# lHI &,tl.&TnCo v. Bl•ll •f t.lfAN ProiuA

- **Citation:** [1963] 1 S.C.R. 416
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** B. P. Sinha, K. Subba Rao, N. Rajagopala Ayyangab, J. R. Mudholkar, T. L. VENKATARAMA AlYAB
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lhi-tl-tnco-v-bl-ll-f-t-lfan-proiua-2597
- **Pages:** 12

## Headnote

Slat• Sert>ice--Probalioner-StatU1J-No automatic conJirmalion-ReV<raion lo the original post by way o/ puniakmenl
for miaconduct-Validity-Con•titution of India, Art. 311(2)-
"Pul\iab Civil
Service
(Executive Branch)
Rule•,
1930,
rr.6,17,22,23, 24-GoV<rnmenl o/ lnaia Act, 1919 (9 anti 10 Geo.
6, ch. 101), •. 96-B.
The appellant was recruited as a Tehsildar in 1936 and
a.• being selected by the Punjab Public Services Commission,
he was appointed as an Extra Assistant Commissioner on
probation in I 945. Later he was charge-sheeted and an
enquiry was held against him as a result of which his incre·
ment was stopped for one year. Without holding any enquiry
against him he was reverted to the post of a Tehsildar in 1952
ancl then informed that he was not free from communalism or
intrigue and was also in the habit of indulging In loose talk.
Despite de tnand by him the Government refused to furnish the
appellant with the grounds of his reversion. A represenlation
and later a memorial addressed to the Government against his
reversion were both rejected. Eventually he filed a writ
petition in the Punjab High Court under Art. 226 of the
Constitution which was granted by a single Judge of the High
Court on the ground that the reversion of the appellant was by
way of punishment and there was violation of provisions of
Art, 31 I ·of the Constitution. His decision was
however
revers ed in appeal under the Letters Patent.
\
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'
l
1
)
1
\
1 s.c.:R.
SUPREME COURT REPORTS
417
Held, that the only reasonable inference possible was
that the Government in fact wanted to punish the appellant
for what it thought was misconduct on his part and, therefore,
it reverted him. The omission to give reasons for his reversion
did not make the action any the less a punishment. The action
of the Government was malafide and as the proviiions of Art.
311 (2)" were not complied with, the reversion of the appellant
was illegal.
Article 311 makes no distinction between permanent and
temporary Government servants and extends its protection
equally to all Government servants, but its the prolection will
be available only where the dismissal, removal or reduction in
rank is made by way of punishment and not otherwise.
A probationer cannot automatically acquire the status of
a permanent member of the service unless the rules under
which he is appointed expressly provide for such a result. The
rules governing the Public Civil Servants of Punjab do not
contain any provision whereby a probationer at the end of the
probationary period is automatically absorbed as a permanent
member of the Civil Service. Where a probationer is not
reverted by the Government before the termination of his
period of probation, he continues· to be a probationer but he
acquires the qualfication for.substantive permanent appointment. The very fact that a person is a probationer implies
that he has to prove his worth, his suitabilitv for the higher
post in which he is officiating. If his work is not found to be
satisfactory, he is liable to be reverted to his original post even
without assigning any reasons.
A. probationer has no right to
hold the higher post in which he is officiating or a right to be
confirmed.
·
Parahottam Lal Dhir.gra v. Union of India, (1958) S.C.R.
828, relied upon.
·

## Text

lHI
&,tl.&TnCo.
y.
Bl•ll •f
..t.lfAN ProiuA
1162
~6.
,
416
SUPREME COURT REPORTS [1963]
sale does not fall within its purview though it is
made for the purpose of, or with a view to export.
The impugned legislation must accordingly be held
not to contravene Art. i!86(l)(b).
In the result poth the contentions urged by
the appellantH fail and the apprals must be dismissed
with costs, one hearing fee.
Approl,s dismisBed.
SUKHBANS SINGH
v.
STATE OF PUNJAB
(B. P. SINHA, c. J.,,K. SUBBA RAO, N. RAJAGOPALA
AYYANGAB, J. R. MUDHOLKAR and
T. L. VENKATARAMA AlYAB, JJ.)
Slat• Sert>ice--Probalioner-StatU1J-No automatic conJirmalion-ReV<raion lo the original post by way o/ puniakmenl
for miaconduct-Validity-Con•titution of India, Art. 311(2)-
"Pul\iab Civil
Service
(Executive Branch)
Rule•,
1930,
rr.6,17,22,23, 24-GoV<rnmenl o/ lnaia Act, 1919 (9 anti 10 Geo.
6, ch. 101), •. 96-B.
The appellant was recruited as a Tehsildar in 1936 and
a.• being selected by the Punjab Public Services Commission,
he was appointed as an Extra Assistant Commissioner on
probation in I 945. Later he was charge-sheeted and an
enquiry was held against him as a result of which his incre·
ment was stopped for one year. Without holding any enquiry
against him he was reverted to the post of a Tehsildar in 1952
ancl then informed that he was not free from communalism or
intrigue and was also in the habit of indulging In loose talk.
Despite de tnand by him the Government refused to furnish the
appellant with the grounds of his reversion. A represenlation
and later a memorial addressed to the Government against his
reversion were both rejected. Eventually he filed a writ
petition in the Punjab High Court under Art. 226 of the
Constitution which was granted by a single Judge of the High
Court on the ground that the reversion of the appellant was by
way of punishment and there was violation of provisions of
Art, 31 I ·of the Constitution. His decision was
however
revers ed in appeal under the Letters Patent.
\
l
"
'
l
1
)
1
\
1 s.c.:R.
SUPREME COURT REPORTS
417
Held, that the only reasonable inference possible was
that the Government in fact wanted to punish the appellant
for what it thought was misconduct on his part and, therefore,
it reverted him. The omission to give reasons for his reversion
did not make the action any the less a punishment. The action
of the Government was malafide and as the proviiions of Art.
311 (2)" were not complied with, the reversion of the appellant
was illegal.
Article 311 makes no distinction between permanent and
temporary Government servants and extends its protection
equally to all Government servants, but its the prolection will
be available only where the dismissal, removal or reduction in
rank is made by way of punishment and not otherwise.
A probationer cannot automatically acquire the status of
a permanent member of the service unless the rules under
which he is appointed expressly provide for such a result. The
rules governing the Public Civil Servants of Punjab do not
contain any provision whereby a probationer at the end of the
probationary period is automatically absorbed as a permanent
member of the Civil Service. Where a probationer is not
reverted by the Government before the termination of his
period of probation, he continues· to be a probationer but he
acquires the qualfication for.substantive permanent appointment. The very fact that a person is a probationer implies
that he has to prove his worth, his suitabilitv for the higher
post in which he is officiating. If his work is not found to be
satisfactory, he is liable to be reverted to his original post even
without assigning any reasons.
A. probationer has no right to
hold the higher post in which he is officiating or a right to be
confirmed.
·
Parahottam Lal Dhir.gra v. Union of India, (1958) S.C.R.
828, relied upon.
·
CivIL APPELLATE JURISDICTION: Civil Appeal
No. 412/1960.
Appeal from the judgment and order dated
February 12, 1957, of the Punjab High ()Qurt, iμ
L. P. A. No. 70 of 1954.
Gopal Singh, K. K. Sinha for B. P . .Mahuhmri,
for the appellant.
S. M. Bilcri, Advocate-General, Punjab, N. 8,
Bjn(Jrq cmd P. D. Mefl()n, for the responde"t'
'"'
Sut/1Ja1 Sing\
,,
811u tJl'ajri
1181
Sukhb.., St•tl
v.
State of Punjab
Jlru/Aolkat J.
418
SUPREME COURT REPORTS [1963]
1962. April 6. The Judgment of the Court was
delivered by
MuDHOLKAR, J.-This is an appeal from the
judgment of a Division Bench of the Punjab High
Court upon a certificate granted by it under Art. 133
(I)($) of the Constitution declaring that the case is
fit for avpeal to this Court.
The appellant was directly recruited as Tehsildar in the year 1936. Accordinir to him his work
was found to be extremely satisfactory and for this
reason he was appointed as an Extra Assistant Com·
missioner on probation ia the year 1945. His appointment amounted to promotion to the Provincial
Civil Service (Executive Branch) and was made by
selection through the Punjab Public Services Commission.
The notification pertaining to the appellant's promotion appears in the Gazette of June 5,
1949, and dates from May 31, 1945.
According to the appellant, throughout his
career as a public servant he had been very honest,
hard-working and impartial and was extremely
popular with all committee such as Hindus, Sikhs
and Muslims. He also claims to have "helped the
public cause of all communities alike"
Then, according to him, his popularity with the
people was not appreciated by at least two of his
superior officers, one of whom was Dewan X Hukan
Chand, Sub-Divisional Magiijtrate, Fazilka and on
account of that he had to face an enquiry on seven
charges. The aforesaid enquiry was held by Mr.
S. B. Kapur, Commissioner under the Public Servants (Inquiries) Act, 1850 (37 of 1850)
He, however, exonerated the appellant pointing out that far
from the gravamen of these charges, communal
bias, being est.abliPhed "witness after witness not
only for the <'tefence but also for the proseoution
has deposed that while the respondent was at Fazilka he ba.d a i:ood reputa.t.ion for honosty"
A(I a
I'"
'
!
·-
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•
1 S.C.R.
SUPREME COURT REPORTS
419
result of this report the Government, however, stopped the increment of the appellant for one year
without future effect.
'I'he ground of doing so was
that he had allotted some evacuee property t.o his
father who was an evacuee from West Pakistan.
The appellant who had in the meanwhile been
transferred from Fazilka, made a. representation
against the stoppage of increment.
Upon that
representation Mr. S. D Midha, Deputy Commissioner worte to the effect that the appellant had
been working very hard to clear off heavy a.rrears
and that his case deserves very sympethatic consideration. He was then transferred to Jullundur as
Revenue Assistant in September, 1950. It is the
appellant's complaint that even before he joined
his post the mind of the Deputy Commissioner, Mr.
Kashyap, was "poisoned" by some peopl" against
him and that before the Deputy Commissioner could
see the appellants' work he wrote to the Govern·
ment protesting against the appellant's transfer to
Jullundur. This protest was, however, ignored by
the Government and according to the appellant
Mr. Kashyap treated this as "a personal grievance"
and initially did not even allow the appellant to
take independent charge of the post to which he
was transferred. The appellant then refers to four
specific instances in support of his contention that
Mr. Kashyap was highly prejudiced against him.
We do not think that any useful purpose will be
served to set them out hero. Then according to him
when he was asked to collect funds for the Government' College, Tanda, tile Deputy Commissioner
actually posted the C.I.D. to watch what he was
doing and asked the C.I.D. to start a case against
him, if possible. He, therefore, wrote to the
Deputy Commissioner on September 6, 11:!51 upon
which the Deputy Commissioner asked him to stop
the collection. He, however, admits that despite
a.JI this Mr. Kashyap gave him a good report about
P,is work. ijis comphint, however, is tb~t inspiw
IBIS
Suk'hlnns Singft
y.
Slah of Punjd
Mr.ulllolkar J.
1961
Sule /.bns Si"fh
v.:-
81111 of Pu·itrb
Mudhc./kar J.
420
SUPREME COURT REPORTS [1963)
of his good report he received a warning from
Government "at the instance of the wrong reports
sent by the Deputy Commissioner which were based
on malice." This warning was received by him on
September 18, 1953.
Prior to the receipt of this
warning he was, however, reverted to his post of
Tehsildar on May 20, 1952.
According to him this
warning waa merely an after-thought. The warning
which he received is in the following terms:
"Government have noticed with regret
that while you are hard working and honest
and possess adequate knowledge of revenue
law and procedure, you have created an
impression during the period under report
that you were not free from communalism or
intrigue. It has also been reported that you
were in the habit of indulging in loose talk
unnecessarily which created difficulties for
you. Government hope this warning will
assist in affecting an improvement."
Upon his reversion the appellant asked to be
furnished the grounds of his reversion. But by a
letter dated June 18, 1952, the Government refused
to furnish him the grounds. In that letter it was
claimed on behalf of the Government that the
appellant could be reverted according to Rule 14.10
of the Civil Services Rules (Punjab) Vol. I, Part I.
His grievance, however, is that the provisions of
Art. 311 (2) of the Constitution are violated.
The appellant made a representation to the
Government against his reversion on November 17,
1952. But it was rejected by the Government on
March 2, 1953. He then preferred a memorial to
the Government which was rejected on December
14, 1953. Thereafter he preferred a petition to
the High Court of Punjab under Art. 226 of the
..ii
Constitution. The petition went up before a single
,Judge of that Court. Thll iearned Judge quashed
I s.c.R.
SUPREME COURT REPORTS
421
the order of the Government upon the ground
that the appellant's reversion to the post of
Tehsildar was by way of punishment and as he
had not been afforded an opportunity of showing
cause against the action taken is the provisions
of Art. 311 of the Constitution were contravened.
The Government of Punjab- preferred an appeal
under the Letters Patent which was beard by a
Division Bench of that Court. The learned Judges
reversed the decision of the learned single Judge
upon the view that the appellant was holding the
post of Extra
Assistant
Commissioner
as a
probationer and his reversion from that post to
his former post of Tehsildar did not amount to a
punishment and consequently the provisions of Art.
311 were not a.ttracted. It is this order the appellant
is challenging before us. ,
The appellant was selected to the post of
Extra Assistant Commissioner by the
Public
Services Commission under Rule 17 of the Punjab
Civil Services (Executive
Branch) Rules, 1930
framed under s. 96-B of the Government of India,
Act, 1919. That rule runs thus :
"The Governor of Punjab shall ordinarily
make a,ppointments to the Service in pursuance of rule 5 from among candidates entered
on the various registers in
rotation
as
follows:-
From
Register
B
From Register A-I
(Tehsildars and NaibTehsiMars)
From Register
B
From Register A· I
(Tehsildars and NaibTehsildar1:1)
Two candidates
One candidate
Two ca.ndidatea
One canqidate
I
1961
Su{hbns Singh
"·
State of Purijab
Mw/holkar J.
1961
Sukhbans Singh
v.
Slate of Pwtjab
Mrulholkar J.
422
SUPREME OOURT REPORTS [1963)
Form Register
B
From Register A-II
(Ministerial Government servants)
From Register A-I
(Tehsildare and NaibTehsildars)
From Register
From Reitister
B
c
From Register
B
From Register A-II
(Ministerial GoTernment servants)
From Register A-I
(Tehsildars and NaibTchsild11rs)
From Register B
From Register A-I
(Tehsildars and Naib·
Tehsildars)
Two candidates
One candidate
One candidate
Two candidates
One candidate
Two candidates
One candidate
One candidate
Two candidates
One candidate
and thereafter in the same rotation beginning again from Register B, provided that all
such appointments shall in the first instance
be either officer or substantive provisional."
Rule 5 which is referred to in r. 17 provides that
members of the service shall be appointed by the
Governor from time to time as required from among
the accepted candidates whose names have been
duly entered in accordance with the Punjab Civil
Service Rules in one or the other of the Registers
of accepted candidates required to be maintained
under these rules. Rule 22 of these Rules provides
that candidates on first appointment to the service
shall reJllai11 on probation for a period, in the case
>-
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I S.C.R.
SUPREME COURT REPORTS
423
of candidates appointed from Register A-I, or Registeres A-II of eighteen months. One of the three provisos to rule 22 enable the Governor to extend the
period of probation of any candidate. There are two
more important rules which have a bearing on this
case and, therefore; it would be desirable to quote
them. Rule 23 which is one of them runs thus :
''Any officer appointed to the Service
may, during the period of his probation be
removed from the service under the orders of
the Governor of Punjab; or if he was appointed from Register A-I or A-II may be pevented
to his former appointment i:C in the opinion of
the Governor of Punjab his work or conduct is
unsatisfactory.''
Rule 24 which is the other rule runs thus :
"On the completion of the period of pro ..
bation prescribed by, or determined by, the
Governor of Punjab under the provisions of
rule 22, a member of the Service shall be
qualified for substantive permanent appointment."
It is common ground that the period of probation of the appellant was not extended by the
Governor in exercise of the power conferred upon
him by and of the provisos to r. 22.
The question
to be first considered is what was the position of
the appellant after the expiry of his probationary
period of eighteen months ? Upon this point the
learned single Judge, after quoting the observation
of Khosla J., in another caae said:
"Thus according to this Court a man who
is on probation does not merely because his
probation continues for more than the period
prescribed by the rules become a permanent
servant of the State, but if the period of
probation is unduly prolonged or the confirmation is unduly delayed, confirmation will
19tlB
Suk/I/Jans Sin1h
v.
Slal1 of Punja6
MudholkMJ,
196!
SukAbllM Sing!
••
Stal• of l'uajab
M udholkar J.
4:24
SUPREME COURT REPORTS (1963]
be assumed. In the present case the petitioner
was recruited to the Provincial Civil Service
with effect from the 31st May, 1945 and he
continued to work as an officer of the service
upto the 17th May, 1962. According to the
rules the period of probation was eighteen
months and there is no indication that his
period of probation was by order of the Governor extended ...... "
I am, therefore, of the
opinion that the petitioner was not on probation as is submitted by the State."
Then the l1·arned Jndge went on to observe :
«No rule has been cited and I do not
know of any which would show that a person
who has been recruited by the Public Service
Commission can after having been in service
for seven years or so be reverted merely on
the ground that he is officiating."
If the learned Judge meant by all this that a proba·
tioner must be deemed to have been confirmed in
his post hy sheer lapse of time we think, with
respect, that he was in error. A probationer cannot,
as rightly pointed out by the Division Bench,
automatically acquire the status of a permanent
member of a service, unless of course the rules
under which he is
appointed expressly provide
for such a result. The rules governing the Provincial Civil Services of Punjab do not contain any
provision whereby a probationer at the end of the
probationary period is automatically absorbed as a
permanent member of the Civil Service.
Wh~t
happens to such a person is clearly set out in 24
cit sup.
Under the aforesaid rule such a probationer is merely qualified for substantive permanent
appointment. Reading rr. 23 and 24 together it
would appear that where a probation is not reverted by the Government befor!J the termin,.t,ion ot
......
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I s.c.n..
SUPREME COURT REPOR'rs
4-20
his period of pr.obation he c~mtin.ues to be a pro?a·
tioner but requires the quahficat10n for su bstant1ve
permanent appointment.
It has been held by this Court in Parshotam
Lal Dhingra v. Union of India (1) that Art. 311
makes no distinction between permanent and temporary posts and extends its protection equally to
all Government servants holding permanent or
temporary posts or officiating in any of them. But
the protection of Art. 311 can be available only
where dismissal, removal or reduction in rank is
sought to be inflicted by way of punishment and
not otherwise. One of the tests laid down in that
oase for determining whether the termination of
service was by way of punishment or otherwise is
whether under the Service Rules, but for such
termination, the servant has the right to hold the
post.
Reliance is placed upon r. 24 of the Punjab
Civil Service Rules and it is said that since it
qualifies a probationer for being absorbed in a
substantive-permanent appointment it gives him
a right and the reversion of suoh a person deprives
him of that right and thus amounts to punishment.
The provisions of Art. 311(2) are said to be attracted
to the situation and where, as here, they have not
been complied with the reversion must be regarded
as illegal.
This argument assumes that a probationer
who oontinu~s to be suo~ without being reverted
a~ter the expiry of the per10d of probation has a legal
right to be con.firmed or to be treated as if he were
co~rmed. The rule in question says no more than
this th~t at the end of the probationary period the
probationer, unless reverted or absorbed in a substantive post will be e!igible for being made permanent. In other words 1t means that he wiJl continue
<•> [1958J s.c.R. a2a.
1962
Sulchhana Singh
v.
State ~J Punjtlb
Muiho/kar J.
1962
Sukhb•ns Siogh
••
Stall of Punjab
Mudloolkar J.
426
SUPREME COURT REPORTS [1963]
to be a probationer unless he is reverted or absorbed
in a, permanent post. But the very fact that a
person is a probationer implies that he has to prove
his worth his suitability for the higher post in
which he is officiating. If his work is not found to
be satisfactory he will be liable to be reverted to
his original post even without assigning any reason.
It would, therefore,. not be correct to say that a
probationer has any right to the higher post in
which he is officiating or a right to be confirmed.
A probationer being merely made eligible for being
absorbed in a permanent post is in no better
position.
Even though that is so, a probationer cannot
be as pointed out in Dhingra's case (1) punished for
misconduct without complying wi~h the requirements of Art. 311(2). The question then is whether
it can be said that the appellant was so punished.
The sequenue of events which Jed up to a departmental inquiry against him, his exeneration, his
transfer to Jullundur, the unsuccessful attempt of
Mr. Kashyap, the Deputy Commissioner to have
the transfer cancelled followed by his being asked
to stop collecting funds for a Government College
and then by his reversion on May 20, 1952 would go
to show that the reversion was not in the ordinary
course. No reason was given for his reversion but it
would not be easy to say that the reversion must,
therefore, be regarded as having been made in the
ordinary course or in the bcma fide exercise of his
Government's undoubted power to revert a probationer because of his unsuitability for the higher
post. For, even Mr. Kashyap had in fact commanded his work as Revenue Assistant in Jullundur.
Further, the District Board, Jullundur had passed a
resolution on March 30, 1951 expressing its appreciation for the work done by the appellant in fighting
the locust invasion. In addition, the CommiBBioner
wrote in his report for the year ending December,
(ll (1958) s.c.R. 828.
I S.C.R.
SUPREME OOURT REPORTS
421
1951 that the appellant stood first in the consolidation work in the Punjab State during his stay at
Jullundur. An ''extract from the second progress
of work in respect of villages taken up after .. April 1,
1952" is to the effect that as Revenue Assistant,
Jullundur, the appellant stood first in the Division
in connection with land revenue collection work
and that he had also collected Rs. 25,000 for Red
Cross which was "an outstanding performance" and
for which he received the, ''Government of Punjab
commendation certificate". He also received the
"President of India's Sanad and Silver Medal" for
his excellent work in the Census of 1951. Shortly
thereafter we find that the appellant was reverted.
Though no reasons were stated at that time, on
~eptember 18, 1953, that is, a year and half after
the reversion he received the warning from the
Government, which we have already quoted. The
only reasonable inference which can be drawn from
all these facts is that the Government in fact wanted
to punish him for what it thought was misconduct
on his part and, therefore, reverted him. The
omission of the Government to give reasons for the
reversion does not make the action any the less a
punishment but a8 the requirements of Art. 311 (2)
were not fulfilled, as they ought to have been, the
Government wanted to give the reversion the
appearance of an act done in the ordinary course
entailing no penal consequences. The circumstances olearlv show that the action of the Government
was mal<J fide, and the reversion was by way of
punishment for misconduct without complying with
the provisions of Act. 311(2). The reversion of the
appellant is, therefore, illegal.
We, therefore, allow the appeal, quash the
order dated May 28, 1952, reverting the appellant
and direct that costs here and in the High Court
will be paid by the Government.
Appe.al al,l,owed,,
11161
Sukhbans Singh
"·
Stat1 of Punjab
M udholkar J.