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State Of Gujarat v. Akhilesh C. Bhargav And Others
Factual and Procedural Background
Respondent 1, Shri A.C. Bhargav, was appointed to the Indian Police Service (IPS) on 4 July 1969 and allotted to the Gujarat State cadre. On 9 April 1974, the President of India issued an order under clause (bb) of Rule 12 of the Indian Police Service (Probation) Rules, 1954, discharging him from service with immediate effect. Shri Bhargav challenged the discharge by filing a writ petition under Article 226 of the Constitution before the Gujarat High Court. A Single Judge quashed the discharge order, and a Division Bench, though for largely different reasons, affirmed that result. The State of Gujarat alone sought special-leave to appeal to the Supreme Court; the Union of India, though a party below, did not appeal and was transposed as a respondent.
Legal Issues Presented
- Whether reference to Rule 12(bb) in the discharge order cast a “stigma” requiring compliance with Article 311(2) of the Constitution.
- Whether, in the absence of any formal extension of probation beyond two years, the respondent had automatically become a confirmed member of the Gujarat IPS cadre by the time of his discharge five years after his initial appointment.
Arguments of the Parties
Respondent 1 (Shri A.C. Bhargav)
- The explicit mention of Rule 12(bb) imported a stigma into an otherwise innocuous discharge order, thereby attracting the procedural safeguards of Article 311(2).
- Because no order extending probation was ever passed and the maximum permissible period of probation (interpreted from government instructions) had expired, he stood confirmed; therefore, the Probation Rules could not be invoked to terminate his services.
Appellant (State of Gujarat)
- Confirmation is not automatic; a specific order of confirmation is indispensable, so the respondent remained a probationer notwithstanding the lapse of time.
- Consequently, discharge under Rule 12(bb) was valid and did not necessitate compliance with Article 311(2).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Orissa v. Ram Narayan Das, AIR 1961 SC 177 | Remarks such as “unsatisfactory work and conduct” do not amount to stigma for a probationer. | Cited only to note that the stigma issue need not be examined further in view of the Court’s ultimate conclusion. |
| Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910 | Government may issue administrative instructions to fill gaps where statutory rules are silent, provided they are not inconsistent with existing rules. | Relied upon to uphold the validity of the 16 March 1973 Home Ministry instructions limiting the maximum period of probation. |
| State of Punjab v. Dharam Singh, AIR 1968 SC 1210 | Where rules fix an upper limit to probation, continuation beyond that limit without an express order of extension equals confirmation. | Applied by analogy to hold that continuation beyond four years (two-year probation + maximum permissible extension of one year, doubled by convention) amounted to automatic confirmation. |
| Moti Ram Deka v. General Manager, N.E.F. Railways, AIR 1964 SC 600 | Services of a confirmed employee cannot be terminated by invoking probationary rules. | Invoked to demonstrate that once the respondent was deemed confirmed, Rule 12(bb) could not lawfully be used to discharge him. |
Court's Reasoning and Analysis
The Supreme Court first declined to enter into the “stigma” debate, noting that even if reference to Rule 12(bb) were neutral, the appeal would fail on another ground.
Rule 3(1) of the IPS (Probation) Rules fixes an initial probation of two years, while Rule 3(3) empowers the Central Government to extend that period. No extension order was issued in the present case. The Court examined the Home Ministry circular dated 16 March 1973, which—consistent with the Rules—laid down that probation should not ordinarily exceed four years. Relying on Sant Ram Sharma, the Court held that these executive instructions were valid supplements to the Rules.
Applying the principle from State of Punjab v. Dharam Singh, the Court reasoned that permitting the respondent to continue in service beyond the prescribed maximum without formal extension or confirmation effectively confirmed him in the cadre. Once confirmed, the respondent’s service could be terminated only by following the constitutional and statutory safeguards applicable to permanent civil servants. Consequently, invocation of Rule 12(bb), a probationary provision, was legally incompetent, as corroborated by Moti Ram Deka.
Holding and Implications
APPEAL DISMISSED.
The Supreme Court affirmed the High Court’s decision, thereby reinstating Shri A.C. Bhargav and nullifying the discharge order. The ruling underscores that, when read with valid executive instructions, probation cannot be indefinitely prolonged; an officer allowed to continue beyond the maximum period is deemed confirmed, and his services cannot be terminated under probationary rules. While the judgment reiterates established doctrine rather than creating new precedent, it clarifies its application to the IPS framework and reinforces the limits on governmental discretion in matters of probation.
Order
1. This appeal by special leave is against the appellate order of the Division Bench of the Gujarat High Court. Respondent 1 was appointed to the Indian Police Service on 4-7-1969 and has been discharged by the impugned order dated 9-4-1974. After he was appointed by the Union of India he was allotted to the State cadre of Gujarat and the order of discharge has been made on the basis of steps taken by the State of Gujarat. The order of discharge was assailed by filing a writ petition under Article 226 of the Constitution. The Single Judge annulled the order. To the writ petition both the Union of India and the State of Gujarat were party-respondents. Against the Single Judge's decision, two appeals were preferred to the Division Bench. The Division Bench for reasons mostly different from what had been recorded by the learned Single Judge, came to the same conclusion. Before this Court, there is only one appeal by the State of Gujarat and the Union of India has been joined as a respondent. Initially a preliminary objection had been raised regarding the maintainability of the appeal in the absence of any appeal by the Union of India but Mr Kacker appearing for Respondent 1 has given up the same. It is, therefore, not necessary to go into that question.
2. The order of discharge read as follows:
“Under clause (bb) of Rule 12 of the Indian Police Service (Probation) Rules, 1954, the President hereby discharges Shri A.C Bhargav, a person appointed to the Indian Police Service, on probation, on the results of the IAS etc. Examination held in 1968, and allocated to the service cadre of Gujarat from the said service with effect from the date on which this order is served on the said Shri A.C Bhargav.”
Reference to Rule 12(bb), it was contended on behalf of the respondent, brought into the otherwise innocuous order stigma in sufficient measure warranting a proceeding of the nature contemplated under Article 311(2) of the Constitution. It is unnecessary for us to go into that question as in our opinion the view expressed by the High Court is quite sound. We may refer to the Constitution Bench decision of this Court reported in the case of State of Orissa v. Ram Narayan Das AIR 1961 SC 177, (1961) 1 SCR 606, (1961) 1 Lab LJ 552 wherein this Court considered the order of discharge of a police officer on probation and held that in the case of a probationer observation like “unsatisfactory work and conduct” would not amount to stigma.
3. The other aspect which has been canvassed before us at length is as to whether the respondent should have been treated as a confirmed officer of the cadre at the time the order of discharge was made. Admittedly, the order of discharge is about five years after the appointment.
4. Rule 3(1) of the Indian Police Service (Probation) Rules, 1954, provides that every person recruited to the service in accordance with Indian Police Service (Appointment by Competitive Examination) Regulations, 1955, … shall be appointed to the service on probation for a period of two years. At the relevant time, sub-rule (3) of the said rule provided that the Central Government may, if it so thinks fit in any case or class of cases extend the period of probation. Admittedly, in this case there was no order of extension. It has been contended that no order of extension is necessary to be made as the process of confirmation is not automatic and even if the two year period as provided in Rule 3(1) has expired confirmation would not ipso facto follow and a special order has to be made.
5. Reliance has been placed on a series of decisions of this Court which have held that an order of confirmation has to be made and confirmation would not follow automatically. The position here, however, is somewhat different.
6. While the Probation Rules prescribed an initial period of two years of probation it did not provide any optimum period of probation. Administrative instructions were issued by the Ministry of Home Affairs, Government of India, on 16-3-1973, indicating the guidelines to be followed in the matter. The relevant portion thereof may be extracted:
“(ii) It is not desirable that a member of the service should be kept on probation for years as happens occasionally at present. Save for exceptional reasons, the period of probation should not, therefore, be extended by more than one year and no member of the service should, by convention, be kept on probation for more than double the normal period i.e four years. Accordingly, a probationer, who does not complete the probationers' final examination within a period of four years, should ordinarily be discharged from the service.”
7. It is not disputed that the circular of the Home Ministry was with reference to the Indian Police Service (Probation) Rules. We have not been shown that these instructions run counter to the rules. It is well settled that within the limits of executive powers under the constitutional scheme, it is open to the appropriate government to issue instructions to cover the gap where there be any vacuum or lacuna. Since instructions do not run counter to the rules in existence, the validity of the instructions cannot be disputed. Reliance has been placed in the courts below on the constitution Bench Judgment of this Court, and which is reported in Sant Ram Sharma v. State of Rajasthan AIR 1967 SC 1910, (1968) 1 SCR 111, (1968) 2 Lab LJ 830 where Ramaswami, J. speaking for the court stated thus:
“We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.”
8. We are of the view that the rules read with instructions create a situation as arose for consideration by this Court in the case of State of Punjab v. Dharam Singh AIR 1968 SC 1210, (1968) 3 SCR 1. The Constitution Bench of this Court in that case interpreted the Punjab Education Service (Provincialised Cadre) Class III Rules and found that there was a maximum limit of three years beyond which the period of probation could not be extended. When an officer appointed initially on probation was found to be continuing in service beyond three years without a written order of confirmation, this Court held that it tantamounts to confirmation. In view of what we have stated above we are in agreement with the High Court about the combined effect of the rules and instructions. We hold that the respondent stood confirmed in the cadre on the relevant date when he was discharged. For a confirmed officer in the cadre, the Probation Rules did not apply and therefore, proceedings in accordance with law, were necessary to terminate service. That exactly was the ratio of the decision in Moti Ram Deka v. General Manager, N.E.F Railways, Maligaon, Pandu AIR 1964 SC 600, (1964) 5 SCR 683. On the analysis indicated above, the net result, therefore, is that Respondent 1 had become a confirmed officer of the Gujarat I.P.S cadre and under Rule 12(bb) of the Probation Rules his services could not be brought to an end by the impugned order of discharge.
9. The appeal fails and is dismissed. There will be no order as to costs.
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