Supreme Court of India

STATE OF PUNJABversusBALDEV SINGH KHOSLA

Citation: 1996 INSC 556
Decided: 19 April 1996
Disposal: Disposed off
Bench: K RAMASWAMY

Holding

The three‑year outer limit under Rule 10 is an enabling provision and does not automatically confer confirmation; a positive order of confirmation is required.

Summary

Baldev Singh Khosla was promoted to Assistant Registrar of Cooperative Societies in 1990 and placed on a two‑year probation under Rule 10 of the Punjab State Co‑operative Service (Class II) Rules, 1958, which allows extensions up to a total of three years. Although his initial probation ended on 25 November 1992, the government extended his probation repeatedly and issued a show‑cause notice on 15 September 1993, eventually reverting him to his substantive post on 11 February 1994. Khosla challenged the reversion by filing a writ petition, and the Punjab & Haryana High Court held that because the reversion occurred after the three‑year outer limit, he was deemed to have been automatically confirmed, rendering the reversion order illegal. On appeal, the Supreme Court examined whether the three‑year limit creates an automatic right of confirmation. The Court held that the limit is merely an enabling provision allowing the government to retain a probationer without dismissal, and that a positive order of confirmation is required; the limit does not by itself confer confirmation. Consequently, the appeal was allowed and the reversion order was not set aside, with the appointing authority directed to assess Khosla’s performance for the period 1993‑94 before deciding on confirmation.

Issues considered

Whether a probationer who is not confirmed within the three‑year outer limit under Rule 10 of the Punjab State Co‑operative Service (Class II) Rules, 1958 is automatically deemed to be confirmed.
Whether the three‑year limit is a mandatory bar to further extension or merely an enabling provision.

Legislation cited

Punjab State Co-operative Service (Class II) Rules, 1958s. Rule 10

Subjects

probationconfirmationservice rulesco-operative serviceadministrative lawemploymentextension of probationreversion

Judgment

A                              STATE OF PUNJAB
                                       v.
                             BALDEV SINGH KHOSLA

                                   APRIL 19, 1996

B                [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

            Se1vice Laiv :

            Punjab State Co-operative Se1Vice (Class ll) Rules 1958:

C        Rule J{}-Probation--Outer limit of three years-Enabling provision to
  allow the probationer to continue in service without being 1-evened or dis-
  charged from service for failure to satisfacto1ily complete the pe1iod of proba-
  tion-17iat ivould not 1nean that the probatione1; on expily of three years'
  period must be deemed to have been confinne~17ie ntle itself envisages a
D positive order of confimzation.
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7793 of
    1996.

         From the Judgment and Order dated 14.9.94 of the Punjab &
E   Haryana High Court in C.W.P. No. 11874 of 1994.

            Manoj Swamp for the appellant.

            A.K. Aggarwal and P.N. Puri for the Respondents.

            The following Order of the Court was delivered :
F
            Leave granted.

          This appeal by special leave arises from the order of the High Court
    of Punjab & Haryana made on September 14, 1994 in CWP No. 11874. The
    respondent was promoted as an Assistant Registrar of the Cooperative
G   Societies by proceedings dated March 21, 1990. Rule 10 of the Punjab State
    Co-operative Service (Class II) Rules, 1958 enjoins that the promotee or
    direct recruit would be put on probation for a period of two years provided
    that the Government may allow service rendered on a post on an identical
    cadre or in the higher post in another department to count for probation
H   in the said service. Rule 10 reads as under :
                                        600
                         STATE v. B.S. KHOSLA                           601

        "10. Probation. All members of the service shall on appointment        A
        remain on probation in the first instance for a period of two years,
        provided that Govt. may allow service rendered on a post on an
        identical cadre or in the higher post in another department to
        count for probation in the post in the service.

        2. Provided further that in the case of members promoted from          B
        the State Service Class III continue officiating of four months or
        over shall be reckoned as a period spent on probation.

        3. If the work or conduct of any candidates or member during the
        period of training or probation in the opinion of Government not       C
        satisfactory they may dispense with his service, if he has been
        recruited by direct appointment or may reverr him to his former
        post if he has been recruited by promotion or by transfer. On the
        conclusion of the period of probation of any members of the
        service, government, may, if vacancy exists, confirm him in his
        appointment; if his work or conduct has, in its opinion been D
        satisfactory may extend his period of probation by such period as
        it may think fit and thereafter pass such orders as it could have
        passed on the expiry of the first period of probation, provided that
        the total period of probation, iµcluding extension, shall not exceed
        three years in any case."                                            E

       Though respondent had completed his probation on November 25,
1992, however, his probation was extended, in the meanwhile from time to
time. On September 15, 1993, a show cause notice was issued to him as to
why he should not be reverted to the substantive cadre. On consideration
of the reply to show cause notice, order came to be passed .on February ' F
11, 1994 reverting him to the substantive post from which he was promoted.
Consequently, he filed writ petition. The High Court has allowed the writ
petition holding that since he was not reverted before expiry of 3 years, he
must be deemed to have been confirmed and that, therefore, the reversion
order was held bad in law. The High Court did not express any opinion on G
the adverse remarks commented upon the performance of the respondent.
Thus this appeal by special leave.

      Learned counsel for the respondent contends that since the rule
provides an outer limit of three years, if the respondent had not been
reverted within that period, he must be deemed to have been confirmed H
    602                  SUPREME COURT REPORTS [1996) SUPP.1 S.C.R.

A   and the High Court, therefore, was right in concluding that the respondent
    is a confirmed. probationer. We do not find force in the contention.
    Sub-rule(3) of Rule 10 clearly envisages that on conclusion of the period
    of probation of any member of the service the G0vernment may, if vacancy
    exists, confirm him in his appointment; if his work or conduct has, in its
    opinion, not been satisfactory, it may extend his period of probation by
B   such period as it may think fit and thereafter pass such orders as could
    have been passed on the expiry of his period of probation. It would thus
    be seen that the outer limit of three years provided under the rules is an
    enabling provision to allow the probationer to continue in service without
    being reverted or discharged from service for failure to satisfactorily com-
c   plete the period of probation, but that would not mean that the
    probationer, on expiry of three years' period must be deemed to have been
    confirmed. The rule itself ·envisages a positive order of confirmation. So
    long as the order of confirmation is not made, even after expiry of proba-
    tion, the probationer may continue and remain in service, but by allowing
D   him to remain in service it cannot be concluded that he must be deemed
    to have been confirmed.

            The rule also envisages that during the period of probation, the
    appointing authority is required to see that the performance of the work
    done by the probationer is to the satisfaction of the appointing authority.
E   It is seen that for the year 1991 and 1992 there were adverse remarks made
    upon the performance of the respondent. Obvions for that reason, his
    confirmation was not made. On the other hand, the period of probation
    was further extended as admitted by the respondent. Under these cir-
    cumstances, he cannot be deemed to have been confirmed. However, since
    the authorities had extended the period of probation and given him chance
F   to improve his performance during the year 1993-94, that period was not
    taken into consideration before reverting the respondent from service. The
    appojnting authority is, therefore, directed to consider whether he is fit to
    be confirmed, on the basis of his performance for the subsequent period
    and in case it considers that he may be confirmed, it would be open to
G   them to pass appropriate orders. In case, even after consideration of the
    performance for the year 1993-94, his record is not found satisfactory,
    appropriate orders may be passed and communicated to the respondents.

           The appeal is accordingly disposed of. No. costs.

    G.N.                                                    Appeal disposed of.

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