 2 SCC 871] , SCC p. 875, para 5) "5. We are unable to accede to the contention of the appellant that the ratio of the above decision is that so long as there are no express words of stigma attributed to the conduct of a government officer in the impugned order it cannot be held to have been made by way of punishment. The test as previously laid and which was relied on was whether the misconduct or negligence was a mere motive for the order of reversion or whether it was the very foundation of that order. In Dhaba case [(1969) 3 SCC 603] , it was not found that the order of reversion was based on misconduct or negligence of the officer. So far as we are aware no such rigid principle has ever been laid down by this Court that one has only to look to the order and if it does not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a government officer it must be held to have been made in the ordinary course of administrative routine and the court is debarred from looking at all the attendant circumstances to discover whether the order had been made by way of punishment. The form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct.... It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order."
(emphasis supplied)
18. In Samsher Singh v. State of Punjab [(1974) 2 SCC 831 : 1974 SCC (L&S) 550 : (1975) 1 SCR 814] a seven-Judge Bench considered the legality of the discharge of two judicial officers of the Punjab Judicial Service, who were serving as probationers. A.N. Ray, C.J., who wrote opinion for himself and five other Judges made the following observations: (SCC pp. 851 & 855, paras 63 & 80) "63. 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 than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution.
***
80. ... The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 40 OA No.962/2020 case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the case of Ishwar Chand Agarwal. The order of termination is illegal and must be set aside."
19. Krishna Iyer, J., who agreed with the learned Chief Justice, made the following concluding observations: (Samsher Singh case [(1974) 2 SCC 831 :
1974 SCC (L&S) 550 : (1975) 1 SCR 814] , SCC p. 889, para 160) "160. ... Again, could it be that if you summarily pack off a probationer, the order is judicially unscrutable and immune? If you conscientiously seek to satisfy yourself about allegations by some sort of enquiry you get caught in the coils of law, however harmlessly the order may be phrased? And so, this sphinx-complex has had to give way in later cases. In some cases the rule of guidance has been stated to be 'the substance of the matter' and the 'foundation' of the order. When does 'motive' trespass into 'foundation'? When do we lift the veil of 'form' to touch the 'substance'? When the court says so. These 'Freudian' frontiers obviously fail in the work-a-day world and Dr Tripathi's observations in this context are not without force."
20. In Gujarat Steel Tubes Ltd. v. Mazdoor Sabha [(1980) 2 SCC 593 :
1980 SCC (L&S) 197] Krishna Iyer, J. considered as to when termination simpliciter can be termed as punitive and observed: (SCC pp. 617-18, paras 53-54) "53. ... a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate.
Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used.
54. On the contrary, even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge."
21. In Anoop Jaiswal v. Govt. of India [(1984) 2 SCC 369 : 1984 SCC (L&S) 256] this Court considered the question whether termination of the appellant's service, who was appointed to Indian Police Service and was on probation, by invoking Rule 12(b) of the Indian Police Service (Probation) Rules, 1954 was punitive in nature. The facts found by the Court were that while undergoing training at National Police Academy, Hyderabad, the Probationary Officers had delayed attending the ceremonial drill practice. The Director of the Academy called for explanation from all the probationers. The appellant was accused of having instigated others not to join ceremonial drill practice on time. He denied the allegation. Thereafter, RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 41 OA No.962/2020 his service was terminated by a non-stigmatic order. The appellant challenged the termination of his service on the ground of violation of Articles 14 and 311(2) of the Constitution. The writ petition filed by him was summarily dismissed by the Delhi High Court. This Court referred to the averments contained in the pleadings of the parties, the judgments in Parshotam Lal Dhingra v. Union of India [AIR 1958 SC 36 : 1958 SCR 828] , Samsher Singh v. State of Punjab [(1974) 2 SCC 831 : 1974 SCC (L&S) 550 : (1975) 1 SCR 814] , State of Punjab v. Sukh Raj Bahadur [AIR 1968 SC 1089 : (1968) 3 SCR 234] , Union of India v. R.S. Dhaba [(1969) 3 SCC 603] , State of Bihar v. Shiva Bhikshuk Mishra [(1970) 2 SCC 871] , R.S. Sial v. State of U.P. [(1975) 3 SCC 111 : 1974 SCC (L&S) 501 : (1974) 3 SCR 754] , State of U.P. v. Ram Chandra Trivedi [(1976) 4 SCC 52 : 1976 SCC (L&S) 542] and I.N. Saksena v. State of M.P. [AIR 1967 SC 1264 :
(1967) 2 SCR 496] and held: (Anoop Jaiswal case [(1984) 2 SCC 369 : 1984 SCC (L&S) 256] , SCC p. 379, paras 12-13) "12. It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.
13. In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the gymnasium and acting as one of the ringleaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries were made behind the back of the appellant. Only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ringleaders were not seriously taken note of. Even though the order of discharge may be non-
committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution."
(emphasis supplied)
22. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences [(1999) 3 SCC 60 : 1999 SCC (L&S) 596] the two-Judge Bench considered the appellant's challenge to the termination of his service after adverting to the various communications sent by the Head of the Organisation to the appellant and formulated the following points: (SCC p. 70, para 18) "(1) In what circumstances, the termination of a probationer's services can be said to be founded on misconduct and in what RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 42 OA No.962/2020 circumstances could it be said that the allegations were only the motive?
(2) When can an order of termination of a probationer be said to contain an express stigma?
(3) Can the stigma be gathered by referring back to proceedings referred to in the order of termination?
(4) To what relief?"
While dealing with the first point, the Court referred to various earlier judgments and observed: (Dipti Prakash Banerjee case [(1999) 3 SCC 60 :
1999 SCC (L&S) 596] , SCC pp. 70-72, paras 19 & 21) "19. As to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. In this area, as pointed out by Shah, J. (as he then was) in Madan Gopal v. State of Punjab [AIR 1963 SC 531] there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged.
This very question was gone into recently in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. [(1999) 2 SCC 21 :
1999 SCC (L&S) 439] and reference was made to the development of the law from time to time starting from Parshotam Lal Dhingra v. Union of India [AIR 1958 SC 36 : 1958 SCR 828] to the concept of 'purpose of enquiry' introduced by Shah, J. (as he then was) in State of Orissa v. Ram Narayan Das [AIR 1961 SC 177] and to the seven-Judge Bench decision in Samsher Singh v. State of Punjab [(1974) 2 SCC 831 : 1974 SCC (L&S) 550 : (1975) 1 SCR 814] and to post-Samsher Singh [(1974) 2 SCC 831 : 1974 SCC (L&S) 550 : (1975) 1 SCR 814] case-law. This Court had the occasion to make a detailed examination of what is the 'motive' and what is the 'foundation' on which the innocuous order is based.
***
21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' [Ed.: The word "founded" is emphasised in the original also.] on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."
(emphasis supplied)
23. In Chandra Prakash Shahi v. State of U.P. [(2000) 5 SCC 152 : 2000 SCC (L&S) 613] the Court considered the correctness of the order passed by the High Court which had allowed the writ petition filed by the State and set aside the order passed by the U.P. Public Services Tribunal for reinstatement of the appellant. The competent authority had terminated the appellant's service in terms of Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. It was argued on behalf of the appellant that the order by which his service was terminated, though RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 43 OA No.962/2020 innocuous, was, in fact, punitive in nature because it was founded on the allegation that he had fought with other colleagues and used filthy and unparliamentary language. In the counter-affidavit filed on behalf of the respondents, it was admitted that there was no adverse material against the appellant except the incident in question. The original record produced before the Tribunal revealed that the appellant's service was terminated on account of his alleged involvement in the quarrel between the constables. After noticing various precedents, this Court observed: (SCC pp. 167-68, paras 27-30) "27. The whole case-law is thus based on the peculiar facts of each individual case and it is wrong to say that decisions have been swinging like a pendulum; right, the order is valid; left, the order is punitive. It was urged before this Court, more than once including in Ram Chandra Trivedi case [(1976) 4 SCC 52 : 1976 SCC (L&S) 542] that there was a conflict of decisions on the question of an order being a simple termination order or a punitive order, but every time the court rejected the contention and held that the apparent conflict was on account of different facts of different cases requiring the principles already laid down by this Court in various decisions to be applied to a different situation. But the concept of 'motive' and 'foundation' was always kept in view.
28. The important principles which are deducible on the concept of 'motive' and 'foundation', concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of 'motive'.
29. 'Motive' is the moving power which impels action for a definite result, or to put it differently, 'motive' is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry.
30. Applying these principles to the facts of the present case, it will be noticed that the appellant, who was recruited as a Constable in the 34th Battalion, Pradeshik Armed Constabulary, U.P., had successfully completed his training and had also completed two years of probationary period without any blemish. Even after the completion of the period of probation under Paragraph 541 of the RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 44 OA No.962/2020 U.P. Police Regulations, he continued in service in that capacity. The incident in question, namely, the quarrel was between two other constables in which the appellant, to begin with, was not involved. When the quarrel was joined by few more constables on either side, then an inquiry was held to find out the involvement of the constables in that quarrel in which filthy language was also used. It was through this inquiry that the appellant's involvement was found established. The termination was founded on the report of the preliminary inquiry as the employer had not held the preliminary inquiry to find out whether the appellant was suitable for further retention in service or for confirmation as he had already completed the period of probation quite a few years ago but was held to find out his involvement. In this situation, particularly when it is admitted by the respondent that the performance of the appellant throughout was unblemished, the order was definitely punitive in character as it was founded on the allegations of misconduct."
(emphasis supplied)
24. In Union of India v. Mahaveer C. Singhvi [(2010) 8 SCC 220 :
(2010) 2 SCC (L&S) 602] the three-Judge Bench considered the question whether termination of the respondent's service who was serving as IFS probationer by way of discharge in accordance with the terms of employment was punitive. The Court noted that the respondent's service was terminated because he had sought extension to join the Mission at Madrid in Spain because of sudden deterioration in the health condition of his parents and also requested for providing medical facilities and diplomatic passports to them. The Court also noted that the Ministry of External Affairs had taken cognizance of the complaint made by one Mrs Narinder Kaur Chadha that the respondent had been threatening her entire family and in particular her daughter which was followed by some enquiries conducted into his conduct or character by the Joint Secretary, Foreign Service Institute and a memorandum was issued to the respondent alleging his unauthorised absence. The Joint Secretary found that the complaint was wholly unfounded. The Court then referred to the principles laid down in earlier judgments and approved the view taken by the High Court that even though the order of discharge did not contain any stigma, the same was not conclusive and the High Court had rightly termed the same as punitive.
Some of the observations made in the judgment are extracted below: (SCC p. 233, para 47) "47. The materials on record reveal that the complaint made by Mrs Narinder Kaur Chadha to the Minister of External Affairs had been referred to the Joint Secretary and the Director (Vigilance) on 8-2-2002 with a direction that the matter be looked into at the earliest. Although, nothing adverse was found against the respondent, on 19-2-2002, the Joint Secretary (Vigilance) held further discussions with the Joint Secretary (Admn.) in this regard. What is, however, most damning is that a decision was ultimately taken by the Director, Vigilance Division, on 23-4-2002, to terminate the services of the respondent, stating that the proposal had the approval of the Minister of External Affairs. This case, in our view, is not covered by the decision of this Court in Dipti Prakash Banerjee case [(1999) 3 SCC 60 : 1999 SCC (L&S) 596] ." 25 [Ed.: Para 25 corrected vide Official Corrigendum No. F.3/Ed.B.J./9/2013 dated 31-1-2013.] . The ratio of the abovenoted judgments is that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 45 OA No.962/2020 probation on account of general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice."
12. Issue No. 4: Validity of Suspension Orders: Initial suspension was issued on 08.05.2019 w.e.f. and extensions on 05.08.2019 & 31.01.2020) give no reasons. The law is settled that suspension must be supported by reasons and cannot be arbitrary as held by the Hon'ble Apex Court in Ajay Kumar Choudhary v. Union of India, reported in (2015) 7 SCC 291. The relevant portion of the same reads as under:-
"21. We, therefore, direct that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee; if the memorandum of charges/charge-sheet is served, a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time-limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us."
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12.1 Moreover, the suspension became redundant after deemed confirmation since no departmental proceedings were initiated.
Therefore, suspension and extensions suffer from legal infirmity.
13. Issue No. 5: Violation of Articles 14 & 16: Batchmates of the applicant were confirmed retrospectively from 29.12.2017.
Applicant alone was excluded without justification. Such selective exclusion is discriminatory and violates equality before law and equal opportunity in service. In this regard, it is profitable to refer to the judgment of the Hon'ble Supreme Court in E.P. Royappa v. State of Tamil Nadu, reported in (1974) 4 SCC 3 wherein it was held that arbitrariness is antithetical to equality. Recently, the Hon'ble Supreme Court in the case of Sukanya Shantha vs. Union of India and others, reported in 2024 SCC Online SC 2694, has also considered above judgment in E.P. Royappa (supra) and other judgments and held as under:-
"29. The principle of non-arbitrariness and reasonableness was then emphasized in the seven-judge Bench decision in Maneka Gandhi v. Union of India45. It was held:
"Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied."
30. To test the validity of laws, the twin test of intelligible differentia and reasonable nexus held ground. Whether the test of arbitrariness is a valid principle under Article 14 led to a conflicting set of decisions.46 In Shayara Bano v. Union of India47, in testing the validity of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 which validates the triple talaq, Justice R.F. Nariman endorsed the test of manifest arbitrariness. It was held:
"The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 47 OA No.962/2020 irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14."
31. A formalistic understanding of the classification test was then critiqued by this Court in Navtej Singh Johar v. Union of India48. The Court was dealing with a challenge to the constitutionality of Section 377 of the Indian Penal Act, 1860, to the extent that it criminalized consensual sexual conduct between adults. In his concurring opinion, one of us (Justice DY Chandrachud) held:
"Equating the content of equality with the reasonableness of a classification on which a law is based advances the cause of legal formalism. The problem with the classification test is that what constitutes a reasonable classification is reduced to a mere formula : the quest for an intelligible differentia and the rational nexus to the object sought to be achieved. In doing so, the test of classification risks elevating form over substance. The danger inherent in legal formalism lies in its inability to lay threadbare the values which guide the process of judging constitutional rights. Legal formalism buries the life-giving forces of the Constitution under a mere mantra. What it ignores is that Article 14 contains a powerful statement of values--of the substance of equality before the law and the equal protection of laws. To reduce it to a formal exercise of classification may miss the true value of equality as a safeguard against arbitrariness in State action. As our constitutional jurisprudence has evolved towards recognising the substantive content of liberty and equality, the core of Article 14 has emerged out of the shadows of classification. Article 14 has a substantive content on which, together with liberty and dignity, the edifice of the Constitution is built. Simply put, in that avatar, it reflects the quest for ensuring fair treatment of the individual in every aspect of human endeavour and in every facet of human existence."
The judges declared that Section 377 is manifestly arbitrary. The doctrine of manifest arbitrariness was also adopted in the Constitution Bench decision in Joseph Shine v. Union of India.49.
32. Referring to the decisions in Shayara Bano, Navtej Johar, and Joseph Shine, a Constitution Bench in Assn. for Democratic Reforms (Electoral Bond Scheme) v. Union of India50 summarized the doctrine of manifest arbitrariness in the following words:
"Courts while testing the validity of a law on the ground of manifest arbitrariness have to determine if the statute is capricious, irrational and without adequate determining principle, or something which is excessive and disproportionate. This Court has applied the standard of "manifest arbitrariness" in the following manner:
a. A provision lacks an "adequate determining principle" if the purpose is not in consonance with constitutional values. In applying this standard, Courts must make a distinction between the "ostensible purpose", that is, the purpose which is claimed by the State and the "real purpose", the purpose identified by Courts based on the available material such as a reading of the provision; and b. A provision is manifestly arbitrary even if the provision does not make a classification."
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The Constitution Bench further elucidated the standards of manifest arbitrariness to test the validity of a plenary legislation with those of subordinate legislation:
"The above discussion shows that manifest arbitrariness of a subordinate legislation has to be primarily tested vis-a-vis its conformity with the parent statute. Therefore, in situations where a subordinate legislation is challenged on the ground of manifest arbitrariness, this Court will proceed to determine whether the delegate has failed "to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or, say, the Constitution." In contrast, application of manifest arbitrariness to a plenary legislation passed by a competent legislation requires the Court to adopt a different standard because it carries greater immunity than a subordinate legislation. We concur with Shayara Bano (supra) that a legislative action can also be tested for being manifestly arbitrary. However, we wish to clarify that there is, and ought to be, a distinction between plenary legislation and subordinate legislation when they are challenged for being manifestly arbitrary."
33. The Court recently in State of Punjab v. Davinder Singh51 dealt with whether sub-classification among the Scheduled Castes is permissible under Article 14. The seven-judge bench reiterated that the State is allowed to classify in a manner that is not discriminatory. The Court summarized the twin-test of classification as follows:
"The Constitution permits valid classification if two conditions are fulfilled. First, there must be an intelligible differentia which distinguishes persons grouped together from others left out of the group. The phrase "intelligible differentia" means difference capable of being understood. The difference is capable of being understood when there is a yardstick to differentiate the class included and others excluded from the group. In the absence of the yardstick, the differentiation would be without a basis and hence, unreasonable. The basis of classification must be deducible from the provisions of the statute; surrounding circumstances or matters of common knowledge. In making the classification, the State is free to recognize degrees of harm. Though the classification need not be mathematical in precision, there must be some difference between the persons grouped and the persons left out, and the difference must be real and pertinent. The classification is unreasonable if there is "little or no difference". Second, the differentia must have a rational relation to the object sought to be achieved by the law, that is, the basis of classification must have a nexus with the object of the classification."
34. The constitutional standards laid down by the Court under Article 14 can be summarized as follows. First, the Constitution permits classification if there is intelligible differentia and reasonable nexus with the object sought. Second, the classification test cannot be merely applied as a mathematical formula to reach a conclusion. A challenge under Article 14 has to take into account the substantive content of equality which mandates fair treatment of an individual. Third, in undertaking classification, a legislation or subordinate legislation cannot be manifestly arbitrary, i.e. courts must adjudicate whether the legislature or executive acted capriciously, irrationally and/or without adequate determining principle, or did something which is excessive and disproportionate. In applying this constitutional standard, courts must identify the "real purpose" of the statute rather than the "ostensible purpose" presented by the State, as summarized in ADR. Fourth, a provision can be found manifestly arbitrary even if it does not make a classification. Fifth, different constitutional standards have RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 49 OA No.962/2020 to be applied when testing the validity of legislation as compared to subordinate legislation."
14. In view of the above analysis and the dicta laid down by the Hon'ble Supreme Court in above referred judgments, we hold that (i) The applicant stood deemed confirmed as an IRS Officer w.e.f. 28.12.2017 itself under Para 27 of the Master Circular dated 11.03.2019, read with Rule 10 of the IRS Rules, 2015; (ii) Suspension cannot operate to extend probation beyond the statutory maximum of four years; (iii) The impugned discharge order dated 15.07.2020 under Rule 10(3) of the IRS Rules is illegal, arbitrary, and void ab initio, having been passed after the applicant attained confirmed status; (iii) The suspension orders dated 08.05.2019, 05.08.2019, and 31.01.2020 are unsustainable in law for want of reasons and in violation of principles laid down in Ajay Kumar Choudhary (supra); ( (iv) The respondents' action in excluding the applicant from confirmation, while confirming his batchmates, is discriminatory and violative of Articles 14 and 16 of the Constitution. Accordingly, all the issues as framed above are answered in favour of the applicant.
15. In the result, for the forgoing reasons, the present OA is allowed with the following directions:-
(i) The impugned discharge order dated 15.07.2020 is quashed and set aside;
(ii) The impugned suspension order dated 08.05.2019 and extension of suspension of the applicant vide orders dated 05.08.2019 and 31.01.2020 are also quashed;
(iii) The respondents are directed to reinstate the applicant forthwith with continuity of service, treating him as confirmed IRS officer w.e.f. 28.12.2017, with all RAVI 2025.09.24 KANOJIA 17:05:07+05'30' Item No.14/C-2 50 OA No.962/2020 consequential benefits in accordance with rules and law on the subject;
(iv) Arrears of pay and allowances for the suspension period shall be decided under FR 54-B within 12 weeks from the date of receipt of a certified copy of this order; and
(v) The respondents are at liberty to initiate departmental proceedings against the applicant in accordance with rules and law on the subject.
16. Pending MA(s) stands disposed of accordingly.
17. There shall be no order as to costs.
(Rajinder Kashyap) (R.N. Singh)
Member (A) Member (J)
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