JUDGMENT <NAME>, C.J.

(1) The Petitioner before us was by an order of <ORG> dated 4th February 1957 appointed as Principal, <ORG>, Gulbarga. The said order of appointment reads as follows:

"<NAME> M.Ed., Lecturer, <ORG>, Gulbarga, is appointed as Principal, <ORG>, <ORG> Gulbarga.

He will be on probation for one year with effect from the date he takes charge of the post."

The said <ORG> Training <ORG>, Gulbarga was originally affiliated to <ORG>. Prior to the appointment of the Petitioner as the Principal of the said <ORG> the 2nd respondent who was the Inspector of Schools, Gulbarga, was acting as Principal. On the 25th July 1956 <ORG> issued a notification whereby the method of recruitment and qualification for the post of Principal, <ORG> Training <ORG> was prescribed.

As the 2nd Respondent did not possess the prescribed qualifications for the said post <ORG>, Hyderabad issued advertisements on 27-8-56, inviting applications inter alia for the post of Principal, <ORG> Training College. The Petitioner applied for the said post and was selected by <ORG> for the same. Before the actual appointment could be made the Reorganization of States took place as a result whereof Gulbarga, wherein the College was situate, was allotted to the State of Mysore. <ORG> thereafter on 4th February 1957 notified the aforesaid other appointing the Petitioner as Principal, <ORG> Training College, Gulbarga.

(2) On 2nd March 1957 the Petitioner took charge of the said post and continued to act as such Principal. On 10-2-58 the said College was affiliated to <ORG> for one year from June 1957. On 12-8-58 <ORG> issued three notifications relating to the post of Principal, <ORG> Gulbarga. By the first notification the period of probation of one year of the petitioner was extended by six months with effect from 1st March 1958.

By the 2nd notification, of the same date, he was discharged with immediate effect on grounds of unsuitability. By the 3rd notification, also of the same date, the 2nd respondent was appointed temporarily as Principal, <ORG> with effect from the date he takes charge of the post. As the Petitioner before us is challenging the competency of the Government to pass the said notifications it would be necessary to set out the same. The said notifications read as follows.

"Education Secretariat Dated 12th August 1958 (Sravana 21 Saka Era 1880).

No. ED. 8 DGO. 57. Under Rule 4(1) of the Mysore Government Servants' (Probation) Rules, 1957, the period of probation of one year of <NAME>, M. A., M.Ed., Officiating Principal, <ORG>, <ORG>, Gulbarga, is extended by six months with effect from 1-3-1958, as the question of his suitability of holding the said post has been under examination.

** ** ** Dated 12-8-1958 (Sravana 21, Saka Era 1880) No. Ed 8 DGO. 57. Under Rule 6 of the Mysore Government Servants' (Probation) Rules, 1957, <NAME> M.Ed., Principal, B. Ed., <ORG>, Gulbarga, is discharged with immediate effect on grounds of unsuitability.

** ** ** Dated 12-8-1958 (Sravana 21, Saka Era 1880) No. Ed. 8 DGO. 57. <NAME>, B. A., M. Ed., Inspector of Schools, Gulbarga, is appointed temporarily and until further orders as Principal, B. Ed., <ORG>, Gulbarga, with effect from the date he takes charge of the post ** ** ** (3) The Petitioner in this petition is praying for quashing the said orders of the Mysore State extending his probation, discharging his services and appointing the 2nd Respondent as the Principal in his place and for issue of appropriate writ or writs for that purpose. Several grounds were urged before us on behalf of the petitioner in support of the petition.

(4) In the first place it was contended on behalf of the Petitioner that the appointment of the Petitioner was to a substantive permanent post, although he was to be on probation for one year. That according to the learned Advocate, means that during that year he will be on trial and if he has to be discharged then be must be discharged within that year. The learned Advocate contended that after the expiry of the year, unless so discharged, within that year. The learned Advocate contended that after the expiry of that year, unless so discharged, he remains in permanent employment and no further order of confirmation would be necessary for that purpose. That being so, the learned Advocate contended there was no scope for the <ORG> to extend the said period of probation or to discharge him within that extended period.

(5) Secondly, it was contended before us by the learned Advocate for the Petitioner that the said orders of the Government in question are mala fide and should on that ground be quashed.

(6) Lastly, it was contended before of the petitioner that the <ORG> Servants' (Probation) Rules, 1957 on the strength of which the <ORG> passed its aforesaid orders were non-existent at the date when the said orders were passed. That being so, the said orders must be held to have been passed without any jurisdiction. These are the main grounds on which the Petitioner contended before us that the said orders of the <ORG> should be quashed.

(7) I shall deal with the last of the said grounds urged before us first. It is that the Government in making the said orders purported to proceed under the Mysore Government Servants, (Probation) Rules, 1957 notified on 6th February 1958. Those Rules, as I shall presently show were repealed and were not in existence at the date when the said orders were passed. The Mysore Government Servants' (Probation) Rules, 1957 were made in exercise of the powers conferred by the Proviso to Art. 309 of the Constitution of India. The said rules were notified on 6th February 1958. Subsequent thereto and on the 1st March 1958 <ORG> 1958, were promulgated. The said rules were also made in the exercise of the powers conferred by the Proviso to Article 309 of the Constitution of India. In rule 3 of the said Rules it is provided that the various rules mentioned therein "and all other rules or orders made under any such rules, or under the proviso to Article 309 of the Constitution, and all other rules and orders made by any competent authority to the extent to which they apply to persons to whom these rules are applicable" were repealed. It was contended before us, and I accept that contention, that by virtue of the provisions of this rule probation rules which were made under the Proviso to Article 309 of the Constitution stood repealed. The learned Advocate General no doubt tried to contend before us that only such portion of the said probation rules which were covered by the Mysore Civil Service Rules stood repealed. In other words his contention was that to the extent to which the Mysore Civil Service Rules are applicable to a Probationer the probation rules stood repealed and no more. I am unable to accept that contention. I have set out the material portion of the said rule. I have set out the material portion of the said rule. It is impossible on the language of the said rule. It is impossible on the language of the said rule to uphold the contention of Mr. Advocate General. The language used is:

"all other rules or orders made under any such rules, or under the proviso to Art. 309 of the Constitution, and all other rules and orders made by any competent authority to the extent to which they apply to persons to whom these rules are applicable are hereby repealed." In other words, if a person is governed by the Mysore Civil Service Rules, 1958 and if the earlier rules which applied to such persons would stand repealed. This seems to me to be the clear meaning of the rule. Applying the said interpretation to the present case, the result, would be that that part of the Mysore Government Servants' (Probation) Rules, 1957, which were applicable to a probationer, assuming that the petitioner inasmuch as the Mysore Civil Service Rules, 1958 are applicable to the probationers. The whole of the said probation rules, however, applied to probationers.

The whole of the said rules, therefore, stand repealed by the repealing rules of the Mysore Civil Services Rules, 1958. That being so, on the date when the Government purported to exercise its powers under the rules of the Probation Rules the said Rules were not in existence. The result is the Government had no power on that date to exercise its jurisdiction under the Mysore Government Servants' (Probation) Rules, 1957, the said rules having been repealed by the Mysore Civil Services Rules 1958 and therefore non-existent.

(8) It should also be mentioned that both the Mysore <ORG> Servants' (Probation) Rules, 1957 and the Mysore Civil Services Rules, 1958 were made in exercise of the powers conferred by the Proviso to Article 309 of the Constitution. Those rules, therefore, would form conditions of service of persons to whom they are applicable. The Mysore <ORG> Servants' (Probation) Rules 1957 would from the conditions of service of persons appointed on probation. The said rules being abolished and substituted by the Mysore Civil Service Rules, 1958, the conditions of service as mentioned therein were no longer operative. A discharge under those conditions is not permissible. The result, therefore, is in any view of the matter the said orders of the <ORG> were made without jurisdiction and are liable to be quashed.

(9) In view of my aforesaid decision, it would be unnecessary for me to deal with other subsidiary contentions urged on behalf of the Petitioner relating to the Mysore Government Servants' (Probation) Rules, 1957, viz., that the said probation rules are invalid, that they do not apply to the Petitioner and that even if they apply there cannot be any extension with retrospective effect.

(10) I shall now take up the first ground urged on behalf of the Petitioner, viz., that the petitioner was in permanent employment although he will be on trial for one year and is liable to be discharged within that year. Mr. Advocate General appearing for the <ORG> strenuously argued before us that the petitioner was not a permanent employee but was appointed on probation for one year, and that after that year, if he qualifies himself, an affirmative act has to be done by the <ORG> before he could be made a permanent employee. In other words, the Government has to make an order of confirmation before he could be made a permanent employee of the <ORG> and if no such order of confirmation was made the Petitioner would continue to be a probationer.

(11) In my opinion, it is not possible to hold that the Petitioner in this case after the period of one year had expired continued to be a probationer. It is true that the Petitioner was to be on probation for one year. That, in my opinion, means that he is liable to be discharged within that year but continues in his service he would do so only as a permanent employee. It seems that the learned Advocate General, when he advanced the aforesaid argument viz., that the continuance of the Petitioner would be as Probationer, he had the Mysore Government Servants' (Probation) Rules, 1957 in his mind. But as I have material date. The learned Advocate General could not point out any provision of the Mysore Civil of the Petitioner, empowering the Government to extend the period of probation; nor does the order of appointment by virtue of which the petitioner held his office enable the Government to extend the period of probation.

I have set out the order of appointment. It would appear from the said order that the Petitioner was appointed as <ORG>, Gulbarga. That was his substantive appointment to a permanent post. The order no doubt also mentions that he will be on probation for one year. But it does not follow therefrom that even after the expiry of one year he will continue to be on probation or period of probation. There is nothing in the said order to warrant the conclusion that period of probation will continue even after one year and so long as the Petitioner is not confirmed or that the Government would be entitled to extend the said period of probation at its own pleasure. It cannot therefore be said that the Petitioner was on probation on the date he was discharged from service. I am, therefore, of the opinion, that the contention of Mr. <NAME>, that the continuance of the Petitioner after the period of one year was that of a permanent employees should prevail.

The petitioner, therefore, is entitled to all the protection guaranteed by the Constitution. The same view was taken by <ORG> in the case of <CITATION> ., . In that case Mr. Justice <NAME> held that the petitioner before his Lordship who was appointed in a permanent post, but on probation, and had completed his prescribed period of probation and had served for one year thereafter, cannot be said to be a probationer although no order of confirmation was passed. I am, therefore, of the opinion that even on this ground the orders extending the period of probation or discharging the petitioner should be quashed.

(12) The learned Advocate for Respondent No. 2 relied on the observations of their Lordships of <ORG> in the case of <CITATION> . , in support of his contention that the service of a person appointed to a permanent post of probation ran be terminated at any time. The particular observations on which he relied are as follows:

"It is, therefore, quite clear that appointment to a permanent post in a <ORG> service, either on probation or on an officiating basis, is, from the very nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time."

In my opinion, these observations, if read with other observations of their Lordships both preceding and subsequent thereto would show that what their Lordships meant was that appointment to a permanent service on probation can be terminated at any time during the period of probation. This appears to be so from the following observations of their Lordships made in the said case:

"Such an employment on probation under the ordinary law of master and servant, comes to an end if during or at the end of the probation the servant so appointed on trial is found unsuitable and his service is terminated by notice.

* * * * * "Thus, where a person is appointed to a permanent post on probation, the termination of his service during or at the end of his probation will not ordinarily and by itself be a punishment, for the Government servant so appointed has no right to continue to hold such post any more than a servant employed on probation by a private employer is entitled to do so."

The observations of their Lordships on which the learned Advocate relied were not meant to apply to a case where, as at present the employee had ceased to be a probationer and was in a permanent employment of the <ORG>.

(13) I now come to the remaining contention of the Petitioner, viz., that the orders of the Government were mala fide. Mr. <NAME> contended before us that it is clear from the circumstances of this case that the order dismissing the Petitioner and appointing the very same person who did not possess the required qualifications are mala fide. In the first place he drew our attention to the fact that on the same day three orders came to be passed by the Government viz., (a) Order extending the period of probation of the petitioner, (b) order discharging him & (c) order appointing the 2nd Respondent in his palace. He contended that the period of probation of the Petitioner was extended by six months only for the purpose of discharging him, and for the purpose of appointing the 2nd Respondent, who was moving heaven and earth to get himself re-appointed to the said post of Principal. He drew our attention to the statement in Paragraph 7 of the affidavit affirmed by the Petitioner in support of his petition wherein it has been stated that the 2nd Respondent who was a native of Gulbarga and was influential and had the ear of the Members of <ORG> was making herculean efforts to somehow have himself appointed in the post of the Principal.

This statement and the other statement made in the said affidavit, viz., that the 2nd Respondent did not possess the prescribed qualification were not denied by the <ORG> in its counter affidavit filed on its behalf. On the other hand it was admitted by the <ORG> in its said post and the <ORG> in order to achieve that end had adopted the procedure mentioned in this case, viz., to extend the period of probation of the Petitioner retrospectively and thereafter to discharge him and to reappoint the 2nd Respondent to that post, all such orders being notified on the same date.

(14) The next circumstance on which Mr. <NAME> relied in support of his contention was that the Government after discharging the petitioner reappointed the very same person who was not fit for the job, not having possessed the necessary qualifications for the same. In paragraph 2 of the affidavit filed by the Petitioner in support of his contentions it was stated that as the 2nd Respondent did not possess the prescribed qualification for the point the appointment of the Petitioner was made through <ORG> after due advertisement. This averment has not been denied by the State; nor has it been denied by the 2nd Respondent, although the said Respondent challenged the validity of the said advertisements as it contravened the charter of <ORG> in essential particulars to which the said College was affiliated.

(15) The next circumstance on which Mr. <NAME> relied in support of his present contention was that a Committee appointed by <ORG>, to which the said <ORG> was subsequently affiliated for the inspection of <ORG>, Gulbarga, reported that therefore Petitioner at the date of the inspection satisfied the conditions prescribed by <ORG>. The said report was passed by the <ORG> and <ORG> of <ORG> and was sent to the <ORG>. The Director of Public Instruction also on 6-5-58 recommended to the <ORG> the Petitioner's case for confirmation. The <ORG> nevertheless chose to make the said order of discharge of the Petitioner. It was pointed out to us that the <ORG> in the face of these circumstances could not bona fide come to the said decision. On these materials the learned advocate for the Petitioner strongly urged before us that a case of mala fide has been made out.

(16) The circumstances mentioned above undoubtedly go a long way to support the Petitioner's contention on this point. The said contention is further strengthened by the manner in which the aforesaid allegations of the Petitioner has been sought to be met by the Government. The Petitioner in his affidavit, affirmed in support of his petition, had clearly stated that he has been reliably informed, and believe the information to be true, that the Director of Public Instruction in Mysore has recommended his case for confirmation. In the counter affidavit filed on behalf of the <ORG> by one Mr. <NAME>, Secretary to <ORG> in <ORG>, all that was stated in answer to the said recommendation of the Director of Public Instruction relates to official correspondence between two authorities of the Government, the deponent seeks leave of the <ORG> to refrain from traversing this allegation.

We pointed out to the learned Advocate General at the time he argued this case on behalf of the State that this attitude of the Government was not a fair attitude to take. During the course of the hearing, however, two further affidavits wer filed by the said Mr. <NAME> dealing with the said contention and trying to explain the reason why the Government did not take into account the recommendation made by the Director of Public Instruction. In the first affidavit affirmed on 7th October 1958 it was alleged that the Director of Public Instructions who made the recommendation for confirmation on 6-5-1958 was the Deputy Secretary, <ORG> in Hyderabad prior to integration and wrote the letter dated 9-8-1956 to <ORG>, Hyderabad; and was Secretary, <ORG>, Mysore from 1-11-11956 to January 1958 and thereafter was appointed Director of Public Instruction. It is not at all clear even from these averments as to what exactly the deponent meant to say.

In other words the deponent did not even at this stage come out with a clear case on this point, except referring to the letter dated 9-8-1956 said to have been written by the present Director of Public Instruction. Mr. Advocate General, however, in the course of his arguments sought to explain the said averments by saying that in the letter dated 9-8-1956 this person who is now the Director of Public Instruction had made incorrect statements. In the said letter the said person, Deputy Secretary as he then was, stated that he was forwarding a requisition form for recruitment to the post of Principal, <ORG>, Gulbarga, to the Secretary, <ORG>, Hyderabad Division, and Mr. Advocate General drew our attention to a portion of the said letter wherein it was stated that since <ORG> is affiliated to <ORG>, the qualifications laid down for the post are as per the rules of the <ORG>.

But he contended that the rules of <ORG> required additional qualifications for the post of a Principal, namely that in addition he must have at least five years administrative experience. He, therefore, contended that the said person was making an incorrect statement when he said that the qualifications mentioned in the requisition from were as per rules of the <ORG>. That being so, the Government did not pay any attention to the recommendation of this person although he was the Director of Public Instruction.

(17) This contention, in my opinion, is wholly without any substance and is an alterthough. It is amply met by the fact that prior to the said letter, on 25th July 1956 <ORG> had issued a notification wherein, amongst others it laid down the method of recruitment and qualifications for the post of Principals of B. Ed. Training Colleges. Qualification mentioned in the said requisition form, is the same as is prescribed in the notification dated 25th July 1958 of <ORG>. It is idle to suggest that the Director of Hyderabad. It is idle to suggest that the director of Public Instruction made any false representation in the said form. In the said letter dated 9th August 1956 it was also mentioned that the post is newly created and the qualifications and the method of recruitment therefor are as proposed by the Chief Secretary, <ORG>, Hyderabad Detention., through his letter No. 469/GAD/112/SRG 55, dated 26-5-1956 addressed to the Secretary, <ORG>, Hyderabad Dn. It is thus clear that in his said letter the said Deputy secretary, now the director of Public Instruction was referring to the qualifications and method of recruitment as proposed by the Chief Secretary in the letter addressed to the Secretary, <ORG> and all that it is said was that these qualifications and method of recruitment are as per rules of the <ORG>. It is impossible to hold that there was any misrepresentation made in this letter.

(18) It was in the next affidavit filed by the same Mr. <NAME> that the case of the Government on this point was more clearly made out. It was stated that in that letter dated 9-8-56 the Deputy Secretary had stated that the form for recruitment in the post of the Principal and the qualifications laid down for the post are as per rules of the University. In the said affidavit, for the first time, another reason was put forth, for which the Government is said to made by the Director of Public Instruction. It was stated that the question of affiliation of the College to <ORG> was considered by the Government and one of the conditions imposed by the University was that the post of Principal should be filled up by a suitable person and the decision was taken by the Government on 22-1-1958 to sanction the affiliation of the College subject to the said condition.

It was further stated that while making the recommendation the Director of Public Instruction overlooked the fact that the Government had accepted the condition imposed by <ORG>. This reason put forward for the first time in this affidavit affirmed during the course of the hearing, seems to be equally frivolous. As I have already mentioned that sometime in March 1958 <ORG> appointed by <ORG> for the Inspection of the Teachers Training College, Gulbarga, visited the said College and thereafter made its report recommending the case of the Petitioner. I have also mentioned that the said report was passed by the <ORG> and the <ORG> of <ORG> and was sent to the Government. I fail to see how in the face of all these it could possibly be contended that the Government did not accept the recommendation of the Director of Public Instruction because it had sanctioned the affiliation of the College subject to the condition imposed by <ORG> that the post of Principal should be filled up by a suitable person.

(19) These facts and circumstances support the contention of Mr. <NAME> that the orders in question were passed mala fide. In view, however, of the fact that these orders are liable to be quashed on the other grounds which I have mentioned it is unnecessary for me to express any final opinion on this point.

(20) The result, therefore, is that there will be an order quashing the orders of the <ORG> dated 12th August 1958, extending the period of probation of the Petitioner and discharging him. As a consequence of this order, the order of the <ORG> of the said date appointing the 2nd Respondent to the post of Principal, <ORG>, Gulbarga, must also be quashed and we make an order accordingly. The Petitioner will get costs of this petition. Advocate's fee is certified at Rs. 100/-

<NAME>, J. :

(21) The contention on behalf of the <ORG> has been that they have merely enforced a right under the contract of service and that so long as such a right existed in them by virtue of contract its exercise is not open to challenge in <ORG> on any grounds, much less on grounds of mala fides. From the text of the impugned orders it is clear that the <ORG> purported to act only under the provisions of the <ORG> Servants (Probation) Rules, 1957. The substantial question, therefore, is whether the Probation Rules did or did not form the conditions of service or terms of the contract of service between the <ORG> and the petitioner.

(22) The Probation Rules were framed under the proviso to Art. 309 of the Constitution, and were published in February 1958. On the 1st of March 1958 the Government promulgated the Mysore Civil Service Rules, 1958, to come into force on 1st April 1958. Rule 3 comprised in those Rules repealed the various Rules specifically mentioned therein and "all other rules or orders made under any such rules, or under the proviso to Art. 309 of the Constitution and all other rules and orders made by any competent authority to the extent to which they apply to persons to whom these rules are applicable." The learned counsel for the petitioner has contended that the Probation Rules stood repealed by virtue of the said Rule 3 in the new rules promulgated on 1st March 1958. The clear language of the repealing rule supports this contention. The learned Advocate General, however, contends that the repeal of the prior rules must be limited to the extent to which they deal with the subjects covered by the new rules, and for the purpose he relies upon the words; 'to the extent to which those rules apply to the persons to whom these rules are applicable.' The governing factor in this sentence is the person to whom the rules apply. It is impossible to spell out from this language that the governing factor is the subject dealt with by the rules. On a plain reading of the repealing rule, it is clear that if the old rules apply to persons to whom the new rules are applicable, the old rules stood automatically repealed in their application to the said persons. They would be in force only in respect of other persons if any to whom they may be applicable. What is done away with is the application of the old rules to the persons to whom the new rules apply and not the application of the old rules to the subjects dealt with by the new rules. It is not denied that the new rules apply to the petitioner. Consequently the interpretation on behalf of the petitioner has to be accepted.

(23) We have, therefore, to look elsewhere to ascertain the contractual right which the <ORG> profess to have exercised. The only available document for ascertaining the terms of the contract is the order of appointment. No doubt, the appointment was made subject to relevant service rules. But, no provision of any service rule bearing on the controversy other than the Probation Rules having been pointed out to us, we are confined to the terms of the order of appointment alone, to decide whether the petitioner is a permanent <ORG> servant, as contended by him, or only a probationer, as contended by the learned Advocate-General. On the answer to this question depends the competence or otherwise of the orders impugned in this petition.

(24) If the petitioner is only a probationer, then, as the learned Advocate-General contends, he could be discharged in accordance with the conditions of service appropriate to the position of a probationer without any scope for the position of a probationer without any scope for the petitioner to complain against his discharge. Reliance has been placed on the following observations of <ORG> in :

"It is, therefore, quite clear that appointment to a permanent post in <ORG>, either on probation or on an officiating basis, is from the very nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminate at any time."

* * * * * "Thus where a person is appointed to a permanent post in a <ORG> service on probation, the termination of his service during or at the end of the period of probation will not ordinarily and by itself be a punishment, for the <ORG> servant so appointed has no right to continue to hold such a post any more than the servant employed on probation by a private employer is entitled to do."

(25) The natural meaning of an appointment on probation which is well accepted is that during the period of probation a person is on trial. He has to prove his merit or his suitability for the post. In other words, the appointment on probation may be described as a provisional engagement which may or may not result in absorbing the employee into the permanent employment of the employer. Relying upon certain observations contained in <CITATION> , , the learned Advocate-General has contended that before a probationer can be said to have entered the permanent employment of his employer some positive or affirmative act on the part of the employer is necessary. According to him, there must be a specific order of confirmation and unless such an order is passed a person appointed as probationer will continue as probationer and nothing more. From the mere fact that probation means a period of trial, it cannot be stated as a proposition of law that this period of trial can be left indefinite at the pleasure of one party to the contract without the concurrence of the other party to the contract.

To a considerable extent the foundation for the learned Advocate-General's argument is the definition contained in rule 2 of the Probation Rules, according to which a probationer is said to continue as a probationer until confirmed. Likewise in support of the power to extend the period of probation, the learned Advocate-general has done no more than refer once again to the Probation Rules. It those rules did exist and were in force, then they would have been the terms of the contract with which the employee may be said to have concurred. It is difficult to accept that in the absence of a specific term of the contract it is open to any party by a mere appeal to unspecified rules said to be comprised in what is described as common law governing the relationship of master and servant to contend that the master can on his own extend a period of probation.

Normally, wherever there are rules regulating the conditions of service of probationers, there is a rule empowering the matter to extend the period of probation and very often another rule restricting the exercise of such power to a specified period, generally not exceeding half the length of the probationary period originally agreed to or stipulated. This practice itself suggests that a power to extend the period of probation is a matter of contract. Of course, the law does not exclude a term being implied in a contract provided that such implication is based on a reasonable inference of concurrence of both the parties to the contract. When there is an express term in the contract, no term can be implied so as to destroy the express term.

(26) Considered in the light of these principles there is no alternative in this case but to conclude that the only period of probation stipulated in the contract of service is what is stated in the order of appointment, viz., one year, without any power to the Government to extend the same. When after the expiry of one year the petitioner was continued in service, he cannot still be described as a mere probationer. If he is not a probationer, the only other alternative is to hold that he is a permanent Government servant, because the order of appointment does not state that his appointment itself was temporary and it is conceded the appointment was in respect of a substantive and permanent post.

(27) This conclusion arrived at on a discussion of principle is supported by a decision of <ORG> reported in AIR 1958 All 330. In that case also there was a specific period of 2 years fixed for probation. No orders of confirmation were passed for a period of about 7 years; nor was these any order extending the period of probation. The contention that the appointee in question was only probationer was rejected. There were, however, rules of service in that case which empowered the government to extend the period of probation up to one year. His Lordship held that even if in the absence of an order extending the period of probation it can be deemed to have been extended, such an extension could not have been for a period in excess of the maximum permitted having elapsed the appointee in question has to be held to be a permanent employee.

In the absence of any rule, therefore, in the instant case empowering the Government to extend the period of probation, the result would be that on the expiry of the period of probation the petitioner must be held to have been continued in service as a permanent government servant.

(28) According to the principle set out in the observations of their Lordships of <ORG> in <NAME>'s case, extracted above, the right to terminate the service of the petitioner, without complying with the guarantees contained in Article 311 of the Constitution, could have been exercised only during or at the end of the period of probation. That not having been done, it is impossible for the Government to contend that they still had the right to terminate the services of the petitioner in the manner they have done.

(29) I, therefore, agree with the order proposed by the learned Chief Justice.

(30) Orders quashed.


<NAME>, J.

1. Before we dispose of the application finally we think it is necessary to get an authoritative decision by <ORG> on the meaning of the words "substantial question of law" ocourring in Article 133 , Constitution of India. <CITATION> , 1942-1 M.L.J. 309, Pandrang Row and <NAME> held that a question is a substantial question of law if the question of law affects the rights of the parties substantially. At page 310 the learned Judges say :

"Mr. <NAME>, the learned counsel for the respondent, contends that the contention in regard to their admissibility is flimsy and without any force and cannot be said to raise a substantial question of law. We were of opinion that there was no substance in the contention advanced by the learned Advocate General; but if the words 'substantial question' are to be understood in their being of substance to the parties, we must hold that the decision in regard to the non-admissibility of the documents is a sub-tantial question which would entitle the petitioner to have a certificate."

With great respect to the learned Judges we cannot agree. If the judgment is correct, it will lead to this position. Suppose in an appeal a question of limitation is raised and though that question is disposed of in one way by <ORG>, or <ORG> or by <ORG> of <ORG>, if that question of limitation affects substantially the rights of the parties, <ORG> will be bound to give leave under Article 133 of the Constitution of India. In our view, the word "substantial" qualifies the expression "question of law" and not the subject-matter of the appeal. Unless a question of law is one of importance and difficulty or in regard to which there is a reasonable doubt or difference of opinion, it cannot be a substantial question of law within the meaning of the Article.

2. Mr <NAME> relied upon the decision of <ORG> in <NAME> v. Deputy Commr. of Partabgarh, 2 Luck. 93, in support of his argument. But in that judgment <ORG> only decided that a substantial question of law does not mean a question of general importance but a substantial question of law between the parties. It did not purport to decide that any question of law, however flimsy and covered by authority, is a substantial question of law if it substantially affects the rights of parties. To avoid unnecessary conflict of decisions, we think that this is a fit case for referring the following question to a Full Bench : "Whether the words 'substantial question of law' occurriug in Article 133 of the Constitution of India mean an important or difficult question of law or any question of law affecting the rights of parties?" The matter may be placed before the Honourable the Chief Justice for the suitable orders. (In pursuance of the afortsaid Order of Reference, this petition coming on for hearing, the <ORG> expressed the following opinion) :

OPINION <NAME>, <NAME>

3. The question referred for decision by a Pull Bench runs as follows :

"Whether the words 'substantial question of law' occurring in Article 183 of the Constitution of India mean an important or difficult question of law or any question of law affecting the rights of parties ?"

The question as framed appears to contemplate only two alternatives, namely, that either it should be held that every question of law affecting the rights of parties is a substantial question of law. or it is only an important or difficult question of law that would come within that description. It became evident during the course of the argument that tbe two alternatives are not exhaustive and there may be questions which though they may not be very important or difficult, could nevertheless be called substantial questions. Actually in the order of reference there is a third category indicated in the following passage:

Unless a question of law is one of importance and difficulty or in reaard to which there is a rensonable doubt or difference of opinion it cannot be a substantial question of law within the meaning of the article."

The condition that, where the judgment, decree or final order appealed from affirms the decision of the <ORG> immediately below, the High <ORG> should also be satisfied that the appeal involves some substantial question of law before it can grant leave to appeal against a decision of the High <ORG> to the Supreme <ORG>, is the identical condition imposed in respect of an appeal to <ORG> under Section 110, Civil, P. C. (hereinafter referred to as the Code). This condition which is found in the Codes from 1877 onwards was for the first time introduced by the Privy Council Appeals Act No. VI of 1874. Section 5 which enacted that :

"Where the decree appealed from affirms the decision of the <ORG> immediately below the <ORG> passing such decree the appeal must involve some substantial question of law."

In the Code of 1877, Section 596 contained the corresponding provision in exactly similar terms. I may be not without interest to mention that the validity of this provision was attacked on the ground that it was ultra vires of the power of <ORG> as being curtailment of the jurisdiction given to <ORG> by the Letters Patent, but it was held not to be so (Vide in the matter of <NAME> and Co. 1 Cal 431). Section 596 of the Code of 1882 and Section 110 of the Code of 1908 merely reproduced the original provision except that in the Code of 1908 the words "or final order" were added after "the decree."

4. The question when an appeal could be held to involve some substantial question of law did come up before the <ORG> in India soon after the Act of 1874. It was decided as early as <CITATION> , 2 Cal. 228, that the substantial question of law need not be restricted to questions arising on the facts found concurrently by the <ORG> below but may include a question arising on the evidence . independently of the finding of the <ORG> upon such evidence. It was also recognised from the very beginning that in dealing with an application for leave to appeal it is not enough to grant a certificate that it appears from the grounds of appeal that a question of law is involved; the Court must also find that there really is a substantial question of law raised (See Broughton's Commentaries on the Civil Procedure Code, 1878, p. 704 citing a decision of <NAME> in 1874).

5. It becomes therefore important to determine what exactly is connoted by the word "substantial" in the context. Now, the word "substantial" has two distinct shades of meaning. " It means "essential, material". In legal parlance, it often is understood as "belonging to or involving an essential right or the merits of a matter" (See Warton's Law Lexicon). The word also means "having substance; real worth" (See <ORG>). In Sections 10 and 11 of the Code the word "substantially" is used in the former sense of "materially" "essentially" i. e. not incidentally.

6. Obviously, a question of law of general public importance, the decision of which is likely to affect a large section of the public, will be a substantial question of law. A question of law on which there is great divergence of judicial opinion will be a substantial question of law. A view was taken in <ORG> that it is only when an appeal to <ORG> a question of this nature and it is likely that the appeal may result in the enunciation of new legal principles or the resolving of the conflict of judicial opinion that leave should be granted on the ground that there is a substantial question of law. This view is well represented in an appeal which went up to <ORG> from <ORG>. In <NAME> v. Deputy Commr. of Partabgarh, 2 Luck. 93 (P. C.), the learned Judges of <ORG> after pointing out that the only question of law arising was as to the true construction of a will said :

"That, to our minds, is not a 'substantial question of law' though it is a question of law. It is not alleged that any recognised principle applicable to the construction of a document of the nature of the present will has been misunderstood or misused by this <ORG>, nor does our decision lay down any general principle of construction. The construction which we have placed upon the will in question is of no interest to any person outside the parties to this litigation. The old <ORG>, to which the <ORG> has succeeded, consistently adhered to the view that the words 'substantial question of law' mean a question of general importance and do not include the construction of a document in which the parties alone are interested."

7. The learned Judges therefore dismissed the application for leave. There was then a petition for special leave to appeal in which their Lordships considered whether the matter fell within the last clause of Section 110 of the Code. Their Lordships ruled that a substantial question of law did not mean a question of general importance but that it meant "a substantial question of law as between the parties in the case involved". An attempt was made by the counsel for the respondent to show that on the merits the decision of the <ORG> below was obviously right, and therefore there was no substantial question of law, but his attempt did not succeed. Their Lordships did not think that it would be quite safe in taking that view in a case which certainly occupied the <ORG> below for a very long time and on which there was a very elaborate judgment; they thought that upon the face of the matter there was, as between the parties, a substantial question of law. In <NAME> v. <NAME>, 55 Cal. 944 (P. C.), the question was whether a deposit made by a Hindu of his money in a bank in the joint names of himself and his wife on condition that it was payable to either or the survivor, constituted a gift by him to his wife. The Judicial Commissioner of North West Frontier Province refused an application lor leave to appeal, but special leave to appeal was granted by the Board. At p. 949, their Lordshipa refer to what was decided in <NAME> v.

Deputy Commr. of Partabyarh, 2 Luck. 93 (P. C.) in these terms :

''In the case of <CITATION> , 2 Luck. 93 (P. C.), it was held that a substantial question of law, within the last clause of Section 110, Civil P. C. does not mean a substantial question of general importance but a substantial question of law as between the parties in the case involved."

It must therefore be taken as now conclusively settled under the Code (and the same must hold good in construing Article 133 of the Constitution) that a substantial question of law need not be a question of general importance. It is sufficient if it arises between the parties. This, however, does not mean that every question of law as between the parties is a substantial question of law. In the paraphrase by <ORG> the word "substantial" again occurs in addition to the phrase "as between the parties". It has been held time and again and we have not come across any authority to the contrary, that any question of law is not as such a substantial question of law if it arises between the parties. Nor did we understand Mr. <NAME> who appeared for the petitioner to argue for the contrary though probably that was his line of argument before the learned referring <NAME>. Otherwise, the question would not have been framed as it has been. It may be argued that a question of law the decision of which materially affects the rights of the parties is a substantial question of law. If it is merely incidental and does not affect the merits in essentials, then it will not be a substantial question. This test is no doubt simple and easy to apply, but we do not think that this is the correet test. Logically this test would lead to the position that even a palpably absurd plea raised by a party would involve a substantial question of law simply because the decision on the merits of the case would be directly affected by it. We have also not come across any case in which this test has been adopted. But apparently the decision in <CITATION> 1942-1 M L. J. 309 was understood by the learned Judges who made the reference as accepting this test as correct. But before we deal with that decision, I think it will be useful to run over some of the decisions of this Court to find out how far the learned Judges in that case could be said to have differed from the principles laid down in them. I am leaving from consideration decisions which dealt with applications for leave on the ground that Section 109 Clause (c) would apply. <CITATION> , A. I. R. (20) 1933 Mad. 221, <NAME> and <NAME> while accepting the proposition that the existence of a point of law by itself does not give a right of appeal to <ORG> under Section 110 of the Code and that there must be a substantial question of law and that there need not be a question of general importance, held that a fairly arguable question of law, i. e., a question of law in respect of which there may be a difference of opinion would be a substantial question of law. <CITATION> . (30) 1943 Mad. 67, the learned Judges were inclined to hold that a question as to the starting point of limitation might be a substantial question of law on the facts; they nevertheless refused to grant leave, because the decision of this Court was also based on another finding as to the effect of the resumption by the Government of a service inam and on that question the decisions were uniform. <CITATION> , 1948-1-M. L. J. 375, it was held by <NAME> and <NAME>. that as the only question of law raised in the appeal to <ORG> was virtually covered by a decision of <ORG> and there was no conflict of views in India on the question no substantial question of law could be said to be involved. They adopted the view of <NAME> expressed in <NAME> v. <NAME>, 13 Rang 744, that unless it was fairly open to argument that the decision of <ORG> on a question of law could have been otherwise, there will be no substantial question of law. In <NAME> v. <NAME>, 1947.2 M. L. J. 194, <ORG> ruled that where the principles of law on a point are well settled and the only question is the application of those legal principles to a particular set of facts, it cannot be said that a substantial question of law arises. The decision of <ORG> in Mathurakumari v. <NAME>, 50 ALL 208 and that of <ORG> in Mt. Umrao Bibi v. <NAME>, 13 Lah. 251, were followed.

8. These decisions may be taken to represent the more or less uniform view taken by this Court. Apparently it was contended before the referring Judges that <CITATION> , 3942-1 M. L. J. 309, laid down a different test. In that case the only ground on which leave was granted was that a question was raised as to the correctness of the decision of this Court that certain material documents were inadmissible in evidence. Undoubtedly, these documents were of great importance and if they had been held to be admissible, they might have affected the result of the appeal. It was urged on behalf of the respondent that there were no merits whatever in the contention in regard to their admiasibility and therefore could not be a substantial question of law. The learned Judges then said :

"We were of opinion that there was no substance in the contention advanced by the learned Advocate General; but if the words substantial questions' are to be understood in their being of substance to the parties we must hold that the decision in regard to the non-admissibility of the documents is a substantial question which would entitle the petitioner to have a certificate."

I must confess that I find it difficult to exastly comprehend the significance of this conclusion. This Court might hold against a particular contentiom on behalf of a party; at the same time it may be a fairly arguable one. It is not possible to say from what the learned Judges actually said whether they thought that the contention as to admissibility was arguable though they themselves found no merits in it. <CITATION> , 1948-2 M. L. J. 109, I had to deal with this decision sitting with <NAME> and I said :

"We are not aware exactly what sort of objection was raised as regards the admissibility of documents in that case. But we do not understand that decision to lay down that whenever a question as to the admissibility of any document is raised in an appeal and that question is decided in one way, it follows ipso facto that there is a substantial question of law which would justify the grant of a certificate under Section 110, Civil P. C."

In pursuance of the leave granted the appeal was eventually heard and disposed of by <ORG> in <CITATION> , 1942-1 M. L. J. 309, but apparently no objection was taken before <ORG> that leave should not have been granted. In my opinion the decision in <CITATION> , 1942-1 M. L. J. 309 should not be taken as an authority for the position that any question of law, a decision on which may affect materially the rights of the parties, is a substantial question of law within the meaning of Section 110 of the Code.

9. It is neither possible nor useful to attempt to exactly define terms like "substantial" and "just and equitable". Ultimately it resolves into itself into their meaning that the <ORG> considers to be substantial, reasonable or just and equitable. The use of the adjective "substantial" makes it clear that any question of law as such would not justify the grant of a certificate under Section 110. It must be a substantial question; that is to say, the question must have some subatance, i. e , worth or merit. Bearing this in mind in consideration of the authorities which I have cited leads to the following general principles. When a question of law is fairly arguable, when there is room for difference of opinion on it, then such a question would be a substantial question of law. If this <ORG> thought it necessary to deal with a question of law at some length, and discuss alternative views which can be taken on the point, then, I think such a question would be a substantial question. When a point of law is practically covered by a decision of the highest authority <ORG>, say, like <ORG> or the Supreme <ORG>, then it would not be a substantial question. If the general principles to be applied in determining a question are well settled a mere application of such principles would not involve a substantial question of law. I am inclined to hold that when a particular set of facts can lead to alternative findings in law, then, a substantial question of law would be involved. If the principle to be applied or the point of law arising in the case is not well established, then certainly that would be a substantial question of law. With great respect to the learned Judges who appear to hold to the contrary, I am of opinion that if there is conflict of judicial opinion among the High <ORG>s and there is no direct decision of the highest <ORG> on any question of law, then that would be a substantial question of law, though the decisions of the particular High <ORG>s of which leave is sought might have been uniform on the question. That fact may be a very good ground for dismissing a second appeal if the lower <ORG>s had followed the rulings of the High <ORG>, but for an application for leave to appeal to the Supreme <ORG>, I think the very fact of divergence of opinion among the High <ORG>s is conclusive evidence of a the existence of a substantial question of law.

10. I find more or less a similar statement of the principles in the recent decision of <ORG> in <CITATION> ., A.I.R. (36) 1949 Bom. 134.

11. The only answer to the question that we can usefully give is that any question of law affecting the rights of parties would not by itself be a substantial question of law. An important or difficult question would of course be a substantial question; but even if a question is not important or difficult, if there is room for reasonable doubt or difference of opinion on the question, then it would be a substantial question of law within the meaning of Article 133 , Constitution of India.

<NAME>, J.

12. I agree.

Somasundaram, J.

13. I agree.

(After the finding of the Full Bench, the petition came on for hearing before <NAME> and <NAME> on 6-4-51, and the Court made the following Order) :

<NAME>

14. This application is posted before us after the Full Bench answered the question referred to it. The Full Bench gave the following answer :

"The only answer to the question that we can usefully give is that any question of law affecting the rights of parties would not by itself be a substantial question of law. An important or difficult question would of course be a substantial question; but even if a question is not important or difficult, if there is room for reasonable doubt or difference of opinion on the question, then it would be a substantial question of law within the meaning of Article 133 , Constitution of India "

15. The main question we decided in the appeal was whether under the trust deed executed by the mortgagors the suit properties had been transferred to the trustees. We accepted the following principles as a guide in construing the trust deed :

"Though to create a valid trust there should be a transfer of interest by the author of the trust, it is manifest that no particular form of words is necessary. What is essential is a conveyance of interest and not the particular form of words in which the said transfer was couched."

This principle has been laid down by <ORG> in <NAME> v. Mt. Babooee Munraj Kunwaree, 6 M. I. A. 393. After going through the entire document we held that the words used therein were of sufficient amplitude to convey the properties to the trustees. The circumstances mentioned by us in our judgment, according to us, clearly indicated that there was a transfer. We did not feel any reasonable doubt on the question that arose for consideration. The fact that we dealt with the question at some length does not show that the question argued before us was either important or difficult, or was one in regard to which we felt a reasonable doubt. Indeed, we dealt with the question at some length in order to meet the arguments advanced before us.

16. It is then argued by Mr. <NAME> that another substantial question of law arises in the case, namely, whether the decree in O. S. No. 4 of 1940 on the file of the <ORG><ORG><ORG>, <NAME>, would operate as res judicata. It is true that in formulating the points argued before us, we stated that as one of the question that arose for consideration; but in the course of the judgment we did not consider it, as presumably, it was not seriously pressed before us. The facts which we stated before wo formulated the points also indicate that there are absolutely no merits in that point either. In a suit for partition between the mortgagors the plaintiff who was already on record as defendant 19 in his capacity as a lessee applied to be made party as a mortgagee. The petition was dismissed by the <ORG>, though with an observation that he was already on record. But in the judgment it was expressly stated that the validity of the assignment in favour of the plaintiff was left open. In the circumstances no question of res judicata arises.

17. In the result the application is dismissed with costs.


JUDGMENT

1. The facts of the case are correctly stated in paragraph 8 of the District Munsif's judgment.

2. The District <NAME>, assuming that the plaintiff had a "decree for money" within the meaning of Section 295, Civil Procedure Code, still dismissed the suit on the ground that it was incapable of execution, except as against the mortgaged property at the time when.the plaint property was sold at the instance of the first defendant.

2. The District Judge confirmed the District Munsif's decree for two reasons: firstly, because Section 295(c) in his opinion barred the plaintiff's decree, and, secondly, because the plaintiff's decree was not "a decree for money" within the meaning of Section 295, Civil Procedure Code.

3. The plaintiff appeals and we think with good reason. The District Judge is manifestly in error in supposing that clause (c) of Section 295 governs the case. That clause refers only to property sold "in execution of a decree ordering its sale for the discharge of an encumbrance thereon." In the present case the property sold by first defendant was not encumbered property, but other property of the judgment-debtor.

4. The plaintiff and defendant had respectively a first and a second mortgage over other property of the same mortgagor, but neither of them held any encumbrance on the property sold by first defendant. It seems to us that the plaintiff and first defendant were in exactly the same position with regard to this property and each was equally entitled to a rateable share of the sale-proceeds.

5. The District Judge is, in our opinion, wrong in holding that the present decree is not "a decree for money" within the meaning of Section 295, Civil Procedure Code. No doubt, his view is supported by the language used in <NAME> v. <NAME> (1894) I.L.R., 16A., 418 but the opposite view was held by <ORG> in <NAME> v. <NAME> I.L.R. 11 C., 718. The exact terms of the decree in the Allahabad case are not reported, nor is the Calcutta case referred to therein; but in our opinion the law is correctly stated in the latter case.

The decree before us runs as follows:--"That the defendants do pay plaintiff within two months from this date Rs. 2,500 with interest and costs and that, in default, plaintiff do recover the same by sale of the plaint property, and the balance, if any, from first to six defendants. It seems to us that this is a decree for <ORG>, and that it does not lose this character, because the decree declares the mode and the order of the procedure by which it is to be realised.

The first paragraph of Section 295 runs as follows:--"Whenever assets are realized by sale or otherwise in execution of a decree, and more persons than one have, prior to the realization, applied to the <ORG> by which such assets are held for execution of decrees for money against the same judgment-debtor, and have not obtained satisfaction thereof, the assets, after deducting the costs of the realization, shall be divided rateably among all such persons.

6. It is under this paragraph that the plaintiff claims the right to" a rateable share of the property. Formerly, the creditor who. first attached property had a prior claim to have this decree satisfied out of the sale-proceeds to the exclusion of other creditors, hut now all judgment-creditors who apply to the <ORG>, prior to realization, are entitled to share rateably, and under the penultimate paragraph of the section, if any of such assets be wrongly paid to any person, a judgment-creditor entitled to a rateable share may sue to recover the same from the person wrongly paid. It is under this paragraph that the plaintiff brings his suit. In the words of the Calcutta case already referred to--" The object of the section appears to us to be to provide for the rateable distribution of the assets of a judgment-debtor among all persons who have obtained decrees ordering the payment of money to them from the judgment-debtors and the fact that a person who has obtained such a decree also holds security or is entitled to any other relief under the decree, is immaterial. There is, therefore, we think, nothing in the section which takes away the right of a mortgagee, who has obtained a decree upon his mortgage, to proceed in the same suit against property of the mortgagor, not subject to the mortgage when there are other creditors--nothing which shows that the only persons entitled to share rateably in the proceeds of sale of property sold in execution of a decree are those who have obtained decrees for money only. We think, therefore, that every decree, by virtue of which money is payable, is to that extent a "decree, for money " within the meaning of the section, even though other relief may be granted by the decree; and that the holder of such a decree is entitled to claim rateable distribution with holders of decrees for money only. If it were held Otherwise, it Would often result-that the .insufficiently-secured creditor might find himself worse off than the wholly-unsecured but more prompt and pressing creditor, and an inducement would exist for that scramble for first attachment which the; recent alteration's of the law were designed to remove; The unsecured creditor is not placed at an unfair disadvantage, since he advanced his money on the faith of the debtor's general credit apart from the property mortgaged, and it is always open to such a creditor to compel the sale of mortgaged property if it is likely to yield any surplus over and above the mortgaged money'

7. It remains to consider the ground on which the District Munsif dismissed the suit, viz., that the plaintiff's decree was incapable of execution against anything save the mortgaged property, at the time when the first defendant attached the other property. It is true that at that time the plaintiff was not in a position to immediately execute his decree, but neither was the first defendant, nor the decree in favour of the latter was subject to precisely the same limitation as the plaintiff's decree. The property ought not, therefore, to have been sold and the money paid to the first defendant until the mortgaged property had been sold and had been found to be insufficient to pay his debt. His title to receive payment out of the property sold did not arise until the mortgaged property was found to be insufficient, and the plaintiff's title arose at precisely the same time. The payment of the whole of the sale-proceeds to the first defendant was, therefore, wrong, as the plaiptiff was entitled to a rateable share.

8. In this view, we must set aside the decree of the Courts below and give judgment for plaintiff as sued-for with costs throughout.