S. K. MAL LODHA, J - (1.) THE petitioner was appointed as a Police Constable by the Superintendent of Police, District Sirohi, on probation for a period of two years by order dated November 21, 1974. He joined as a Police Constable on November 25, 1974. As his work was not satisfactory, his probation period was extended for three months with effect from November 25, 1976 and it was mentioned in the order that if he does not improve his conduct and work during the extended period of probation of three months, his services were liable to be terminated without notice. This order has been filed and marked as Ex. 2. THEreafter, period of probation was further extended upto August 24, 1977. On September 9, 1977, an order (Ex. 3) was passed in which it was stated that even after the expiry of the period of probation of two years, till the date of issuance of the order, the conduct, behaviour and work of the petitioner was found unsatisfactory and, therefore, in exercise of powers conferred under rule 36 of the Rajasthan Police Subordinate Service Rules, 1974 (for short, 'the Rules' hereafter), the petitioner was discharged from service with immediate effect. A representation was submitted by the petitioner on September 23, 1977 to the Dy. Inspector of Police. THEreafter, second representation was also submitted on August 28,1978. In reply to that, the Deputy Inspector of Police, (vide Ex. 6), informed the petitioner that his representation for taking him on duty has not been accepted. THE petitioner has filed this writ petition praying that an appropriate writ, order or direction may be issued for quashing the impugned order Ex. 3 dated September 9. 1977 and that the respondents may be directed to re-instate the petitioner on the post of Constable and that he may be declared to be confirmed with all consequential benefits with regard to pay, seniority, promotion etc. , as if the order Ex. 3 has never been passed.
(2.) SHOW cause notice was issued to the respondents. In pursuance of that, the respondents have filed reply to the writ petition alongwith four documents (Anxs. Rl to R4 ). It was stated by the respondents that during the period of probation, the petitioner had not worked satisfactorily and remained wilfully absent from duty on several occasions. In support of this, relevant extract of the Service Roll (Anx. Rl) was filed. It is further stated that on October 30, 1976, the concerned Station House Officer, Erenpura, by his memo No. 3060 dated October 30, 1976 reported that the petitioner wilfully remained absent and was found negligent to his duties. In this connection, a copy of memo marked Anx. R2 was submitted. According to the respondents, the order Anx. 3 does not suffer from any infirmity and is in accordance with the Rules. I have heard Mr. M. R. Calla for the petitioner and Mr. Rajesh Balia, Deputy Government Advocate. The first contention raised by the learned counsel for the petitioner is that the petitioner having been appointed by direct recruitment, could be kept on probation for a maximum period of two years only and as this period expired on November 24, 1976, he stood automatically confirmed in the service, notwithstanding the fact that no formal order of confirmation was made. The material portion of sub-r. (1) of rule 34 reads as under, - "period of probation.- (l) Every person appointed against a substantive vacancy in the servise by direct recruitment shall be placed on probation for a period of two years and those appointed by promotion to any post against such a vacancy shall be on probation for a period of one year. " Rule 36 of the Rules deals with unsatisfactory progress during probation. Proviso to rule 36 lays down that the Appointing Authority may, if it so thinks fit, in any case or class of cases, extend the period of probation of any member of service by a specified period not exceeding two years in case of persons appointed to a post in the service by direct recruitment and one year in the case of a person appointed by promotion to such post. A perusal of the appointment order Ex. 1 dated November 21, 1974 shows that the petitioner was appointed on probation for two years. The petitioner joined service on November 25, 1974. Thus the probation period expired on November 24. 1976. By Ex 2 dated November 27, 1976, the probation period was extended for three months. It is mentioned in Ex. 2 that the work of the petitioner was not found satisfactory. It is further mentioned therein that a special direction is given that if within the extended period of three months, the petitioner does not improve his conduct and work, his services would be terminated without notice. The probation period was extended from November 25, 1976. It has been stated by the petitioner that after the passing of the order Ex. 2. his services were further extended from February 1977 to August 24. 1977. From a reading of rule 34 (1) and proviso to rule 36 of the Rules, it is clear to my mind that the probation period of the petitioner could be for a maximum period of four years. Order Ex 2, though dated November 27, 1976, yet extended the probation period with effect from November 25, 1970. Thereafter, further extension was made, according to the petitioner, after February 24, 1977 It is futile for the learned counsel for the petitioner to contend, in view of the provisions referred to above, that since the probation period of two years expired on November 24, 1976 and probation was not extended by that time, he stood automatically confirmed. Further extension of the period of probation after the expiry of the initial period of probation of two years was legal Ordinarily, power under proviso to rule 36 should be exercised before the expiry of initial period of probation of two years. But if it is not so exercised, further extension of probation period, subject to the maximum period of probation allowable under the Rules, will not render the extension of probation period beyond two years illegal and invalid. The contention is, therefore, repelled. It was next argued by the learned counsel for the petitioner that order Ex. 3 dated September 9,1977 was passed stating that even after the expiry of initial period of probation of two years and until the date of the issuance of the impugned order, his conduct, behaviour and work were not found to be satisfactory and because of these, he was discharged from police force with immediate effect and so, when the discharge order was based on conduct or behaviour being unsatisfactory, it was incumbent on the authority concerned to have held a regular inquiry under the prescribed rules. He submitted that the order Ex 3 has been passed in breach of Art. 311 of the Constitution. He urged that this was passed for extraneous considerations, i. e. for considerations which were not germane to rule 36 of the Rules. In Support of his contention, learned counsel relied on The State of Bihar vs. Gopi Kishore Prasad (1) and Madan Mohan Prasad vs. State of Bihar (2 ). The contention of the learned Deputy Government Advocate is that the petitioner did not work satisfactorily and wilfully remained absent from duty on several occasions as is revealed by his service roll and, therefore, he could be discharged. The copy of the relevant extract of the service roll has been submitted marked as Anx. l (Ex Rl ). ft is further contended that on October 13, 1976. the S. H. O. Police Station, Erenpura, reported that the petitioner had remaind absent and was found negligent to his duties. In support of this, copy of the memo marked Anx. 2 (Ex. R2) has been produced. According to the respondents, during the period of two years' probation, the work and performance of the petitioner were not satisfactory. On the basis of the copy of the report Ex. R3 and copy of the order Ex. R4 extending the probation for six months, it is contended that the petitioner was a habitual absentee and he was not considered fit for confirmation by the Deputy Superintendent of Police, Sirohi and he recommended for his removal from service. The order Ex. 3 was passed under r. 36 of the Rules. Rule 36 clearly lays down that the member of the service, if he fails to give satisfaction inspite of opportunities afforded to him, the Appointing Authority may discharge him from service. In these circumstances, discharge is neither penal nor does it attract Art. 311. A perusal of the impugned order Ex. 3 dated September 9, 1977 clearly shows that even after the period of probation for two years and upto the date of issuance of the impugned order, the conduct, behaviour and work of the petitioner were not found to be satisfactory. During the period of probation as well as during the extended period, in spite of opportunities given to the petitioner, he did not improve his work. He did not make sufficient use of the opportunities given to him to improve his work. He failed to give satisfaction to the Appointing Authority and, therefore, his services could be discharged. In R. S. Sial vs. The State of U. P. (3), it was held that it may be taken to be well settled that even though misconduct, negligence, inefficiency or other disqualifications may be the motive or the inducing factor which influences the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless, if a right exists, under the contract or the rules to terminate the services the motive operating on the mind of the Government is wholly immaterial. In Samshersingh vs. State of Punjab (4), there was an exhaustive review of the decisions of the Supreme Court and it was observed as under, - "before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Art. 311 (2) he can claim protection. . . " As stated above, the conditions laid down under rule 36 of the Rules for discharging the petitioner from service are satisfied inasmuch as he did not make sufficient use of the opportunities which were granted to him by extending his probation period from time to time and/or that he failed to give satisfaction, the mere fact that in the impugned order, it is mentioned that the conduct, behaviour and work of the petitioner were not satisfactory, will not make the order Ex. 3 invalid. It is not possible for me to agree with the learned counsel for the petitioner that the order casts a stigma and, therefore, before discharging him. procedure laid down in Art. 311 (2) of the Constitution should have been followed. The order of discharge is valid under rule 36 (1) of the Rules. Madan Mohan's case (2) is distinguishable. Para 11 of the report reads as under, - "it seems to us that on the facts of this case, the order dated January 15, 1972, violates Article 311 (2) of the Constitution. The petitioner had first been holding a temporary post and then a permanent post for nearly 17 years. The Chief Minister's statement in the Assembly that his services were not satisfactory and the Government was considering serving show-cause notice and the fact that his services were terminated without any enquiry being held would inevitably lead to the public to believe that his services had been terminated on account of inefficiency or misconduct. This did cast a stigma on his character. " The State of Bihar's case (2) is also of no avail to the learned counsel for the petitioner. The respondent in that case was appointed as a temporary Sub-Deputy Collector in the year 1944 and in 1946, he was vested with the powers of a Magistrate of First Class. Thereafter, in December 1947, he was appointed to a substantive post in the Bihar Subordinate Civil Service on probation. During the period of probation, he was called upon to show cause why his services should not be terminated forthwith. In the letter which was addressed to him, it was mentioned that throughout the year 1948 and upto the end of May 1949, the respondent, while employed as a Sub-Deputy Magistrate, had earned notoriety for corrupt practices, that from May. 1949 to March 1951, his reputation continued to be bad and that his judicial work, while at Jamshedpur, had been subjected to careful scrutiny by Government leading to discovery of incredibly perverse decisions given by him. Instances of misconduct were also cited therein. Those proceedings resulted in an order of termination of his services. In those facts and circumstances, it was held that the provisions of Art. 311 (2) are applicable to a probationer in the Bihar Subordinate Civil Service who had been discharged from service on enquiry, as being unsuitable to the post on grounds of notoriety for corruption and unsatisfactory work in the discharge of his public duties, the discharge being clearly by way of punishment, he was entitled to protection of Art. 311 (2 ).
(3.) AS the order discharging the petitioner from service is clearly in accordance with rule 36 (1) of the Rules and as Art. 311 is not attracted in the facts and circumstances of this case, the order Ex. 3 cannot be said to be illegal and invalid. As both the contentions raised by the learned counsel for the petitioner have been rejected] the writ petition deserves to be dismissed. For the reasons mentioned above, there is no merit in this writ petition and it is accordingly dismissed. There will be no order as to costs. . ;