Mohd. Salman vs Committee Of Management & Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 6601-6602 OF 2008

MOHD. SALMAN Appellant (s)

VERSUS

COMMITTEE OF MANAGEMENT & ORS. Respondent(s)

O R D E R

1. We propose to dispose of both the appeals by this common

judgment and order as the issues involved are inter-connected.

2. The issue that arises for consideration in these appeals

is whether the appellant is entitled to claim deemed

confirmation of his service as an Assistant Teacher in the

respondent no. 1 institution on an interpretation of Rule 26 of

the Uttar Pradesh Ashaskiya Arabi Tatha Farsi Madarson Ki

Manyata Niyamawali. However, before we deal with the

contentions on the legal issues which arise for our

consideration, it would be necessary to state certain facts for

proper appreciation of the issues.

3. The appellant was appointed on 1st March, 1989 as an

Assistant Teacher in the primary section of Madarsa Hanifa Ahle

Sunnat Bahrul Uloom, Mau. A copy of the appointment order dated

22.2.1989 is placed on record. The said order not only states

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that by virtue of the said order, the appellant was appointed in

the said Madarsa to the post of Assistant Teacher

Tahtania(primary) but it was also mentioned therein that the

said appointment is purely on probationary basis. In the said

letter, the appellant was further informed that his services

could regularised but only if his performance during probation

period was found to be good/satisfactory. It was also indicated

therein that if his performance during the aforesaid period is

not satisfactory, then he could be terminated from the service

of Madarsa anytime without assigning any reason.

4. The appellant was appointed initially on probation for a

period of one year. The said period of probation was extended

for a further period of one year. The respondent no. 1 in the

counter affidavit filed has annexed a series of letters issued

on behalf of respondent no. 1 to the appellant. One of such

letters is dated 10.4.1992. By writing the aforesaid letter,

the respondent no. 1 informed the appellant that his application

for extension of probation period was received but since his

teaching work was not satisfactory, therefore, respondent no. 1

had decided to give him a chance again to improve his work so

that in future his services could be made permanent. By the

said letter, his probation period was extended for one year

more.

5. There is yet another letter which is also placed on

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record which is dated 13.2.1993 wherein by referring to the

earlier letter dated 10.4.1992, respondent no. 1 informed the

appellant that earlier the committee extended his probation time

and again to improve his performance and teaching work but it

appeared to them that the appellant did not possess teaching

capability at all. By the said letter, the appellant was

directed to show cause as to why his service should not be

dispensed with from the Madarsa.

6. Even thereafter, there is a letter issued on 3.4.1993

wherein his attention was drawn to the earlier letters directing

him to improve his performance to which according to respondent

no. 1, the appellant did not pay any heed or attention. The

appellant was, therefore, intimated that his service now stood

terminated in terms of clause 26 of Rules, 1987.

7. The aforesaid order came to be challenged by the

appellant by filing a writ petition in the Allahabad High Court

which was allowed on the ground that on expiry of the two years'

period of probation, there is an automatic confirmation of the

service of the appellant and, therefore, the decision of this

Court in the case of The

State of Punjab Vs. Dharam Singh AIR

1968 1210 becomes applicable. Consequent upon the aforesaid

findings, the order of termination dated 3.4.1993 was set aside

with a further direction that the appellant be reinstated in

service.

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8. Being aggrieved by the said judgment and order passed by

the learned Single Judge of the Allahabad High Court, the

respondents filed an appeal before the Division Bench which was

entertained and was registered as Special Appeal No. 329 of

2005. By the impugned judgment and order, the appeal was

allowed and judgment and order of the learned Single Judge was

set aside and the writ petition filed by the present appellant

was dismissed. The appellant, therefore, has filed the present

appeal as against the said impugned judgment and order in which

we have heard learned counsel appearing for the parties who have

taken us through the records as also the relevant rule

concerning the service of the appellant as also the decisions

which are referred to and relied upon by the learned Single

Judge as also by the Division Bench of the High Court.

9. The contention of Ms. Purnima Bhat, learned counsel

appearing for the appellant is that the service of the appellant

must be accepted as a case of deemed confirmation on expiry of

the period of probation of two years as held by the learned

Single Judge. In support of the aforesaid contention, the

counsel has relied upon the decision of this Court in Dharam

Singh(supra). She has also drawn our attention to the decision

of this Court in the case of M.K. Agarwal Vs. Gurgaon Gramin

Bank and Others 1987 Suppl. SCC 643.

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10. Learned counsel appearing for the respondent nos. 1 and 2

Mr. Anis Suhrawardy and Mr. Shrish Mishra respectively, however,

has drawn our attention to the aforesaid correspondences between

respondent no. 1 and the appellant. In support of their

submission that the service of the appellant continued on

probation they referred to the contents of the order of

appointment and the series of the letters. In terms and

conditions of his appointment, his services could be terminated

without assigning any reason or on the ground of suitability at

any point of time. In support of their contentions, they have

also relied upon the decisions of this Court in State of Uttar

Pradesh Vs. Akbar Ali Khan AIR 1968 SC 1842 and also the

decision in the case of Kedar Nath Bahl Vs. The State of Punjab

and Others 1974(3)SCC 21. In the light of the aforesaid

submissions of the learned counsel appearing for the parties, we

have considered the records.

11. There is no dispute with regard to the fact that the

appointment of the appellant as the Assistant Teacher in the

primary Section of the aforesaid school was on probation

initially for a period of one year. The appointment letter also

specifically conveys the position and the stipulation that his

services could be regularised only if his performance during

probation period was found to be good/satisfactory. Rule 26 to

which reference was made again and again is extracted

hereunder:-

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"The appointment of a candidate against the permanent vacancy shall be made on probation. The period of probation shall be one year. It can be extended by one year. Before the completion of probation period, the Committee of Management shall be entitled to pass an order for removal from service."

12. Having considered the language of the aforesaid rule, we

are of the considered opinion that the decision in the case of

Dharam Singh(supra) is not applicable to the facts and

circumstance of the present case. In fact, the aforesaid Rule

26 is somewhat similar to the Rule which was considered by this

Court in the case of Akbar Ali Khan(supra). A constitution

Bench of this Court in the case of Akbar Ali Khan (supra)

examined relevant provisions contained in Rules 12 and 14 of the

UP Subordinate Revenue Executive Service (Tahsildar) Rules

dealing with the provision of probation period. The said rule

provided that the period of probation would be two years which

could be extended by the Board to three years. The Constitution

Bench of this Court considered as to whether a probationer stood

confirmed after the expiry of the period of probation in

paragraph 5 of the said judgment. This Court held in paragraph

5 as follows:-

"The respondent was posted as a Tehsildar and placed on probation for two years. The initial period of probation was liable to be extended by the Board of Revenue or by the Governor. There is no rule that on the expiry of the period of probation the probationer shall be deemed to have been confirmed in the post which he is holding as a probationer. If a probationer was found not to have made sufficient use of his opportunities or had failed to pass the departmental examination "completely" or if he had otherwise failed to give satisfaction he may be reverted to his substantive appointment again confirmation in the

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appointment at the end of the period of probation could only be made if the probationer had passed the departmental examination for tahsildars "completely"

and the Commissioner reported that he was fit for confirmation and that his integrity was unquestionable. It is common ground in this case that the respondent had not passed the departmental examination before 1955. He had therefore not qualified himself for confirmation."

13. Having held thus, this Court recorded its opinion in

paragraph 6 in the following manner:-

"The scheme of the rules is clear: confirmation in the post which a probationer is holding does not result merely from the expiry of the period of probation, and so long as the order of confirmation is not made, the holder of the post remains a probationer. It has been held by this Court that when a first appointment or promotion is made on probation for a specified period and the employee is allowed to continue in the post, after the expiry of the said period without any specific order of confirmation he continues as a probationer only and acquires no substantive right to hold the post. If the order of appointment itself states that at the end of the period of probation the appointee will stand confirmed in the absence of any order to the contrary, the appointee will acquire a substantive right to the post even without an order of confirmation. In all other cases, in the absence of such an order or in the absence of such a service rule, an express order of confirmation is necessary to give him such a right. Where after the period of probation an appointee is allowed to continue in the post without an order of confirmation, the only possible view to take is that by implication the period of probation has been extended, and it is not a correct proposition to state that an appointee should be deemed to be confirmed from the mere fact that he is allowed to continue after the end of period of probation."

14. The aforesaid rule which is referred to in the case of

Akbar Ali Khan(supra) appears to be similar to the case in hand. So far the case of Dharam Singh(supra) which is relied upon by

the learned counsel appearing for the appellant is concerned,

the rule which was considered in that case was rule 6(3). A

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bare perusal of the said rule would indicate that by adding a

proviso to the substantive rule, a maximum period of probation

was provided and in that context, this Court has held that in

view of the aforesaid proviso, the Rule postulates that there

would be an automatic confirmation after expiry of the period

mentioned in Rule 6(3). Because a maximum period of probation

was provided in the service rules in the case of Dharam

Singh(supra), therefore, in that decision, it was held by this

Court that continuation of the probationer thereafter would ipso

facto be held as deemed confirmation. The said decision is,

therefore, not applicable to the present case and is clearly

distinguishable.

15. The correspondences which are on record also indicate

that the service of the appellant was also found to be not

satisfactory by the respondent and the said fact was also

brought to the notice of the appellant continuously and

repeatedly so as to give him an opportunity to improve his

performance. However, despite the said opportunity granted and

also extension, his performance and service were not improved

and, therefore, the service was terminated under the aforesaid

letter dated 3.4.1993.

16. In the case of Kedar Nath Bahl Vs. The State of Punjab

and Others reported in 1974 (3) SCC 21, this Court clearly laid

down the proposition of law that where a person is appointed as

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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 even if no order is passed on that behalf. It was

also held in that decision that unless the terms of appointment

clearly indicate that confirmation would automatically follow at

the end of the specified period or that there is a specific

service rule to that effect, the expiration of the probationary

period does not necessarily lead to confirmation. This Court

went on to hold that 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 if he is not reverted to his

substantive post, the result merely is that he continues in his

post as a probationer.

17. In our considered opinion, the ratio of the aforesaid

decision is also clearly applicable to the facts of the present

case. In the present case, in the appointment letter issued to

the appellant, it was specifically mentioned that his service

would be regularised only when his performance during the

probation period is found to be good/satisfactory.

18. In view of the aforesaid stipulation, so long an order is

not passed holding that the service of the appellant is good and

satisfactory, it could not have been held that his service could

be regularised automatically by a deeming provision.

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19. In that view of the matter, we find no merit in these

appeals which are dismissed leaving the parties to bear their

own costs.

......................J. (DR. MUKUNDAKAM SHARMA)

......................J. (ANIL R. DAVE)

NEW DELHI SEPTEMBER 08, 2011.