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521 paragraphs · 11,272 wordsThe 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 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 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 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 1989â€), 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 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 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 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 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.
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 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.â€
“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.â€
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 failsto 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
performance of his work are communicated to him within the said period.
(3) Where a candidate has not given a satisfactoryaccount 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 ordisciplinary 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 serviceduring or at the end of the period of probation under sub-rule (1), shall not be entitled to any
compensation.â€
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 & 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:-
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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 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 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 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 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 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 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 begiven 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 beregulated as if the order as so modified had been made in the first instance.
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.
It is the case of the appellant that the said rule iswholly 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 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.
Out attention was particularly drawn to the secondproviso 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:
""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.
It will be seen from the aforesaid Rule 29 that theAppointing Authority has to take a decision at any time during or at the end of probation
about satisfactory 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
We have perused the relevant rules which havebeen 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.
Coming to the relevant rules contained in theRajasthan 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 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.
Before parting with the judgment, we would like todeal 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.â€
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 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 procedure for appointment on probation and
later confirmation. The relevant Rules are Rules 27, 27-A, 28 and 29 which run as under:
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 theirappointment 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 duringwhich 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 Subrule (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 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 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.
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 theabove 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 serviceduring or at the end of the probation under Sub-rule
(1) shall not be entitled to any compensation.
Confirmation: A probationer shall be confirmed in his appointment at the end of his period of probation if-
(a) he has passed the prescribed departmentalexamination, if any completely;
(b) the Government are satisfied that his integrityis 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 ofproficiency 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 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.
It has been urged by the learned AdditionalGovernment 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 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.
So far as the authorities are concerned, the learnedAdditional 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:
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. Cooperative '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.â€
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.
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.
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 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.