9911796707
TMI Blog1966 (3) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 explanation 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". The respondent then presented a petition before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er passed on 13th August, 1957, could be retrospectively altered. When that order was passed on 13th August, 1957, it was........... an order of punishment." In the view of the High Court the Governor by his later order sought to convert the earlier order of punishment into an order under r. 14 of the Subordinate Revenue Executive Service (Tahsildars) Rules, 1944, but the Governor had no "power to convert an order of punishment retrospectively into an order under rule 14, nor could he appropriate to himself the function of subsequently interpreting the earlier order and laying down that the order was an order under the rule and not an order of punishment. With special leave the State of Uttar Pradesh has appealed to this Court. It is necessary in the first instance to refer to the relevant rules of the Subordinate Revenue Executive Service (Tahsildars) Rules, 1944. By r. 12 it is provided : "Every listed candidate on appointment in or against (1) (1961] A. L. J. It. 458. 82 5 a substantive vacancy shall be placed on probation. The period of probation shall be two years," By r. 13 it is provided that every listed candidate whether appointed in a substantive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... post remains a probationer. It has been held by this Court that when a first appointment or promotion is made on probation for a specified 2Sup. CI/66-7 period and the employee is allowed to continue in the post, after the expiry of the said period without any specific order of confirmation he continues as a probationer only and acquires no substantive right to hold the post. If the order of appointment itself states that at the end of the period of probation the appointee will stand confirmed in the absence of any order to the contrary, the appointee will acquire a substantive right to the post even without an order of confirmation. In all other cases, in the absence of such an order or in the absence of such a service rule, an express order of confirmation is necessary to give him such a right. Where after the period of probation an appointee is allowed to continue in the post without an order of confirmation, the only possible view to take is that by implication the period of probation has been extended, and it is not a correct proposition to state that an appointee should be deemed to be confirmed from the mere fact that he is allowed to continue after the end of the period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental examination completely or has otherwise failed to give satisfaction. An officer who has submitted travelling allowance bills in respect of journeys not undertaken by him may not unreasonably be regarded as one who "has failed to give satisfaction". It cannot be assumed merely because an inquiry is directed to ascertain whether a person appointed on probation has failed to give satisfaction, that it is intended to hold an inquiry with a view to impose punishment against that person. Inquiry against the respondent which was commenced for ascertaining whether he should be continued on probation or whether his probation should be terminated, did not change its character merely because the Governor made an order which he could not make in that inquiry. There is nothing to show that the scope of the inquiry was at any time extended. The order withholding promotion was one which the Governor was in the inquiry incompetent to pass, and apparently the order was not given effect to, and when presumably his attention was drawn to the irregularity that part of the order was cancelled. The High Court assumed that in the circumstances of the case under r. 14 no inquiry could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Under that rule an inquiry may be made, if the appointing authority, thinks it fit to do so and to such an inquiry r. 55(3) which primarily, deals with the procedure to be followed before an order is passed determining probation may apply. We are therefore of the view that the High Court was in error in holding that the order made by the Governor determining the probation of the respondent infringed the protection of Art. 311. The Governor initially passed an order determining the probation and also passed an order stopping promotion. The latter part of the order which the Governor was incompetent to pass under r. 14 did give rise to a justifiable grievance which the respondent could set up but after that order was cancelled the respondent had no cause for grievance. It cannot be said that by terminating the probation any penalty was imposed : and if that be the correct view the opinion expressed by the High Court that by passing the order dated December 1, 1958 the Governor was seeking to convert the earlier order of punishment into an order under r. 14 of the Subordinate Revenue Executive Service (Tahsildars) Rules, 1944 retrospectively, cannot be accepted. The order terminat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
