1. Promotion to a post on probation — Termination of probation and reversion to substantive post following inquiry into financial irregularities — Challenge to validity of termination. (Para 1 )
Back
Next 
1966 Supreme(SC) 89
SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH AND S.M. SIKRI, JJ.
State of U.P., Appellant
Versus
Akbar Ali Khan, Respondent.
Civil Appeal No. 19 of 1965.
Advocates appeared
Mr. O. P. Rana, Advocate, for Appellant; M/s. M. K. Ramamurthi, D. P. Singh, R. K. Garg and S. C. Agarwal, Adovates of M/s Ramamurthi and Co. for Respondent.
Advocates:
D.P.Singh, M.K.RAMAMURTHY, O.P.RANA, R.K.GARG, S.C.AGRAWAL
D.P.Singh, M.K.RAMAMURTHY, O.P.RANA, R.K.GARG, S.C.AGRAWAL
Expiry of a probation period does not result in deemed confirmation unless explicitly provided in the rules or appointment letter; continuation implies extension. Termination of probation for failure to give satisfaction is not a punitive action and does not attract Article 311 protections.
Headnote:(A) Constitution of India - Article 311 - Subordinate Revenue Executive Service (Tahsildars) Rules, 1944 - Rules 12, 14 and 15 - Termination of probation - Deemed confirmation - Whether a probationer is deemed to be confirmed upon the expiry of the probation period in the absence of a specific order - No, unless the appointment order or service rules provide for automatic confirmation, the employee continues as a probationer and an express order of confirmation is necessary. Continuation in the post after the expiry of the probation period implies an extension of probation. (Para 6)
(B) Service Law - Termination of probation - Whether reversion to a substantive post for failing to give satisfaction during probation constitutes a penalty attracting the protection of Article 311 of the Constitution - No, termination of probation under rules providing for reversion if the probationer fails to give satisfaction is not punitive in character. Holding an inquiry to determine suitability for confirmation does not convert the action into a punitive proceeding. (Paras 7, 8, 10)
(C) Administrative Law - Validity of composite orders - Whether an invalid part of an order (stoppage of promotion) invalidates the valid part (termination of probation) - No, the vice in one part of the order does not affect the validity of the order terminating probation if the latter was passed under valid rules. (Para 10)
Facts of the case:
A probationer appointed to a higher post was found to have drawn excess travelling allowance. Following an inquiry, the appointing authority terminated the probation, reverted the employee to the previous substantive post, and stopped further promotion for seven years. The stoppage of promotion was later cancelled, but the termination of probation was confirmed. The employee challenged the order on the grounds of deemed confirmation and violation of constitutional safeguards against punitive action.
Findings of Court:
The court found that there was no rule for deemed confirmation upon the expiry of the probation period. The termination of probation was based on the employee's failure to give satisfaction, which is a valid ground for reversion under the service rules. The action was not punitive and therefore did not violate the constitutional protections afforded to civil servants.
Issues: Whether the expiry of the probation period results in deemed confirmation; and whether the termination of probation and reversion to a lower post constitutes a penalty requiring compliance with Article 311 of the Constitution.
Ratio Decidendi: In the absence of a specific rule or appointment term stating otherwise, a probationer does not acquire a substantive right to a post merely by the expiry of the probation period; continuation implies extension. Furthermore, termination of probation for failure to give satisfaction is an administrative action, not a punishment, and thus does not attract the requirements of Article 311.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether expiry of probation leads to deemed confirmation and whether termination of probation based on an inquiry constitutes punishment violating constitutional safeguards against reduction in rank. (Para 2 , 3 )
3. Termination of probation for failure to give satisfaction is not punitive; continuation in post after probation expiry implies extension unless rules provide for automatic confirmation. (Para 5 , 6 , 7 , 8 , 9 )
4. In the absence of a rule or appointment order providing for automatic confirmation, an express order is required; continuation after probation implies extension, not confirmation. (Para 6 )
5. Appeal allowed — High Court order set aside — Petition for quashing the termination of probation dismissed. (Para 12 )
6. Does the expiry of a specified probation period result in the automatic confirmation of an employee?
No. Unless the appointment order or service rules explicitly state that the appointee will stand confirmed in the absence of an order to the contrary, an express order of confirmation is necessary. Continuation in the post after the probation period expires implies an extension of probation. (Para 6 )
7. Does the termination of a probationer's appointment and their reversion to a substantive post constitute a penalty under Article 311 of the Constitution?
Not necessarily. If the reversion is based on the probationer's failure to give satisfaction or failure to pass required examinations under service rules, it is a determination of probation rather than a punitive order, provided the prescribed procedure is followed. (Para 7 , 8 , 10 )
8. Does holding an inquiry to determine if a probationer has failed to give satisfaction transform the termination of probation into a disciplinary punishment?
No. An appointing authority may hold an inquiry to ascertain whether the conditions for reversion under service rules exist. The mere conduct of such an inquiry does not change the character of the order from a determination of probation to a punishment. (Para 7 , 8 )
Judgement
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 1951, the respondent was selected for permanent promotion to the post of Tahsildar and was placed, in accordance with Rule 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 explanations 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".
2. 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 Sub-ordinate 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 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.
3. 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 judgment in Chief Conservator of Forests, U. P., Nainital v. D. A. Lyall, 1961 All LJ 458, 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)
