# AJIT SINGH & OTHERS ETC v. STATE OF PUNJAB & ANOTHER

- **Citation:** [1983] 2 S.C.R. 517
- **Court:** Supreme Court of India
- **Decided:** 1983-03-10
- **Bench:** D.A. Desai, V. Balakrishna Eradi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ajit-singh-others-etc-v-state-of-punjab-another-8835
- **Pages:** 20

## Headnote

Civil service-Service rule prescribed probation of two years-Order of
appointment stated probation as one year-Government, if competent to prescribe
shorter period of probation.
Probation-Meaning of-Object in prescribing.
Interpretation-Mandatory or directory-TestJ for determining.
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 sue ..
cession and a common seaJ. The duti(:S and functions entrusted to the Trusts
Jncluded, among others, preparation of schemes for improvement and expansion
of towns in the State. For the purpose of manning the senior posts under the
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) RuJes, 1978, The Rules envisaged the setting up of a Selection Committee
called tho Punjab Trust Services Selection Committee for selecting Officers. After
folL>wing 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 III. The State 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 :
"AU 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 satisM
factory completion of the period of probation by such appointee after the expiry
of one year from the date of his joining." On the completion of one year of ser ..
vice an increment was released in favour of each of the appointees.
In August, 1980 tho State Government dissolved 21 Trusts. Purporting to
act under rule 9 of tho 1978 Rules, the Governor dispensed with immediate effect
the services of each of the II petitioners after paying a moqth"s salary in lieu of a
111onth's notice,
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518
SUPRBMB COURT REMRTS
(1983J 2 S.C.ll.
In their petitionS:filed under Anicle 32 of the Constitution impugning the
order of the State Government dispensing with their services, the p.etitioners
alleged that after they bad satisfactorily completed the period of probation of one
year it was not oPen to the State Government to dispense with their services; the
power to dissolve the Trusts was used by the Government to get rid or the petitioners; that sometime after dispensing with their services the
Trusts bad 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 extra·
neous 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 anncxure to the order of appointment was a typographicaJ~cum
clerical error, which in terms of rule 9 (2) should have been two years in respect
of direct recruits and lastly their se:rvices had been dispensed with because with
. the dissolution of the Trusts the Executive Officers had become surplus and their
continuance in)ervice would be an avoidable burden on the exchequer.
It was contended on behalf of the State Government that the expression
'shall' in rule 9 (1) on its own force would apply so that the direct recruits would
automatically be on probation for a period or two years and no power or dis

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517
AJIT SINGH & OTHERS ETC.
v.
STATE OF PUNJAB & ANOTHER
March 10, 1983
[D.A. DESAI AND V. BALAKRISHNA ERADI, JJ.)
Civil service-Service rule prescribed probation of two years-Order of
appointment stated probation as one year-Government, if competent to prescribe
shorter period of probation.
Probation-Meaning of-Object in prescribing.
Interpretation-Mandatory or directory-TestJ for determining.
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 sue ..
cession and a common seaJ. The duti(:S and functions entrusted to the Trusts
Jncluded, among others, preparation of schemes for improvement and expansion
of towns in the State. For the purpose of manning the senior posts under the
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) RuJes, 1978, The Rules envisaged the setting up of a Selection Committee
called tho Punjab Trust Services Selection Committee for selecting Officers. After
folL>wing 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 III. The State 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 :
"AU 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 satisM
factory completion of the period of probation by such appointee after the expiry
of one year from the date of his joining." On the completion of one year of ser ..
vice an increment was released in favour of each of the appointees.
In August, 1980 tho State Government dissolved 21 Trusts. Purporting to
act under rule 9 of tho 1978 Rules, the Governor dispensed with immediate effect
the services of each of the II petitioners after paying a moqth"s salary in lieu of a
111onth's notice,
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In their petitionS:filed under Anicle 32 of the Constitution impugning the
order of the State Government dispensing with their services, the p.etitioners
alleged that after they bad satisfactorily completed the period of probation of one
year it was not oPen to the State Government to dispense with their services; the
power to dissolve the Trusts was used by the Government to get rid or the petitioners; that sometime after dispensing with their services the
Trusts bad 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 extra·
neous 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 anncxure to the order of appointment was a typographicaJ~cum
clerical error, which in terms of rule 9 (2) should have been two years in respect
of direct recruits and lastly their se:rvices had been dispensed with because with
. the dissolution of the Trusts the Executive Officers had become surplus and their
continuance in)ervice would be an avoidable burden on the exchequer.
It was contended on behalf of the State Government that the expression
'shall' in rule 9 (1) on its own force would apply so that the direct recruits would
automatically be on probation for a period or two years and no power or discretion 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 he 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 pententlae to him to
observe the work, ability, efficiency, sincerity and competence of the servant and
if the servant is not found suitable fo-r the post the master reserved the right to .l
dispense with bis service during or at the end of the period of probation.
The
period of probation, therefore, furnisbed 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 end 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 the part of the master to prescribe a'. period of
probation; it is open to him to employ. a person without putting him on proba-'
tion. In short the power to keep a servant on probation and the period. during
which his performance is to be observed remained the prerogative of the master.
[526 A-HJ
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AJIT SINGH v. PUNJAB
519
Purshottam IA/ Dhingra v. Union of India, [1958] SCR 828, followed.
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There is no general rule which may help in determining whether a provi-
. aion 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-HJ
Cul/imore v. Lyme Rogis Corporation, [1962] 1 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, [19S8] 2 SCR 533 and Motrtreal Street Railway Company v. Nor-
-.....
mandin, 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 thaq 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 pct1t1oners 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 OD probation again for a period Of two years .
It is thcrerore reasonab!C to infer that, having regard to the high attainments of
the candidates, the State Government had prescribed a period or 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 or the period of probation
of one year tbey were given an increment which is released only if the work and
conduct of the person arc found to be satisfactory. It is implicit in this that they
had satisfactorily discharged .their duties during the period of probation. Jn 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 typographi·
cal-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 rid of the petitionen
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. There.
fore the Tru!ts. independent of the Board of Trustees, bad a corporate personality, with a perpetual succession and their functions had to be carried out. The
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effect of the 'dissolution was me rely to dissolve the Board of Trustees. The corpo·
rate personality of the Trust recnained inviolate. If the Trusts were functioning,,
if their schemes were being i mpleIJaented, ir 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 i.s violative of Articles 14 and 16 of the Consti·
tution. [535 A-El
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 responsi ..
ble for the salary and prequisiles 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 wcte 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 tbereafcer,
meriting dispensing with their services.
[530 8-0]
ORIGINAL JURISDICTION : Writ Petition (Ci vii) Nos. 5274-81,
5463, 5348 & 5606 of 1980.
(Under article 32 of the Constitution of lnuia)
M.K. Ramamurt.W .• J Ramamurthy, Miss R. Vaigui for the
Petitioners.
Hardyal Hard)' 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 servi.ce 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 lmpmvement Act, 1922 ('Act' for short) was
enacted to make provision for the improvement and expansion of
H
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
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. AJIT SINOH v. PUNJAB (Desa.I, J.)
521
of the Trust inter a/la 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 regula·
ting the recruitment and 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 precent 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 person's 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
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remaining 7 petitioners in this group'ofpetitions 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/or a
period of one year under rule 10 (I) of the Rules. The regular appintments shall be subject to the satisfactory completion of the probation period by such appointee after th~
expiry of one year from th.~ ~ate of his joininf'
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After each appointee completed one year of service, an incre·
ment 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 μnder :
"P•rn}ab Government
Local Government Department
ORDER
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. II 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 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 the
matter of employment. It is also challenged on the additional ground
that aftenhe completion of the period of prnbation it was not open
to the State Government to terminate the service of the petitioners,
in theJmanner in which it is done. One more ground of attack was
that the action was malafid·e in that the petitioners were appointed
when a political party of other hl!e an4 colol!r WllS in power and on a
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AJIT SINGH v, PUNJAB (Desai, J.)
change of Government, the petitioners were victimised. Iilsupport of
the last contention it was urged that the power to dissolve trust con·
ferred by section I 03 was used to get rid of the petitioners which can
be demonstrably established by the fact:that after dispensing with the
service of petitioners, the trusts have been reconstituted without calling hack petitioners to their posts.
A return was filed on behalf of the respondents-the State of
Punjab and Director-cum· Joint Secretary, Local Government Depart·
ment, 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 tbat the Government
had dissolved all the 21 Improvement Trusts in the State of Punjab
by its order dated August II, 1980 and since the Trusts were dissol·
ved, 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 rec·
ruitment who had not completed the probationary period of 2 years
under Rule 9 (I) 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 Govero·
ment 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 liis 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 petitio·
ner 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 peric d 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· petitioner§
'-~ {j~~'!U,tiv~ 9fficen tia.~ g~on.iq
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SUPREME COURT REPORTS
(1983] 2 s.c.R.
surplus and therefore, had to 1be 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 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 (!) of
'1978 Rules.' Now if each of the petitioners was appointed as a probationer and the period of probation which he wu 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 tlie 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 typographicalcum-clerical error in view of the provision contained in Rule 9 (I)
of '1978 Rules'. Rule 9 (I) and 9 (2) provide as under:
"9-Probation :- (I) 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 or 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
III as the case may be subject to the conditions annexed to the order
etc. Therefore, the appointme11t was subject to the conditions
anne)t~d to the ord~r and as pointed out earlier condition (c) annexed
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AllT SINGH V, PUNJAB U>e8qi, J,)
to the order prescribes a. period of probation of one year, Nowhere
in the affidavit in opposition, the respondents state as to whether
rule 10 (1) also confers power to prescribe a period of probation.
Refe~ence 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
c1,ss I post of Trust Executive Officer, bad 26 ye'ars 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 Septem·
ber 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 Rajinder 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. 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
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 (!)as mandatory and submitted that
even if the appointment order did not carzy 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 2any authority to reduce t))is
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.
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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
connc>tation. If a servant could not be removed by way of punishment from service unless be is given an opportunity to meet the alle·
gations if any against him which necessitates his removal from ser·
vice, 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 be is fonnd not suitable for the post, the
master reserved a right to dispense with bis 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 s4cb a post any more than a servant employed on probation
by a private employer is entitled fo. (See Purshotam Lal Dhingra v.
Union of lndia.(1) The period of probation therefore furnishes a
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 bis mind whether to retain the servant by absorbing him
in regular service or dispense with his service.
Period of prol)ation
may vary from post to post or master to master. And it is not obli·
gatory 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.
(!) [1958] S,C.R. 828.
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AJIT SiNOH v. PUNiAil (besai, J.)
521
ltule 9 (2) provides that a person appointed to a service shall
temain 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 upto 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 pro hi bi·
tion 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 cons.trued. (See Cullimore v. Lyme Regis Corporation. (1) The
use of the expressioo 'shall' is not considered decisive and the ques·
tion 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
(I) (1962] 1 Q.B. 718,
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sUPRllMB d6tl&t Rl'!POJi.ts
[i983j ~ s.e.t.
Upadhaya,(') 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(') and
Montreal Street Railway Company v. Nirmandin,(3) briefly formulated
the relevant rules for interpretation a8 under :
"When a statute uses the word 'shall', primafacie, it is
mandatory but the Court may ascertain the real intention
of the Legislature by carefully 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 t!:ie 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 sedous 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(').
In order to as,certain whether rule 9(2)1is mandatory
or directory, the setting in which it is placed, the purpose underlying 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 conferiog 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 of failure to comply with the same is
provided in the relevant rules, the provision appears to be direc:
tory. 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
(I) (1961) 2 S.C.R. 679 at 710.
ai [1958J 2 s.c.a. 533.
(3) LR (1917) AC 170.
(4) (197313 s.c.a. 288.
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A11T SINGH v. PUNJAB (Desai, 1.)
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
recomm~ndation 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).
B
Having clearly ascertained the purpose and intendment under·
lying the concept of probationary period in service jurisprudence,
one can confi~ently 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 petitoners
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 Govern·
ment, 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 intendmcnt 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 bold with the
' respondents that this is a typographical-cum-clerical error is such
over simplification as would be doing violence to common sense.
We arc therefore, of the opinion that in case of each of the
appointee, the period of ptobation 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 pro·
bation, 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
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SUPIU!ilB COURT REPORTS
[1983J 2 s.C.i.I..
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 yeat service by fone, 1980. An increment was
released in favour of each of them. It is implicit in release of incre·
meat that the petitioners bad satisfactorily discharged their duty
during the probation period, and at any rate the work and conduct
was not sho~n to be unsatisfactory, which permitted an increment
to be earned. Asst1ming, as contended for on behalf of the respon·
dents 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 comple·
tion of the probation period and that during the probationary period,
the work and conduct of each of the petitioner was satisfactory.
If upto 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 Septem her 28, 1980 disi)ensed 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 peti·
tioner was not satisfactory, then between June 1980 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 for·
tuitous 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
thefr 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·
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AllT SINGH v. PUNJAB (/)esai, J.)
· cal hue of the party in power changed. Maybe, there may be some
substance in the contention, but for paucity of evidence we are not
inclined to examine this contention. We 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 proA
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bation on the date of order;
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(ii) .Their services were no longer required as the
Improvement Trusts in the State of Punjab bad 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 berein·above 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 lhe 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 (I) of the Act dissolved with immediate
effect the trusts therein set out. ,Jn all 21 Trusts were dissolved.
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Each Trust had an Executive Officer.