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Sukhbans Singh Vs. State of Punjab [1962] INSC 126 (6 April 1962)

06/04/1962 MUDHOLKAR, J.R.

MUDHOLKAR, J.R.

AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K.

AYYANGAR, N. RAJAGOPALA

CITATION: 1962 AIR 1711 1963 SCR (1) 416

CITATOR INFO:

R 1964 SC 449 (18) RF 1964 SC 600 (13,139) R 1966 SC 175 (8) RF 1966 SC1842 (6) D 1968 SC1210 (3) RF 1971 SC 998 (12) RF 1979 SC1073 (9) RF 1981 SC 957 (6)

ACT:

State Service-Probationer-Status-No automatic confirmation Reversion to the original-post by way of punishment for misconduct-Validity-Constitution of India, Art. 311(2) Punjab Civil Service (Executive Branch) rules, 1930, rr.5,17,22,23,24-Government of India Act, 1919 (9 and 10 Geo. 6, ch. 101), 8. 96-B.

HEADNOTE:

The appellant was recruited as a Tehsildar in 1936 and as being selected by the Punjab Public Services Commission, he was appointed as an Extra Assistant Commissioner on probation in 1945. Later he was charge-sheeted and an enquiry was held against him as a result of which his increment was stopped for one year. Without holding any enquiry against him he was reverted to the post of a Tehsildar in 1952 and then informed that he was not free from communalism or intrigue and was also in the habit of indulging in loose talk. Despite demand by him the Government refused to furnish the appellant with the grounds of his reversion. A representation and later a memorial addressed to the Government against his reversion were both rejected.

Eventually he filed a writ petition in the Punjab High Court under Art. 226 of the Constitution which was granted by a single judge of the High Court on the ground that the reversion of the appellant was by way of punishment and there was violation of provisions of Art. 311 of the Constitution. His decision was however reversed in appeal under the Letters Patent.

417 Held, that the only reasonable inference possible was that the Government in fact wanted to punish the appellant for what it thought was misconduct on his part and, therefore, it reverted him. The omission to give reasons for his reversion did not make the action any the less a punishment.

The action of the Government was malafide and as the provisions of Art. 311(2) were not complied with, the reversion of the appellant was illegal.

Article 311 makes no distinction between permanent and temporary Government servants and extends its protection equally to all Government servants, but its the protection will be available only where the dismissal, removal or redaction in rank is made by way of punishment and not otherwise.

A probationer cannot automatically acquire the status of a permanent member of the service unless the rules under which he is appointed expressly provide for such a result. The rules governing the Public Civil Servants of Punjab do not contain any provision whereby a probationer at the end of the probationary period is automatically absorbed as a permanent member of the Civil Service. Where a probationer is not reverted by the Government before the termination of his period of probation, he continues to be a probationer but he acquires the qualification for substantive permanent appointment. The very fact that a person is a probationer implies that he has to prove his worth, his suitability for the higher post in which be is officiating. If his work is not found to be satisfactory, he is liable to be reverted to his original post even without assigning any reasons. A probationer has no right to hold the higher post in which he is officiating or a right to be confirmed.

Parshottam Lal Dhingra v. Union of India, (1958) S.C.R. 828, relied upon.

CIVIL APPELLATE JURISDICTION :Civil Appeal No. 412/1960.

Appeal from the judgment and order dated February 12, 1957, of the Punjab High Court, in L. P. A. No. 70 of 1954.

Gopal Singh, K. K. Sinha for B. P. Maheshwari, for the appellant.

S. M. Sikri, Advocate-General, Punjab, N. S, Bindra and P. D. Menon, for the respondent 418 1962. April 6. The Judgment of the Court was delivered by MUDHOLKAR, J.-This is an appeal from the judgment of a Division Bench of the Punjab High Court upon a certificate granted by it under Art. 133 (1)(a) of the Constitution declaring that the case is fit for appeal to this Court.

The appellant was directly recruited as Tehsildar in the year 1936. According to him his work was found to be extremely satisfactory and for this reason he was appointed as an Extra Assistant Commissioner on probation in the year 1945. His appointment amounted to promotion to the Provincial Civil Service (Executive Branch) and was made by selection through the Punjab Public Services Commission.

The notification pertaining to the appellant's promotion appears in the Gazette of June 5, 1949, and dates from May 31, 1945.

According to the appellant, throughout his career as a public servant he had been very honest, hard-working and impartial and was extremely popular with all committee such as Hindus, Sikhs and Muslims. He also claims to have "helped the public cause of all communities alike".

Then, according to him, his popularity with the people was not appreciated by at least two of his superior officers, one of whom was Dewan X Hukan Chand, Sub-Divisional Magistrate, Fazilka and on account of that be had to face an enquiry on seven charges. The aforesaid enquiry was held by Mr. S. B. Kapur, Commissioner under the Public Servants (Inquiries) Act, 1850 (37 of 1850). He, however, exonerated the appellant pointing out that far from the gravamen of these charges, communal bias, being established "witness after witness not only for the defence but also for the prosecution has deposed that while the respondent was at Fazilka he had a good reputation for honesty", As a 419 result of this report the Government, however, stopped the increment of the appellant for one year without future effect. the ground of doing so was that he had allotted some evacuee property to his father who was an evacuee from West Pakistan.

The appellant who had in the meanwhile been transferred from Fazilka, made a representation against the stoppage of increment. Upon that representation Mr. S. D Midha, Deputy Commissioner wrote to the effect that the appellant had been working very hard to clear off heavy arrears and that his case deserves very sympethatic consideration. He was then transferred to Jullundur as Revenue Assistant in September, 1950. It is the appellant's complaint that even before he joined his post the mind of the Deputy Commissioner, Mr. Kashyap, was "poisoned" by some people against him and that before the Deputy Commissioner could see the appellants work he wrote to the Government protesting against the appellant's transfer to Jullundur. This protest was, however, ignored by the Government and according to the appellant Mr. Kashyap treated this as "a personal grievance" and initially did not even allow the appellant to take independent charge of the post to which he was transferred.

The appellant then refers to four specific instances in support of his contention that Mr. Kashyap was highly prejudiced against him. We do not think that any useful purpose will be served to set them out here. Then according to him when he was asked to collect funds for the Government College, Tanda, the Deputy Commissioner actually posted the C.I.D. to watch what he was doing and asked the C.I.D. to start a case against him, if possible. He, therefore, wrote to the Deputy Commissioner on September 6, 1951 upon which the Deputy Commissioner asked him to stop the collection.

He, however, admits that despite all this Mr. Kashyap gave him a good report about his work, His complaint, however, is that inspite 420 of his good report he received a warning from Government, at the instance of the wrong reports sent by the Deputy Commissioner which were based on malice." This warning was received by him on September 18, 1953. Prior to the receipt of this warning he was, however, reverted to his post of Tehasildar on May 20, 1952. According to him this warning was merely an after-thought. The warning which he received is in the following terms:

",Government have noticed with regret that while you are hard working and honest and possess adequate knowledge of revenue law and procedure, you have created an impression during the period under report that _you were not free from communalism or intrigue. It has also been reported that you were in the habit of indulging in loose talk unnecessarily which created difficulties for you. Government hope this warning will assist in affecting an improvement." Upon his reversion the appellant asked to be furnished the grounds of his reversion. But by a letter dated June 18, 1952, the Government refused to furnish him the grounds. In that letter it was claimed on behalf of the Government that the appellant could be reverted according to Rule 14.10 of the Civil Services Rules (Punjab) Vol. 1, Part 1. His grievance, however, is that the provisions of Art. 311 (2) of the Constitution are violated.

The appellant made a representation to the Government against his reversion on November 17, 1952. But it was rejected by the Government on March 2, 1953. He then preferred a memorial to the Government which was rejected on December 14, 1953. Thereafter be preferred a petition to the High Court of Punjab under Art. 226 of the Constitution.

The petition went up before a single Judge of that Court.

The learned Judge quashed 421 the order of the Government upon the ground that the appellant's reversion to the post of Tehsildar was by way of punishment and as he had not been afforded an opportunity of showing cause against the action taken is the provisions of Art. 311 of the Constitution were contravened. The Government of Punjab preferred an appeal under the Letters Patent which was beard by a Division Bench of that Court.

The learned Judges reversed the decision of the learned single Judge upon the view that the appellant was holding the post of Extra Assistant Commissioner as a probationer and his reversion from that post to his former post of Tehsildar did not amount to a punishment and consequently the provisions of Art. 31 1 were not attracted. It is this order the appellant is challenging before us.

The appellant was selected to the post of Extra Assistant Commissioner by the Public Services Commission under Rule 17 of the Punjab Civil Services (Executive Branch) Rules, 1930 framed under s. 96-B of the Government of India, Act, 1919.

That rule runs thus :

"The Governor of Punjab shall ordinarily make appointments to the Service in pursuance of rule 5 from among candidates entered on the various registers in rotation as follows From Register B Two candidates From Register A-1 (Tehsildars and NaibTehsildars) One candidates From Register B Two candidates From Register A-1 (Tehsildars and NaibTehsildars) One candidates 422 Form Register B Two candidates From Register A-II (Ministerial Government servants) One candidate From Register A-1 (Tehsildars and NaibTehsildars) One candidate From Register B Two candidates From Register C One candidate From Register B Two candidates From Register A-II (Ministerial Government servants) One candidate From Register A-1 (Tehsildars and NaibTehsildars) One candidate From Register B Two candidates From Register A-1 (Tehsildars-and NaibTehsildars)..... One candidate and thereafter in the same rotation beginning again from Register B, provided that all such appointments shall in the first instance be either officer or substantive provisional." Rule 5 which is referred to in r. 17 provides that members of the service shall be appointed by the Governor from time to time as required from among he accepted candidates whose names have been duly entered in accordance with the Punjab Civil service Rules in one or the other of the Registers if accepted candidates required to be maintained under these rules. Rule 22 of these Rules provides ,hat candidates on first appointment to the service hall remain on probation for a period, in the case 423 of candidates appointed from Register A-I, or Registeres AII of eighteen months. One of the three provisos to rule 22 enable the Governor to extend the period of probation of any candidate. There are two more important rules which have a bearing on this case and, therefore; it would be desirable to quote them. Rule 23 which is one of them runs thus:

"Any officer appointed to the Service may, during the period of his probation be removed from the service under the orders of the Governor of Punjab ; or if he was appointed from Register A-I or A-II may be prevented to his former appointment if in the opinion of the Governor of Punjab his work or conduct is unsatisfactory." Rule 24 which is the other rule runs thus "On the completion of the period of probation prescribed by, or determined by, the Governor of Punjab under the provisions of rule 22, a member of the Service shall be qualified for substantive permanent appointment." It is common ground that the period of probation of the appellant was not extended by the Governor in exercise of the power conferred upon him by and of the provisos to r. 22. The question to be first considered is what was the position of the appellant after the expiry of his probationary period of eighteen months? Upon this point the learned single Judge, after quoting the observation of Khosla J., in another case said :

"Thus according to this Court a man who is on probation does not merely because his probation continues for more than the period prescribed by the rules become a permanent servant of the State, but if the period of probation is unduly prolonged or the confirmation is unduly delayed, confirmation will 424 be assumed. In the present case the petitioner was recruited to the Provincial Civil service with effect from the 31 St May, 1994 and he continued to work as an officer of the service upto the 17th May, 1962.

According to the rules the period of probation was eighteen months and there is no indication that his period of probation was by order of the Governor extended........ r am, therefore, of the opinion that the petitioner was not on probation as is submitted by the State." Then the learned Judge went on to observe "No rule has been cited and I do not know of any which would show that a person who has been recruited by the Public Service Commission can after having been in service for seven years or so be reverted merely on the ground that he is officiating." If the learned Judge meant by all this that a probationer must be deemed to have been confirmed in his post by sheer lapse of time we think, with respect, that he was in error.

A probationer cannot, as rightly pointed out by the Division' Bench, automatically acquire the status of a permanent member of a service, unless of course the rules under which be is appointed expressly provide for such a result. The rules governing the Provincial Civil Services of Punjab do not contain any provision whereby a probationer at the end of the probationary period is automatically absorbed as a permanent member of the Civil Service. What happens to such a person is clearly set out in 24 it sup.

Under the aforesaid rule such a probationer is merely qualified for substantive permanent appointment. Reading rr. 23 and 24 together it would appear that where a probation is not reverted by the Government before the termination of 425 his period of probation he continues to be a probationer but requires the qualification for substantive permanent appointment.

It has been held by this Court in Parshotam Lal 'Dhingra v. Union of India (1) that Art. 3 11 makes no distinction between permanent and temporary posts and extends its protection equally to all Government servants holding permanent or temporary posts or officiating in any of them.

But the protection of Art. 311 can be available only where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. One of the tests laid down in that case for determining whether the termination of service was by way of punishment or otherwise is whether under the Service Rules, but for such termination, the servant has the right to hold the post.

Reliance is placed upon r. 24 of the Punjab Civil Service Rules and it is said that since it qualifies a probationer for being absorbed in a substantive-permanent appointment it gives him a right and the reversion of such a person deprives him of that right and thus amounts to punishment.

'The provisions of Art. 311(2 are said to be attracted to the situation and where, as here, they have not been complied with the reversion must be regarded as illegal.

This argument assumes that a probationer who continues to be such without being reverted after the expiry of the period of probation has a legal right to be confirmed or to be treated as if he were confirmed. The rule in question says no more than this that at the end of the probationary period the probationer, unless reverted or absorbed in a substantive post will be eligible for being made permanent. In other words it means that he will continue (1) [1958] S.C.R. 828 426 to be a probationer unless he is reverted or absorbed in a permanent post. But the very fact that a person is a probationer implies that he has to prove his worth his suitability for the higher post in which he is officiating.

If his work is not found to be satisfactory he will be liable to be reverted to his original post even without assigning any reason. It would, therefore, not be correct to say that a probationer has any right to the higher post in which he is officiating or a right to be confirmed. A probationer being merely made eligible for being absorbed in a permanent post is in no better position.

Even though that is so, a probationer cannot be as pointed out in Dhingra's case (1) punished for misconduct without complying with the requirements of Art. 311(2). The question then is whether it can be said that the appellant was so punished. The sequence of events which led up to a departmental inquiry against him, his exoneration, his transfer to Jullundur, the unsuccessful attempt of Mr. Kashyap, the Deputy Commissioner to have the transfer cancelled followed by his being asked to stop collecting funds for a Government College and then by his reversion on May 20, 1952 would go to show that the reversion was not in the ordinary course. No reason was given for his reversion but it would not be easy to say that the reversion must, therefore, be regarded an having been made in the ordinary course or in the bona fide exercise of his Government's undoubted power to revert a probationer because of his unsuitability for the higher Post. For, even Mr. Kashyap had in fact commanded his work as Revenue Assistant in Jullundur, Further, the District Board, Jullundur had passed a resolution on March 30,1951 expressing its appreciation for the work done by the appellant in fighting the locust invasion. In addition, the Commissioner wrote in his report for the year ending December, (1) (1958) S.C.R. 828.

427 1951 that the appellant stood first in the consolidation work in the Punjab State during his stay at Jullundur. An "extract from the second progress of work in respect of villages taken up after April 1, 1952" is to the effect that as Revenue Assistant, Jullundur, the appellant stood first in the Division in connection with land revenue collection work and that he had also collected Rs. 25,000 for Red Cross which was "an outstanding performance" and for which he received the "'Government of Punjab commendation certificate". He also received the "President of India's Sanad and Silver Medal" for his excellent work in the Census of 1951. Shortly thereafter we find that the appellant was reverted. Though no reasons were stated at that time, on September 18, 1953, that is, a year and half after the reversion he received the warning from the Government, which we have already quoted. The only reasonable inference which can be drawn from all these facts is that the Government in fact wanted to punish him for what it thought was misconduct on his part and, therefore, reverted him. The omission of the Government to give reasons for the reversion does not make the action any the less a punishment but as the requirements of Art. 311 (2) were not fulfilled, as they ought to have been, the Government wanted to give the reversion the appearance of an act done in the ordinary course entailing no penal consequences. The circumstances clearly show that the action of the Government was mala fide and the reversion was by way of punishment for misconduct without complying with the provisions of Act. 311(2). The reversion of the appellant is, therefore, illegal.

We, therefore, allow the appeal, quash the order dated May 28, 1952, reverting the appellant and direct that costs here and in the High Court will be paid by the Government.

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