HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No v. Naresh Kanwat S/o

Judgment

1. Instant second appeal is preferred by appellant-defendant aggrieved from judgment dated 29.07.1998 in Civil Regular Appeal No.43/1996 passed by learned Additional District Judge No.5, Jaipur City, Jaipur, whereby an appeal preferred by respondent-plaintiff against dismissal of Civil Suit No.563/1981 by learned Additional Civil Judge (Junior Division) No.3, Jaipur on

22.07.1996 was set aside and a decree was passed in favour of plaintiff-respondent.

2. Learned counsel for appellant while relying upon grounds of

appeal has submitted that respondent-plaintiff has filed a civil suit for declaration and injunction on the ground that initially, he was appointed as an Assistant Engineer (Electricity) on probation period of two years, but extended for one more year and later his [2025:RJ-JP:23245] (2 of 12) [CSA-480/1999] services were terminated on 15.03.1976. She further submitted that the plaintiff has claimed that his period of probation has completed on 17.02.1976, and he was deemed to be confirmed in service, therefore, the termination order dated 15.03.1976 is contrary to Regulation as there is no provision of further extension of probation. She further submitted that a reply was filed by appellant-defendant and it was submitted that the services of plaintiff were unsatisfactory and he was terminated due to unsatisfactory services. She also submitted that thereafter on an appeal and considering that the plaintiff belongs to Scheduled Tribes, so on 10.06.1976, he was freshly appointed on a probation period of one year. She further referred the legal position and submitted that the Trial Court has dismissed the civil suit of plaintiff, but the Appellate Court swayed by whimsical reasons has allowed the appeal and passed a decree in favour of plaintiff. She also referred judgments in case of Municipal Corporation Raipur Vs. Ashok Kumar Misra (1991) 3 SCC 325, State of Punjab Vs. Baldev Singh Khosla JT 1996 (5) SC 78, Dhanjibhai Ramjibhai Vs. State of Gujarat AIR 1985 SC 603, Dr. Amrittlal Dharshibhai Jhankharia Vs. State of Gurajat & Anr. (1998) 8 SCC 767 and submitted that it is not necessary to hold any departmental enquiry to terminate a probationer. She submitted that in absence of any express order of confirmation, a probationer is not deemed to be considered as confirmed in service. She also referred initial order of appointment and subsequent order of appointment to show break in service and submitted that this plaintiff was freshly appointed on 10.06.1976, and there is a break from 15.03.1976 to 10.06.1976 and same [2025:RJ-JP:23245] (3 of 12) [CSA-480/1999] period is not part of any service. She also referred RRVPNL Engineer Service (Recruitment Promotion and Seniority) Regulation, 1969 (hereinafter referred as Regulation of 1969) and submitted that Rule 28 provides for probation, Rule 29 for unsatisfactory progress during probation, whereas Rule 30 provides for confirmation. She further referred the orders passed in respect of present respondent-plaintiff and submitted that now he has superannuated on 30.04.2009. She also referred the findings of the Appellate Court and submitted that Appellate Court has passed an order contrary to latest judgments of Hon’ble Supreme Court.

3. Aforesaid contentions were opposed by learned counsel for respondent-plaintiff and submitted that plaintiff has automatically confirmed in service on 15.02.1976 and any order of termination on 15.03.1976 is violative of principle of natural justice and contrary to law. He also submitted that the rules provides for automatic confirmation in case, period of probation is not extended by Board beyond the permissible limit as prescribed under Rule 29. He referred Rule 29 (1) and submitted that the Board can extend probation period only for a period of one year, but in case, same is not confirmed then the rule of automatic confirmation is applicable. He also referred Rule 28 and submitted that initially probation may be for a period of two years and thereafter, one year can be extended, but on 15.02.1976, a term of 3 years were completed and there was no express extension. He referred the judgments in case of State of Punjab Vs. Dharam Singh AIR 1968 SC 1210 and Karnataka State Road Transport Corporation Vs. S. Manjunath AIR 2000 SC 2070 [2025:RJ-JP:23245] (4 of 12) [CSA-480/1999] and submitted that a probationer is deemed to be confirmed on expiry of probation period. At last, he submitted that Appellate Court has not committed any error while passing a decree in favor of plaintiff-respondent.

4. Heard learned counsels for the parties and perused the record and also perused the judgments as referred by the learned counsels for the parties.

5. The brief facts of the case are that plaintiff-respondent has filed a civil suit before learned Additional Civil Judge (Junior Division) No.3, Jaipur City, Jaipur on the ground that he was appointed as Assistant Engineer (Electricity) on 17.02.1973 under the Regulations of 1969, initially, on a probation period of 2 years, but it was extended for another one year on 01.11.1975. The respondent has terminated the service of plaintiff on 15.03.1976. Thereafter, this plaintiff was taken in service and shown as re- appointed on probation period of one year. The plaintiff has challenged his seniority list, which was issued on 22.02.1980 and prayed seniority since 17.02.1976. A written statement was filed by defendant denying most of the facts as narrated by plaintiff and submitted that plaintiff was initially appointed for a period of 2 years, and later the period was extended by one year. On

15.03.1976, the service of plaintiff were terminated as his services were found unsatisfactory. On a mercy appeal of plaintiff and considering plaintiff to be member of Scheduled Tribes, again appointed on fresh probation for a period of one year on

10.06.1976. The seniority list published on 22.02.1980 was already withdrawn on 24.02.1982. [2025:RJ-JP:23245] (5 of 12) [CSA-480/1999]

6. On basis of pleadings of the parties, total 5 issues were framed. The plaintiff has examined himself, but did not submitted any document. The defendant has examined P.C. Patni as defence witness and exhibited four documents. The Trial Court after considering the evidence, has dismissed the suit of plaintiff. On an appeal, preferred by plaintiff, the Appellate Court considering the judgment of Constitution Bench of Hon’ble Supreme Court in case of State of Punjab Vs. Dharam Singh (supra) held that after completion of probation on 26.02.1973, the plaintiff is automatically confirmed, and on basis of this analogy, allowed the appeal and passed a decree in favour of plaintiff.

7. While considering the appeal on 26.07.2006 filed by appellant-defendant following two substantial question of law formulated:- “Whether, one is entitled for automatic confirmation on completion of period of probation, even when there is express provision for confirmation available under Regulation 30 of the RSEB Service Regulation, 1969”? “Whether, without questioning the validity of the order of termination dated 15.03.1976 and by giving a fresh appointment by order dated 10.06.1976 can still one is entitled for claiming seniority from the date of appointment, particularly when the order of termination dated 15.03.1976 was never challenged before any Court of law”.

8. The facts of the case, suggested following timeline:-

17.02.1973

01.11.1975

15.03.1976

16.06.1976 Appointment as Assistant Engineer (Electricity) (On Probation of 2 Years) Extension of Probation Period by One Year Service of Petitioner Terminated Re-appointed on Probation for a Period of 1 Year

20.02.1982 Seniority List Published [2025:RJ-JP:23245] (6 of 12) [CSA-480/1999]

24.02.1980 Seniority List Withdrawn (Cancelled)

9. The provision of RRVPNL Engineer Services (Recruitment, Promotion and Seniority) Regulation, 1969 were never challenged by the plaintiff till his superannuation. For ready reference, we are reproducing Rule 28, 29 and 30, which governs probation, consequence of unsatisfactory probation and confirmation:-

28. Probation (1) All persons appointed to the Service by direct recruitment or promotion shall be on probation for a period of two years in the case of direct recruitment and one year in the case of promotion. (2) All persons promoted to senior posts in the service except that of +Dy. Chief Engineer shall be on probation for a period of one year. Provided that such of them as have previous to their appointment by promotion officiated temporarily on a post encadred in the Service, may be permitted by the Chairman where Board is the appointing authority to count such officiating or temporary service towards the period of probation upto a maximum of six months. Provided that if a superintending Engineer appointed on probation to the post of Addl. Chief Engineer is subsequently selected for appointment to the post of Chief Engineer, the period of probation put in by him on the post of Addl. Chief Engineer may be counted towards the period of probation of one year on the post of Chief Engineer. @Provided that the Chairman may, where the Board is the appointing authority, waive the period of probation in case of an employee who has been satisfactorily working on adhoc/temporary capacity [2025:RJ-JP:23245] (7 of 12) [CSA-480/1999] for a period of two years or more on the post to which he is promoted on the basis of the recommendations of a duly constituted Selection Committee." (3) During the period of probation, each probationer, except those promoted to senior posts, shall undergo intensive

29. Unsatisfactory Progress during probation: (1) If it appears to the Board 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 the opportunities or that he has failed to give satisfaction, the Board may revert him to the post held by him immediately before his appointment to the service or to his substantive post on which he holds a lien or may remove him from the service if there is no lower post to which he can be reverted, provided that Board may extend the period of probation of any member of the Service by a specified period not exceeding one year. (2) A probationer reverted or removed from service during or at the end of the period of his probation under sub-regulation (1) above shall not be entitled to any compensation.

30. Confirmation: A probationer shall be confirmed in his appointment at the end of the period of his probation if: (a) He has passed the prescribed Departmental Examination, if any, within reasonable time. A candidate will be allowed only two chances to pass such examination. (b) Board is satisfied that his integrity is unquestionable and that he is otherwise fit for confirmation, and [2025:RJ-JP:23245] (8 of 12) [CSA-480/1999] (c) Sufficient number of permanent posts exist. If at the end of the probationary period there is no permanent post vacant, the probationer shall officiate on a temporary post or on a permanent post on a which another officer hold a lien.

10. In case of State of Punjab Vs. Dharam Singh (Supra), a Constitution Bench while considering the Punjab Educational Service (Provincialized Cadre) Class 3rd, Rule 1961 has ruled that Rule 6 (3) prohibits extension of period of probation beyond three years, and when period of probation cannot be extended and if an employee appointed or promoted to a post is permitted to continue in the post after completion of maximum period of probation without any express order of confirmation, he cannot be deemed to be continued in the post as probationer by implication. In such a case, it is permissible to draw a conclusion that employee allowed to continue in the post of completion of maximum period of probation as has been confirmed in the post by implication. In case of Karnataka State Road Transport Corporation Vs. S. Manjunath (supra), Hon’ble Supreme Cpirt while considering judgment in case of State of Punjab Vs. Dharam Singh (supra) has held that after maximum period of probation, there is a presumption about continuation and he deemed to have been confirmed.

11. In case of Municipal Corporation Raipur Vs. Ashok Kumar Misra (supra), Hon’ble Supreme Court has held that in absence of any express order of confirmation, would amount to extension of period of probation period and termination after initial period of probation would amount to termination of probationary service, hence valid. In this case, Hon’ble Supreme Court has [2025:RJ-JP:23245] (9 of 12) [CSA-480/1999] considered judgment in case of State of Punjab Vs. Dharam Singh (supra). In case of State of Punjab Vs. Baldev Singh Khosla JT (supra) and held that unless there is a confirmation order after completion of probation period, an employee is not deemed to be confirmed. In case of Dhanjibhai Ramjibhai Vs. State of Gujarat (supra), Hon’ble Supreme Court has held that after completion of probation, if a candidate allowed to continue beyond initial period even then he has no right to confirmation. In case of Dr. Amrittlal Dharshibhai Jhankharia Vs. State of Gurajat & Anr. (supra), Hon’ble Supreme Court has adopted same analogy and ruled that a probationer is not deemed to be confirmed.

12. Herein this case, after initial period of two years, the probation period was extended for another one year and awaiting confirmation, the period of three years has completed, but on

15.03.1976, the service of this plaintiff, has been terminated after expiry of extended period of probation. Thereafter, this plaintiff was re-appointed on fresh terms for a probation for a period of one year by order dated 16.06.1976, and it is an admitted document. The plaintiff has joined the appellant Corporation in pursuant to order dated 16.06.1976, but he has neither challenged the order of termination dated 15.03.1976 nor re- appointment order dated 16.06.1976. The appellant-defendant has further clarified in order dated 05.06.1979 that the services rendered by plaintiff before 16.06.1976, will not be counted for any purpose.

13. Herein, the rules provides for probation period of two years and further extension of period of one year, but rule does not [2025:RJ-JP:23245] (10 of 12) [CSA-480/1999] provide for automatic confirmation. Moreover, there are certain conditions before confirmation of probation, therefore, there is no question of automatic confirmation after completion of probation. Before expiry of three years’ time of probation, no order of confirmation was passed in favour of plaintiff, but it also does not give a right for automatic confirmation. Moreover, the appellant has not taken any decision to terminate service of plaintiff. Though, Rule 29 specifically provides for unsatisfactory progress during probation. The plaintiff has not filed any document in support of his evidence and same is required to be submitted by plaintiff. It appears that the Appellate Court without considering the correct facts and legal position has decided a service matter in most cursory manner. How can a probationer be deemed to be confirmed de hors the rules.

14. In case of High Court Of Madhya Pradesh Thru. Registrar & Ors. Vs. Satya Narayan Jhavar (2001) 7 SCC 161 after considering judgment in case of State of Punjab Vs. Dharam Singh (supra), Sukhbans Singh Vs. State of Punjab AIR 1962 SC 1711 and Shamsher Singh & Anr. Vs. State of Punjab (1974) 2 SCC 831, Hon’ble Supreme Court has observed that the question of deemed confirmation in service jurisprudence, depend upon language of the relevance service rules. In cases, there is no bar against termination at any point of time after expiry of period of probation, where a period of probation is extended after initial period of probation and rules does not provide thereafter even if the services of a probationer can be terminated. It means even after maximum period of probation, as prescribed under the rule if an order of confirmation has not been [2025:RJ-JP:23245] (11 of 12) [CSA-480/1999] passed then he cannot be deemed to have been confirmed merely because the said period has been expired.

15. Herein this case, neither rule provides for automatic confirmation nor the law can be interpreted in favour of plaintiff, in a manner that the rule provides for automatic confirmation. The law over the point is well-settled that there is no automatic confirmation after completion of period of probation unless the appointment order itself provides in accordance with rules.

16. In view of discussion made hereinabove, there is no automatic confirmation under Rule 30 of the Regulation 1969. The plaintiff has never challenged fresh appointment order dated

10.06.1976 and he is not entitled for seniority as claimed by him, therefore, both the substantial question of law are decided in favour of the appellant-defendant.

17. The Appellate Court while considering an appeal under Section 96 of CPC has traveled beyond the material on record and passed a judgment against the rules of the appellant-defendant. The judgment passed by Appellate Court is perverse and illegal and contrary to the facts of the case, thus, this appeal is liable to be allowed.

18. In view of discussion made hereinabove, the instant S.B. Civil Second Appeal is hereby allowed and judgment dated

29.07.1998 in Civil Regular Appeal No.43/1996, is hereby set aside.

19. As a result, the dismissal order dated 22.07.1996 of Civil Suit No.563/1981 is hereby restored.

20. The instant Civil Second Appeal is hereby stands disposed of with pending application, if any. [2025:RJ-JP:23245] (12 of 12) [CSA-480/1999]

21. No order as to costs. GAURAV /146 (ASHOK KUMAR JAIN),J