http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: AKBAR ALI KHAN

DATE OF JUDGMENT: 09/03/1966

BENCH:

ACT: Constitution of India, Art. 311-Order terminating  probation combined with order stopping promotion on the same  findings and  without complying with Art. 311--stoppage of  promotion later withdrawn-whether order terminating probation vitiated or stands by itself. U.P.  Subordinate  Revenue  Executive  Service  (Tehsildars) Rules 1944, r. 12 and r. 14--scope of. Probation-whether  confirmation  follows in the  absence  of express order.

HEADNOTE: In  April 1951, the respondent, who was a Naib Tehsildar  in the U.P. Civil Service, was selected for permanent promotion to  the post of Tehsildar and in accordance with Rule 12  of the  Subordinate  Revenue  Executive  Service   (Tehsildars) Rules,  1944,  was placed on probation for a period  of  two years.  On April 29, 1953, it was reported that he had drawn excess travelling allowance in respect of certain  journeys. After  an enquiry into the matter and after  an  opportunity had  been  given  to the respondent to show  cause  why  his probation  should  not  be terminated, by an  order  of  the Governor dated August 13, 1957, the respondent was  informed that his probation was terminated and he was reverted to the post  of Naib Tehsildar.  The order also stated that he  was not  to  be considered for promotion for a period  of  seven years  from  the  date of reversion.   Upon  the  respondent submitting  a Memorial to the Governor against  this  order, the  Governor  passed  another order on  December  1,  1958, cancelling  that part of the earlier order which related  to the  stoppage of promotion of the respondent and  confirming the  termination  of  probation  on  the  ground  that   the respondent "had during the probation not made sufficient use of his opportunities and had failed to give satisfaction".       The respondent then filed a petition under Article 226 challenging  the orders of August 13, 1957, and December  1, 1958.   This petition was allowed by the High Court  on  the ground  that under Rule 12 of the 1944 Rules, the  power  to revert could be exercised either during or at the end of the period of probation and if no order was passed extending the period of probation, the respondent was deemed to have  been confirmed   in   the  new  post;  accordingly,   the   order terminating the probation was erroneous and the respondent’s reversion  being in the nature of a penalty imposed  without conforming  to  the  requirements  of  Article  311  of  the Constitution, was liable to be quashed. in appeal under the Letters Patent a Division Bench the High Court  held  that  the respondent had not  ceased  to  be  a probationer  on the expiry of the two-year probation  period

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

and  the  order  of  the  learned  Single  Judge  could  not therefore  be  sustained.  It held, however,  that  the  two parts of the order dated August 13, 1957. being based on the same finding could not be dissociated and since the Governor had  passed  an  order terminating  the  probation  and  had simultaneously therewith imposed 822 upon  the. respondent punishment without complying with  the requirements of Article 311. the entire order had to be  set aside.  The High Court a held that the Governor by his later order sought to convert the earlier order of punishment into an  order under Rule 14 (which provided for the  termination of probation in certain circumstances including cases  where the  probationer  failed  to give  satisfaction).   But  the Governor had no power an order of punishment retrospectively nor  could  he  appropriate  to  himself  the  function   of interpreting  the  earlier order and laying  down  that  the order was made under Rule 14 and not an order of punishment. On appeal to this Court, HELD : The High Court was in error in holding that the order made  by  the  Governor determining  the  probation  of  the respondent infringed the protection of Article 311. The  Governor  initially  passed an  order  determining  the probation and also passed an order stopping promotion.   The latter part of the order which the Governor was  incompetent to  pass  under  Rule  14 did give  rise  to  a  justifiable grievance which the respondent could set up, but after  that order  was  cancelled,  the  respondent  had  no  cause  for grievance. [828 F-G] The  order terminating probation was made under Rule 14  and continued to retain that character.  The vice in the  second art  of  the  order did not either before or  after  it  was cancelled  affect the validity of the order terminating  the respondent’s probation. [828 H]      By terminating his probation no penalty was imposed  on the  respondent and it could not therefore be said  that  by passing  the  order of December 1, 1958,  the  Governor  was seeking  to convert the earlier order of punishment into  an order under Rule 14 retrospectively. [828 G] The High Court had rightly held that the respondent did  not cease  to be a probationer on the expiry of two years.   The scheme  of the 1944 Rules was that confirmation in the  post which  a probationer is holding does not result merely  from the  expiry  of the period of probation and so long  as  the order  of  confirmation is not made the holder of  the  post remains a probationer. [825 H] Unless  the order of appointment states that at the  end  of the  period of probation the appointee will stand  confirmed in  the absence of an order to the contrary or unless  there is  a  service  rule in that behalf,  an  express  order  of confirmation  is necessary to give the probationer  a  subs- tantive right to the post held by him. [826 B] Chief Conservator of Forests, UP.  Nainital v. D. A.  Lyall: C.A. 259 of 1963 dated February 24, 1965; Sukhbans Singh  v. The  State  of  Punjab:  A.I.R.  1962  S.C.  1711;  and  The Accountant  General, Madhya Pradesh, Gwalior v. Beni  Prasad Bhatnagar: C.A. 548 of 1962 dated January 23, 1964; referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 19 of 1965. Appeal  by special leave from the judgment and  order  dated January  23,  1962 of the Allahabad High  Court  in  Special

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

Appeal No. 532 of 1960. O.   P. Rana, for the appellant. 823 M.   K.  Ramamurthi,  D.  P. Singh, R. K.  Garg  and  S.  C. Agarwal, for the respondent. The Judgment of the Court was delivered by Shah, J. The respondent Akbar Ali Khan was appointed in July 1942 a Naib Tahsildar in the United Provinces Civil  Service and  was  confirmed in that post on November  1,  1943.   In April,.  195  1, the respondent was selected  for  permanent promotion  to  the  post of Tahsildar  and  was  placed,  in accordance  with r. 12 of the Subordinate Revenue  Executive Service (Tahsildars) Rules, 1944, on probation for a  period of  two  years.  On a report dated April 29, 1953  from  the Accountant  General  of U.P. that the respondent  had  drawn excess travelling allowance in respect of certain  journeys, the  State  Government  directed  the  Deputy  Commissioner, Hardoi  to hold an inquiry after taking  into  consideration the  explanation of the respondent.  On September  27,  1956 the  Government  of  U.P. directed that  the  respondent  be apprised  of the grounds for holding an inquiry and that  he be  given an opportunity to show cause why his probation  be not terminated.  The explanation submitted by the respondent with   the   comments  of  the  Deputy   Commissioner,   the Commissioner  of the Division and the Board of Revenue  were forwarded  to  the  Government.   On  August  13,  1957  the respondent  was informed that the Governor of U.P.  agreeing with  the  Board  had  ordered that  the  probation  of  the respondent  be  terminated, and that he be reverted  to  the post  of  Naib Tahsildar.  It was further recited  that  the respondent  should  not be considered for  promotion  for  a period  of  seven  years from the date  of  reversion.   The respondent  submitted a memorial to the Governor on  October 12,  1957.   After  considering the  memorial  the  Governor passed  an  order cancelling that part of  the  order  which related to the stoppage of promotion of the respondent,  and confirmed the termination of probation, because in the  view of the Governor the respondent "had during the probation not made  sufficient use of his opportunities and had failed  to give satisfaction". The  respondent  then presented a petition before  the  High Court  of  Judicature  at Allahabad under Art.  226  of  the Constitution  challenging the orders dated August  13,  1957 and  December 1, 1958, on the grounds that on the expiry  of the  period  of probation the respondent must be  deemed  to have  been  confirmed  as a Tahsildar  and  that  since  the respondent  was subject to punishment without affording  him opportunity  to  render his explanation in  respect  of  the charge  against him, the order was invalid.  In the view  of Tandon, J., under r. 12 of the Subordinate Revenue Executive Service  (Tahsildars) Rules, 1944, power to revert could  be exercised  either  during  or at the end of  the  period  of probation,  and if no order was passed extending the  period of  probation the respondent could not on the expiry of  the period for which he 824 was  originally  appointed  any longer  be  regarded  as  on probation.   The  learned Judge accordingly  held  that  the order  terminating  the  probation  of  the  respondent  was erroneous and his reversion being in the nature of a penalty imposed  without conforming to the requirements of Art.  311 of the Constitution was liable to be quashed. In  appeal  under the Letters Patent against  the  order  of Tandon,  J., quashing the orders dated August 13, 1957,  and December  1,  1958, the High Court following  their  earlier

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

judgement in Chief Conservator of Forests, U.P., Nainital v. D.  A.  Lyall(1) held that the order passed by  Tandon,  J., that  the respondent had ceased to be a probationer  on  the expiry  of two years could not be sustained.  But  the  High Court held that the two parts of the order dated August  13, 1957, were based on the same finding recorded in the  letter of  the Board of Revenue and could not be  dissociated,  and since  the  Governor  had passed an  order  terminating  the probation and had simultaneously therewith imposed upon  the respondent    punishment   without   complying   with    the requirements  of  Art. 311 of the Constitution,  the  entire order was liable to be set aside.  The High Court observed :                     "By  this  letter  (dated  December   1,               1958),  therefore,  the  Government,  for  the               first  time  made an attempt to  convert  that               order  of punishment contained in  the  letter               dated  13th August, 1957, into an order  under               Rule  14 of the Subordinate Revenue  Executive               Service  (Tahsildars) Rules, 1944.  We do  not               think that, by putting down this view in  this               subsequent  letter dated 1st December,  ’1958,               the character of the original order passed  on               13th  August, 1957, could  be  retrospectively               altered.   When that order was passed on  13th               August,  1957, it was........... an  order  of               punishment." In  the  view of the High Court the Governor  by  his  later order sought to convert the earlier order of punishment into an  order under r. 14 of the Subordinate  Revenue  Executive Service  (Tahsildars) Rules, 1944, but the Governor  had  no "power  to  convert an order of  punishment  retrospectively into  an  order under rule 14, nor could he  appropriate  to himself  the  function  of  subsequently  interpreting   the earlier  order and laying down that the order was  an  order under the rule and not an order of punishment.  With special leave the State of Uttar Pradesh has appealed to this Court. It  is  necessary  in the first instance  to  refer  to  the relevant rules of the Subordinate Revenue Executive  Service (Tahsildars) Rules, 1944.  By r. 12 it is provided :               "Every  listed candidate on appointment in  or               against               (1)   (1961]  A. L. J. It. 458.               82 5               a  substantive  vacancy  shall  be  placed  on               probation.   The period of probation shall  be               two years," By r. 13 it is provided that every listed candidate  whether appointed in a substantive vacancy or not, shall be required to  pass  such  tests  in  departmental  subjects  and   the languages  of the Province and to undergo such  training  as the  Governor  may  from time to time  prescribe.   Rule  14 provided :               "If  it appears at any time during or  at  the               end  of the period of probation that a  person               appointed-   on   probation   has   not   made               sufficient  use  of his opportunities  or  has               failed  to pass the  departmental  examination               completely  or if he has otherwise  failed  to               give  satisfaction, he may be reverted to  his               substantive appointment :                  Provided  that  the Board may  extend.  the               period  of  probation  to  three  years.    An               extension beyond this period shall require the               sanction  of  the Governor.   Every  extension               whether  granted by the Board or the  Governor

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

             shall specify the exact date up to which it is               granted." Rule  15 provided for confirmation of a probationer  at  the end  of  the  period  of probation  if  he  had  passed  the departmental examination for tahsildars completely, and  the Commissioner  reported that he was fit for confirmation  and that his integrity was unquestionable. The  respondent  was posted as a Tahsildar,  and  placed  on probation  for two years.  The initial period  of  probation was liable to be extended by the Board of Revenue or by  the Governor’ There is no rule that on the expiry of the  period of  probation the probationer shall be deemed to  have  been confirmed in the post which he is holding as a  probationer. If  a probationer was found not to have made sufficient  use of his opportunities or had failed to pass. the departmental examination  "completely" or if he had otherwise  failed  to give  satisfaction  he may be reverted  to  his  substantive appointment  : again confirmation in the appointment at  the end  of  the period of probation could only be made  if  the probationer  had  passed the  departmental  examination  for tahsildars  "completely" and the Commissioner reported  that he  was  fit  for confirmation and that  his  integrity  was unquestionable.   It is common ground in this case that  the respondent  had  not  passed  the  departmental  examination before  1955.   He had therefore not qualified  himself  for confirmation. The scheme of the rules is clear : confirmation in the  post which  a probationer is holding does not result merely  from the  expiry of the period of probation, and so long  as  the order  of confirmation is not made, the holder of  the  post remains a probationer.  It has been held by this Court  that when  a first appointment or promotion is made on  probation for a specified 2Sup.  CI/66-7 826 period and the employee is allowed to continue in the  post, after  the  expiry of the said period without  any  specific order of confirmation he continues as a probationer only and acquires  no  substantive right to hold the  post.   If  the order  of appointment itself states that at the end  of  the period  of probation the appointee will stand  confirmed  in the absence of any order to the contrary, the appointee will acquire  a  substantive right to the post  even  without  an order  of confirmation.  In all other cases, in the  absence of  such an order or in the absence of such a service  rule, an  express order of confirmation is necessary to  give  him such  a  right.   Where after the  period  of  probation  an appointee  is  allowed to continue in the  post  without  an order  of  confirmation, the only possible view to  take  is that  by  implication  the  period  of  probation  has  been extended, and it is not a correct proposition to state  that an appointee should be deemed to be confirmed from the  mere fact  that  he is allowed to continue after the end  of  the period of probation.  See Chief Conservator of Forests, U.P. Nainital v. D. A. Lyall(1) : Sukhbans Singh v. The State  of Punjab(2)  and  The  Accountant  General,  Madhya   Pradesh, Gwalior v. Beni Prasad Bhatnagar(3). The ground on which Tandon, J., decided the petition  cannot therefore  be sustained.  But the High Court held  that  the respondent  had  been  subjected to  reduction  in  rank  in violation   of   the  guarantee  under  Art.  311   of   the Constitution.  In the view of the High Court the order dated August  13, 1957, determining the probation and  withholding promotion  for  a  period of seven years from  the  date  of reversion  being  a composite punitive order, could  not  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

made  by  the  Governor without  giving  to  the  respondent reasonable  opportunity of showing cause against the  action proposed  to  be  taken  in regard to  him.   That  view  is strongly  pressed  upon us for acceptance.   The  proceeding against  the respondent, it is true, commenced on  a  report which charged him with having submitted travelling allowance bills  in respect of journeys not performed by him.  But  it is clear from the letter dated September 27, 1956, that  the inquiry made against the respondent was only for the purpose of  affording  him  an opportunity to  show  cause  why  his "probation should not be terminated forthwith." The Governor of  U.P. after considering the explanation submitted by  the respondent,  by order dated August 13, 1957, terminated  the probation  of the respondent, and further directed  that  he should  not  be considered for promotion for  a  period  of seven years from the date ,of reversion.  The second part of the  order, it appears, was not :given effect to,  for  even before  December  1, 1958 the respondent was  posted  as  an officiating  Tahsildar.  By the second order dated  December 1, 1958, the Governor of U.P. cancelled the stoppage (1)  C.A.  259 of 1963 decided on Feb. 24, 1965. (2)  A.I.R. 1962 S.C. 1711        (3) C.A. 548 of 1962 decided on Jan. 23,1964. 827 or  promotion and only confirmed the order in so far  as  it related to termination of probation.  We are unable to agree with  the High Court that the first limb of the order  dated August  13,  1957, was punitive in character.   The  inquiry against   the  respondent  was  held  for  the  purpose   of determining  his probation.  Under r. 14 of the  Subordinate Revenue  Executive  Service  (Tahsildar)  Rules,  1944,  the Governor  is  authorised  to revert a  person  appointed  on probation, if it appears at any time that the person has not made  sufficient use of his opportunities or has  failed  to pass   the  departmental  examination  completely   or   has otherwise  failed to give satisfaction.  An officer who  has submitted travelling allowance bills in respect of  journeys not  undertaken by him may not unreasonably be  regarded  as one  who  "has failed to give satisfaction".  It  cannot  be assumed  merely because an inquiry is directed to  ascertain whether  a person appointed on probation has failed to  give satisfaction, that it is intended to hold an inquiry with  a view  to  impose punishment against  that  person.   Inquiry against the respondent which was commenced for  ascertaining whether  he should be continued on probation or whether  his probation should be terminated, did not change its character merely because the Governor made an order which he could not make  in  that inquiry.  There is nothing to show  that  the scope  of the inquiry was at any time extended.   The  order withholding promotion was one which the Governor was in  the inquiry  incompetent to pass, and apparently the  order  was not  given effect to, and when presumably his attention  was drawn  to  the  irregularity  that part  of  the  order  was cancelled. The High Court assumed that in the circumstances of the case under r. 14 no inquiry could be made against the  respondent before  termination of probation and that the Governor  held an   inquiry   under  r.  55(3)  of   the   Civil   Services (Classification,  Control and Appeal) Rules, and  in  making that inquiry the State authorities did not act in conformity with the rules and the constitutional safeguards.But    the assumption made by the High Court cannot be accepted. In our judgment the inquiry was commenced under r. 14 of        the Subordinate  Revenue Executive Service  (Tahsildars)  Rules, 1944,  and never lost that character.  Reversion to  a  sub-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

stantive  appointment  can be directed under r.  14  in  the conditions  mentioned  therein,  and  for  ascertaining  the existence  or otherwise of those conditions, the  appointing authority may hold some inquiry.  Mere holding of an inquiry is  therefore not a ground for holding that the order  which followed  as a result of the inquiry was not made  under  r. 14. The  High Court also held that inquiries under r. 14 of  the Subordinate  Revenue Executive Service  (Tahsildars)  Rules, 1944,  and r. 55(3) of the Civil  Services  (Classification, Control  and  Appeal) Rules which apply  to  the  Provincial Services apply to different 82 8 situations.   Rule  55(3) at the material  time  dealt  with probationers. and provided :               "This  rule shall also not apply where  it  is               proposed  to  terminate the  employment  of  a               probationer  whether during or at the  end  of               the period of probation, or to dismiss, remove               or  reduce  in  rank  a  temporary  government               servant, for any specific fault or on  account               of his unsuitability for the service.  In such               cases, the probationer or temporary government               servant  concerned  shall be apprised  of  the               grounds of such proposal, given an opportunity               to  show cause against the action to be  taken               against  him,  and  his  explanation  in  this               behalf,  if  any,  shall  be  duly  considered               before  orders  are passed  by  the  competent               authority." Clauses  (1)  &  (2) deal with  the  dismissal,  removal  or reduction  in  rank  of a member of  a  Service,  but  those clauses  are  expressly  made  inapplicable  by  the   first sentence of cl. (3) of r. 55 to termination of employment of a  probationer and by the second part the, procedure  to  be followed  in the inquiry for determination of  probation  is prescribed.   Rule 14 of the Subordinate  Revenue  Executive Service  (Tahsildars)  Rules, 1944, confers power  upon  the appointing  authority  to  terminate  probation  in  certain eventualities.   Under that rule an inquiry may be made,  if the appointing authority, thinks it fit to do so and to such an  inquiry  r.  55(3)  which  primarily,  deals  with   the procedure   to  be  followed  before  an  order  is   passed determining probation may apply. We  are  therefore of the view that the High  Court  was  in error  in  holding  that  the order  made  by  the  Governor determining  the probation of the respondent  infringed  the protection  of  Art. 311. The Governor initially  passed  an order  determining  the probation and also passed  an  order stopping promotion.  The latter part of the order which  the Governor  was incompetent to pass under r. 14 did give  rise to a justifiable grievance which the respondent could set up but  after  that order was cancelled the respondent  had  no cause for grievance.  It cannot be said that by  terminating the  probation any penalty was imposed : and if that be  the correct view the opinion expressed by the High Court that by passing  the order dated December 1, 1958 the  Governor  was seeking  to convert the earlier order of punishment into  an order  under  r.  14 of the  Subordinate  Revenue  Executive Service (Tahsildars) Rules, 1944 retrospectively, cannot  be accepted.   The order terminating’ probation was made  under r.  14 and continued to retain that character.  The vice  in the second part of the order did not either before or  after it   was  cancelled  affect  the  validity  of   the   order terminating the respondent’s probation.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

829 We think that the respondent was ill-advised in  prosecuting the petition even after he had been appointed an officiating Tahsildar. The appeal is allowed and the order passed by the High Court set  aside.   The petition filed by the respondent  must  be dismissed.  In the circumstances of the case, we direct that there will be no order as to costs throughout. Appeal allowed. 830