Case Note & Summary
The dispute concerned the termination of probation of a Naib Tahsildar who had been promoted to Tahsildar on probation under the U.P. Subordinate Revenue Executive Service (Tehsildars) Rules, 1944. The respondent was appointed as Naib Tahsildar in 1942 and confirmed in 1943. In April 1951, he was selected for permanent promotion to Tahsildar and placed on probation for two years under Rule 12. A report from the Accountant General alleged that he had drawn excess travelling allowance. An inquiry was held after giving him an opportunity to show cause. On August 13, 1957, the Governor terminated his probation, reverted him to Naib Tahsildar, and directed that he not be considered for promotion for seven years. The respondent submitted a memorial. By order dated December 1, 1958, the Governor cancelled the stoppage of promotion but confirmed the termination of probation on the ground that the respondent had not made sufficient use of his opportunities and had failed to give satisfaction. The respondent filed a writ petition under Article 226 of the Constitution challenging both orders. A Single Judge of the Allahabad High Court quashed the orders, holding that the respondent stood automatically confirmed after expiry of the two-year probation period. On appeal under Letters Patent, the Division Bench reversed the finding of automatic confirmation but still quashed the entire order, holding that the termination was punitive and violated Article 311 because it was combined with stoppage of promotion based on the same findings. The State of Uttar Pradesh appealed to the Supreme Court by special leave. The Supreme Court examined Rules 12, 14, and 15 of the 1944 Rules. Rule 12 provided for two years' probation; Rule 14 allowed reversion during or at the end of probation if the probationer failed to give satisfaction; Rule 15 provided for confirmation only after passing departmental examinations and a favourable report from the Commissioner. The Court held that there was no rule deeming confirmation on expiry of probation; an express order of confirmation was necessary unless the appointment order or a service rule provided otherwise. Consequently, the respondent remained a probationer. The termination of probation under Rule 14 was not a penalty and did not attract Article 311. The stoppage of promotion was beyond the power under Rule 14 but the Governor had cancelled that part by the later order. The Court held that the offending part did not affect the validity of the termination order, and the High Court was in error in holding that the entire order violated Article 311. The appeal was allowed, the judgment of the Division Bench set aside, and the respondent's writ petition dismissed.
Headnote
A) Service Law - Probation and Confirmation - No automatic confirmation on expiry of probation - U.P. Subordinate Revenue Executive Service (Tehsildars) Rules, 1944, Rules 12, 14, 15 - The respondent was placed on probation for two years but no rule deemed confirmation upon expiry; confirmation required passing departmental exam and Commissioner's report of fitness and integrity. The Court held that in absence of express order or rule, a probationer remains a probationer until confirmation. Held: The High Court rightly held that respondent did not cease to be a probationer on expiry of two years. B) Service Law - Termination of Probation - Whether termination under Rule 14 amounts to punishment under Article 311 - Constitution of India, 1950, Article 311; U.P. Subordinate Revenue Executive Service (Tehsildars) Rules, 1944, Rule 14 - The Governor terminated probation for failure to give satisfaction. The Court held that such termination did not impose penalty and did not attract Article 311. Held: The High Court erred in holding that the order determining probation infringed Article 311. C) Service Law - Validity of Composite Order - Severability of invalid ancillary direction - Constitution of India, 1950, Article 311; U.P. Subordinate Revenue Executive Service (Tehsildars) Rules, 1944, Rule 14 - The original order contained both termination of probation and stoppage of promotion. The stoppage was beyond Rule 14 and gave rise to grievance, but after it was cancelled by later order, no grievance remained. The termination part retained its character independently. Held: the entire order need not be quashed once the offending part was withdrawn. D) Service Law - Retrospective Conversion of Order - Interpretation of later order - U.P. Subordinate Revenue Executive Service (Tehsildars) Rules, 1944, Rule 14 - The High Court held that the Governor attempted to retrospectively convert punishment into termination under Rule 14, but Supreme Court differed, finding that the original termination was always under Rule 14 and not punishment. Held: No retrospective conversion occurred; later order merely clarified/cancelled invalid part.
Issue of Consideration
Whether a probationer is deemed confirmed on expiry of the probation period in absence of express order or service rule; whether the order terminating probation under Rule 14 of the U.P. Subordinate Revenue Executive Service Rules, 1944 amounted to punishment attracting Article 311; whether the combination of termination of probation with stoppage of promotion on same findings vitiated the entire order, and whether subsequent cancellation of stoppage of promotion cured any defect; whether the Governor's order of December 1, 1958 impermissibly attempted to retrospectively convert an order of punishment into an order under Rule 14?
Final Decision
Supreme Court allowed the State's appeal, set aside the judgment of the Division Bench of the Allahabad High Court, and dismissed the respondent's writ petition. It held that the termination of probation under Rule 14 was valid, did not attract Article 311, and that the cancellation of the stoppage of promotion removed the only defect.
Law Points
- Confirmation in a post held on probation does not result merely from expiry of the probation period
- an express order of confirmation is required unless service rules provide otherwise
- termination of probation under service rules for failure to give satisfaction is not punishment and does not attract Article 311
- an invalid ancillary order like stoppage of promotion when later cancelled does not affect the validity of the main order of termination of probation
- the competent authority can cancel an incidental illegal part and retain the valid portion
