D.K Mahajan, J.:— In this petition, under Article 226 of the Constitution of India, the petitioner calls in question the following order, that was passed for dispensing with his services:—

“The president of India is pleased to dispense with the services of Shri Hari Singh Mann, Probationery Deputy Superintendent of Police, Amritsar, on the expiry of his extended period of probation with effect from 2-2-1969 (A.N) under rule 8(b) of the Punjab Police Service Rules, 1959, having considered him unfit for appointment to the State Police Service. The period from 20-5-1968, to 2-8-1968 which has been treated as leave of the kind due, has been excluded from the period of trial (probation).”

2. This order is contained in letter No. 2130.B-6 dated 30-1-1969 from the Joint Secretary to Government, Punjab Home (Police) Department, Chandigarh. Shri Hari Singh Mann joined as Deputy Superintendent of Police, after he was selected by the Public service Commission, as a direct recruit on the 20th of May, 1965. The order of appointment was passed on the 13th of May, 1965. His appointment was gazetted on the 26th of May, 1965. He joined as a probationer and the period of probation was two years. It is common ground that the over-all period of probation in rule 8(b) of his Service Rules is three years. On the 1st of July, 1967, the original period of probation was extended by another year. Thus he was made to undergo the entire period of probation fixed in rule 8(b). On the expiry of his period of probation on the 20th of May, 1968, his services were terminated. However, he made a representation to the Chief Minister; and by an order dated the 29th of July, 1968, the Joint Secretary to Government, Punjab, Home (Police) Department cancelled that order; and instead, the following order was passed:—

“The Governor of Punjab is pleased to relax rule 8 of the Punjab Police Service Rules, 1959, under rule 14 of the Rules ibid to extend the period of probation of Shri Hari Singh Mann, Probationery Deputy Superintendent of Police, appointed to the Punjab Police Service on two years' probation vide Punjab Government Gazette notification No. 10943.B, dated 26-5-65, and whose period of probation was extended for one year up to 20-5-1968, vide Punjab Government Gazette Notification No. 1346.B-6 dated 1-7-1967, in the first instance, for a further period of six months from 20-5-1968.”

3. It is petitioner's case that the above period of probation expired on the 19th of November, 1968; whereas the case of the State is that the period of probation expired on the 2nd of February, 1969. The services of the petitioner were terminated on the 30th of January, 1969. The order of termination has already been set out in the opening part of this judgment.

4. The learned counsel for the petitioner challenges the validity of this order on three grounds:—

(1) That the order of termination having not been passed on the 19th/20th of Novembers 1968, the petitioner stood confirmed in view of the Supreme Court decision in The State Of Punjab v. Dharam Singh, 1968 Services Law Reporter 247.

(2) That by reason of rule 11 of the Punjab Police Service Rules, 1959, the Punjab Civil Service (Punishment & Appeal) Rules, 1952, as amended from time to time, so far as consistent with these Rules, are applicable. Under rule 9 of the Punjab Civil Service (Punishment & Appeal) Rules, which reads thus:—

“9.—Where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of the unstisfactory record or unfavourable reports implying the unsuitability for the service, the probationer shall be apprised of the grounds of such proposal, and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the appointment.”,

The services of the petitioner could not be terminated without complying with the provisions thereof. That the order of termination of the petitioner's services has been passed by way of punishment and therefore, it could not be passed without complying with the provisions of Article 311(2) of the Constitution of India. For this contention, reliance is placed on decision of the Supreme Court reported as Jagdish Mitter v. The Union of India, A.I.R 1964 Supreme Court 449.

5. We now propose to examine each one of these contentions in the order in which they have been stated.

CONTENTION No: (1);

6. As already noticed, the argument is that moment the period of probation ends, it is incumbent on the Authority to either terminate the services of the probationer or confirm him. This result, according to the learned counsel for the petitioner, follows from the reading of rule 8(b) read with Appendix to rule 12.1 of the Punjab Police Service Rules, 1934 (Volume II). Both of these relevant rules are reproduced below for facility of reference:—

“8(b). The services of a member recruited by direct appointment may be dispensed with by the Government on his failing to pass the final examination at the end of his period of training, or on his being reported on, during or at the end of his period of probation, as unfit for appointment:

“Provided that the Government may, if it deems fit, extend the period of probation by not more than one year.”

APPENDIX NO. 12.1:

7. For the appointment and training of Deputy Superintendents of Police in the Punjab, the following rules shall have effect:—

I.—Deputy Sueprintendents shall be appointed (a) by direct recruitment from among persons not already in Government service, (b) by the promotion of Inspectors.

II. ***

III. ***

IV. ***

V. ***

VI. ***

VII. ***

VIII. All appointments shall be on probation for two years, provided that, in the case of officers promoted from the rank of Inspector, the Local Government may, by special order in each case, permit periods of officiating service in a post in the Provincial Police Service to count towards the period of provation.

IX. ***

X.—The services of a directly appointed probationery Deputy Superintendent of Police may be dispensed with by order of the Local Government, either on his failing to pass the final examinations at the end of his period of training at the Police Training School or on failing to pass his examination in Punjabi within two years of appointment, or on his being reported on, during or on conclusion of his period of probation, as unfit for his appointment;

Provided that the Local Government may, if it sees fit, extend the period of probation by not more than one year.

“IX. ***

XII. ***

XIII. —Probationery Deputy Superintendents of Police of either class, on passing the examination prescribed for them and on being favourably reported on at the conclusion of their probationery period, shall be confirmed by the order of the Local Government. * *”

8. It is no doubt true that these rules are analogous to the rules in Dharam Singh's case and the dictum of their Lordships in Dharam Singh's case will govern this case. The question is, what is the dictum of their Lordships in Dharam Singh's case a lot of argument has been addressed to us on that point. According to the learned counsel for the petitioner, moment the period of probation ends, the Authority must terminate his services or pass an order confirming him. If no order is passed confirming him. It must automatically be taken that the probationer has been confirmed because nothing more was required to be done in his case. On the other hand, it is contended by the learned Advocate General that the order of confirmation or termination could be passed within a reasonable period of the expiry of the period of probation. If the order of termination is passed within the period of probation, it will open to argument that the probationer has not been tried for the entire period of probation. Therefore the only reasonable manner, in which the Authority could act, is to pass an order soon after the termination of the period probation. The question is, which of these two conclusions is correct? This straightway takes as to the Supreme Court decision on which the entire controversy has been raised before us. The facts in Dharam Singh's case were that the petitioners in that case were on probation, in the first instance, for one year. The maximum period of probation fixed by the Rules was three years and that period expired on the 1st of October, 1960. The petitioners continued to hold their posts after October 1, 1960 No formal orders confirming them in their posts were passed. By two separate orders dated the 10th of February, 1963, and the 4th of April 1963, the services of the petitioners were terminated; and the order specifically mentioned that the services were terminated in accordance with the terms of their employment. When the matter came up to the High Court under Article 226 of the Constitution of India, it was held that in view of the rules governing the petitioners, after the period of probation was over, either their services should have been terminated or they should have been confirmed. But if no formal order of confirmation was passed, in view of the fact that they continued to be in service, they should be considered to have been confirmed impliedly on the date, the period of probation expired. Against the High Court decision, an appeal was taken to the Supreme Court; and while dealing with this matter, their Lordships of the Supreme Court made the following observations which we have taken the liberty to quote in extenso;—

6. The employees referred to in rule 6(1) held their posts in the first instance on probation for one year commencing from October 1, 1957. On completion of the one year period of probation of the employee, four courses of action were open to the appointing authority under rule 6(3). The authority could either (a) extend the period of probation provided the total period of probation including extension would not exceed three years, or (b) revert the employee to his former post if he was promoted from some lower post, or (c) dispense with his services if his work or conduct during the period of probation was unsatisfactory, or (d) confirm him in his appointment. It could pass one of these orders in respect of the respondents on completion of their one year period of probation. But the authority allowed them to continue in their posts thereafter without passing any order in writing under rule 6(3). In the absence of any formal order, the question is, whether by necessary implication from the proved facts of these cases, the authority should be presumed to have passed some order under rule 6(3) in respect of the respondents; and if so, what order should be presumed to have been passed.

7. The respondents were not promoted from lower posts and there was no question of their reversion to such post at any time under rule 6(3).

8. The initial period of probation of the respondents ended on October 1, 1958. By allowing the respondents to continue in their posts thereafter without any express order of confirmation, the competent authority must be taken to have extended the period of probation up to October 1, 1960, by implication. But under the proviso to rule 6(3), the probationary period could not extend beyond October 1, 1960. In view of the proviso to rule 6(3), it is not possible to presume that the competent authority extended the probationery period after October 1, 1960, or that thereafter the respondents continued to hold their posts as probationers.

9. Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct during the period of probation was in the opinion of the authority unsatisfactory. Instead of dispensing with their services on completion of the extended period of probation, the authority continued them in their posts until sometime in 1963 and, allowed them to draw annual increments of salary including the increments which fell due on October 1, 1962. The rules did not require them to pass any test or to fulfil any other condition before confirmation. There was no complying reason for dispensing with their services and re-employing them as temporary employees on October 1, 1960, and the High Court rightly refused to draw the inference that they were so discharged from services and re-employed. In these circumstances, the High Court rightly held that the respondents must be deemed to have been confirmed in their posts. * * *”

9. If the contention of the learned counsel for the petitioner is correct that the day, the probationary period ends, the petitioner got confirmed automatically. It was then not necessary for their Lordships of the Supreme Court to pose the question that:—

“In the absence of any formal order, the question is, whether by necessary implication from the proved facts of these cases, the authority should be presumed to have passed some order under rule 6(3) in respect of the respondents; and if so, what order should be presumed to have been passed?”

10. If the confirmation was automatic, it was not necessary to examine the admitted and proved facts in order to determine whether there was confirmation by necessary implication or not. It is only after considering that the petitioners in that case continued to be in service for nearly a period of three years after the completion of the period of probation and that they regularly drew their increments, an inference was drawn that they have been confirmed by implication after the period of probation was over. Otherwise the observations, which we have quoted in extenso, will make no sense. On principle also, we are inclined to the view that some reasonable time must be permitted to the Dismissing Authority to pass the necessary order either terminating the services of the probationer or confirming him. It will depend on the facts and circumstances of each case as to what is the reasonable time? In Dharam Singh's case, the time elapsed, in no circumstances, could be held to be a reasonable time. But that is an extreme case. So far as the present case is concerned. It cannot be said that the period, that elapsed, that is a period of about two months and ten days, is an unreasonable period. There was a controversy in the department as to on what date the order of termination could be passed. The controversy was as from what date the extended period of probation of six months had to be reckoned. The department took the view that the day, on which the petitioner rejoined, will be the date from which the extended period of six months' probation will start running. This is what the learned Advocate General also contends. On the side of the petitioner, the contention is that it is to be reckoned in terms of the order of the Governor. There is no dispute that if period is reckoned, as contended by the learned Advocate General, the order of termination has been passed within time. But if that period is reckoned, as contended by the learned counsel for the petitioner, the order of termination is passed about two months and ten ??? of he expiry of the period of probation. In any event, we are also inclined to take the view that the correct method of reckoning the period of probation is the one which has been urged by the learned Advocate General. The contention of the learned counsel for the petitioner is that cannot be done in view of Governor's orders and the Service Rules. But as at present advised, we are of the view that the object in extending the period of probation was to find out whether the petitioner had improved in the fresh opportunity that was given to him. The order of termination initially passed on the completion of three years' period was not set aside on the ground that he was a fit person; otherwise there was no question of trying him for another six months. By implication, when the order extending the period of probation was passed beyond the period of three years, it must be taken that the ground on which the Authority had acted after the end of three years, was that the petitioner could not be confirmed as he was unfit for the post to which he had been appointed on probation. It will not be unreasonable to presume that the object to extend the over-all period of probation in rule 8(b) further by six months was to see if the petitioner could give a better account of himself. It is idle to suggest that period should be nationally reckoned and not factually reckoned. If the period is factually reckoned, then it is not disputed that the order of probation has been properly passed. It is only if the Governor's order is literally interpreted without reference to the existing state of facts that it can be argued that the order of termination was passed after the expiry of the period of probation.

11. For the reasons recorded above, we see no merit in the first contention of the learned counsel for the petitioner.

CONTENTION No: (2).

12. This contention is rather ingenious. The learned counsel for the petitioner places his reliance on rule 11 of the Punjab Police Service Rules, 1959, which reads thus:—

“11. In matters relating to discipline, penalties and appeals members of the Service shall be governed by the Punjab Civil Services (Punishment and Appeal) Rules, 1952, as amended from time to time, so far as consistent with these rules:

Provided that the nature of penalties which may be inflicted, the authority to impose such penalties and subject to the provisions of any law or rules made under Article 309 of the Constitution of India the appellate authority shall be as specified in Appendix ‘B’.

Provided further that no member of the Service who is called upon to produce his defence as to the charges, which form the subject-matter of any enquiry against him, shall be allowed to engage a counsel.”

13. And on the basis of this rule, makes recourse to rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952. This rule has already been quoted. This rule will only come into play if rule 11, permits it. If a reference is made to rule 11, it clearly indicates that this rule will only come into play in matters relating to discipline, penalties and appeals. So far as the petitioner's case is concerned, the matter of termination does not relate to either discipline or penalties or appeals. Therefore, no recourse can be had to rule 9. There is no dispute that if rule 9 was applicable to the petitioner, then its provisions had to be complied with. See in this connection the decision of the Supreme Court in Ranendra Chandra Banerjee v. The Union of India, A.I.R 1963 Supreme Court 1552.

14. In these circumstances, the second contention of the learned counsel for the petitioner must also be repelled.

15. CONTENTION NO. (3). The short argument of the learned counsel for the petitioner is that the use of the word ‘unfit’ in the order of termination attaches a stigma to the petitioner. This contention must fail in view of the Supreme Court decision in Union of India v. R.S Dhaba, 1969 Service Law Reporter 442. The only distinction between the present case and the decision referred to above is that in the present case, the services were terminated after the completion of the period of probation whereas in that case, a person officiating was reverted to his substantive rank with a finding that he was unfit. It was held by the Supreme Court that the use of word ‘unfit’ did not attach any stigma. The same ratio will apply to the case of the petitioner. There is no difference in principle in both types of cases. We do not see, why an Authority, after judging the work of a probationer, cannot come to the conclusion that his work is not up to the mark so as to warrant his confirmation; or, in other words, he is unfit to be confirmed. In the very nature of things, for confirmation, fitness for the job is a sine qua non.

16. The third contention also has no merit and must fail.

17. For the reasons recorded above, this petition fails and is dismissed; but there will be no order as to costs.

A.D Koshal, J.:— I agree

18. November 5, 1969.

19. Petition dismissed.