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1962 Supreme(AP) 71
Andhra Pradesh High Court
Judges : BASI REDDI, MUNI KANNIAH
M.Bhaskara Rao - Appellant
Versus
State OF A.P. - Respondent
Decided On : 04-16-62
The rules framed in pursuance of Article 309 of the Constitution are not justiciable as the petitioner was holding the post at the pleasure of the Governor.
Headnote:
COMMERCIAL TAX OFFICER - PROBATION - EXTENSION - VALIDITY - ARTICLE 311(2) - ESTOPPEL - RELAXATION OF RULE 28 - POWER OF GOVERNOR - RULE 49 - WRIT PETITION - DISMISSAL - ADJUSTMENT OF EXCESS AMOUNT DRAWN AS INCREMENTS.
Fact of the Case:
The petitioner, a clerk in the Revenue Department, was put on probation as an Assistant Commercial Tax Officer for two years. He did not pass any tests within this period of probation. The Deputy Commissioner of Commercial Taxes issued a declaration that the petitioner had completed his period of probation. The Board of Revenue recommended to the Government that the petitioner's probation be terminated or extended till he passed the prescribed tests. The Government passed an order cancelling the declaration of the Deputy Commissioner and extending the petitioner's probation after relaxing Rule 28 of the State and Subordinate Services Rules. The petitioner challenged the impugned order by way of a writ petition.
Finding of the Court:
The Court held that the declaration of the Deputy Commissioner of Commercial Taxes was invalid as it was without reference to the prior requirements. The petitioner did not acquire the qualifications necessary to claim the substantive post, and therefore, the extension of probation did not effect any reduction in rank of the petitioner. The impugned order did not seek to punish the petitioner and did not offend Rule 49. The case did not fall within the purview of Article 311(2), but concerned only with the rules framed in pursuance of Article 309 which were not justiciable as the petitioner was holding the post at the pleasure of the Governor. The petitioner was given an opportunity to explain and the extension of probation was granted to enable him to pass the remaining test. The argument for the petitioner based on estoppel was wholly misconceived.
Issues: 1. Whether the declaration of the Deputy Commissioner of Commercial Taxes was valid? 2. Whether the extension of probation effected any reduction in rank of the petitioner? 3. Whether the impugned order offended Rule 49? 4. Whether the case fell within the purview of Article 311(2)? 5. Whether the petitioner was given an opportunity to explain? 6. Whether the argument for the petitioner based on estoppel was valid?
Ratio Decidendi: 1. The declaration of the Deputy Commissioner of Commercial Taxes was invalid as it was without reference to the prior requirements. 2. The petitioner did not acquire the qualifications necessary to claim the substantive post, and therefore, the extension of probation did not effect any reduction in rank of the petitioner. 3. The impugned order did not seek to punish the petitioner and did not offend Rule 49. 4. The case did not fall within the purview of Article 311(2), but concerned only with the rules framed in pursuance of Article 309 which were not justiciable as the petitioner was holding the post at the pleasure of the Governor. 5. The petitioner was given an opportunity to explain and the extension of probation was granted to enable him to pass the remaining test. 6. The argument for the petitioner based on estoppel was wholly misconceived.
Final Decision: The writ petition was dismissed with costs.
( 2 ) THE facts leading to the filing of this petition under Article 226 of the Constitution may be briefly set out: The petitioner was entertained in service in the composite State of Madras in the year 1937 as a clerk in the Revenue Department. Thereafter, after he had put in five years of service in the Commercial Taxes Department to which he was transferred, he was put on probation as an Assistant Commercial Tax Officer till 24-7-1952. The prescribed period of probation for appointment as a full member of that service was two years. According to Rule 13 (b) of the Commercial Taxes Subordinate Services Rules, he was required to pass the tests specified under Rule 6 (c) of the said rules within the period of his probation. The petitioner, however, did not pass any tests within this period of probation. A reference to the records showed that the Deputy Commissioner of Commercial Taxes, Kakinada, issued a declaration dated 4-2-1955 to the petitioner that he had completed his period of probation as an Assistant Commercial Tax Officer with effect from the afternoon of 23-7-1954. The petitioner has been since then holding the substantive post of Assistant Commercial Tax Officer. But the Board of Revenue gave him a notice dated 19-3-1959 to show cause why his probation in the cadre of Assistant Commercial Tax Officer should not be terminated with immediate effect. The petitioner submitted his explanation dated 13-5-1959. He maintained that the declaration made on 4-2-1955 was not subject to the condition that he should pass the tests within a specified time. He pointed out that he passed two of the tests after 23-7-1954 and that he has to pass only the Account Test (Part I) prescribed for Subordinate Officers. He also requested that he may be allowed reasonable time to pass that remaining test. Thereupon, the Board of Revenue recommended la the Government and pointed out to the Government that the Deputy Commissioner, Kakinada, declared that the petitioner satisfactorily completed the probation without due regard to the rules as the petitioner has not passed the tests within the period of his probation. The Board of Revenue was further of the view that the probation should have been either terminated or extended till the petitioner passed the prescribed tests. The only way of helping the petitioner who has put in seven years of service as Assistant Commercial Tax Officer was to extend his period of probation after relaxing the general Rule 28 of the State and Subordinate Service Rules so that he may pass the Account Test also with in that extended period of probation. This recommendation by the Board of Revenue has therefore been responsible for the passing of the impugned order by the Government. It may be mentioned that G. O. Ms. No. 2454 Revenue dated 28-11-1959" (sic) (impugned order) cancelled the order of the Deputy Commissioner of. Commercial Taxes, Kakinada dated 4-2-1955 and made mention of the relaxation of Rule 28 by the Governor of Andhra Pradesh, who acted under general Rule 49 of the State and Subordinate Services Rules. The purpose for which such an extension has been granted has also been specifically mentioned in that G. O. as with a view to enable the petitioner to pass the Account Test. The G. O. also directed the Board of Revenue to consider the question of recovery from the petitioner of sums drawn as increments in the time scale of pay of Assistant Commercial Tax Officer.
( 3 ) MR. K. Ramachandra Rao, the learned counsel for the petitioner, raised before us almost the identical contentions set forth in para 5 of the affidavit of the petitioner filed in support of the writ petition. The contentions on behalf of the petitioner as thus put forward pr
