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PETITIONER: AJIT SINGH & OTHERS ETC.

       Vs.

RESPONDENT: STATE OF PUNJAB & ANOTHER

DATE OF JUDGMENT10/03/1983

BENCH: DESAI, D.A. BENCH: DESAI, D.A. ERADI, V. BALAKRISHNA (J)

CITATION:  1983 AIR  494            1983 SCR  (2) 517  1983 SCC  (2) 217        1983 SCALE  (1)262  CITATOR INFO :  RF         1989 SC1160  (30)  D          1992 SC2093  (17)

ACT:      Civil service-Service  rule prescribed probation of two years-order of  appointment stated  probation as  one  year- Government,  if   competent  prescribe   shorter  period  of probation.      Probation-Meaning or-object in prescribing.      Interpretation-Manadatory   or    directory-Tests   for determining.

HEADNOTE:      The Punjab  Town Improvement  Act, 1922  envisages  the setting up  of Trusts  and the  Trusts so  set up were to be bodies corporate  with perpetual  succession  and  a  common seal. The  duties and  functions  entrusted  to  the  Trusts included,  among   others,  preparation   of   schemes   for improvement and  expansion of  towns in  the State.  For the purpose of  manning the  senior posts  under tho Trusts, the Act conferred  power on  the State  Government to constitute certain services.  One of  the services  constituted by  the Government  was   the  Punjab  Service  of  Trust  Executive officers.  Exercising   power  under   the  Act   the  State Government framed the Punjab Trust Services (Recruitment and Conditions of  Service) Rules, 1978, The Rules envisaged the setting up  of a Selection Committee called the Punjab Trust Services Selection  Committee for  selecting officers. After following the  procedure prescribed  under  the  Rules,  the Selection  Committee  recommended  the  appointment  of  the eleven petitioners  herein to  the posts  of Trust Executive officers, Class 1, II and II[. The Slate Government accepted the recommendations  of the  Selection Committee and in May, 1979 appointed  the petitioners  to  the  respective  posts. Condition (c)  of the  terms and  conditions annexed  to the order of  appointment  issued  to  each  of  the  appointees stated: "All  the appointees shall remain on probation for a period of  one year  under rule  10(1)  of  the  Rules.  The regular appointments  shall be  subject to  the satisfactory completion of  the period  of probation  by  such  appointee after the expiry of one year & on the date of his joining on the completion  of one  year of  service  an  increment  was

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released in favour of each of the appointees.      In August,  1980  tho  State  Government  dissolved  21 Trusts. Purporting  to act  under rule  9 of the 1978 Rules, the Governor dispensed with immediate effect the services of each of  the 11 petitioners after paying a month’s salary in lieu of a month’s notice. 518      In their  petitions  filed  under  Article  32  of  the Constitution impugning  the order  of the  State  Government dispensing with their services! the petitioners alleged that after  they  had  satisfactorily  completed  the  period  of probation  of  one  year  it  was  not  open  to  tho  State Government to  dispense with  their services;  the power  to dissolve the Trusts was used by the Government to get rid of the petitioners;  that sometime  after dispensing with their services the  Trusts had been reconstituted but even so they had not  been recalled to their posts and that the action of the  Government   in  the  case  was  thoroughly  arbitrary, actuated by extraneous considerations.      In reply  it was stated that under rule 9 (2) the State Government had  power to  dispense with  the services  of  a probationer if  his work  and conduct  during the  period of probation were not satisfactory; payment of a month’s pay in lieu of  notice was made by way of abundant caution and that it could not confer any right on the petitioners; the period of probation  of one  year, mentioned  in clause  (c) of the annexure to the order of appointment was a typographical-cum clerical error,  which in  terms of  rule 9  (2) should have been two  years in  respect of  direct recruits  and  lastly their services  had been  dispensed with  because  with  the dissolution of  the Trusts the Executive officers had become surplus  and  their  continuance  in  service  would  be  an avoidable burden on the exchequer.      It was contended on behalf of the State Government that the expression ’shall’ in rule 9 (I ) on its own force would apply so  that the direct recruits would automatically be on probation for  a period of two years and no power or discre- tion is conferred on anyone to reduce this period.      Allowing petition, ^      HELD: It  is not  necessary to  prescribe a  period  of probation  and   the  State  Government  as  the  appointing authority would  have discretion  in the  matter subject  to rules by which the appointment is governed. [529 C]      Under the  archaic law  of hire and fire the concept of probation in  service jurisprudence  was practically absent; but with  the advent  of the  concept of  security in public service it  came to  acquire a certain connotation. In order that an  incompetent or  inefficient servant  is not foisted upon the  master the concept of probation was devised. A new recruit is put on test for a period before be is absorbed in the service  or has  acquired a right to the post. In so far as the  master is  concerned the  period of probation gave a sort of  locus  pententaie  to  him  to  observe  the  work, ability, efficiency, sincerity and competence of the servant and if  the servant  is not  found suitable for the post the master reserved  the right  to  dispense  with  his  service during or  at the end of the period of probation. The period of probation, therefore, furnished a valuable opportunity to the master to closely observe the work of a probationer. The termination of service of a probationer during or at the and of the probation did not ordinarily and by itself constitute a punishment  for, the  servant had  no right to continue to hold such a post. The period of probation may vary from post to post  or from  master to  master. It is not obligatory on

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the part  of the  master to prescribe a period of probation; it is  open to him to employ a person without putting him on probation. In short the power to keep a servant on probation and the  period  during  which  his  performance  is  to  be observed remained tho prerogative of the master.      [526 A-H] 519 Purshottam Lal  Dhingra v.  Union of  India [1958]  SCR 828, followed.      There is  no general rule which may help in determining whether a  provision is  mandatory or  directory. It  is the duty of the court to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to  be construed.  The use of the expression ’shall’ is not  decisive and  the question  whether a  provision  is mandatory or  directory  depends  upon  the  intent  of  the Legislature and not upon the language in which the intent is clothed. [527 G-H]      Cullimore v. Lyme Rogis Corporation, [1962] I Q.B. 718; State of  U.P. & Ors. v. Babu Ram Upadhaya, [1961] 2 SCR 679 at 710;  State of U.P. v. Manbodhan Lal Srivastava, [1958] 2 SCR 533  and Montreal  Street Railway  Company v. Normandin, L.R. [1917] A.C. 170, referred to.      Rule 9 (2) is directory and confers a discretion on the State Government  to prescribe a period of probation shorter than the  maximum set  out in  it. The  period of  two years prescribed in  this rule  is the  maximum period which means that  the   rule  placed   an  embargo   on  the  appointing authority’s right  to prescribe a period of probation longer than  two   years.  But   the  rule  does  not  admit  of  a construction that  a period shorter than two years could not be prescribed.  The rule enables the appointing authority to determine the  suitability of  the person  appointed and the State Government may, having regard to the biodata and other information it  has about  the officers,  feel that a period shorter than  two years  would suffice  to make  up its mind whether to  retain him  in service  or to  dispense with his service. Power  in this  respect  is  vested  in  the  State Government which is the highest authority and that power has to be  exercised on  the recommendation of a statutory body. This power  is not  taken away  by the use of the expression ’shall’ in the rule. [527 C-F]      In the  instant case  two of  the petitioners  who were appointed  to   class  I  post  possessed  high  educational qualifications, had considerable experience in the education department of the State and left the permanent service under the State  to take up the present jobs. Persons of such long experience and  high qualifications  would be disinclined to be put  on probation  again for a period of two years. It is therefore reasonable  to infer  that, having  regard to  the high attainments of tho candidates, the State Government had prescribed a  period of  probation of  one year. A few other petitioners, who  were appointed  to class  II and Ill posts were  practising   advocates.  In  all  the  cases,  on  the completion of  the period of probation of one year they were given an  increment which  is released  only if the work and conduct of  the person  are found  to be satisfactory. It is implicit in  this that  they bad  satisfactorily  discharged their duties  during the period of probation. In the face of this position  to hold  that the  wording of the appointment order stating  that each  of  the  appointees  would  be  on probation for  one  year  was  a  typographical-cum-clerical error, would be doing violence to commonsense.      [525 B-E, 529 C-F]      That the  dissolution of the Trusts was a device to get

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rid of  tho petitioners is evident from later events. By the very order  by  which  the  Trusts  were  dissolved  certain officers were  appointed to  carry on  the functions  of the Trusts. Therefore  the Trusts,  independent of  the Board of Trustees, had  a corporate  personality,  with  a  perpetual succession and their functions had to be carried out. The 520 effect of  the dissolution was me rely to dissolve the Board of Trustees. The corporate personality of the Trust remained inviolate. If  the Trusts were functioning, if their schemes were being  implemented, if  all other  staff  was  retained there is no substance in the contention that the services of the petitioners alone were no longer required because of the dissolution of  Trusts. Even  if the  charge of mala fide is not true there are certain aspects which unerringly point in the direction that the action was arbitrary and is violative of Articles 14 and 16 of the Constitution. [535 A-E]      There is  equally no force in the contention that after the dissolution  of the  Trusts their continued retention in service was  imposing an  unnecessary burden  on  the  State exchequer. After  removing the petitioners 11 other officers were asked  to take over their duties. This apart, the State exchequer was not responsible for the salary and prequisites of the  Trust Executive officers; their salaries, allowances and prequisites  were charged  on the  fund of the Trusts as envisaged by section 17 (4) of the Act. [534 A]      The argument  that the  performance of  the petitioners was not  satisfactory is equally untenable. On the expiry of the period  of probation  they were allowed an increment and were continued  in service.  It would  be unjust to say that their  work   was  unsatisfactory  till  they  earned  their increments but  that their  work and ) conduct were found to be unsatisfactory  within less  than six  weeks  thereafter, meriting dispensing with their services. [530 B- D]

JUDGMENT:      ORIGINAL JURISDICTION  .  Writ  Petition  (Civil)  Nos. 5274-81, 5463, 5348 & 5606 of 1980.      (Under article 32 of the Constitution cf India)      M.K. Ramamurthi,  J. Ramamurthy, Miss R. Vaigui for the Petitioners.      Hardyal Hardy and D.D. Sharma for the Respondents      The Judgment of the Court was delivered by      DESAI, J.  These writ petitions under Article 32 of the Constitution  questioned   the  validity   of   the   orders dispensing with  service of  each  of  the  petitioner  with immediate effect  made by  the  Director  Local  Government. Punjab dated  September 25, 1980 as being violative of Arts. 14 and 16 of the Constitution.      The Punjab  Town Improvement Act, 1922 (’Act for short) was enacted  to  make  provision  for  the  improvement  and expansion of towns in Punjab. The act envisages the creation and constitution  of Trusts  and the  Trust so  created will have a corporate personality with perpetual succession and a common seal. The duties and functions 521 of the  Trust inter  alia include preparing of schemes under the Act  for various purposes. Section 17 conferred power on the State  Government to  constitute certain services in the manner therein  prescribed. One such service contemplated by the section  was Punjab Service of Trust-Executive officers. Sub-section (2)  of section  17 conferred power on the State Government to  make rules for regulating the recruitment and

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the conditions  of service  of members of the Trust Services constituted by  the State Government. Armed with this power, the State  Government constituted  Punjab Service  of  Trust Executive officers.  In exercise  of the  power conferred by sec. 73  read with  sec.  17  (2)  of  the  Act,  the  State Government framed  rules styled  as  Punjab  Trust  Services (Recruitment and  Conditions of Service) Rules, 1978 (Rules’ for short).  Rule 5  (2) (i)  inter alia provided that fifty percent of  the vacancies in the cadre of Executive officers shall be  filled by  direct recruitment and for this purpose rule 5(4)  envisaged the setting up of a Selection Committee called Punjab Trust Services Selection Committee.      In the  year 1978,  Directorate  of  Local  Government, Punjab issued  advertisement No.  1078 inviting applications for the  posts in  Class I,  II and  III of  Trust Executive officers Pursuant  to this  advertisement, large  number  of persons applied for various posts. The Punjab Trust Services Selection  Committee   interviewed  various  candidates  and ultimately recommended  eleven persons for the post of Trust Executive officers.  Ajit  Singh  and  Rajinder  Singh  were recommended for Class I post; S. Sarup Singh and R.L. Bhagat were recommended  for  Class  II  Post  of  Trust  Executive officers and  the remaining  7 petitioners  in this group of petitions were  recommended for  Class  III  Post  of  Trust Executive officers.  These recommendations were accepted and appointment orders  were issued  by Punjab Government on May 28, 1979  and it  is not  in dispute that all the appointees joined the  respective posts. Each one of the appointees was issued an order of appointment to which terms and conditions of appointment  were  annexed.  One  such  condition  worth- noticing reads as under:           "(c) All  the appointees shall remain on probation      for a  period of  one year  under rule  10 (l)  of  the      Rules. The regular appointments shall be subject to the      satisfactory completion of the probation period by such      appointee after the expiry of one year from the date of      his joining." 522      After each  appointee completed one year of service, an increment was  released in  his favour. Suddenly in exercise of the  power conferred  by Rule  9  of  the  ’1978  Rules’, Director of  Local Government,  Punjab  dispensed  with  the service of each of the 11 Trust Executive officers, who were appointed on  May 28,  1979. These  orders are  impugned  in these petitions.      As the  language of the order was the subject matter of some discussion, the one in respect of petitioner No. 3 R.L. Bhagat may be extracted. It reads as under:                      "Punjab Government                 Local Government Department                          O R D E R           In exercise  of the  powers conferred under Rule 9      of the Punjab Trust Services Recruitment and Conditions      of Service)  Rules, 1978  and all other powers enabling      him in this behalf the Governor of Punjab is pleased to      dispense with  immediate effect  the services  of  Shri      Rattan Lal Bhagat who was appointed to the Punjab Trust      Service of Executive officer Class Il vide office order      No. DLG  (TSC)-79/126 dated  28th May, 1979. He will be      paid one month’s salary in lieu of the month’s notice                                             Sd/- R.D. Joshi,                          Director, Local Government, Punjab.      Endst. No.  DLG (TSC)  80/8648/51 Dated  Chandigarh the 25th Sept. 1980".      Validity of  this order styled as order dispensing with

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the service  of each of the petitioner is questioned in this group  of  petitions  on  The  ground  that  the  action  is thoroughly arbitrary  actuated by  extraneous considerations and violative  of equality  of opportunity  in tho matter of employment. It  is also  challenged on the additional ground that after  the completion of the period of probation it was not open to the State Government to terminate the service of the petitioners, in the manner in which it is done. One more ground of  attack was  that the  action was malafide in that the petitioners  were appointed  when a  political party  of other hue and colour was in power and on a 523 change of  Government, the  petitioners were  victimised. In support of  the last  contention it was urged that the power to dissolve  trust conferred  by section 103 was used to get rid of the petitioners which can be demonstrably established by the  fact’s that  after dispensing  with the  service  of petitioners, the  trusts  have  been  reconstituted  without calling back petitioners to their posts.      A return  was filed  on behalf  of the  respondents-the State of  Punjab  and  Director-cum-Joint  Secretary,  Local Government Department,  Punjab  by  Prithipal  Singh  Sodhi. Apart from the usual preliminary objection that the petition involves disputed  and  tangled  questions  of  facts  which cannot be  resolved under a petition under Article 32 of the Constitution, it  was  contended  that  the  Government  had dissolved all  the 21  Improvement Trusts  in the  State  of Punjab by  its order  dated August  11, 1980  and since  the Trusts were  dissolved, services  of Executive officers were no longer  required because  their continuance would inflict an unnecessary  burden on the State Exchequer and therefore, the State  Government decided  to dispense with the services of those  Executive officers appointed by direct recruitment who had  not completed  the probationary  period of  2 years under Rule  9 (1) of ’1978 Rules’. It was contended that all the petitioners were appointed through direct recruitment as Executive officers  in the  Punjab Trust Services on May 28, 1979  and   according  to  the  respondents  the  period  of probation was  two years which would expire on May 27, 1981. It was  said that  the State  Government in  exercise of the power conferred  by Rule 9 (2) could dispense with a service of a  probationer, if  the work and conduct of a person to a service during the period of his probation is in the opinion of the  appointing authority  not satisfactory.  Armed  with this power,  it was  contended  that  the  services  of  the petitioners were  terminated which  would mean that the work and conduct  of each  of the petitioner who was appointed by direct recruitment  was not satisfactory. Explaining why one month pay  in lieu of notice was paid, it was contended that payment was ex majorie cautela and it can confer no right on the petitioners.  Referring to clause (c) in the annexure to the appointment  order of the petitioners which prescribed a probation period of one year, it was submitted that that was a typographical-cum-clerical  error because Rule 9 (2) which prescribes  period  of  probation  in  terms  specifies  the probation period of two years in respect of direct recruits. It was  lastly contended  that as the Trusts were dissolved, the services  of the  petitioners as  Executive officers had become 524 surplus and  therefore, had  to  the  dispensed  with  as  a compelling necessity.      Pleadings have been set out in some detail to highlight a very  narrow controversy  which requires to be resolved in this  case.  There  is  no  dispute  that  petitioners  were

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appointed to  Class I,  II and  III post  of Trust Executive Service after  they were  recommended by  the statutory body called Punjab  Trust Service  Selection Committee. That each petitioner in  response to  the appointment  order dated May 28, 1979  joined the  service is again undisputed. Terms and conditions were  set out  as an  annexure to the appointment order of  each of  the petitioners  and clause  (c)  in  the annexure clearly specifies the probation period to be of one year as prescribed under Rule 10 (1) of ’1978 Rules.’ Now if each of  the petitioners  was appointed as a probationer and the period  of  probation  which  he  was  informed  by  the annexure  to   the  appointment   order  was  of  one  year, indisputably on  May 27,  1980 each one completed the period of probation.  However, the contention of the respondents is that the  recital in  clause (c)  of  the  annexure  to  the appointment order  specifying the  probation period  of  one year in  respect of  each petitioner is a typographical-cum- clerical error  in view of the provision contained in Rule 9 (1) of ’1978 Rules’. Rule 9 (1) and 9 (2) provide as under:           "9-Probation:-(1) A  person appointed to a service      shall remain on probation for a period of two years, if      appointed by  direct  recruitment,  and  one  year,  if      appointed otherwise.           (2) if  the work  or conduct of a person appointed      to a  service during the period of his probation is, in      the  opinion   of   the   appointing   authority,   not      satisfactory, it may;           (a) if  appointed by  direct recruitment, dispense      with his services."      It would thus appear at a glance that the real question in controversy  was what  was the  period  of  probation  in respect of  each of  the appointee. It is not in dispute nor is it  controverted by  the respondents that the appointment order issued  by the  Punjab Government  did recite that the person mentioned  in the  order is appointed to Punjab Trust Services of Executive officers Class I or Class II or 111 as the case  may be  subject to  the conditions  annexed to the order etc.  Therefore, the  appointment was  subject to  the conditions annexed  to the  order and as pointed out earlier condition (c) annexed 525 to the  order prescribes  a period of probation of one year. Nowhere A  in the  affidavit in  opposition, the respondents state as  to whether  rule 10  (1)  also  confers  power  to prescribe a  period of probation. Reference is to Rule 9 (1) which prescribed  a period  of probation  of two  years  for those appointed  by direct  recruitment. Now  examining  the matter from  the point  of  view  of  petitioners,  all  the petitioners were  appointed by  direct recruitment.  But  at this stage  one may  point out  that petitioner  No. I  Ajit Singh, who  was selected for Class I post of Trust Executive officer, had  26 years  of service  to  his  credit  in  the Education Department  of Punjab  Government and  he  had  to resign that  post  in  order  to  take  the  post  of  Trust Executive  officer   Class  I.  Similarly,  Rajinder  Singh- petitioner No.  2, who  was appointed  to Class  I post  was Class II  Gazetted officer in Punjab Government service with 26 years  of service  to his credit till September 22, 1978. He had  also worked  from September  22, 1978 to the date of joining the  post of  Class I  Trust  Executive  officer  as Executive officer  Class II  in the  same  Local  Government Department. Thus both Ajit Singh and Ravinder Singh who were appointed to  Class I  post had  rendered service for a long time. Both were highly educated. Both had to leave permanent service to take up the post of Trust Executive officer. R.L.

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Bhagat, Pavittar  Singh  Gill,  Gulam  Sabir  Ali  Khan  and Harjinder Singh, who were directly recruited to Class II and III posts  of Executive  officers were practising advocates. If the  Service Selection  Board had the bio-data of each of these persons  before it, one can say with certain amount of confidence that  the Service  Selection Committee as well as the Punjab  Government having  taken into consideration such high  educational   attainments  and   past  experience  may prescribe a  shorter period of probation. Mr. Hardy, learned counsel for  the respondents,  however, seriously  contended that rule p 9(1) does not permit anyone to prescribe shorter period of probation than the prescribed period of two years. He relied on the use of the expression ’shall’ in Rule 9 (1) as mandatory  and submitted  that even  if  the  appointment order did  not carry  any specification about the prescribed period of  probation, the  rule on  its own force will apply and a  direct recruit  appointed to  Trust Executive Service and governed  by the  ’1978 Rules’  will automatically be on probation for a period of two years. It was also pointed out that the rules do not confer any power or discretion on many authority to  reduce this  period. We  find it  difficult to subscribe to this view.      This requires  examination of the genesis why period of probation is prescribed. And how the period of probation has been understood in service jurisprudence. 526      When the  master servant  relation was govern ed by the archaic law  of hire  and fire,  the concept of probation in service  jurisprudence  was  practically  absent.  With  the advent of  security in  public service  when termination  or removal  became   more  and  more  difficult  and  order  of termination or  removal from service became a subject matter of judicial review, the concept of probation came to acquire a certain  connotation. If a servant could not be removed by way of  punishment  from  service  unless  he  is  given  an opportunity to meet the allegations if any against him which necessitates his  removal from  service,  rules  of  natural justice postulate  an enquiry into the allegations and proof thereof. This developing master servant relationship put the master on guard. In order that an incompetent or inefficient servant is  not foisted  upon  him  because  the  charge  of incompetence or  inefficiency is  easy to make but difficult to prove,  concept of  prohibition  was  devised.  To  guard against  error  of  human  judgment  in  selecting  suitable personnel for service, the new recruit was put on test for a period before  he is  absorbed in service or gets a right to the  post.   Period  of  probation  gave  a  sort  of  locus pententiae to  the employer  to observe  the work,  ability, efficiency, sincerity  and competence  of the servant and if he is found not suitable for the post, the master reserved a right to  dispense with  his service  without anything  more during or  at the  end of  the prescribed  period  which  is styled as  period of probation. Viewed from this aspect, the courts held  that termination  of service  of a  probationer during or  at the  end of  a period  of probation  will  not ordinarily and by itself be a punishment because the servant so appointed  has no  right to  continue to hold such a post any more  than a  servant employed on probation by a private employer is entitled to. (See Purshotam Lal Dhingra v. Union of India.(1)  The period  of probation therefore furnishes a l? valuable opportunity to the master to closely observe the work of  the probationer  and by  the  time  the  period  of probation expires  to make up his mind whether to retain the servant by absorbing him in regular service or dispense with his service.  Period of probation may vary from post to post

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or master  to master. And it is not obligatory on the master to prescribe a period of probation. It is always open to the employer  to   employ  a   person  without  putting  him  on probation. Power  to  put  the  employee  on  probation  for watching his  performance and  the period  during which  the performance is  to be  observed is  the prerogative  of  the employer. 527      Rule 9  (2) provides  that  a  person  appointed  to  a service shall  A remain  on probation  for a  period of  two years if  appointed by  direct recruitment etc. Emphasis was placed on the use of the expression ’shall’ and it was urged that it is mandatory. It was also urged that the rule leaves no discretion  in the  appointing authority  to prescribe  a period of  probation shorter  than two  years. And  even  if someone has  attempted to  do the  same that  being  clearly illegal, the  person concerned having been fastened with the knowledge of  the statutory  rule cannot  contend  that  his period of  probation is  less than  two years, and the court will have  to proceed  on the basis that period of probation shall be  two years. This submission raises a vital question whether the  use of  the expression  ’shall’ in  rule 9  (2) indicates  that   the  rule  was  to  be  mandatory  in  its application and no one will have a discretion to prescribe a period shorter  than  two  years.  On  a  plain  grammatical construction  of   the  rule   it  appears  clear  that  the prescribed period  of two  years was  the maximum period and that placed  an embargo  on the appointing authority denying it a  right to  prescribe a  period of probation longer than two years.  But the  rule does  not admit  of a construction that a  period shorter  than two years cannot be prescribed. The purpose  underlying the  rule was to give an opportunity to  the   appointing  authority,  in  this  case  the  State Government, to  determine  the  suitability  of  the  person appointed and  the State  Government having  the bio-data of officers before  it may  feel that  a period  shorter than 2 years would suffice it to make up its mind whether to retain the employee concerned or to dispense with his service. Rule 9 (2)  is thus  an  enabling  provision  which  permits  the Government to prescribe a period of probation and the period can be  anywhere up  to two  years and  not in  excess of  2 years. Such  enabling provision  is  generally  held  to  be directory and not mandatory. The rule is cast in affirmative language and  there  is  no  prohibition  placed  in  public interest. In  order to  determine  whether  a  provision  is mandatory or  directory, there  is no general rule which may help. It  is the  duty of  Court to  try to  get at the real intention of  the legislature  by carefully attending to the whole scope  of the  statute to be construed. (See Cullimore v. Lyme  Regis Corporation.  (1) The  use of  the expression ’shall’ is  not considered decisive and the question whether a provision  is mandatory  or  directory  depends  upon  the intent of the Legislature and not upon the language in which the intent it clothed. This Court in State of U.P. & Ors. v. Babu Ram 528 Upadhaya,(l)   after   referring   to   Crawford   "on   the Construction of  Statutes", Craies on "Statute Law", Maxwell on  "The  Interpretation  of  Statutes",  State  of  UP.  v. Manbodhan Lal  Srivastava(2)  and  Montreal  Street  Railway Company v.  Nirmandin,(3) briefly  formulated  the  relevant rules for interpretation as under:           "When a  statute  uses  the  word  ’shall’,  prima      facie, it  is mandatory but the Court may ascertain the      real  intention   of  the   Legislature  by   carefully

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    attending to  the  whole  scope  of  the  statute.  For      ascertaining the real intention of the Legislature, the      Court may  consider inter  alia,  the  nature  and  the      design of  the statute and the consequences which would      follow from construing it the one way or the other, the      impact of  other provisions  whereby the  necessity  of      complying with  the provisions  in question is avoided,      the circumstance, namely, that the statute provides for      a  contingency   of   the   non-compliance   with   the      provisions, the  fact that  the non-compliance with the      provisions is  or is  not visited  by some penalty, the      serious or  trivial consequences  that  flow  therefrom      and, above  all, whether  the object of the Legislation      will be defeated or furthered."      This rule of interpretation was re-affirmed recently in Municipal Corporation  of Greater  Bombay v.  B.  E.  S.  T. Workers Union(4). In order to ascertain whether rule 9(2) is mandatory or  directory, the  setting in which it is placed, the purpose  under lying the provision, the object sought to be  achieved   would  help  in  determining  whether  it  is mandatory or  directory. As  we have  pointed out above that rule 9(2)  was an enabling provision conferring power on the State  Government  to  put  a  person  appointed  by  direct recruitment on  a probation  of maximum  period of two years and no  consequence or  failure to  comply with  the same is provided in  the relevant rules, the provision appears to be directory. Obviously, the appointing authority having regard to all  the circumstances  may not  be inclined to prescribe any period of probation or may prescribe a shorter period of probation. This  power is  not taken  away by the use of the expression ’shall’ in rule 529 9(2). And let it be remembered that the power of appointment A is  vested in  the  highest  executive  namely  the  State Government  and   the  power  is  to  be  exercised  on  the recommendation of  a statutory  body. Viewed  from all these angles, it  appears clear  to us that rule 9(2) is directory and  confers   a  discretion  on  the  State  Government  to prescribe a period of probation shorter than the maximum set out in rule 9(2).      Having clearly  ascertained the  purpose and intendment underlying the  concept of  probationary period  in  service jurisprudence, one  can confidently  say,  that  it  is  not absolutely necessary  to prescribe  a period of probation in each  case   and  the  State  Government  as  an  appointing authority will  have discretion  in this  matter subject  to rules by  which appointment  is governed, otherwise the rule would   be    counter-productive.   Highly   qualified   and experienced persons  coming into service at a later stage in life like  petitioners Ajit  Singh and  Rajinder Singh,  who after rendering  service for  a long period of 26 years came to be  appointed as direct recruits, would be disinclined to be on  a probation  for a  period  of  two  years.  And  the appointing authority, in this case the State Government, not any lower  officer, noting  their worth and value may either wholly dispense  with the  period of  probation or reduce it considerably.  If   such  be   the  purpose  and  intendment underlying  the   concept  of  probationary  period,  it  is reasonable to  infer that in respect of such experienced and highly qualified persons, the appointing authority the State Government must  have prescribed  the period of probation of one year.  And that  is why  uniformly in  each  appointment order, the  appointee concerned  was told that his period of probation  would   be  one  year  only.  To  hold  with  the respondents that  this is a typographical-cum-clerical error

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is such   over  simplification as would be doing violence to common sense.  We are therefore, of the opinion that in case of each of the appointee, the period of probation prescribed was one year only.      This conclusion  is buttressed  by another circumstance appearing in  the  record.  When  each  of  the  petitioners completed  his   one  year  of  service,  which  marked  the expiration of  the period  of probation,  an  increment  was released in  his favour. Subject to the specific rule to the contrary, ordinarily  no  increment  is  earned  during  the period of probation. But at any rate, if an increment can be earned after the expiry of the period of probation, it would depend upon  the satisfaction  of the  appointing  authority that the 530 work  and  conduct  of  the  probationer  was  satisfactory. Further rule  4.7 of  the Punjab  Civil Service Rules Vol. 1 provides that  an increment  shall ordinarily  be drawn as a matter of course, unless it is withheld. An increment may be withheld from a Government employee by a competent authority if his  conduct has  not been  good or his work has not been satisfactory. Now almost all the petitioners completed their one year service by June, 1980. An increment was released in favour of  each of  them.  lt  is  implicit  in  release  of increment that the petitioners had satisfactorily discharged their duty  during the probation period, and at any rate the work and  conduct was  not shown to be unsatisfactory, which permitted an  increment to be earned. Assuming, as contended for on  behalf of  the respondents  that period of probation was two  years, the  fact that  on the expiry of one year of service an  increment was  released, would imply that during the period  of one  year the  work and  conduct has not been unsatisfactory. If it was otherwise the release of increment could have  been interdicted  on the ground that neither the work nor  the conduct  was satisfactory.  The fact  that the increment was  released would  atleast permit  an  inference that there  was satisfactory  completion  of  the  probation period and that during the probationary period, the work and conduct of each of the petitioner was satisfactory.      If up to the end of June, 1980, the work and conduct of each of  the petitioner  was satisfactory and if the service of each of them was simultaneously on the same day September 28, 1980  dispensed with  on the  ground mentioned in rule 9 (2) (a)  in that in the opinion of the appointing authority, the work  and conduct  of each  of the  petitioner  was  not satisfactory, then  between June  1 980  and September  1980 something was simultaneously done by each of the petitioners to permit  the appointing  authority-the State  to reach  an affirmative conclusion  that the  work and  conduct,  became wholly unsatisfactory and the degree of dissatisfaction with the service  was so  high that  the service  of all  the  11 petitioners recruited  on the  same day  was required  to be dispensed with  on identical  ground. This is too fortuitous to carry conviction.      Mr. M.K. Ramamurthi, in this connection, contended that there is  no satisfactory  explanation as  to what  suddenly occurred in  respect of  all the 11 petitioners recruited on the same  day to render their otherwise satisfactory service as unsatisfactory and that too during the short period after release of  increment ?  Mr. Ramamurthi  urged that  between recruitment and termination of service, the politi- 531 cal hue  of the  party in power changed. Maybe, there may be some A  substance in  the contention,  but  for  paucity  of evidence we  are not inclined to examine this contention. We

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would rather  confine ourselves  to the positive averment in the return filed on behalf of the respondents for dispensing with the  service of  all the  petitioners. In Para 9 of the return, following  reasons are  assigned for dispensing with the services of the petitioners:           "The  services   of  the   petitioners  have  been      dispensed with and not terminated because :-                (i) They  had not  completed their  period of           probation on the date of order;                (ii) Their  services were  no longer required           as the  Improvement Trusts  in the State of Punjab           had been dissolved;                (iii) Their  Continuance in  service was only           causing unnecessary burden to the State Exchequer;                (iv) They  being probationers had no right to           the posts.                (v) Their  performance, in the opinion of the           appointing authority, was not upto the mark."      We will  meticulously examine  the validity of each one of these reasons seriatim.      The first  submission is  that each  of the petitioners had not  completed the  period of  probation on  the date of impugned order.  This proceeds  on the  assumption that  the period  of   probation  was   two  years.  For  the  reasons hereinabove stated,  this  submission  is  contrary  to  the record. If  the period  of probation was one year as held by us, indisputably  each one  of the petitioners had completed his period  of probation  on the date of the impugned order. Therefore this  reason is  untenable and  will  have  to  be ignored.      The second  reason assigned for the impugned action was that the services of the petitioners were no longer required as the  Improvement Trusts  in the  State of Punjab had been dissolved. By  an order dated August 11, 1980, Government of Punjab in exercise of the power conferred by sec. 103 (1) of the Act  dissolved with  immediate effect the trusts therein set out. In all 21 Trusts were dissolved. 532 Each Trust  had an  Executive officer.  If  21  Trusts  were dissolved, 21  Executive officers  became surplus  and their services would no longer be necessary as contended on behalf of  the   respondents.  Only  11  direct  recruits  of  1979 recruitment were  adversely affected  by the  dissolution of the Trusts  in that  their services  were dispensed with. We were not  informed as  to how  Trusts Executive  officers of other 10 Trusts were dealt with, but as petitioners have not made any  grievance in  that behalf,  we would overlook that aspect. Petitioners on the contrary contend that dissolution of the Trusts was a device to get rid of the petitioners. It would be  stretching credibility  too far  to  hold  on  the material placed  before us that the State Government were to the extreme  length of  dissolving Trusts  to get rid of l I petitioners, though  in the  circumstances of the case it is equally difficult  to disabuse our mind that such may be the underlying motive.  We are  however  determined  not  to  be influenced by  the alleged possible motivation. The question is if  the Trusts  were  dissolved,  what  happened  to  the assets, liabilities and the ongoing and continuing functions of the  Trusts.  If  the  assets,  liabilities  and  ongoing functions were  taken over  by some  other bodies,  but with their own  staff carried on the activities, there would have been some  semblance of  justification in  the action of the respondent  in  treating  the  petitioners  as  surplus  and dispensing  with  the  services  on  that  account.  On  the contrary, it  becomes evident from the record and it was not

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disputed  that   except  the   11  Executive   of  Officers- petitioners herein,  all other  staff of all the Trusts were retained and  they carried  out the  functions of  the Trust under  the  supervision  of  an  officer  appointed  by  the Municipal  Committee   or  in   some  cases   by  the  State Government. lt  thus unquestionably  appears that  what  was dissolved was  the Board  of Trustees  p and not the Trusts. Only the  nomenclature changed. The work continued. And this is evident  from the  fact that  as late as August 19, 1980, Batala Improvement Trust issued a notice inviting objections from the  public  in  respect  of  its  development  scheme. Similarly on  October ll,  1980 Amritsar  Improvement  Trust invited applications  for allotment  of plots  to the  local displaced persons available in certain schemes framed by it. We can  multiply  such  illustration.  But  we  consider  it unnecessary to  do so.  And it is impossible to believe that on mere  dissolution of  the  Board  of  Trustees,  all  its functions were  wound up. As many as 1500 officers and other members of  the staff  continued to  work for  the so-called dissolved Trusts.  The  only  persons  whose  services  were dispensed with as no more necessary were the 533 11 petitioners  i. e.  the direct  recruits of 1979. In this background, it  become difficult  to escape  the  conclusion though  we   are  trying  our  level  best  to  do  so  that dissolution of  the Trusts  was a  device to  get rid of the petitioners. But  on that  point we  say no  more. Mr. Hardy pointed out  that by  the ordinance  No. 6 of 1980 styled as Punjab Town  improvement (Amendment)  ordinance, 1980,  sub- sec. (2)  was introduced  to sec. 103 which took care of the situation arising  out of  the dissolution of the Trusts. It provided that  all properties,  funds and  dues vested in or realisable by  the Trust  and  Chairman  respectively  shall vests in and be realisable by the State Government till they stand transferred to the Municipal Committee under sub. sec. 3. Sub-clause  (c) of sub-section (2) enabled the Government to appoint a Class I officer of the State Government for the purpose of  completing the execution of any scheme which the Trust may be implementing. And sub-sec. (3) provided for the consequences after all the functions Of the dissolved Trusts were discharged.  We fail  to see how this section can throw any light on the point under discussion? on the contrary, by the very  order dissolving the Trusts, certain officers were appointed in respect of each trust to carry on the functions of the Trusts. Therefore, the Trust independent of the Board of Trustees  had a corporate personality. It had a perpetual succession and  its functions  had to  be carried  out. They effect  of   the  dissolution   of  the  Trusts  was  merely dissolving the  Board of Trustees. The corporate personality of the  Trust remained, inviolate. But the Punjab Government took advantage of the dissolution order dissolving in effect the Board  of Trustees and dispensed with the services of 11 petitioners. If  the Trusts  are functioning, if its schemes are being  implemented, if  all other  staff is retained, we find it difficult to accept the submission of Mr. Hardy that the services  of the  petitioners were  no  longer  required because of  the dissolution of the Trusts, and therefore the same have been dispensed with.      The third  reason assigned is that their continuance in service was only imposing an unnecessary burden on the State Exchequer. In fact this is actually begging the issue. After removing the  petitioners, 11  other officers  were asked to take over  the duties  of  the  petitioners.  In  the  order dissolving the  Trusts, it  is mentioned that in exercise of the power  conferred by  clause (2)  (c) of  sec. 103 of the

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Act. the  Governor of  Punjab is  further pleased  to direct that the  officers indicated  in column  2 shall perform the functions of the Trust and the Chairman under the Act. Trust Executive officer  Was the highest executive officer and his function is to be discharged 534 by the  newly appointed  officer. It is therefore, difficult to accept  the submission  that the  continued retention  in service of  the petitioner  after  the  dissolution  of  the Trusts was  imposing an  unnecessary  burden  on  the  State Exchequer.      This  submission   does  not  commend  to  us  for  the additional  reason   that  the   State  Exchequer   was  not responsible for  the salary  and perquisites  of  the  Trust Executive officers,  in view  of the  provision contained in sub sec (4) of sec 17 of the Act which provides that salary, allowances, gratuity,  annuity, pension  and other  payments required to  be made  to the members of the Trust Service in accordance with  the conditions  of their  service shall  be charged from  the funds  of  the  Trust  in  the  prescribed manner.      The fourth  and fifth  grounds for  dispensing with the services of  the petitioners were that the petitioners being probationers  had   no  right   to  the   posts,  and  their performance in  the opinion  of the appointing authority was not satisfactory  are wholly untenable because the period of probation had  expired and  they were  continued in  service after allowing  each one of them to earn an increment. It is a permissible  inference that  till allowing each petitioner to earn  his increment,  his service and work were deemed to be satisfactory  and nothing is pointed out to us as to what occurred in  respect of 11 petitioners simultaneously within hardly a  period of less than six weeks since the release of increment to  stigmatise each  one of them that his work and conduct was  not satisfactory.  Therefore, the conclusion is inescapable that none of the reasons assigned for dispensing with the services of the 11 petitioners is tenable.      Now it  the reasons for dispensing with the services of petitioners are  untenable,  the  question  is  whether  the action of  dispensing with  services of  the petitioners  is arbitrary. Mr.  Hardy, learned  counsel for  the respondents contended that  even if  the Court  is  satisfied  that  the reasons set  out in  the  return  for  dispensing  with  the services of  the petitioners  are untenable  and irrelevant, nonetheless the  Trusts having been dissolved the conclusion cannot be  escaped that services of the petitioners as Trust Executive officer were no more necessary and therefore, this Court cannot  interfere with  the order  dispensing with the services of  the petitioners.  We  remain  until  convinced. Though there was formal dissolution of Trusts, in effect and substance the  Board of  Trustees was  dissolved.  Corporate personality of  Trusts remained  unaffected. Staff remained. Functions were 535 being carried  out. By  the time  the writ petitions came up for hearing  Mr. Ramamurthi pointed out that the Trusts have been re.  A constituted  and that was not seriously disputed by Mr.  Hardy. Further,  it is  crystal clear  that what was dissolved was  the Board  of Trustees  and  not  the  Trusts because functions  of the  Trusts were  being discharged  by other officers. The entire staff of the Trusts except the 11 petitioners was  retained. Schemes  formulated by the Trusts were  being  implemented.  In  other  words,  the  corporate personality remained almost inviolate. Even if we decline to examine the  charge of mala fides, there are certain aspects

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herein  discussed  which  cannot  be  overlooked  and  which compulsively and  unerringly point in the direction that the action was  arbitrary. To  recapitulate these circumstances, it  is   crystal  clear  that  the  Board  of  Trustees  was dissolved, the  Trusts without  the name of Trust continued, their functions  continued, the staff excluding the 11 Trust Executive  officers  was  retained,  and  in  place  of  the officers whose  services were  dispensed  with,  some  other officers were asked to take over their functions and duties, and  within   a  short   time,  the   Trusts  were  formally constituted. The  only effect  sought to  be achieved by the bizarre exercise  of first  acquiring power  to dissolve the trusts and  then ordering  their dissolution was to dispense with service  of only  11 Trusts  Executive officers of 1979 recruitment. And  having achieved  the  desired  result  the Trusts have  been reconstituted  albeit without  showing the fairness of  recalling the  discharged  11  Trust  Executive officers.  Therefore,   without  imputing  any  motive,  the conclusion is  inescapable that  the action  was  thoroughly arbitrary and  violative of  the guarantee  of  equality  of opportunity enshrined  in Art.  16 read  with Art. 14 of the Constitution and  such thoroughly arbitrary action cannot be sustained, and deserves to be quashed.      The last  contention of Mr. Hardy was that in any event even  if   the  Court  comes  to  the  conclusion  that  the petitioners had  completed the period of probation, yet they would be  temporary government  servants and  their services were dispensed  with after  giving them salary for one month in lieu  of notice and as the Trusts no more exists, they at least cannot  be reinstated.  We find  no substance  in this contention. We  would have  beer. required  to examine  this contention in  some depth, but we are spared the exercise in view  of   the  decision  of  this  Court  in  The  Manager, Government Branch  Press and Anr. v. D.B. Belliappa, wherein it was observed as under:           "Conversely,  if   the  services  of  a  temporary      government servant  are terminated arbitrarily. and not      on the ground of 536      his unsuitability,  unsatisfactory conduct  or the like      which would  put him  in a class apart from his juniors      in   the   same   service,   a   question   of   unfair      discrimination may  arise, not  withstanding  the  fact      that  in   terminating  his   service,  the  appointing      authority was  purporting to act in accordance with the      terms of  the employment.  Where  a  charge  of  unfair      discrimination  is   levelled  with   specificity,   or      improper motives  are imputed  to the  authority making      the impugned order of termination of the service, it is      the duty  of the  authority to  dispel that  charge  by      disclosing to  the Court  the reason  or  motive  which      impelled it to take the impugned action      We have  reached the  conclusion that  the  action  was thoroughly arbitrary  and if  it is  arbitrary, it smacks of discrimination and  a discriminatory treatment in the matter of public employment cannot be overlooked.      Accordingly, these  petitions must  succeed. The  order dated September 25, 1980 dispensing with the service of each of the  petitioner is  quashed  and  set  aside  and  it  is declared that  all the petitioners continue to be in service and they should be forthwith reinstated. By an interim order made by  this Court,  respondents were  directed to pay half the salary  to the  petitioners from  the date of dispensing with their  services till  further orders.  Now that  it  is declared that  the petitioners  continue to  be in  service,

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each of  the petitioners  shall be paid his full salary with effect from  the date  of his  judgment, but, for the period between the  date of  dispensing with  the service  and till today, each  of the petitioners should be paid only half the salary.  The   respondents  shall   pay  the  costs  to  the petitioners and bear their own. P.B.R.                                     Petitions allowed 537