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Judgment
Anand Byrareddy
The petitioner was recruited as a Civil Judge (Junior Division) pursuant to a Notification dated 29.5.1998. The select list under the provisions of the Karnataka Judicial Service (Recruitment) Rules, 1983 (hereinafter referred to as '' the KJS Rules'' for brevity.) was notified on 2.7.1998. After completing the training period, the petitioner was posted as II Additional Civil Judge (Junior Division) and JMFC at Sagar in Shimoga District with effect from 29.11.1999. He was relieved on 22.11.2000 by virtue of an order of transfer to Chittapur in Gulbarga District. He joined as Additional Civil Judge (Junior Division) and JMFC at Chittapur on 1.12.2000. He worked there till 28.7.2001 and thereafter was transferred as I Additional Civil Judge (Junior Division) at Kolar Gold Fields and he worked there till 15.2.2003 and from 17.2.2003 he was placed in leave vacancy in the High of Court of Karnataka. He was relieved on 26.5.2003 and was posted as the Registrar, Small Causes Court, Bangalore. It is the claim of the petitioner that through out the above period, the petitioner had discharged his duties diligently and there were no adverse remarks against the petitioner in connection with his duties, except that the Registrar (General) had informed him that mere was an entry in his Service Record, to the effect that he needs greater control over the office staff and the said communication was dated 4.4.2003. The petitioner did furnish his explanation by way of reply. On 15.4.2004, there was one other communication which advised the petitioner that the quality of judgments, language and narration was satisfactory, but that there was scope for improvement. While also mentioning his conduct and dignity inside and outside the Court was satisfactory. There was still scope for improvement.
It is the petitioner''s case that though the period of probation prescribed had elapsed, the probation was not declared, not only in respect of the petitioner, but in respect of others, who had been selected along with him. Incidentally, it is stated that when he was working as Civil Judge (Junior Division) at Kolar Gold Fields, he, along with three other Civil Judges, also working at Kolar Gold Fields, were directed to meet the Administrative Judge of the Kolar District at Bangalore on 31.1.2003. There was an informal inquiry into certain allegations made by some members of the Bar of Kolar Gold Fields, which was duly answered with appropriate explanations by the petitioner. When he was at Bangalore, there was a further inquiry by the Inspector attached to the Registrar - Vigilance of the High Court. Apart from these informal discussions, there was no indication of any specific charges or other allegations brought to the attention of the petitioner.
In the above background, the petitioner having been informed that he was being discharged or account of having been found unsuitable for the post is, apparently, an order of termination on the basis of findings arrived at, without affording an opportunity to the petitioner of meeting those allegations, on which the findings have been arrived at and therefore, the purported order of discharge simpliciter is, in fact, an order of termination by way or punishment and hence, is in violation of law.
It is further contended that in terms of the Karnataka Civil Services (Probation) Rules, 1977 (hereinafter referred to as '' the Probation Rules'' for brevity), the period of probation prescribed is two years and the period commenced, insofar as the petitioner is concerned, with effect from 27.6.1999 and came to a close on 25.7.2001. The respondents could have extended the period of probation in terms of Rule-4 for reasons to be recorded in writing by the Governor for such period not exceeding half of the prescribed period of probation. If within the prescribed or extended period, the probationer has to appear for examination or a test required to be passed during the period of probation, and if the result is not known before the expiry of such period, then the period of probation shall be deemed to have been extended until the publication of the results of such examination or test. The petitioner, on the other hand, was exempted from appearing for the Kannada Language examination, which is the only examination prescribed and since under Rule 5, it was required that a declaration of satisfactory completion of probation was to be made at the end of the prescribed period or the extended period and as there was he extension, nor was any order passed at the end of the probationary period and the petitioner having continued in service after the prescribed period and having served as a Judicial Officer for a period, of five years, there is deemed satisfactory completion of probation, in which event, it is contended that it was not open for the petitioner to have been terminated from service without valid reasons and therefore, the order of discharge, which is punitive in nature, is wholly illegal and arbitrary.
The learned Government Pleader, on the other hand, has filed Statement of Objections to assert that the discharge of the petitioner is a discharge simpliciter on the face of it and does not cast any stigma on the petitioner. As no punishment was imposed, the question of any regular inquiry under the provisions of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as '' the CCA Rules'' for brevity) was unnecessary.
In this regard, reliance is placed on a judgment of the apex Court in H.G. Sangati vs. Registrar General, High Court of Karnataka, AIR 2001 SC 1148, and the following Passage from the said judgment is extracted hereunder:
It is well settled by a series of decisions of this Hon''ble Court including the Constitution Bench decision in Parshotam Lal Dhingra Vs. Union of India (UOI), and Seven Judge Bench decision in Samsher Singh Vs. State of Punjab and Another, that services of an appointee to a permanent post or probation can be terminated or dispensed with during or at the end. of a period of probation because the appointee to a permanent post or probation can be terminated or dispensed with during or at the end of (he period of probation because the appointee does not acquire any right to hold or continue to hold such a post during the period of probation. In Samsher Singh case, it was observed that the period of probation is intended to assess the work of the probationer whether it is satisfactory and whether the appointee is suitable for the post, the competent authority may come to the conclusion that the probationer is unsuitable, for the job and hence must be discharged on account of inadequacy for the job or for any temperamental or other similar grounds not involving moral turpitude. No punishment is involved in such a situation. Recently, in Dipti Prakash Banerjee Vs. Sotyendra Nath Base National Center for Basic Services AIR 1999 SCW 605, AIR 1990 SC. 983 having reviewed the entire available case law on the issue, this court has held that termination of a probationer''s services, if held that termination of a probationer''s services, if motivated by certain allegations tantamounting of misconduct but not fanning foundation of a simple order of termination cannot he termed punitive and hence, would he valid. In Satya Narayan Athya Vs. High Court of M.P. and another, the petitioner appointed on probation as a Civil Judge and not confirmed was discharged from service in view of the non-satisfactory nature of his service. This court held that the High Court was justified in discharging the Petitioner from service during the period of probation and it was not necessary that there should have been a charge and an inquiry on his conduct since the petitioner was only on probation and it was opened to the High Court to consider whether he was suitable for confirmation or should be discharged from service.
It is also contended that the petitioner was discharged from service under clause (b) of Sub-rule (1) of Rule 5 of the Probation Rules, 1977 and hence, the order of discharge of the petitioner is in accordance with the Rules.
In order to reply to the contentions of the learned Government Pleader, the learned counsel for the petitioner made a request for examination of the record, which was made available and from a close scrutiny of the record, the learned counsel would seek to point out that it was at the instance of a litigant before the court at Kolar Gold fields, whereby serious allegations have been made against the petitioner as well as other judicial Officers, who were working with him at that time at Kolar Gold Fields, of having had a close contact with a local merchant, who was acting as their intermediary to influence decisions in cases for illegal gratification and of instances involving the petitioner and other Judicial Officers having constantly visited his shop and having accepted favours from him, while also drawing attention to judicial pronouncements, to contend that the bias and partiality being writ large in the said decisions, in respect of which, the Registrar (Vigilance) had made discreet and informal inquiries and appears to have submitted a report, which has been the foundation for the Administrative Committee to have recommended that the petitioner was guilty of several acts of indiscretion and hence, he ought to be discharged and the Full Court of the High Court having accepted such a recommendation, has acted on the same and has discharged the petitioner.
Therefore, the law is well-settled that if allegations and findings which were all made behind the back of the petitioner, formed the foundation for the order of discharge, it cannot be construed as a discharge simpliciter and would have to be treated as a punitive order of termination. The learned counsel would place reliance on a large number of authorities in support of his contentions while also drawing the attention of the Court 10 the record of the detailed investigation and report that is sought to be treated as a discreet informal, inquiry in arriving at findings against the petitioner, which is impermissible in law. The least that could have been done was to afford an opportunity to the petitioner to meet the allegations and to establish that the same were baseless and that other findings were clearly on hearsay and therefore not tenable.
In the above background, the points that arise for consideration would be as follows:
(a) In view of the record disclosing that there were serious allegations against the petitioner which had been investigated through the Registrar (Vigilance) and had been addressed to the knowledge of the petitioner by the Administrative Judge in holding informal discussions with the petitioner, whether it could be said that the same has formed the foundation for the petitioner''s discharge from service and therefore, was in the nature of an order of termination by way of punishment ?
(b) Whether the petitioner having completed two years of the probationary period and in the absence of extension of the period of probation, whether it could be said that there was deemed confirmation of service?
In answering the above issues, it is unnecessary to examine every single decision that has been cited at the Bar as each case would depend on its facts and circumstances. The apex Court in the case of Rajesh Kohli Vs. High Court of J. and K. and Another, has held that during the period of probation, an employee remains under watch and his service and his conduct is under scrutiny. Around the time of completion of the probationary period, an assessment is made of his work and conduct during the period of probation and on such assessment a decision is taken as to whether or not his service is satisfactory and also whether or not on the basis of his service and track record, his service could be confirmed or extended for further scrutiny of his service if such extension is permissible or whether his service should be dispensed with and terminated. The services rendered by a Judicial Officer during probation are assessed not solely on the basis of judicial performance, but also on the probity as to how one has conducted himself. If examined in this vein, the record would indicate that there were serious allegations against the petitioner, on a preliminary investigation conducted through the Registrar (Vigilance) of the High Court. What has emerged, however, is that the petitioner''s performance and conduct were not up to the mark. In respect of the allegations, no detailed inquiry has been conducted. It is perfunctory prima facie findings that are furnished. Even without, which, the Full Court, which is assisted by the Administrative Committee, would have no clue as to the ground realities. It is depending on that minimum material to be gathered to form a prima facie opinion on the basis of complaints and allegation that such "''discreet inquiries" are made and it is that which has been the motive for the order of discharge being issued. It can neither be said that it is based on findings arrived at an inquiry or inquiries conducted behind the back of the petitioner nor can it be said that the same is stigmatic in nature. As held by the apex Court in Dipti Prakash Banerjee Vs. Satvendra Nath Bose National center for Basic Sciences, Calcutta and Others, whether an order of termination of a probationer can be said to be punitive or not, depends on whether the allegations which are the cause of the termination arc the motive or foundation and if findings were arrived at in an inquiry as to misconduct behind the back of an officer or without a regular departmental inquiry, a simple order of termination is to be treated as founded on the allegations and would be bad. But if the inquiry was not held and no findings were arrived at and the employer was not inclined to conduct an inquiry, but at the same time he did not want to continue the employee''s services, it would only be a case of motive and the order of termination of the employee would not be bad.
Applying this test in the present case on hand, the material on record would indicate that there are observations based on material gathered not only with regard to the petitioner''s performance, but also as regards his conduct which did not require any detailed findings in deciding whether the petitioner''s performance was satisfactory and hence, it cannot be said that the order of discharge is punitive in nature or that it is stigmatic.
Insofar as the challenge to the Rules and the claim that there is a deemed confirmation and hence the discharge of the petitioner was not permissible, is also not tenable in the light of the judgment in Khazia Mohammed Muzammil Vs. The State of Karnataka and Another, wherein the apex Court has examined and reviewed the entire case-law while addressing the very Rules which are involved in the present case on hand and which was also questioned in. the very same mariner as the petitioner seeks to do. The Supreme Court has held as follows: 19. Having discussed in some elaboration the conduct of the appellant as well as his antecedents, now we proceed to examine the merits of the legal controversy raised in the present ease on behalf of the. appellant, in relation to "deemed confirmation". The "deemed confirmation" is an aspect which is known to the service jurisprudence now for a considerable time, Both the views has been taken by the Court. Firstly, there can be "deemed confirmation " after an employee has completed the maximum period of probation there can be "deemed confirmation" after an employee has completed the maximum probation period provided under the rules whereafter, his entitlement and conditions of service are placed at parity: with a confirmed employee. Secondly, that there would be no "deemed confirmation " and at best after completion of maximum probation period provided under the rules Governing the employee, the employee becomes eligible for being confirmed in his post. His period of probation remains in force till a written document of successful completion of probation is issued by the competent authority.
Having examined the various judgments cited at the Bar, including that of all larger Benches, it is not possible for this Bench to slate which of the views is the correct enunciation of law or otherwise. We are of the considered opinion, as to what view has to be taken, would depend upon the facts of a given case and the relevant rules in force. It will be cumulative, effect of these two basics that would determine the application of the principle of law to the facts of that case. Thus, it will be necessary for us to refer to this legal contention in some elucidation.
According to the appellant the language of Rule 3 of the 1977 Rules, provides that the probation period cannot be extended beyond 3 years and upon expiry of such period the appellant would be deemed to have been confirmed. To substantiate this contention, the appellant, relied upon Rules 3 and 4 of the 1977 Rules and Entry 2 of the Schedule under Rule. 2 of the 1983 Rules which provide that there shall he two-year probation during which period, the officer was to undergo such training, as may be specified by the High Court of Karnataka. Therefore, the submission is that once the maximum period of probation under these Rules has expired the officer will stand automatically confirmed and thus is incapable of being discharged under Rule 5(1)(b) of the 1977 Rules.
We shall now proceed to discuss the judgments which have been relied upon by the appellant in support of his contentions. On merits these judgments are hardly applicable to the facts of the present case. While examining the cited judgments this Court has to keep in mind the specific rules relating to alleged automatic confirmation of the appellant and the fact that the appellant failed to satisfactorily complete the period of probation or extended period of probation in terms of Rule 5(1)(b) of 1977 Rules. The 1983 Ruler ought to be read in conjunction with the 1977 Rules as they have duly been adopted by the High Court. The 1977 Rules are specific rules on the subject in question while the 1983 Rules are general rules and in any case there is no conflict between the two as they seek to achieve the same object in relation to probation and effects thereof in relation to different matters.
Not only the rules but even the principles of service jurisprudence fully recognise the status of an. employee as a probationer and a confirmed employee. "Probationer", in terms of Rule 2(2) of the 1977 Rules means a government servant on probation. Rule 3 to 6 are the relevant rules which specifically deal with the period of probation, extension respondent or. reduction of period of probation, satisfactory completion of the probation period and discharge, of a probationer during the period of probation. The relevant rules read as under:
Period of probation: The period of probation shall be as may be provided for in the rules of recruitment specially made for any service or post, which shall not be. less than two years, excluding, the period if any, during which the probationer was on extraordinary leave.
Extension or reduction of period of probation:
(1) The period of probation may, for reasons TO be recorded, in writing, be extended-
(i) by the Governor or the Government by such period as he or it deems fit;
(ii) by any other appointing authority by such period not exceeding half the prescribed period of probation; provided that if within the prescribed or extended period of probation, a probationer has appeared for any examinations or tests required to be passed during the period of probation and the results thereof are not known before the expiry of such period, then the period of probation Shall be deemed to have been extended until the publication of the results of such examinations or tests or of the first of them in which he fails to pass.
The Government may, by order, reduce the period of probation of a probationer by such period not exceeding the period during which he discharged the duties of the post to which he was appointed or of a post the duties of which are, in the opinion of the Government, similar and equivalent to those of such post.
Declaration of satisfactory completion of probation, etc., - (1) At the end of the prescribed or, the case may be, the reduced or extended period of probation, the appointing authority shall consider the suitability of the probationer to hold the post to which he was appointed, and-
(a) if it decides that the probationer is suitable to hold the post to which he was appointed and has passed the special examinations or tests, if any, required to be passed during the period of probation it shall, as soon as possible, issue an order declaring the probationer to have effect from the date of the expiry of the prescribed, reduced or extended period of probation;
(b) if the appointing authority decides that the probationer is not suitable to hold the post to which he was appointed or has not passed the special examinations or special tests, if any. required to be passed during the period of probation, it shall, unless the period of probation is extended under Rule 4, by order, discharge him from service.
(2) A probationer shall not be considered to have satisfactorily completed the probation unless a specific order to that effect is passed. Any delay in the issue of an order under sub-Rule (1) shall not entitle the. probationer to be deemed to have satisfactorily completed his probation.
Note:- In this Rule and rule 6 ''discharge'' in the ease of a probationer appointed from another service or post, means reversion to that service or post.
Discharge of probationer during the period of probation:- (1) Notwithstanding anything in Rule 5, the appointing authority may, at any time during the period of probation, discharge from service a probationer on grounds arising out of the conditions, if any, imposed by the Rules or in the order of appointment, or on account of his unsuitability for the. service or post; but the order of discharge except when passed by the Government shall not be given effect to, till it has been submitted to and confirmed by the next higher authority.
(2) An order discharging a probationer under this Rule shall indicate the grounds for the discharge but no formal proceedings under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, shall be necessary.
Now, let us analyse these Rules. No doubt Rule 3 states that the period of probation shall, be, as may be, provided for in the rules of recruitment specially made for any service or post, which shall not be less than two years, (emphasis supplied) Out of which period extraordinary leave will have to be excluded. Thus the Rules contemplate that every service provides rules relating to probation. But the probation period should not be less than two years. The emphasis of the Rules is that minimum period of probation has to be two years. The period of probation can be extended for reason to be recorded by the competent authority by such period not exceeding half of the prescribed period of probation. Interestingly, to this Rule the framers of the Rides have introduced a proviso, which, gives discretion to the authorities and, in fact, introduced, deemed extension in the event the probationer has appeared for any exam or result thereof has not been declared within the period of probation and extended period. The Rule, therefore, contemplates deemed extension of probation period, where the authorities have not passed any order for extending or declining to extend the period of probation provided the circumstances stated therein are satisfied.
The purpose of any probation is to ensure that before the employee attains the status of confirmed regular employee, he should satisfactorily perform his duties and junctions to enable the authorities to pass appropriate orders. In other words, the scheme of probation is to judge the ability, suitability and performance of an officer under probation. Once these ingredients are satisfied the competent authority may confirm the employee under Rule 5 of the 1977 Rules.
Rule 5(2) places an obligation upon the authority that at the end of the prescribed period of probation, the authority shall consider the suitability of the probationer to the post to which he is appointed and take a conscious decision whether he is suitable to hold the post and issue an order declaring that the probationer has satisfactorily completed his probation period or pass an order extending the period of probation etc., Rule 5(1)(b) empowers the authority that in the event it is of the view that the period of probation has not been satisfactorily completed or the probationer has not passed the special examinations, it may discharge him service unless the period of probation is extended.
Rule 5(2) has been coveted with negative language. It specifically prescribes that a probationer shall not be considered to have satisfactorily completed the probation unless a specific order to that effect is passed. The Rule further clarifies that if there is a delay in issuance of an order under the rule (1), it shall not entitle the probationer to be deemed to have satisfactorily completed his probation. In other words, the framers of the Rides have introduced a doable restriction to the concept of automatic confirmation or deemed satisfactory completion of the probation period. Firstly, the specific order is required to be issued in that regard and secondly, delay in issuance of such orders does not (sic) the balance in favour of the employee.
Rule 6(1) states that the competent authority may, at any time, during the period of probation, discharge from service, a probationer on grounds arising out of the conditions, if any, imposed by the Rules in the order of appointment, or on account of his unsuitability for the service of post. However, the said order of discharge would take effect only after it is confirmed by the next higher authority. Rule 6(2) specifically excludes the application or holding of formal proceedings under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. It says that such course will not be necessary.
In the light of this statutory provision, let us also examine the probation period referred to under Item 2 of Rule 2 of the 1983 Rules. The Rule states that probation period will be of 2 years and further mandates during that period of probation, the officer must undergo a training, as may be specified by the High court. This itself has been indicated under the head "minimum qualifications". (sic), therefore, clearly shows that it is not the provision dealing with the probation period, extension and discharge of a qualifications, which are to be essentially satisfied by the officer concerned before he takes over his appointment as a regular judge.
The reference to the probation period has to be examined and interpreted with reference to and in conjunction with the 1977 Rules which are the primary rules dealing with probation. These Rules have admittedly been adopted by the High Court Under the 1983 Rules, the emphasis is on performance and training during the period of probation. In other words, the primary purpose of these Rules is only to ensure that the officer concerned undergoes training during the period of probation. While the significance under the 1983 Rules is on training, under the 1977 Rules, all matters relating to probation are specifically dealt with. It would not be permissible to read the relevant part of the 1983 Rules to say that it mandates that probation period shall be only for two years and not more. If that was to be accepted, all provisions under Rules 3 to 6 of the 1977 Rules will become redundant and ineffective. In fact, it would frustrate the very purpose of framing the 1977 Rules.
What will be the period of probation, the circumstances under which it can be extended or reduced and discharge the probationer officer in the event of unsuitability, etc., are only dealt with under the 1977 Rules. The 1983 Rules would have to be read harmoniously with the 1977 Rules to achieve the real purpose and timely training of Judicial Officer on the one hand and appropriate control over the matters relating to probation of the officers on the other. Thai, in fact, is the precise reason as to why the. 1983 Rules do not deal specifically with any of the aspects of probation In view of this discussion the contention of the appellants has to be rejected.
Having referred to the specific rules on the subject and the entire scheme under the relevant provisions relating to different aspects of probation, let us examine the law and the pronouncements of this court in some detail.
We have already noticed that two views are prevalent. Primarily, the court has taken the diametrical opposite view. One which accepts the application of the deemed confirmation after the expiry of the prescribed period of probation, while the other taking the view that it will not be appropriate to apply the concept of deemed confirmation to the officers on probation as that is not the. intent of law. In our opinion, the rules and regulations governing a particular service are bound to have greater impact on determining such question and that is the precise reason that we have discussed Rules 3 to 6 of the 1977 Rules in the earlier part of the judgment."
Thereafter, the apex Court after discussing the reasoning, in each of the several judgments rendered by the apex Court with reference to other Rules, which were the subject matter of those decisions, has held as follows:
On a clear analysis of the above enunciated law. particularly, the seven-Judge bench judgment of this court in Samsher Singh and the three-Judge Bench judgments, which are certainly the larger Benches and are binding on us, the courts have taken the view with reference to the facts and relevant rules involved in those cases that the principle of "automatic" and "deemed confirmation" would not be. attracted. The pith and substance of the stated principle of law is that it will be the facts and the rules, which will have to be examined by the courts as a condition precedent to the application of the dictum slated in any of the line of cases aforenoticed.
There can he cases where the rules require a definite act on the part of the employer before on officer on probation can be. confirmed. In other words, there may a rule or regulation requiring the competent authority to examine the suitability of the probationer and then upon recording its satisfaction issue an order of confirmation. Where the rules are of this nature the question of automatic confirmation would not even arise. Of course, every authority is expected to act properly and expeditiously, it cannot and out not to keep issuance of such order in abeyance without any reasons or justification. While there could be some other cases where the rules do not contemplate issuance of such a specific order in writing but merely require that there will not be any automatic confirmation or Same acts, other than issuance of specific orders, are required, to be performed by the parties. even in those cases it is difficult to attract the application of this doctrine.
However, there will be cases where not only such specific rules, as noticed above, are absent but the rules specifically prohibit extension of the period or probation or even specifically provide that upon expiry of that period he shall, attain the status of a temporary or a confirmed employee. In such cases, again, two situations would rise; one, that he would attain the status of an employee being eligible for confirmation and second, that actually he will, attain the status of a confirmed employee. The courts have repeatedly held that if. may not be possible to prescribed a straitjacket formula of universal implementation for all cases involving such questions. It will always depend upon the facts of a case and the relevant rules applicable, to that service.
Reverting back to the Rules of the present case it is clear that Rule 3, unlike other rules which have been referred in different cases, contains negative command that the period of probation shall not be less than two years. This period could be extended by the competent authority for half of the period of probation by a specific order. But on satisfactory completion of the probation period, the authorities shall have to consider ''he suitability of the probationer to hold the post to which he was appointed. If he is found to be suitable then as soon as possible order is to be issued in terms of Rule 5(1)(a). On the other hand, if he is found to be unsuitable or has not passed the requisite examination and unless an order of extension of probation period is passed by the competent authority in exercise, of its power under Rule 4, then it shall discharge the probationer from service in terms of Rule 5(1)(b).
At this juncture Entry 2 of the Schedule under Rule 2 of the 1983 Rules would come into play as it is a mandatory requirement that the probationer should complete his judicial training. Unless such training was completed no certificate of satisfactory completion of probation period could be issued. Obviously, power is vested with the appropriate authority to extend the probation period and in the alternative to discharge him from service. The option is to be exercised by the authorities but emphasis has been applied by the framers on the expression "as soon as possible" they should pass the order and not keep the natters in abeyance for indefinite period or for years together.
The language of Rule 5(2) is a clear indication of the intent of the framers that the concept of deeming confirmation could not be attracted in the present case. This Rule is preceded by the powers vested with the authorities under Rules 4 and 5(1) respectively. This Rule mandates that a probationer shall, not be deemed to have satisfactorily completed the probation unless a specific order to that effect is passed. The Rule does not stop at (hat but furthermore specifically states that any delay in issuance or order shall not entitle the probationer to be deemed to have satisfactorily completed his probation. Thus, use of unambiguous language clearly demonstrates that the fiction of deeming confirmation, if permitted to operate, it would entirely frustrate the very purpose of these Rules. On the ground of unsuitability. despite what is contained in Rule 5, the competent authority is empowered to discharge the probationer at any time on account of his unsuitability for the service or post. That discharge has to he simpliciter without causing a stigma upon the probationer concerned. In our view, it is difficult for the court to bring the present case within the class of cases, where, "deemed confirmation", or principle of "automatic confirmation." can be judiciously applied.
The 1977 Rules are quite different from the rules in some of the other mentioned cases. The. 1977 Rules do not contain any provision which places a ceiling to the maximum period of probation, for example, the probation period shall not be extended beyond a period of two years. On the contrary, a clear distinction is visible in these Rules as it is stated that probation period shall not be less than two years and can be extended by the authority by such period not exceeding half the. period. The negative expression is for half the period and not the maximum period totally to be put together by adding to the initial, period of probation and to extended period. Even if, for the sake of argument, we assume that this period is of three years, then in view of the language of Rules 5(1) and 5(2) there cannot be automatic confirmation, a definite act on the part of the authority is con tern plated. The act is not a mere formality but a mandatory requirement which has to be completed by due application of mind. The suitability or unsuitability, as the case may be, has to be. recorded by the authority after due application of mind and once it comes to such a decision the other requirements is that a specific order in that behalf has to be issued and unless such an order is issued if will, be presumed, that there shall not be satisfactory completion of probation period. The Rules, being specific and admitting no ambiguity, must be construed on their plain language to mean that the concept of ''''deemed confirmation" or "automatic confirmation " cannot be applied in the present case.
Another aspect, which would further substantiate the view that we have expressed, is that the proviso to Rule 4 shows that where during the period of probation the results of an examination have not been declared which the probationer was required to take, in that event the period of probation shall be deemed to have extended till completion of the act i.e., declaration of result. Applying this analogy to the provisions of Rule 5 unless certificate is issued by the competent authority the probation period would be expected to have been extended as if is a statutory condition precedent to successful cample ion of the period of probation and confirmation of the probationer in term of this Rule.
Hence, the question stands answered against the petitioner. The petitioner having completed the prescribed period of probation, it is not in dispute that there was no letter of extension of the probation or any order stating that the petitioner had completed the period of probation successfully in terms of Rule 5(1) and hence Rule 5(2) would come into play and till the issuance of such an order and certificate of satisfactory completion of probation, the petitioner could not claim to be a confirmed employee on the principle of "automatic" or "deemed" confirmation. The order of termination was a discharge from service simpliciter, without casting any stigma on the appellant. In that view of the matter, there is no merit in this petition and the same stands dismissed.