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PETITIONER: SUKHBANS SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 06/04/1962

BENCH: MUDHOLKAR, J.R. BENCH: 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 incre- ment 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

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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.

JUDGMENT: 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".

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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."

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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 Naib-               Tehsildars)                    One candidates               From Register        B         Two candidates               From Register A-1               (Tehsildars and Naib-               Tehsildars)                    One candidates               422               Form Register             B    Two candidates               From Register A-II               (Ministerial Govern-               ment servants)                One candidate               From Register A-1               (Tehsildars and Naib-               Tehsildars)                   One candidate               From Register       B         Two candidates               From Register       C         One candidate               From Register       B         Two candidates               From Register A-II               (Ministerial Govern-               ment servants)                One candidate               From Register A-1               (Tehsildars and Naib-

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             Tehsildars)                  One candidate               From Register B              Two candidates               From Register A-1               (Tehsildars-and Naib-               Tehsildars).....               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  A- II 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  confir-               mation 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

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             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  subs- tantive 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.

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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. Appeal allowed,

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