KUMAR, CJ. - (1.) THIS appeal is directed against the judgment of the learned Single Judge dated 12. 8. 97, dismissing the writ petition filed by the appellant.
(2.) BRIEFLY, the facts of the case are that the appellant joined service as Dy. Superintendent, Jails, w. e. f. 1. 3. 85 after selection through the Rajasthan Public Service Commission. The appointment letter was issued on 14. 2. 85 and in pursuance thereof, the appellant joined service on1. 3. 85. Since, this was a direct recruitment, the appellant was placed on probation for a period of two years under Rule-28 of the Rajasthan Jails Service Rules, 1959 (hereafter to be referred to as the Rules of 1959 ). Soon after joining, the appellant was sent for training for a foundational course. He completed the training in April/may, 1985. The initial period of probation of the appellant came to an end on 28. 02. 1987. The respondent sought to extend the period of probation by six months under Rule 34-A of the Rajasthan Service Rules, 1951 (for short, the Rules of 1951) vide order dated 8. 04. 1987. The probation was further extended from time to time under the said Rule-34a. The orders by which the probation period was extended to not mention any reason for extension, much less, there is any suggestion in the said orders regarding unsatisfactory performance of duties by the appellant. Rule 34-A of the Rules of 1951 is as under: " Where an order of penalty of with holding of increments of a Government servant or his reduction to a lower service, grade or post, or to a lower time-scale, or to a lower stage in a time scale is set aside or modified by a competent authority on appeal or review, the pay of the Government servant shall notwithstanding anything contained in these Rules, be regulated in the following manner: (a) if the said order is set aside, he shall be given for the period of such order has been in force, the difference between the pay to which he would have been entitled had that order not been made and the pay he had actually drawn; (b) if the said order is modified, the pay shall be regulated as if the order as so modified had been made in the first instance. Explanation : If the pay drawn by a Government servant in respect of any period prior to the issue of the orders of the competent authority under this rule is revised, the leave salary and allowances (other than travelling allowances), if any, admissible to him during that period shall be revised on the basis of the revised pay. " It is the case of the appellant that the said rule is wholly inapplicable for purposes of extension of probation period. Therefore, reliance placed by the respondents on the said rule for extending the period of probation was wholly illegal and as untenable. The learned counsel for the appellant has drawn our attention to Rule 28a of the Rajasthan Jails Service Rules, 1959, according to which, if no order of confirmation is issued by the Appointing Authority within a period of six months, after completion of two years probation period, an employee appointed on temporary or officiating basis is entitled to be treated as confirmed if permanent vacancies are available. The case of the appellant is that since no order of confirmation was issued within six months of completion of two years period of probation and since there was no allegation of unsatisfactory work against the appellant and permanent vacancies were available, the appellant was entitled to be treated as confirmed. Alternatively, it is submitted that in the first proviso to Rule 28-A (a) of the Rules of 1959, the period of probation could be extended for a maximum period of one year subject to certain conditions contained in the proviso. None of the conditions contained in the proviso apply in the case of the appellant. Neither he failed to give satisfaction so far as his work is concerned, nor other conditions applied, therefore, there could be no question of extension of period of probation by one year. Yet, it is argued that assuming that the period of probation cold be extended by one year under the said proviso, the appellant completed the said period also by 29th Feb. , 1988 and he was entitled to be treated as confirmed. At this stage, it will be appropriate to reproduce Rule 28. A (a) of the Rules of 1959, which reads as under: " 28. A (a) Notwithstanding anything contained in the rule if no order of confirmation is issued by the Appointing Authority within a period of six months,an employee appointed on temporary or officiating basis who has, after the date of his regular recruitment by either method of recruitment completed a period of two years service, or less in the case of those appointed by promotion where the period of probation prescribed is less, on the post of a higher post under the same Appointing Authority or would have so worked but for his deputation or training, shall on the occurrence of permanent vacancies be entitled to be treated as confirmed if the same conditions as are prescribed under the Rules for the confirmation of a probationer are fulfilled subject to the quota prescribed under the Rules and in accordance with his seniority. Provided that if the employee has failed to give satisfaction or has not fulfilled any of the conditions prescribed for confirmation, such as passing of Departmental Examination, training or promotion cadre course etc. the aforesaid period may be extended as prescribed for probation or under the Rajasthan Civil Services Departmental Examination Rules, 1959 and any other Rules, or by one year, whichever is longer. If the employee still fails to fulfil the prescribed conditions or fails to give satisfaction, he will be liable to be discharged from such post in the same manner as a probationer or reverted to his substantive or lower post, if any, to which he may be entitled. Provided further that no person shall be debarred from confirmation after the said period of service if no reasons to the contrary about the satisfactory performance of his work are communicated t him within the said period. " Out attention was particularly drawn to the second proviso to Rule 28a (a) and it was submitted on the basis thereof that since nothing was ever pointed out to the appellant by way of his service being unsatisfactory, he ought to have treated as confirmed under the said rule. There was nothing to debar the appellant from being confirmed. Reference to Rule 29 is also called for at this stage, relevant portion of which is reproduced as under: " 29. "unsatisfactory progress during probation: (1) If it appears to be the Appointing Authority, 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 his opportunities or that he has failed to give satisfaction, the Appointing authority may revert him to the post held substantively by him immediately preceding his appointment, provided he holds a lien thereon or in other cases may discharge or terminate him from service. " It will be seen from the aforesaid Rule 29 that the Appointing Authority has to take a decision at any time during or at the end of probation about satisfactory work of a probationer. If this decision is not taken during or at the end of the probation period, then the deeming provision contained in Rule 28a (a) regarding automatic confirmation will come into play. In the present case, no such decision was taken by the Appointing Authority during or at the end of probation. Therefore, confirmation must follow.
(3.) SOME further facts need mention at this stage. On 8. 04. 1987, when an order of extension of probation period under Rule 34a of the Rules of 1951 was passed, another order suspending the appellant was also passed. This suspension was, however, revoked on 7. 08. 1987 and, therefore, has no bearing on the case of the appellant. A Memo was issued to the appellant under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, "the CCA Rules"), on 11. 4. 88, which was later on converted into Rule 17 of the CCA Rules. Ultimately, the charge-sheet was dropped on 28. 06. 1990. Thus, this aberration can also not be taken against the appellant. Learned counsel for the appellant pointed out that for the first time, the appellant was asked to improve his work vide letter dated, 30. 04. 1988 (Annex. 35 ). This was much beyond the period of prescribed under the Rules of 1959 referred to above, which entitled the appellant to be treated as confirmed. ;