Rajasthan High Court - Jaipur
Ashok Pareek vs State & Ors on 7 March, 2018
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ No. 2096/2000
Ashok Pareek S/o Shri Mahaveer Prasad Pareek, aged about 28
years, resident of C/o Shri Murarilal Pareek, Purohiton Ka
Mohalla, Chomu, District Jaipur (RAJ.)
----Petitioner
Versus
1. State of Rajasthan through the Secretary to Government,
Home Department, Secretariat, Jaipur.
2. Director General of Police, Rajasthan, Jaipur.
3. Dy. Inspector General of Police, Jaipur Range-I, Jaipur.
----Respondent
For Petitioner(s) : Mr.Vivek Dangi, Mr.Hitesh Jatawat &
Mr.James Bedi
For Respondent(s) : Dr.A.S.Khangarot, AGC
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Reportable Order
07/03/2018
The petitioner has filed the instant writ petition challenging
order dated 17.04.2000, whereby he has been dismissed from
service on account of his performance not being found satisfactory
during the probation period.
The petitioner was selected by way of direct recruitment on
the post of Sub-Inspector in the year 1996 and he was issued
appointment order dated 12.08.1996 and put on probation for a
period of two years. The petitioner joined his duties on
29.08.1996 as Sub-Inspector (Probationer) at Rajasthan Police
Academy, Jaipur. The petitioner has pleaded that during the period
(2 of 35) [CW-2096/2000]
of probation, he had to remain on extraordinary leave due to his
illness and other unavoidable circumstances in the year 1998. The
petitioner was issued a memorandum under Rule 17 of the
Rajasthan Civil Services (Classification, Control & Appeals) Rules,
1958, dated 18.12.1998 for remaining absent. The petitioner
ultimately came to be punished, with a penalty of withholding of
one grade increment without cumulative effect and he was
granted extraordinary leave for a period of 35 days vide order
dated 21.07.1999.
The petitioner has pleaded in his petition that an enquiry
under Rule 16 of the CCA Rules was also initiated against him vide
memorandum dated 03.02.1998 about his willful absence from
duty. The allegation was with respect to absence from duty for
136 days and finally, a penalty order of withholding of one grade
increment without cumulative effect was imposed against
petitioner vide order dated 22.10.1999.
The petitioner has pleaded in his writ petition that he had
passed the departmental examination conducted by the
respondents, on 11.06.1999 and said examination was passed
without grace marks but he was not confirmed after completion of
two years of probation period that came to an end on 29.08.1998.
The petitioner has pleaded that the departmental examination
consisted of different subjects like Constitution, IPC, CPC, Local
and Special laws, Investigation Methods, Criminology, Computer
Skill & Application, Road Safety & Traffic Management, Ethics &
Integrity, etc. and as such, he had gained knowledge of these
subjects.
The petitioner has pleaded that his probation period was
extended vide order dated 29.06.1999 for six months and by
(3 of 35) [CW-2096/2000]
another order dated 6th November, 1999, his period of probation
was extended for another six months w.e.f. 22.10.1999.
The petitioner has pleaded that in spite of completion of
maximum period of probation, the impugned discharge order
dated 17.04.2000 came to be passed on the ground that the
performance of the petitioner was not found satisfactory during
the period of probation.
The petitioner in his petition has pleaded that maximum
period of three years of his probation since was completed and
disciplinary proceedings were finalized, the impugned order could
not be passed by discharging him from service while treating him
as a probationer and petitioner ought to have been treated as
deemed confirmed employee.
The respondents filed reply to the writ petition and it was
pleaded by them in the reply that due to not passing the
departmental examination, the petitioner was discharged from
service as probationer.
This Court on 02.03.2017 observed that petitioner had
already cleared departmental examination in 1999 and as such,
the facts pleaded in the reply and rejoinder did not relate to the
petitioner. Hence, an opportunity was granted in the interest of
justice to the respondents to file an additional affidavit to bring
out the reasons for discharging the petitioner, while on extended
period of probation.
The respondents have filed an additional affidavit in
compliance of order dated 02.03.2017 and it has been pleaded
that during period of training between 16.09.1996 to 04.01.1998,
the petitioner willfully absented on as many as 23 occasions and
as such, absence was for a total period of 136 days. The
(4 of 35) [CW-2096/2000]
respondents have submitted that on account of such conduct of
petitioner, departmental enquiry was conducted against him where
charge of willful absence was proved and since petitioner did not
complete his basic training, he was again sent for training from
10.12.1998 to 20.04.1999 and as per result dated 11.06.1999, he
was declared pass in departmental examination. The respondents
have pleaded that departmental enquiry under Rule 17 of CCA
Rules was pending against the petitioner and as such, as per
provision contained in Rule 39(4) of the Rajasthan Police
Subordinate Service Rules, 1989 (hereinafter referred to as, "the
Rules of 1989"), vide order dated 07.07.1999, the probation
period of the petitioner was extended in pursuance of decision of
the Board in its meeting dated 29.06.1999 till completion of the
departmental enquiry against the petitioner.
It has been pleaded that after conclusion of the departmental
enquiry, the meeting of the Board was again convened on
06.11.1999 to consider the case of the petitioner for his
confirmation. However, the Board found that the petitioner was
not having the proper knowledge of the law and procedure, in
such, circumstances, the Board recommended for further
extension of probation period of the petitioner for a period of six
months and consequently, vide order dated 22.10.1999, the
probation period of petitioner was extended for another six
months.
It has been pleaded that meeting of the Board was convened
on 17.04.2000 for considering the case of the petitioner and
petitioner was subjected to interview before the Board. The Board
took into consideration the working diary, personal file, service
book and APAR of the petitioner and during interview the board
(5 of 35) [CW-2096/2000]
found that the petitioner was not having the knowledge of
required standard and his knowledge about the provisions of
Indian Penal Code, was also not found satisfactory. It was also
noticed that during probation period while he was posted at Police
Station Chomu, the petitioner absented from duty on two
occasions. It was further noticed by the board that although the
petitioner completed three years of service as Sub-Inspector
(Probationer) but during such long period, he failed to acquire
proper knowledge about the work, procedure and law, and
ultimately, the Board after considering all the relevant aspects
found that petitioner is not suitable for service and decided to
discharge him from the post of Sub-Inspector.
The respondents have submitted in additional affidavit that
petitioner was discharged as his probation period was not found
satisfactory by a duly constituted Board which considered the case
of the petitioner for confirmation thrice i.e. on 29.06.1999,
06.11.1999 and 17.04.2000.
It has been further submitted in the affidavit that since the
petitioner was discharged from service vide order dated
17.04.2000, the relevant record being old one, has already been
destroyed in 2009 and to this effect, letter dated 29.06.2009 of
Incharge of Establishment Section of Director General of Police,
Jaipur Range (First), Jaipur has been placed on record.
The petitioner has filed counter-affidavit and has placed on
record the syllabus of the departmental examination and has
further submitted that the petitioner had passed the said
examination and as such, it cannot be said that the petitioner did
not have the requisite knowledge as has been alleged in the
meeting of the Board. The petitioner has further filed an additional
(6 of 35) [CW-2096/2000]
affidavit dated 26.04.2017, wherein a letter dated 17.04.2000 has
been placed on record written by S.H.O., Police station Chomu to
Deputy Inspector General of Police, Jaipur Range (First), Jaipur in
respect of performance of the petitioner in response to letter
received by him from the office of Superintendent of Police dated
15.04.2000. The petitioner has placed on record that the S.H.O.
concerned had reported that performance of the petitioner was
satisfactory.
Mr.Vivek Dangi, learned counsel for the petitioner, has
submitted that the perusal of Board proceedings reveal that the
Authorities have drawn the proceedings without application of
mind. The learned counsel submitted that the conclusions drawn
about the performance of the petitioner are contrary to record as
the report of the S.H.O., Police Station Chomu speaks otherwise
and such report has not been considered. The learned counsel
submitted that opinion in respect of lack of knowledge is also a
perverse finding as the petitioner had cleared the departmental
examination, no such finding could have been recorded by the
Members of the Board.
The learned counsel has submitted that conclusions, which
have been drawn, have no basis and as such, the impugned order
has been passed on wrong premise.
The learned counsel has submitted that the petitioner had
completed the maximum period of probation provided under the
Rules of 1989 as three years period had expired starting from
29.08.1996 to 28.08.1999 and discharge order has been passed
after expiry of the maximum period of probation. The learned
counsel has submitted that as per Rules of 1989, there is
provision of deemed confirmation and the respondents ought to
(7 of 35) [CW-2096/2000]
have treated the petitioner as a confirmed employee and they
could not have passed the discharge order.
The learned counsel has submitted that as far as absence of
petitioner during probation period was concerned, there were
other employees also like petitioner, whose details are given in
para 7 of the writ petition, who also remained absent but they
have been confirmed in service and petitioner has been
discriminated while taking decision about his confirmation. The
name of such persons are Naresh Sharma, Ravindra Kumar
Bothra, Gaurav Amrawat and Chandra Shekar.
The learned counsel has submitted that the petitioner has
been subjected to hostile discrimination in matter of confirmation
and there was nothing against the petitioner whereby the
Authority could form an opinion that the performance of the
petitioner was not satisfactory.
The learned counsel has relied upon the judgments rendered
in the case of Rajinder Singh Chaughan & Ors. Vs. State of
Haryana & Ors., reported in (2005) 13 Supreme Court Cases 179,
Ota Ram Vs. State of Rajasthan, reported in RLW 2003(2) Raj.
910 and D.L.Dabgar & Anr. Vs. State of Raj. & Ors., reported in
1987(2) WLN 836.
Per contra, Mr. A.S.Khangarot, the learned counsel for the
respondents has submitted that the order passed by the
Authorities does not require any interference by this Court under
Article 226 of the Constitution of India. The proceedings of the
Board reflects that Authorities have considered the performance of
the petitioner in objective manner and the entire material was
placed before the said Board. The learned counsel submitted that
not only the service record of the petitioner was considered but
(8 of 35) [CW-2096/2000]
petitioner himself was put to interview and after taking into
various factors about performance of the petitioner, bonafide
opinion was framed to discharge him from service.
Mr. Khangarot has submitted that the petitioner, who
remained not only absent during period of probation, was also
lacking in knowledge and his performance was noted by the
Members of the Board while evaluating his performance.
Mr. Khangarot has submitted has submitted that if a
probationer is put on probation, his entire working/performance is
to be adjudged by the Authorities. Mr. Khangarot has submitted
that merely by passing the departmental examination, it cannot
be presumed that the petitioner had given his performance upto
the requirement for the post, for which he was appointed. Mr.
Khangarot submitted that two extensions which were granted to
the petitioner about his performance, was in consonance with the
scheme of the Rule as the departmental proceedings were
continued and Rule 39(4) of the Rules of 1989 specifically provides
that the period of probation has to be extended where the
disciplinary proceedings are initiated against a person and the
probation period is required to be extended till the departmental
proceedings are finalized. The learned counsel submitted that
petitioner cannot take advantage of making a case that since
extensions have been granted to him, he acquires status of a
'deemed confirmed' employee.
As far as the deemed confirmation after maximum period of
probation of 3 years is concerned, Mr. Khangarot submitted that
as per Rule 39 of the Rules of 1989, a person can be confirmed
after he successfully completes his probation period and after
passing the examination prescribed by Director General of Police.
(9 of 35) [CW-2096/2000]
The learned counsel submitted that the successful completion of
probation period is one condition and passing of departmental
examination is the second condition, which if fulfilled by a
candidate, can lead to a situation where an employer may confirm
the employee. The learned counsel submitted that bare reading of
Rule 39 makes it clear that petitioner cannot claim confirmation
only on account of passing of a departmental examination.
The learned counsel submitted that Rule 38 of the Rules of
1989, which is relied by the learned counsel for the petitioner, has
no application in the present case as Rule 38 talks about persons
who are promoted and put on probation and if they do not
perform satisfactorily during probation period, they can be
reverted to the lower post on which they have a lien. Mr.
Khangarot has submitted that the judgments relied upon by the
learned counsel for the petitioner has no application in the present
case as the Division Bench in the case of Ota Ram Vs. State of
Rajasthan (supra) had specifically recorded that there was nothing
against the petitioner in that case about his performance during
the period of probation or during extension of probation period
and in the case in hand, the performance of the petitioner was
lacking and as such, the same analogy cannot be applied in the
present case.
I have considered the submission of learned counsel for both
the parties and scanned the record.
It would be relevant to quote Rules 37, 38, 39 of the
Rajasthan Police subordinate Service Rules, 1989, which read
thus:-
"37. Period of Probation.- (1) A person entering the
service by Director Recruitment against a clear vacancy
(10 of 35) [CW-2096/2000]
shall be placed as Probationer-trainee for a period of 2
years.
Provided that any period after such appointment
during which a person has been on deputation on a
corresponding or higher post shall count towards the
period of probation.
(2) During the period of probation specified in sub-rule
(1) each probationer may be required to pass such
Departmental Examination and to undergo such training
as the Government may, from time to time, specify."
"38. Reversion of Probationer.- Notwithstanding
anything contained in the rule, if no order of
confirmation is issued by the Appointing Authority within
a period of six months, an employee appointed on
temporary or officiating basis, who has after the date of
his regular recruitment by either method of recruitment
completed a period of two years service or less in case
of those appointed by promotion, where the period of
probation prescribed is less, on the post or a higher post
under the same Appointing Authority or would have so
worked but for his deputation or training shall on the
occurrence of permanent vacancies be entitled to be
treated as confirmed, if the same conditions as are
prescribed, under the rules and in accordance with his
seniority. In case a member of the service fails to give a
satisfactory account of himself during the probation
period and he is not confirmed in service he shall be
reverted to the post on which he has a lien."
39. Confirmation, extension of probation and
discharge.- A member of the service who successfully
completes his probation period and passes the
Departmental Examination prescribed by Director
General of Police shall be eligible for confirmation at the
end of the probation period, provided the Appointing
Authority is satisfied that his integrity is unquestionable
and that he is otherwise fit for confirmation.
Explanation.- (1) In case the Departmental
Examination could not be held due to unavoidable
circumstances even after completion of two years
period, the candidate will become due for confirmation
after passing of the departmental examination with
effect from the date on which he completed the
probation period.
(2) In case a candidate of service under probation fails
to pass the prescribed examination in two attempts, he
shall be liable to be discharged from such post in the
manner as a probationer or reverted to a lower post, if
any, to which he may be entitled:
Provided further that no person shall be debarred
from confirmation after the said period of service if no
reasons to the contrary about the satisfactory
(11 of 35) [CW-2096/2000]
performance of his work are communicated to him
within the said period.
(3) Where a candidate has not given a satisfactory
account during the probation period or has failed in the
prescribed examination during the first attempt, his
probation period may be extended upto one year by the
Appointing Authority or an Authority superior to the
Appointing Authority:
Provided further that the Appointing Authority
may, if it so thinks fit in case of persons belonging to
the Scheduled Castes or Scheduled Tribes, as the case
may be extended the period of the probation by a
period not exceeding three years.
(4) Where a probationer is placed under suspension or
disciplinary proceedings are contemplated or have been
initiated against him, the period of his probation may
be, extended till such time the departmental
proceedings are finalised.
(5) A probationer reverted or discharged from service
during or at the end of the period of probation under
sub-rule (1), shall not be entitled to any compensation."
The first contention raised by learned counsel for the
petitioner is with regard to non-application of mind by the
Members of the Board in the proceedings held for considering the
case of the petitioner for confirmation, this Court finds that in the
proceedings, Board has recorded that initially in the meeting held
on 29.06.1999 for considering the case of the petitioner for the
purpose of confirmation, it was observed that probation of the
petitioner is extended till completion of the departmental
enquiry. The Court further finds that the meeting of the Board
again took place on 06.11.1999 and probation period of the
petitioner was extended from 22.10.1999 for a period of six
months as the petitioner was not having the knowledge of law
and procedure.
The meeting dated 17.04.2000 took place and it has
recorded that petitioner was present before the Board along with
the S.H.O., Police Station Chomu, the record of the police
station, compilation of V.C.N.B and the register of suspects &
(12 of 35) [CW-2096/2000]
convicts, which was maintained at Police Station. The petitioner
on being asked questions, was found to be having below
standard knowledge. The meeting further records that petitioner
was absent during his posting at Police Station Chomu on two
occasions though later-on such absence was sanctioned by way
of granting leave.
The Board proceedings further recorded that knowledge of
the petitioner in respect of Indian Penal Code was also not
satisfactory. The appointment date of the petitioner was
29.08.1996 and after expiry of three years, it was found that his
period of probation was extended for six months due to
unsatisfactory performance and yet the petitioner during the
extended period of time, also did not put efforts to acquire the
knowledge about the working of the Police Department and also
did not acquire the knowledge of law. The Board after
considering all these factors came to conclusion that petitioner
was not required to be continued in service and he was to be
discharged as probationer. The proceedings of the Board are
reproduced as hereunder:-
cksMZ&izkslhfMax
lgk;d egkfujh{kd iqfyl ¼izf'k{k.k½ jktŒ t;iqj ds vkns'k la[;k
i&11 ¼3½izf'k@ih-Vh-@ikVZ&1@98@3195&98 fnukad 21&5&99 }kjk
xfBr cksMZ us egkfujh{kd iqfyl ,oa funs'kd vkjŒihŒ,Œ t;iqj ds vkns'k
Øekad 3545&76 fnukad 11&6&99 ds }kjk izkjafEHkd izf'k{k.k dk vafre
ijh{kk ijh.kke ?kksf"kr fd;s tkus ij t;iqj jsat izFke ds izkscs'kuj
mifujh{kd Jh v'kksd dqekj iq= Jh egkohj izlkn ds LFkkbZdj.k ,oa
dk;ZewY;kdau gsrq cksMZ dh ehfVax fnukad 29&6&99 dks vk;ksftr dh xbZ]
ftlesa cksMZ us mifujh{kd ¼izkscs'kuj½ dh ijh{kk vof/k 11&6&99 ls
foHkkxh; tk¡p iw.kZ gksus rd c<+kbZ xbZA foHkkxh; tk¡p iw.kZ gksus ij cksMZ
dh ehfVax fnukad 6&11&99 dks vk;ksftr dh xbZ] ftlesa Hkh dkuwu ,oa
izfd;k dk Kku detksj ik;k tkus ij fnukad 22&10&99 ls fnukad 6
ekg ds fy;s ifjoh{kk vof/k c<+kbZ xbZA iqu% cksMZ dh ehfVax fnukad
17&4&2000 dks vk;ksftr dh xbZ] ftlesa cksMZ }kjk mifujh{kd ¼izkscs'kuj½
dk lk{kkRdkj fy;k x;kA budh ofdZax Mk;jh] O;fDrxr i=koyh]
(13 of 35) [CW-2096/2000]
lsokiqfLrdk ,oa ,ih, dk voyksdu fd;k x;kA
mifujh{kd ¼izkscs'kuj½ ds lkFk Fkkukf/kdkjh pkSew Hkh mifLFkr gq,A
Fkkus ds fjdkMZ] oh-lh-,u-oh- ds la/kkj.k o lLisDVl ,oa dufoDVl iaftdk
ckcr iwNk x;k rks budk Kku fuEuLrj dk Ikk;k x;kA mifujh{kd
¼izkscs'kuj½ Fkkuk pkSew esa rSukrh ds nkSjku nkS ckj xSj gkftj gqvk] ftldh
ckn esa NqV~Vh Lohd`r dj nh xbZA izkscs'kuj mifujh{kd dk vkbZ-ih-lh- dk
Kku Hkh larks"kizn ugha gSA mifujh{kd ¼izkscs'kuj½ dh fu;qfDr fnukad
29&8&96 gS ftldks rhu o"kZ ls vf/kd vof/k gks pqdh gS rFkk iwoZ esa
budk dk;Z vlUrks"ktud ik;s tkus ij ifjoh{kk vof/k 6 ekg c<+kbZ xbZ
Fkh] ijUrq bl vof/k esa Hkh buds }kjk iqfyl dk;Z iz.kkyh] fjdkMZ o dkuwu
ckor Kku gkfly djus dk iz;kl ugha fd;k x;kA ifjoh{kk vof/k ds dk;Z
ds vuqlkj cksMZ us bUgsa iqfyl lsok ds mi;qDr u ikdj fMLpktZ fd;k
tkus dk fu.kZ; fy;k gSA vr% mifujh{kd izkscs'kuj dks fMLpktZ fd;k
tkrk gSA
The Court finds that contention of the learned counsel for the
petitioner that there was non-application of mind and relevant
performance report was not considered, is without any substance
and contrary to the record. The allegation of the counsel for the
petitioner that petitioner had requisite knowledge as he had
passed the departmental examination, is also without any
substance. The passing of the departmental examination itself is
not a condition precedent that a person is required to be
confirmed. The Rule 39 of the Rules of 1989 provides that
member of the service who successfully completes his probation
period and passes the Departmental Examination shall be eligible
for confirmation. The contention of the learned counsel for the
petitioner that merely by passing the departmental examination
and having the knowledge of all branches of law, is not sufficient
and appointing authority has to keep in mind the different
parameters for adjudging the performance of a person during his
probation period.
The contention of the learned counsel for the petitioner that
conclusions which have been drawn by the Members of the
Board, have no basis, this Court finds that the Members of the
(14 of 35) [CW-2096/2000]
Board took into account the two extension granted to the
petitioner while extending his period of probation on 29.06.1999
and 06.11.1999. It is also apparent from the record that
petitioner did not pass initially the departmental examination and
after result was declared, the Board extended the period of
probation due to pendency of the departmental enquiry against
the petitioner. The provision of extension of probation period in
case of a person facing the disciplinary proceedings, is provided
under Rule 39(4) of the Rules of 1989 and accordingly, the
department while keeping in mind the said Rule 39(4), extended
the period of probation of the petitioner.
The allegation of the petitioner that conclusions have been
drawn only on surmises, is absolutely contrary to record. It is
also to be noted that the Board for adjudging the performance of
the petitioner consisted of three officers of the Police Department
i.e. (1) Deputy Inspector General of Police, Jaipur Range (First),
Jaipur, (2) Superintendent of Police and (3) Assistant Director
(Outdoor) RPA, Jaipur. The presence of Assistant Director
(Outdoor) shows that the performance of the petitioner during
probation, where he was undergoing training at RPA, was
monitored by him. This Court finds that the findings which are
recorded by the Members of the Board, do not suffer from any
illegality or based on surmises and moreover, it is not the case of
the petitioner that any person in the entire department was
acting in a malafide manner and the petitioner had to suffer
because of prejudice of any officer of the department.
This Court finds that the purpose of keeping a person on
(15 of 35) [CW-2096/2000]
probation is to adjudge the performance of such person and if
the Authority finds that a person has not even made use of
extension/chance given to him to improve his performance, the
Appointing Authority has to act as per rules to take a decision to
terminate services of such person, whose services are not found
satisfactory.
The second contention raised by learned counsel for the
petitioner is with respect to deemed confirmation of the
petitioner as per Rule 38 of the Rules of 1989. The learned
counsel has submitted that during the extended period of
probation, no order was passed of termination of service, it has
to be presumed that petitioner after spending maximum period
becomes entitled for automatic confirmation. The learned counsel
has submitted that Rule 38 of the Rules of 1989 provides for a
deemed confirmation clause and as such, after expiry of second
extension of the petitioner, the petitioner ought to be treated as
confirmed employee and his services could not be terminated by
way of discharge.
The close scrutiny of Rule 37 of the Rules of 1989 would show
that all the persons who are appointed to the service either by
direct recruitment or by way of promotion, are required to be put
on probation for a period of two years and one year respectively.
The said Rule further provides that a person who has rendered
services already prior to his appointment in Police Department,
such period rendered on probation in different service, can be
counted towards the period of probation.
Rule 38 of the Rules of 1989 provides that if no order of
(16 of 35) [CW-2096/2000]
confirmation is issued by the Appointing Authority within a period
of six months, an employee appointed on temporary or officiating
basis, who has after the date of his regular recruitment by either
method of recruitment completed a period of two years service
or less in case of those appointed by promotion, on the higher
post under the same authority, shall be entitled to be treated as
confirmed. It further provides that if a member of the service
fails to give a satisfactory account of himself during the probation
period and he is not confirmed in service he shall be reverted to
the post on which he has a lien. The Court finds that Rule 38 of
the Rules of 1989 is applicable in cases where person is reverted
to a lower post if he is already working in the department and if
he does not complete the satisfactory service during the
probation period. In the opinion of the Court, the said Rule will
not cover the case of the petitioner and the petitioner who has
been appointed on probation under Rule 37 of the Rules of 1989
is required to be governed by Rule 39 where the Appointing
Authority has to take a decision either for confirmation,
extension of probation or discharge of a probationer.
Rule 39 of the Rules of 1989 specifically provides that a
member of the service who successfully completes his probation
period and passes the departmental examination, shall be
eligible for confirmation at the end of the probation period,
provided the Appointing Authority is satisfied about the integrity
and is otherwise fit for confirmation. There is no automatic
confirmation under Rule 38 or 39 as has been canvassed by the
learned counsel for the petitioner. The Authority has to pass
specific order of confirmation on conditions being satisfied by a
(17 of 35) [CW-2096/2000]
probationer.
The perusal of Rule 39(2) shows that a candidate who fails to
pass the prescribed examination in two attempts, is liable to be
discharged from such post as a probationer or reverted to a
lower post, if any, to which he may be entitled. The perusal of
this Rule makes it clear that if the candidate coming by stream of
direct recruitment or by promotion fails to pass the prescribed
examination in two attempts, can either be discharged from such
post in case of direct recruitment or can be reverted to lower
post if he has been appointed by way of promotion. The proviso
to said Rule further provides that a person shall not be debarred
from confirmation after the period of probation if no reasons to
the contrary about the satisfactory performance of his work, are
communicated to him within the said period. The Court finds that
proviso also makes it clear that person cannot be debarred from
confirmation provided his services are found satisfactory and
nothing adverse is communicated to him.
The bare perusal of Rule 39(3) of the Rules of 1989 makes it
clear that a person who has not given satisfactory performance
during probation period or has failed in the prescribed
examination during the first attempt, his probation period may
be extended upto one year by the Appointing Authority. The
Court finds that there are two situations where probation period
can be extended, the first contingency is that if a candidate has
not given satisfactory account during the probation period, his
period of probation can be extended and the second contingency
is with respect to not qualifying the prescribed examination
(18 of 35) [CW-2096/2000]
during his first attempt.
In the instant case, the competent Authorities initially
extended the period of probation of the petitioner on account of
pendency of a departmental enquiry against him vide Board's
meeting dated 29.06.1999. The second extension was granted
from 22.10.1999 for six months as petitioner was not having the
requisite knowledge of law and procedure. The Authority in first
case of extension followed Rule 39(4) of the Rules of 1989 as the
period of probation is required to be extended where a person is
facing the departmental enquiry. The second extension was
exercised as per Rule 39(3) of the Rules of 1989. The Court finds
that the concept of deemed confirmation as has been canvassed
by learned counsel for the petitioner, would not be attracted as
per the scheme of the rules.
The learned counsel for the petitioner has placed reliance on
judgment of Division Bench of this Court reported in Ota Ram Vs.
State of Rajasthan (supra), the close scrutiny of the said
judgment reveals that the Division Bench has considered the
provisions of Rajasthan Jail Services Rules, 1959 and in
particular Rule 28(A)(a) and Rule 29, were considered by the
Court. The Division Bench found that if during probation period,
nothing is pointed out to the person by way of his service being
unsatisfactory, as per provisions contained in the Rule 28A(a)
and proviso thereto, the person has to be treated as confirmed.
The Division Bench in para 12 has specifically noted that under
Rule 28(A)(a) of the Rajasthan Jails Service Rules, 1959, the
probation period can be extended maximum by one year under
(19 of 35) [CW-2096/2000]
the first proviso to the said Rule and one of the condition being
unsatisfactory performance, the Division Bench found that the
petitioner in that case was never informed that his services were
unsatisfactory during first three years of service. The Division
Bench found that if no reasons to the contrary about the
satisfactory performance of work of employee are communicated
within the probation period or extended period, the confirmation
cannot be stopped and such employee is required to be treated
to be deemed confirmed employee. The relevant paras of the
Division Bench judgment are quoted as hereunder:-
"3. The initial period of probation of the appellant
came to an end on 28th February, 1987. The
respondent sought to extend the period of probation
by six months under Rule 34-A of the Rajasthan
Service Rules, 1951 (for short, the Rules of 1951)
vide order dated 8th April, 1987. The probation was
further extended from time to time under the said
Rule-34A. The orders by which the probation period
was extended to not mention any reason for
extension, much less, there is any suggestion in the
said orders regarding unsatisfactory performance of
duties by the appellant. Rule 34-A of the Rules of
1951 is as under:
"Where an order of penalty of with holding of
increments of a Government servant or his
reduction to a lower service, grade or post, or to a
lower time-scale, or to a lower stage in a time
scale is set aside or modified by a competent
authority on appeal or review, the pay of the
Government servant shall notwithstanding
anything contained in these Rules, be regulated in
the following manner:
(a) if the said order is set aside, he shall be
given for the period of such order has been in
force, the difference between the pay to which
he would have been entitled had that order not
been made and the pay he had actually drawn;
(b) if the said order is modified, the pay shall be
regulated as if the order as so modified had
been made in the first instance.
(20 of 35) [CW-2096/2000]
Explanation : If the pay drawn by a Government
servant in respect of any period prior to the issue
of the orders of the competent authority under this
rule is revised, the leave salary and allowances
(other than travelling allowances), if any,
admissible to him during that period shall be
revised on the basis of the revised pay."
4. It is the case of the appellant that the said rule is
wholly inapplicable for purposes of extension of
probation period. Therefore, reliance placed by the
respondents on the said rule for extending the period
of probation was wholly illegal and as untenable. The
learned counsel for the appellant has drawn our
attention to Rule 28A of the Rajasthan Jails Service
Rules, 1959, according to which, if no order of
confirmation is issued by the Appointing Authority
within a period of six months, after completion of two
years probation period, an employee appointed on
temporary or officiating basis is entitled to be treated
as confirmed if permanent vacancies are available.
The case of the appellant is that since no order of
confirmation was issued within six months of
completion of two years period of probation and since
there was no allegation of unsatisfactory work against
the appellant and permanent vacancies were
available, the appellant was entitled to be treated as
confirmed. Alternatively, it is submitted that in the
first proviso to Rule 28-A (a) of the Rules of 1959, the
period of probation could be extended for a maximum
period of one year subject to certain conditions
contained in the proviso. None of the conditions
contained in the proviso apply in the case of the
appellant. Neither he failed to give satisfaction so far
as his work is concerned, nor other conditions applied,
therefore, there could be no question of extension of
period of probation by one year. Yet, it is argued that
assuming that the period of probation cold be
extended by one year under the said proviso, the
appellant completed the said period also by 29th Feb.,
1988 and he was entitled to be treated as confirmed.
At this stage, it will be appropriate to reproduce Rule
28.A(a) of the Rules of 1959, which reads as under:
"28.A(a) Notwithstanding anything contained in
the rule if no order of confirmation is issued by the
Appointing Authority within a period of six months
an employee appointed on temporary or officiating
basis who has, after the date of his regular
recruitment by either method of recruitment
completed a period of two years service, or less in
the case of those appointed by promotion where
the period of probation prescribed is less, on the
post of a higher post under the same Appointing
(21 of 35) [CW-2096/2000]
Authority or would have so worked but for his
deputation or training, shall on the occurrence of
permanent vacancies be entitled to be treated as
confirmed if the same conditions as are prescribed
under the Rules for the confirmation of a
probationer are fulfilled subject to the quota
prescribed under the Rules and in accordance with
his seniority.
Provided that if the employee has failed to give
satisfaction or has not fulfilled any of the
conditions prescribed for confirmation, such as
passing of Departmental Examination, training or
promotion cadre course etc. the aforesaid period
may be extended as prescribed for probation or
under the Rajasthan Civil Services Departmental
Examination Rules, 1959 and any other Rules, or
by one year, whichever is longer. If the employee
still fails to fulfil the prescribed conditions or fails
to give satisfaction, he will be liable to be
discharged from such post in the same manner as
a probationer or reverted to his substantive pr
lower post, if any, to which he may be entitled.
Provided further that no person shall be debarred
from confirmation after the said period of service if
no reasons to the contrary about the satisfactory
performance of his work are communicated t him
within the said period."
5. Out attention was particularly drawn to the second
proviso to Rule 28A(a) and it was submitted on the
basis thereof that since nothing was ever pointed out
to the appellant by way of his service being
unsatisfactory, he ought to have treated as confirmed
under the said rule. There was nothing to debar the
appellant from being confirmed. Reference to Rule 29
is also called for at this stage, relevant portion of
which is reproduced as under:
"29. "Unsatisfactory progress during probation:
(1) If it appears to be the Appointing Authority, at
any time, during or at the end of the period of
probation, that a member of the service has not
made sufficient use of his opportunities or that he
has failed to give satisfaction, the Appointing
authority may revert him to the post held
substantively by him immediately preceding his
appointment, provided he holds a lien thereon or
in other cases may discharge or terminate him
from service."
6. It will be seen from the aforesaid Rule 29 that the
Appointing Authority has to take a decision at any time
during or at the end of probation about satisfactory
(22 of 35) [CW-2096/2000]
work of a probationer. If this decision is not taken
during or at the end of the probation period, then the
deeming provision contained in Rule 28A(a) regarding
automatic confirmation will come into play. In the
present case, no such decision was taken by the
Appointing Authority during or at the end of probation.
Therefore, confirmation must follow.
xxx xxx xxx
11. We have perused the relevant rules which have
been quoted above in this judgment. In our view, Rule
34A of the Rules of 1951 has no application in the facts
of the present case. The said rule is attracted in cases
of imposition of penalty on a Government on the basis
of enquiry and has no relevance at all, in cases of
extension of probation period as is the present case.
Rule 34A does not refer to probation or extension of
probation at all. Invocation of the said rule, therefore,
in the present case for extension of probation period
shows total non-application of mind on the part of the
respondent. This is not once, but repeatedly in every
letter regarding extension of probation Rule 34A of the
Rules of 1951 was invoked.
12. Coming to the relevant rules contained in the
Rajasthan Jails Service Rules, 1959, it is to be noted
that under Rule 28A(a), the probation period can be
extended maximum by one year under the first proviso
to the Rule subject to conditions laid down in the said
proviso, one of which being unsatisfactory
performance. Not once the respondent informed the
appellant that his service was unsatisfactory during the
first three years of service. We have already pointed
out that first time, any allegation of unsatisfactory
work that was levelled against the appellant, was vide
letter dated 30th April, 1988, which is much beyond
the period of three years. In normal course, during the
initial two years period of probation and before its
expiry, the Appointing Authority has to take a decision,
whether to extend the probation period on account of
reasons mentioned in Rule 28A(a). The extension can
be for a maximum period of one year. In the present
case, no such decision appears to have been taken. In
such an event, as provided in Rule 28A(a) of the Rules
of 1959, a government servant was entitled to be
treated as confirmed. It is no-bodies case that
permanent vacancies were not available at the
relevant time. Second proviso to Rule 28A(a), puts the
matter beyond any pale of controversy by providing
hat no person shall be debarred from confirmation if
no reasons to the contrary about the satisfactory
performance of his work are communicated to him
within the said period. In the present case, no reasons
to the contrary about satisfactory performance of his
(23 of 35) [CW-2096/2000]
work were communicated to the appellant during his
initial three years' period of service, therefore, his
confirmation could not be stopped and he is entitled to
be treated as confirmed.
13. Before parting with the judgment, we would like to
deal with the question as to whether present is the
case of confirmation without any specific order having
been passed by the Appointing Authority in this
behalf? In normal course, the legal position is that
there can be no automatic confirmation; being a
positive act, specific order by the competent authority
is required to be passed before an officer can be said
to be confirmed in a post, In the present case, as per
facts already noted, there is no specific order of
confirmation passed qua the appellant. The position
emerging from the relevant Rules in the present case,
however, makes an exception to the normal rule
regarding confirmation, the Rule itself provides that on
completion of period of probation, unless specific order
is passed to the contrary, an officer is to be treated as
confirmed if permanent vacancies are available. The
learned counsel for the respondent neither disputed
the fact that the appellant could be treated as
confirmed nor did he raise any dispute about
availability of permanent post at the relevant time.
Rule 29 of the Rules of 1959 enjoins upon the
Appointing Authority to pass an order regarding
extension of probation or revision of an officer on
account of unsatisfactory work during or at the end of
period of probation. In the present case, as already
noted, the Appointing Authority failed to pass any such
order. The consequence of this is that there could be
no bar to the confirmation of the appellant and he was
liable to be treated as confirmed. When the Rules
specifically permit such a course of action and provide
for deemed confirmation, there can be no bar in
treating the appellant as confirmed."
In the opinion of the Court, the said judgment is of little
assistance to the petitioner. The said judgment has interpreted
rule 28(A)(a) of Rajasthan Jails Service Rules where the
conditions for confirmation are separately enumerated and the
Appointing Authority has to take a decision within the probation
period or extended period with respect to performance of a
person. The case in hand, reveals that the petitioner's
performance was not found satisfactory and accordingly, on two
(24 of 35) [CW-2096/2000]
occasions his probation period was extended. The Court has
already narrated in previous paragraphs the reasons for
extension of service of petitioner/probationer and as such, during
the initial period of probation and during extended period of
probation, the performance of the petitioner was not found
satisfactory and he was aware about the charge-sheet issued to
him and further his performance not being found up to the mark,
the same judgment will not be applicable in the present case.
The reliance placed by learned counsel for the petitioner
upon the judgment rendered in the case D.L.Dabgar & Anr. Vs. State of Rajasthan & Ors. (supra), this court in the said case was considering the scope of Rule 27, 27A, 28 & 29 of the Rajasthan Industries Service Rules, 1960. The Court has recorded that as per Rule 27A and proviso thereto it is provided that a person shall not be debarred from confirmation if no reason to the contrary about the satisfactory performance of his work are communicated to him within the probation period. In the said judgment, the Court has recorded the fact in that case that Appointing Authority did not pass any order of extension of period of probation against the petitioner in that case and the Court came to the conclusion that if there is no communication of extension of period of probation, it has to be presumed that person stands automatically confirmed. The relevant para of the judgment are quoted as hereunder:-
"19. The contention of the learned Counsel for the petitioner is that the petitioner had been appointed as Deputy Director on probation by the order dated November 4, 1982 (Annexure 2). The Rajasthan Industries Service Rules, 1960 lay down a clear (25 of 35) [CW-2096/2000] procedure for appointment on probation and later confirmation. The relevant Rules are Rules 27, 27-A, 28 and 29 which run as under:
27. Period of Probation: (1) Every person appointed against a substantive vacancy in the service by direct recruitment shall be placed on probation for a period of two years and those appointed by promotion (special selection) to any post against such a vacancy shall be on probation for a period of one year:
Provided that:
(i) Such of them as have previous to their appointment by promotion (special selection) or by direct recruitment against a substantive vacancy, officiated temporarily on the post which is followed by regular selection may be permitted by the Appointing Authority to count such officiating or temporary service towards the period of probation.
This shall, however, not amount to involve supersession of any senior person or disturb the order of their preference in respective quota or reservation in recruitment;
(ii) any period after such appointment during which a person has been on deputation on a corresponding or higher post shall count towards the period of probation;
(2) During the period of probation specified in Sub- rule (1) each probationer may be required to pass such Departmental Examination and to undergo such training as the Government may, from time to time, specify.
Explanation: In case of person who dies or is due to retire on attaining the age of superannuation the period of probation shall be reduced so as to end one day earlier on the date immediately preceding the date of his death or retirement from Government Service. The condition of passing the Departmental Examination in the rule regarding confirmation shall be deemed to have been waived in case of death or retirement."
27-A. "(a) Not with standing anything contained in the rule if no order of confirmation is issued by the Appointing Authority within a period of six months, an employee appointed on temporary or officiating basis who has after the date of his regular recruitment by either method of recruitment completed a period of two years service, or less in the case of those appointed by promotion where the period of promotion prescribed is less, on the post or a higher post under the same Appointing Authority or (26 of 35) [CW-2096/2000] would have so worked but for his deputation or training, shall on the occurrence of permanent vacancies be entitled to be treated as confirmed if the same conditions as are prescribed under the Rules for the confirmation of a probationer are fulfilled subject to the quota prescribed under the Rules and in accordance with his seniority;
Provided that if the employee has failed to give satisfaction or has not fulfilled any of the conditions prescribed for confirmation such as passing of Departmental Examination, training or promotion cadre course etc., the aforesaid period may be extended as prescribed for the probation or under the Rajasthan Civil Services Departmental Examination Rules, 1959 and any other rules, or by one year, which ever is longer. If the employee still fails to fulfil the prescribed conditions or fails to give satisfaction, he will be liable to be discharged from such post in the same manner as a probationer or reverted to his substantive or lower post, if any, to which he may be entitled:
Provided further that no person shall be debarred from confirmation after the said period of service if no reasons to the contrary about the satisfactory performance of his work are communicated to him within the said period;
(b) The reasons for not confirming an employee referred to in the second proviso to Clause (a) shall, in the case of a non-gazetted employee, be also immediately recorded by the Appointing Authority in his Service Book and C.R. File and in the case of Gazetted Officer Communication to the Accountant General, Rajasthan and in his Confidential Report file.
A written acknowledgement shall be kept on record in all these case."
Explanation: (1) "Regular recruitment for the purpose of this rule shall mean appointment after either of the methods of recruitment or on initial constitution of service in accordance with any of the Service Rules promulgated under proviso to Article 309 of the Constitution of India, or for posts for which no Service Rules exist, if the posts are within purview of the Rajasthan Public Service Commission recruitment in consultation with them but it shall not include an urgent temporary appointment ad-hoc appointment or officiating promotion against temporary or lien vacancies which are liable to review and revision from year to year. In case where the Service Rules specifically permit appointment by transfer such appointment shall be treated Regular recruitment if (27 of 35) [CW-2096/2000] the appointment to the post from which the official was transferred was after regular recruitment. Persons who have been made eligible for substantive appointment to a post under the rules shall be treated as having been regularly recruited.
(ii) Persons who hold lien on another cadre shall be eligible to be confirmed under this rule and they will be eligible to exercise an option whether they do not elect to be confirmed on the expiry of two years of their temporary appointment under this rule. In the absence of any option to the contrary, they shall be deemed to have exercised option in favour of confirmation under this rule and their lien on the previous post shall cease."
28. Unsatisfactory Progress during Probation:
(i) If it appears to the Appointing Authority, at any time, during or at the end of the period of probation, that a member of the service has not made sufficient use of his opportunities or that he has failed to give satisfaction, the Appointing Authority may revert him to the post held substantively by him immediately preceding his appointment provided he holds a lien thereon or in other cases may discharge or terminate him from service:
Provided that the Appointing Authority may, if it so thinks fit in any case or class of cases extend the period of probation of any member of service by a specified period not exceeding two years in case of a person appointed to a post in the Service by direct recruitment and one year in the case of person appointed by promotion (special selection) to such post:
Provided further that the Appointing Authority may, if it so thinks fit in the case of persons belonging to the Scheduled Tribes, as the case may be, extend the period of probation by a period not exceeding one year at a time and a total extension not exceeding three years.
(2) Not with standing anything contained in the above proviso, during the period of probation, if a probationer is placed under suspension, or disciplinary proceedings are contemplated or started against him, the period of his probation may be extended till such period the Appointing Authority thinks fit in the circumstances;
(3) A probationer reverted or discharged from service during or at the end of the probation under Sub-rule (1) shall not be entitled to any compensation."
(28 of 35) [CW-2096/2000]
29. Confirmation: A probationer shall be confirmed in his appointment at the end of his period of probation if-
(a) he has passed the prescribed departmental examination, if any completely;
(b) the Government are satisfied that his integrity is unquestionable and that he is otherwise fit for confirmation, and Provided that the probationer who have already passed Matriculation, Intermediate or B.A. Examination with Hindi as one of the subjects, and also those who have passed M.A. Examination in Hindi, shall be exempted, from appearing in proficiency test in Hindi, by the Principal Officers Training School, Jaipur.
(c) he has passed the departmental test of proficiency in Hindi.
As the appointment of the petitioner as Deputy Director had been made on November 4, 1982, the probation already came to an end on the expiry of one year i.e. November 3, 1983. Before the expiry of that period or soon thereafter within six months recourse should have been made to Rule 28 read with 27A. If the Appointing Authority was of the opinion that the probationer did not make sufficient use of the opportunities or that he failed to give satisfaction, it should have directed his reservation or if it so thought proper, it could have made an order extending the period of probation, in the case of the petitioner for a specified period not exceeding one year, but nothing of this sort was done. Sub-rule (2) of Rule 28 also does not appear to have been called into service, because no order appears to have been passed extending the period of probation of the petitioner. A bare reading of Sub-rule (2) of Rule 28 would leave no room for doubt that the mere pendency or a proposal to hold a departmental enquiry by itself does not extend the period of probation. The Appointing Authority has a discretion to extend the period of probation and that also till such period as it thinks fit in the circumstances. In the present case not only no order under Sub-rule (2) of Rule 28 was passed after the expiry of one year of the petitioner's probation but if further appears that earlier the petitioner who was at the time only an unconfirmed Assistant Director was confirmed as Assistant Director by order dated September 27, 1982 and he was promoted as Deputy Director on November 4, 1982. This further goes to show that the order dated August 4, 1981 by which departmental enquiry was directed to be started was (29 of 35) [CW-2096/2000] not taken as a ground for withholding the confirmation of the petitioner as Assistant Director or his promotion as Deputy Director. Thereafter, the question came up for his confirmation as Deputy Director and the proceedings show that the only ground on which he was left out of consideration was that a departmental enquiry was proposed to be initiated against him. There again although it was observed that his matter may be considered after the decision of the departmental enquiry, no specific order appears to have been passed under Sub-rule (2) of Rule 28. It will not be out of place here to mention that when the departmental enquiry sought to be initiated against the petitioner did not come in the way of his confirmation as Assistant Director ox promotion as Deputy Director there was no special reason why it should have come in the way of the confirmation of the petitioner as Deputy Director. Nothing has been shown in the proceedings as to why a different criteria had been resorted to at this stage. The matter does not rest here. Now more than two years after the promotion of the petitioner as Deputy Director on probation have already passed and still no specific order extending his probation appears to have been passed. In the sepeculiar circumstances the inference should be that the petitioner must be deemed to have be;n confirmed, although no specific order for his confirmation has been passed.
20. It has been urged by the learned Additional Government Advocate that merely on the expiry of the period of probation a person cannot claim confirmation as a matter of right and he has cited a few authorities in support of it. He also contended that under Rule 29 of the aforesaid Rules apart from the completion of the period of probation, the probationer must satisfy the Appointing Authority that his integrity is unquestionable & that he is otherwise lit for confirmation. So far as the authorities are concerned, there appears to be a clear divergence of opinion as a few authorities have also been cited on behalf of the petitioner. I shall come to them later. But so far as the second argument of the learned Additional Government Advocate goes, it deserves to be rejected on the ground that apart from the fact that a departmental enquiry was sought to be initiated against the petitioner there is nothing.m the proceedings regarding the confirmation of the Deputy Directors which may go to show that the work of the petitioner was not satisfactory or that his integrity was questionable. As a/ready started above, if the integrity of the petitioner was to be suspected or deemed to be questionable, he could not have been confirmed as Assistant Director because even at that stage the directions for holding a departmental enquiry had already been issued. The (30 of 35) [CW-2096/2000] stage thereafter does not appear to have undergone any material change because till the order dated 26-5-1986 had been passed the charge sheet had not been served upon the petitioner and the proceedings also do not suggest that the authority concerned had examined the departmental enquiry file and was satisfied that the period of probation be extended. In these circumstances, I am clearly of the opinion that the petitioner must be deemed to have been confirmed on the expiry of the period of probation and the proposed departmental enquiry could not have come in his way.
21. So far as the authorities are concerned, the learned Additional i Government Advocate has placed reliance on Kedar Nath Bahl v. The State of Punjab and Ors. AIR 1972 SC 873, and Dhanji Bhai Ramji Bhai v. State of Gujarat (1985) IILLJ 521 SC. I have carefully gone through these authorities and in my opinion they do not appear to be applicable to the facts and circumstances of the present case. In Kedarnath Bahl's case (supra) all that has been held by the Hon'ble Supreme Court is that:
Where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically if no order is passed in that behalf. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period, or there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. At the end of the period of probation an order confirming the officer is required to be passed and if no such order is passed and he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer.
The case in hand is not of that type. There is a clear provision under Rule 27-A that if no order is passed within 6 months of the expiry of probation, the probationer will be deemed to have been confirmed. Further there is provision indicating that the probation cannot be extended beyond a period of two years as would be clear from a bare perusal of Rule 28, except as directed by Sub-rule (2). In the present case Sub-rule (2) has not been resorted to and, therefore on the expiry of the period of one year from the date of appointment as Deputy Director the petitioner must be deemed to have been confirmed. So far as Dhanjibhai Ramjibhai's case is concerned, it also appears to be almost in same terms. Their Lordships have observed:
(31 of 35) [CW-2096/2000] A distinction is sought to be drawn between a probationer whose services are terminated on the expiry of the period of two years and a probationer, who has completed the normal span of two years and whose services are terminated some time later after he has put in a further period of service. We are unable to see any distinction. It is perfectly possible that during the initial period of probation the confirming Authority may be unable to reach a definite conclusion on whether the candidate should be confirmed or his services should be terminated.
Such candidate may be allowed to continue beyond the initial period of two years in order to allow the confirming authority to arrive at a definite opinion. It seems to us difficult to hold that a candidate enjoys any greater right to confirmation if he is allowed to continue beyond the initial period of probation. This is also, therefore, not a case where provisions like Rule 27-A, 28 apply. In the other hand, there are cases which do support the petitioner's claim. Without multiplying the authorities I may only refer to Om Prakash Maurya v. U.P. Co-operative Sugar Factories Federation, Lucknow and Ors. (1986)IILLJ145 SC . In that case their Lordships were considering the U.P. Co- operative 'Societies Act, in which a similar provision existed in relation to probation and confirmation. The order of the appointment of the petitioner in that case indicated that the probation period can be extended and he could be reverted to the post of Office Superintendent without any notice. There was Regulation 17(1) under the said Act which provided that the probationary period could be extended for a period of one year more. Undisputedly on the expiry of |he appellant's initial probationary period of one year, the Appointing Authority extended the same for another period of one year which also exp red on September 4, 1982. During the period of his probation his services were neither terminated nor was he reverted to his substantive post instead he was allowed to continue on the post of Commercial Officer. On the expiry of probationary period of two years the appellant could not be deemed to continue on probation instead he, stood confirmed on the post by implication. The appellant acquired the status of a confirmed employee on the post of Commercial Officer and the Appointing Authority could not legally revert him to the lower post of Superintendent. Their Lordships observed:
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."
(32 of 35) [CW-2096/2000] The close scrutiny of the principle laid down by this Court in D.L.Dabgar's case (supra), this Court finds that the Court has observed that if there is no order of extending the period of probation, in peculiar circumstances of the case, inference has to be drawn that petitioner in that case has has deemed to have been confirmed though no confirmation order had been passed.
This Court finds that in the instant case, there are two extension orders which have been issued by the Members of the Board after considering the performance of the petitioner. In the opinion of the Court, this judgment is of no help to the petitioner.
The learned counsel for the petitioner has relied upon the judgment passed by Apex Court in the case of Rajinder singh Chauhan & Ors. Vs. State of Haryana & Ors. (supra). The Apex Court in para 12 of the judgment has held as under:-
"In High Court of M.P. v. Satya Narayan Jhavar (2001) 7 SCC 161, this Court categorised the provisions for probation as follows:
"The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation.
(33 of 35) [CW-2096/2000] The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."
The learned counsel for the petitioner has submitted that in the present case, the principle laid down by the Apex Court in the case of High Court of M.P. Vs. Satya Narayan Jhavar, as quoted in para 12 of the Rajinder Singh Chauhan's case (supra), would be applicable. The learned counsel has submitted that if the maximum period of extension is provided and petitioner has completed that maximum period, the inference in such case, is required to be drawn that petitioner is a confirmed employee upon the expiry of maximum period of probation.
This Court is of the opinion that the Apex court itself has time and again laid down that the question of deemed confirmation in service jurisprudence is dependent upon the language of the relevant services rules. The Court has already considered the language of the Rules of 1989 with respect to the confirmation and according to the scheme of Rules, there is no concept of deemed confirmation in the Rajasthan Police Subordinate Service Rules, 1989. In the opinion of the Court, the said judgment does not apply to the present controversy and it is of no help to the petitioner.
(34 of 35) [CW-2096/2000] This Court further finds that the petitioner who was appointed initially on 12.08.1996 and he joined duty on 29.08.1996 was having a record of absence on at least 23 occasions as has been narrated in the affidavit filed by the respondents. It has also come on record that petitioner had to face two departmental enquiries for remaining absent and ultimately, he was punished in both the departmental enquiries.
The Court further finds that the respondents acted in bonafide manner of giving chance to the petitioner to complete and pass his departmental examination and further they did not act in hurry to take decision to discharge him while he was facing the departmental enquiry. The Court further finds that the Appointing Authority further granted him one more opportunity by extending his period of probation from 26.10.1999 for a period of six months as he was not having knowledge of law and procedure.
The Court finds that the Authority while adjudging the case of the petitioner either for confirmation or for extension of time, has kept in mind the required parameters for adjudging the performance of the person. It is also to be noted that last extension of period of probation of the petitioner was w.e.f.
22.10.1999 and the said period was to expire on 21.04.2000 and the respondents had taken the decision to discharge the petitioner in its meeting held on 17.04.2000 and accordingly, the order of discharge was issued on 17.04.2000.
This Court further finds that the period of probation on account of not giving satisfactory performance or not passing the (35 of 35) [CW-2096/2000] departmental examination can be extended maximum upto one year as per Rule 39(3) and in this case the Authorities while considering the entire performance and record of the petitioner, came to the conclusion to issue the discharge order, no fault can be found in issuance of discharge order.
The Court does not find any illegality in the action of the respondents. The writ petition has no force and the same is dismissed.
(ASHOK KUMAR GAUR),J NK/108