Holding

A probationary or ad‑hoc appointment terminates by efflux of time, and the High Court cannot interfere with lower court findings unless they are perverse or made without applying the mind.

Summary

The respondent was appointed as an Assistant Professor on a one‑year probationary basis on 6 September 1994, relieved before the term ended, and then re‑appointed on 1 September 1995 for a six‑month probationary period ending 29 February 1996. He challenged the order relieving him on 1 March 1996, arguing that the appointment should not have terminated by efflux of time. The Educational Appellate Tribunal dismissed his appeal, holding that a probationary or ad‑hoc appointment ends automatically when the stipulated period expires. The Karnataka High Court set aside that order, but the Supreme Court allowed the appeal, restoring the Tribunal’s decision and affirming that such appointments terminate by efflux of time and the employee has no right to continue. The Court also reiterated that a High Court exercising revisional jurisdiction under Section 115 of the CPC cannot re‑appreciate evidence or overturn findings of fact unless they are perverse or there is a non‑application of mind.

Issues considered

Whether an employee appointed on probation or ad‑hoc basis can be retained in service after the expiry of the stipulated probation period.
Whether the High Court, in exercise of its revisional jurisdiction under Section 115 of the Code of Civil Procedure, may re‑appreciate evidence and set aside findings of fact of a lower tribunal.

Legislation cited

Code of Civil Procedure, 1908s. 115

Subjects

probation appointmentadhoc appointmentefflux of timeservice lawrevisional jurisdictionSection 115 CPCeducational institutionemployee reliefnatural justice

Judgment

A MANAGEMENT OF KALPATARU VIDYA SAMASTHEY (R) AND ANR.
v.
S.B. GUPTA AND ANR.

SEPTEMBER 12, 2005

B [ARIJIT PASAYAT AND H.K. SEMA, JJ.]

Service Law:

Adhoc appointment-Probation period-Expiry of-Employee relieved
C from service-Challenge ti:r-Held: Employee has no right to continue in the
post as the appointment came to an end by ejjlux of time.

Code of Civil Procedure, 1908-Section I I 5-Revisional Jurisdiction-
Finding of facts-Interference with-Scope of-Held: High Court in its
revisional jurisdiction cannot reappreciate evidence and interfere with the
D findings unless they are perverse and there has been non-application of mind.

The question which arose for consideration in the present appeal is
whether respondent-employee appointed on probation could be reli•.. .!<I
from service on expiry of probation period.

E Allowing the appeal, the Court.

HELD 1. It is now well-settled principle of law that the appointment
made on probation/adhoc for a specific period comes to an end by efflux
of time and the person holding such post can have no right to continue in
the post. Having accepted the terms and conditions stipulated in the
F appointment order and allowed the period for which he was appointed to
have been lapsed by efflux of time, respondent is not permitted to turn
back and say that the appointment de-hors the Rules or the terms and
conditions 5tipulated in the appointment, were not legally valid.
(155-G; 156-D)

G Dir., Institute of Management Development v. Pushpa Srivastava, AIR
(1992) SC 2070, relied on.

2.1. It is also well-settled principle of law that the High Court in its
revisional jurisdiction under Section II5 CPC cannot reappreciate the
evidence and interfere with the findings unless it is found that the findings
II 152
MANAGEMENT OF KALPATARU VlDYA SAMASTHEY ( R )v. SB. GUPTA [SEMA, J] J 53

recorded by the lower court are perverse or there has been non-application A
of mind. 1156-D-E-F)

Masjid Kacha Tank, Nahan v. Tu/ail Mohammed, AIR 1991 SC 45,
referred to.

2.2. There is no findings of the High Court that the findings of fact B
recorded by the courts below is perverse and there has been non-
application of mind. The High Court has erred in law as well as in facts
by setting aside the well-reasoned order of the Tribunal.
(156-H; 157-A-B)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3536 of2003. C
From the Judgment and Order dated 19.8.2002 of the Kamataka High
Court in C.R.P. No. 2959 of 2000.

S.N. Bhat for the Appellants.

Subodh Markandya and P.R. Ramasesh for the Respondents. D
The Judgment of the Court was delivered by

H.K. SEMA, J. This appeal filed by the appellant Kalpataru Vidya
Samsthe, Tiptur, Tumkur District, in short 'KVS', is directed against the
judgment and order dated 19.8.2002 passed by the High Court of Kamataka E
at Bangalore in C.R.P.No.2959 of2000, in exercise of its power under Section
115 C.P.C. The High Court has set aside the order dated 27.5.2000 passed in
MA (Eat) No.2 of 1996 by the Additional District Judge, Education Appellate
Tribunal, dismissing the appeal of the respondent herein under Section 94 of
the Kamataka Education Act.
F
The basic facts may be noted. The respondent no. I was appointed as
Assistant Professor in Mechanical Engineering Department of Kalpataru
Institute of Technology by an order dated 6.9.1994 in the scale of Rs.3 700-
125-4950-150-5700 at Rs.3700 basic pay and other allowances as are
admissible under the rules and regulations on temporary basis for a probation G
period of one year commencing from 7.9.1994 till 7.9.1995. The said
appointment carries a stipulation in Clause 11 that the appointment would be
on probation for one year and thereafter the same would be reviewed. On the
strength of the appointment, the respondent no. I reported to duty on 7.9.1994
and worked till 31.8.1995. Before the completion of the probation period, the
respondent no.I was relieved from service w.e.f. 31.8.1995 and on 1.9.1995 H
154 SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.

A he was again appointed afresh on probation for a period of six months i.e. up
to 29.2.1996. His basic salary was, however, fixed at Rs.3825 with other
allowances. Clause 11 of the said appointment order clearly stipulated that
the appointment was purely temporary and up to 29.2.1996. Pursuant to the
aforesaid appointment the respondent no. I joined the duty on 4.9.1995. On
B completion of the period of probation, the respondent was relieved from his
duties w.e.f. 1.3.1996. As noticed earlier, he filed an appeal before the
Educational Appellate Tribunal in short 'EAT'. The EAT after examining the
evidence and documents on record dismissed the appeal holding inter alia
that the re-appointment of the respondent by an order dated 1.9.1995 was for
a period of six months i.e. up to 29.2.1996 and the respondent knowingly
C accepted the condition stipulated in the appointment letter and the said
probation appointment came to an end by a efflux of time for which period
he was appointed.

Counsel for the appellants first contended that the High Court has erred
in law transgressing his jurisdiction vested in it under Section 115 C.P.C.
D inasmuch there is no findings that the Tribunal have exercised a jurisdiction
not vested in it by law, or to have failed to exercise a jurisdiction so vested,
or to have acted in exercise of its jurisdiction illegally or with material
irregularity. According to the counsel for the appellants, the High Court,
therefore, erred in law in sitting as appellate jurisdiction by setting aside the
E well-merited and considerate judgment of the Tribunal. The further contention
of the counsel for the appellants is that the respondent having known the
condition stipulated in Clause 11 of the appointment order accepted the
condition and joined the post and cannot be allowed to turn back and say that
he has not been dealt with fairly by the appellants. It is further argued that
the appointment of the respondent has expired by efflux of time for which
F period he was appointed. There was no requirement of observance of the
principle of natural justice in such matter.

Per contra counsel for the respondent contended that from the
appointment order of respondent itself it is clearly stated that the appointment
shall be governed by all the service conditions and rules of the KVS. It is
G further contended that the appellant's institute being a private educational
institution, it is governed by the provisions of repealed Karnataka Private
Educational Institutes Act, 1975 which were in force at the time of issuing
the appointment order and in this connection Rule 7 of the Rules framed by
the State Government in exercise of its power under Sections 3 and 15 of the
H Act has been pressed into service. It is further contended that under the said
MANAGEMENT OF KALPATARU VIDYA SAMASTHEY ( R) v. S.B. GUPTA [SEMA, J.] l SS

Rules it is incumbent on part of the board of management to extend the A
period of probation of an employee by a further period of six months. Since
there is no extension of probationary period of the respondent and in absence
of the same, the probationary period of the respondent would come to an end
on 6.9.1995.
,
i
We have carefully considered the rival contentions of the parties. B
Reverting back to the facts of the case, the undisputed question that revolves
around for resolving the dispute at hands is that the respondent was appointed
on probation·w.e.f. 6.9.1994 for a period of one year. Clause JI of the said
appointment stipulated that he would be on probation for one year and then
review. Before the probation period came to an end the respondent was
relieved from service by an order dated 31.8.1995. He was again re-appointed
c
for a period of six months by an order-dated 1.9.1995. He was directed to
. report to duty on 2.9.1995. Clause 11 of the order stipulated that the
appointment is purely temporary and is up to the end of February 1996 i.e.
29.2.1996. The respondent admitted that he has written a letter dated 4.9.1995
addressed to the Institute stating that "As per your notification, I am happy D
to rejoin your institution. I am herewith submitting my originals along with
no dues". At this stage, it may be stated that the respondent has not challenged
his subsequent appointment for a period of six months on probation by an
order dated 1.9.1995. He has challenged the order dated 29.2.1996 relieving
the respondent w.e.f. 1.3.1996. on expiry of the probation period on 29.2.1996 E
"... before the 'EAT'.

In our view, the order dated 29.2.1996 relieving the service of the
respondent w.e.f. 1.3 .1996 is in terms of Clause I I of the order of appointment
dated 1.9.1995, which has been accepted by the respondent without any
demur, does not suffer from any infirmities. F
It is now well-settled principle of law that the appointment made on
probation/adhoc for a specific period of time and such appointment comes to
an end by effiux of time and the person holding such post can have no right
to continue in the post. In the case of Dir., Institute of Management
Development v. Pushpa Srivastava, AIR {1992) SC 2070, a three Judge-
G
Bench of this Court considered the identical question and held in paragraph
20 of the Judgment as under:-

"Because the six months' period was coming to an end on 28th
February, 1991, she preferred the writ petition a few days before and H
1
prayed for mandamus which was granted by the learned Judge under
~
156 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A the impugned judgment. The question is whether the directions are
valid in law. To our mind, it is clear that where the appointment is
contractual and by efflux of time, the appointment comes to an end,
the respondent could have no right to continue in the post. Once this
conclusion is arrived at, what requires to be examined is, in view of
the services of the respondent being continued from time to time on
B 'ad hoc' basis for more than a year whether she is entitled to
regularization? The answer should be in the negative".

In the instant case, as noticed above, the respondent has accepted the
appointment including the terms and conditions stipulated in Clause 11 of the
C appointment order and re-joined the post from 4.9.1995 and continued in the
post up to 29.2.1996 on which date the period of six months came to an end.
He raised grievances before the Tribunal after·the probationary period came
to an end by efflux of time. Having accepted the terms and conditions stipulated
in the appointment order and allowed the period for which he was appointed
to have been lapsed by efflux of time, he is not permitted to tum back and
D said that the appointment de-hors the Rules or the terms and conditions
stipulated in the appointment, were not legally valid.

It is also well-settled principle of law that the High Court in its revisional
jurisdiction under Section 115 cannot interfere with the findings of fact
E recorded by the courts below and reappreciate the evidence and interfere with
the findings unless it is found that the findings recorded by the lower court
are perverse or there has been non-application of mind. In the case of Masjid
Kacha Tank, Nahan v. Tuffail Mohammed, AIR (1991) SC 455, this Court
held in paragraph 3 of the judgment as under:

F "It is well settled position in law that under S.115 of the Code of
Civil Procedure the High Court cannot reappreciate the evidence and
cannot set aside the concurrent findings of the Courts below by taking
a different view of the evidence. The High Court is empowered only
to interfere with the findings of fact, if the findings are perverse or
there has been a non-appreciation or non-consideration of the material
G evidence on record by the Court below. Simply because another view
of the evidence may be taken is no ground by the High Court to
interfere in its revisional jurisdiction".

Going through the impugned order of the High Court, we do not find
H any findings of the High Court that the findings of fact recorded by the lower
court are perverse and there has been non-application of mind.

·,~
MANAGEMENT OF KALPATARUVIDYA SAMASTHEY( R)v. S.B. GUPTA[SEMA, J.] 157

The High Court has erred in law as well as in facts by setting aside the A
well-reasoned order of the Tribunal. The Order of the High Court is, therefore,
set-aside and the order of Tribunal is restored. The appeal is allowed with no
order as to costs.

D.G. Appeal allowed.
B