Document Fragment View

Matching Fragments

" A bare reading of Rule 3 makes it clear that the period of probation shall be fixed as per the rules of recruitment specially made for any service and also that the minimum period of probation shall be two years. Rule 4 deals with the extension of reduction of period of probation. Rule 5 deals with declaration of satisfactory completion of probationary period. Sub-rule (1) (b) of Rule 5 states that the if the appointing authority decides that the probationer is not suitable to hold the post, it may discharge him from service, if the probationary period if not extended. Rule 5(2) makes it clear that there has to be an order declaring the probationer to have completed the probationary period and if there is a delay in issuing such an order, the probationer will not be deemed to have completed the probationary period. Rule 6(1) provides for discharge of a probationer during the probationary period under the circumstances like the grounds arising out of the conditions, if any, imposed in the rules or in the order of appointment or unsuitability to hold the post. Rule 7 states that when a probationer, whether during or at the end of probation period, is terminated for any misconduct, the termination shall be in accordance with Karnataka Civil Services (Classifications, Control and Appeal) Rules, 1957 (for short `the 1957 Rules') In the instant case, the petitioner, who was appointed on probation, though he had worked for 3 years 10 months and 10 days, was not found suitable to hold the post and no order has been passed that he has satisfactory completed the probationary period. Under the circumstances, the argument that Rule 6 (1) of KCSRs cannot be invoked and the petitioner's case falls under Rule 7 of the KCSRs is not sustainable. It is seen that the petitioner has not been removed on misconduct pending probation. So the argument that Rule 7 of the KCSRs has not been considered by this Court and the decisions referred to above are not applicable, it not acceptable in the facts of the given case as Rule 7 deals with termination for misconduct during or at the end of probation period, whereas as stated in the present case on hand, the probationer has been discharged from his services as he is found unsuitable to hold the post and there is no violation of the provisions of the 1957 Rules."
"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.
"Any confirmation by implication is negatived in the present case because before the completion of three years the High Court found prima facie that the work as well as the conduct of the appellant was unsatisfactory and a notice was given to the appellant on October 4, 1968 to show cause as to why his services should not be terminated. Furthermore, Rule 9 shows that the employment of a probationer can be proposed to be terminated whether during or at the end of the period of probation. This indicates that where the notice is given at the end of the probation the period of probation gets extended till the inquiry proceedings commenced by the notice under Rule 9 come to an end. In this background the explanation to Rule 7(1) shows that the period of probation shall be deemed to have been extended impliedly if a Subordinate Judge is not confirmed on the expiry of this period of probation. This implied extension where a Subordinate Judge is not confirmed on the expiry of the period of probation is not found in Dharam Singh's case. (AIR 1968 SC 1210) This explanation in the present case does not mean that the implied extension of the probationary period is only between two and three years. The explanation on the contrary means that the provision regarding the maximum period of probation for three years is directory and not mandatory unlike in Dharam Singh case and that a probationer is not in fact confirmed till an order of confirmation is made.
(SCC para 71) "71. ... This explanation in the present case does not mean that the implied extension of the probationary period is only between two and three years. The explanation on the contrary means that the provision regarding the maximum period of probation for three years is directory and not mandatory unlike in Dharam Singh case and that a probationer is not in fact confirmed till an order of confirmation is made.

(emphasis supplied)"

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