G. Varadan vs The Chief Judicial Magistrate

Shivaraj Patil, J.—In this writ petition the petitioner has sought for a writ of certiorarified mandamus challenging the order R.O.C.608/86-A1

dated 25.3.1988 under which the petitioner''s services were terminated almost after a period of 21 years

Briefly stated, the relevant and necessary facts landing to the filing of the writ petition are the following :-

The petitioner was selected for the post of Typist by the Tamil Nadu Public Service Commission in 1967 and was appointed as Typist in the

Judicial Department of Tiruchirapalli District with effect from 13.2.1967. He has passed typewriting lower examination in English and completed

his probation on 1.7.1971 and thus became an approved Probationer. He was not entitled to draw any increment in the time scale till he qualifies

himself in typewriting higher grade in English. Having become an approved probationer, he has discharged duties as a typist satisfactorily.

The petitioner could not clear the higher examination in English typewriting. Meanwhile the State Government in their letter No. 185014/Courts.

Ii-73-2, Home Department dated 15.2.1974 notified that the Typists and Steno typists in the Tamil Nadu Judicial Ministerial services should

qualify themselves in Tamil Typewriting and Tamil Shorthand atleast by lower Grade within a period of two years failing which they would not be

eligible for promotion or transfer or increment. This Notification did not empower the authorities to terminate the services of an individual even if he

failed to qualify himself as per the said notification. Similarly there was no provision for discharging the petitioner for not having qualified in the

higher grade typewriting in English.

While so the first respondent by the impugned order terminated the services of the petitioner as a Typist in the Judicial Department under Rule

16(c) of the Tamil Nadu Judicial Ministerial Services Rules (for short, ''the Rules''). The petitioner states that Rule 16 (c) relates to termination of

services of a personnel appointed under Rule 16(a) on a temporary basis. In fact Rule 30 (c) (i) relates to termination of the services of an

approved probationer and the reason assigned for the termination of the services of the petitioner does not warrant punishment at all. At the most

the authorities could suspend increment, promotion and transfer of the petitioner. Under the circumstance the writ petition is filed for the relief as

stated above.

The respondent has filed counter affidavit and has prayed for dismissal of the writ petition. The respondent admits that the petitioner was

appointed as Typist in the Judicial Department of Tiruchirapalli District with effect from 13.2.1967 on the basis of selection made by Tamil Nadu

Public Service Commission. He has passed the lower grade typewriting examination in English and he completed his probation on 1.7.1971 (the

year ''91 mentioned in the counter affidavit is obviously wrong). Thus he became an approved probationer, but was not entitled to draw any

increment in the time scale till he qualifies himself in Typewriting English by higher grade. He having become an approved a probationer he

discharged his duties as a typist to the best of his ability and with utmost devotion.

The respondent has referred to letter No. l85014/Courts II/73-2 Home Department dated 15.2.1974 and states that Typists and Stenotypists in

the Tamil Nadu Judicial Ministerial Services should pass in Tamil Typewriting and Tamil shorthand by lower grade within a period of two years

failing which they would not be eligible for promotion or transfer or increment, and that the said letter does not empower the authorities to

terminate the services of an individual even if he fails to qualify himself as per the notification, and even if he had not qualified himself in the higher

grade typewriting examination in English. The respondent states that a perusal of the proceedings in R.O.C.574/70-A1 dated 1.7.1971 of the

District Magistrate (Judicial), Tiruchirapalli does not show that the petitioner was declared to have satisfactorily completed his probation period of

two years,

The respondent refers to Rule 27-A of the Rules and states that the order dated 1.7.1971 declaring the probation of the petitioner does not give

the correct date on which he should have completed the period of his probation, and that the date of completion of probation should have been

9.3.1969. It is further submitted that unless the condition (3) and (4) to Rule 27-A of the Rules are satisfied in respect of a member of the service

no order can be passed that his probation is declared to have been satisfactorily completed. According to the respondent on the date when the

probation of the petitioner was declared has was not qualified as he had not passed the typewriting examination in English by higher grade, and

Rule 27-A states that declaration of probation does not involve any relaxation of rules.

Declaration of the completion of probation of the petitioner was not only opposed to rules but it was also defective, irregular, inoperative, and

cannot be acted upon. Thus the proceedings dated 1.7.1971 declaring the probation of the petitioner stood cancelled with effect from 31.1.1988

as per the proceeding in R.O.C.608/86-A dated 30.4.1987 which gave time as a last chance to the petitioner till 31.1.1988 to pass typewriting

higher grade English, and in effect the petitioner was a temporary typist (unqualified) as on 31.1.1988. Since the petitioner did not pass typewriting

higher grade in English his services could be terminated under Rule 16(c) of the Rules. The respondent has referred to Rules 16, 27-A and 30(c)

(i).

The learned counsel for the petitioner contended that the petitioner having been appointed in the judicial department of Tiruchirapalli district on

13.2.1967 on the basis of the selection by the Tamil Nadu Public Service Commission not on temporary basis under Rule 16(a) (i), his probation

period was declared vide letter of the respondent in R.O.C.574/70-A1 dated 1.7.1971; the respondent has not disputed, as can be seen even

from the counter affidavit filed, that for not qualifying in higher grade typewriting in English, or not passing the Tamil typewriting and Tamil

shorthand within two years as per the letter of the Government dated 15.2.1974, the authorities are not empowered to terminate the services of the

petitioner; at the most the petitioner was not eligible for promotion or transfer or increment for want of qualifying himself in those tests; the

petitioner''s probation period having been declared the respondent could not have passed the impugned order terminating the services of the

petitioner atleast after 16 1/2 years from the date of declaration of probation and almost after a period of 21 years from the date of first

appointment. The impugned order of termination could not be passed under Rule 16(c) as it has no application to the case of the petitioner.

Per contra, the learned Additional Government Pleader tried to justify the impugned order stating that the order dated 1.7.1971 does not show

that the petitioner was declared to have satisfactorily completed his period of probation of two years. According to him the said order declaring the

probation of the petitioner was a defective order and it did not satisfy the requirement of Rule 27-A. As such when the petitioner did not pass the

test even though last chance was given to pass the same up to 31.1.1988 vide the proceedings of the respondent dated 30.4.1987, his services

could be treated only as on temporary basis and the impugned order could be passed under Rule 16(c).

I have considered the submissions made by the learned counsel for the parties.

The facts which are not in controversy are :-

The petitioner was appointed in the Judicial Department of Tiruchirapalli District on 13.2.1967 on the basis of the selection made by Tamil Nadu

Public Service Commission as Typist; by the order R.O.C. No. 574/70-Al dated 1.7.1971 the petitioner was declared to have completed his

probation of two years on 9.3.1971; the petitioner was not entitled to draw any increment in the time scale as he has not qualified himself in

typewriting higher grade in English on the date when he completed probation; as per letter of the Government No. 185014/Courts-l1/73-2 Home

Department dated 1.2.1974 the Typists and Stenotypists in the Tamil Nadu Judicial Ministerial Service should have completed Tamil Typewriting

and Tamil Shorthand Lower grade within a period of two years, failing which they would not be eligible for promotion or transfer or increment; the

authorities were not empowered to terminate the services of an individual for want of his qualifying, by passing the required test.

The impugned order was passed terminating the services of the petitioner purporting to be under Rule 16(c) of the Rules on the ground that the

petitioner has not qualified himself in typewriting by higher grade in English and typewriting in Tamil by lower grade inspite of giving him time for

more than ten years from 19.10.1977. In order to appreciate the rival contentions of the parties it is appropriate to extract Rule 16(a) and (b),

which reads:-

16 Temporary appointments:- (a) (i) Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a

vacancy in a post borne on the cadre of the service and there would be undue delay in making such appointment in accordance with these rules,

the appointing authority may temporarily appoint a person, otherwise than in accordance with these rules.

(ii) No appointment under clause (i) shall ordinarily be made of persons who does not possess the qualifications, if any, prescribed for the post,

Every person who does not possess such qualifications and who has been or is appointed under clause (i) shall be replaced as soon as possible by

a person possessing such qualifications.

(b) Where it is necessary to fill a short vacancy in a post borne on the cadre of service, and the appointment of the person who is entitled to such

appointment under these rules would involve excessive expenditure on travelling allowance or exceptional administrative inconvenience, the

appointing authority may appoint any other person who possesses the prescribed qualifications, if any"".

In the facts which are not in dispute, it cannot be said that the petitioner was appointed either under Rule 16(a) (i) or (ii), or 16(b). It is also not

the case of the respondent that the petitioner was appointed under Rule 16 and no material is place to show that his appointment was under Rule

16 satisfying the requirements of the said Rule. On the other hand the petitioner was appointed on the basis of a regular selection made by the

Tamil Nadu Public Service Commission.

Under Rule 16(e) (i), a person appointed: under sub-Rule (a),(b) or (d) to a post borne on the cadre of the service shall not be regarded as a

probationer. In the case on hand the authorities themselves have treated the petitioner as approved probationer and have declared his probation

period by order dated 1.7.1971 aforementioned. If the appointment of the petitioner was under Rule 16(a),(b) or (d) he could not be treated as

probationer and there was no necessity to pass the order declaring his probation on 1.7.1971.

Rule 16 (c) reads:-

A person appointed under sub-rule (a) shall, whether or not he possesses the qualifications prescribed for the post to which he is appointed, be

replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under these rules.

In the impugned order it is clearly stated that it was one passed under Rule 16(c). The said order also does not show that the petitioner was

appointed under sub-rule (a) of the said Rule 16, or that he was to be replaced by a member of the service or an approved candidate qualified to

hold the post under the Rules. Per contrast the impugned order states that the services of the petitioner were terminated as he failed to qualify in

typewriting higher grade in English and typewriting lower grade in Tamil inspite of giving sufficient time.

It must be stated here that neither the petitioner''s failure to pass higher grade typewriting in English nor his failure to pass lower grade

typewriting in Tamil gave power to the respondent to terminate his services as can be seen even from the letter dated 15.2.1974 of the Home

Department aforementioned. This position is also not disputed by the respondent in the counter-affidavit filed. If the petitioner had been qualified

by passing higher grade typewriting in English and lower grade typewriting in Tamil, promotion or transfer or increment could be denied to him.

The order dated 1.7.1971 declaring the probation of the petitioner itself clearly shows that he was not entitled to draw any increment in the time

scale as he had not qualified himself in typewriting higher grade in English. By the impugned order the respondent has sought to terminate the

services of the petitioner who had put in 21 years of service from the date of first appointment and 16 1/2 years of service after the probation

period was completed.

The argument of the learned Additional Government Pleader that the order dated 1.7.1971 does not show that the petitioner was declared to

have completed the probation period satisfactorily, the said order was defective, and that it did not satisfy the requirement of Rule 27-A cannot be

accepted for the reasons more than one. If the services of the petitioner were not satisfactory during the probation period, the respondent ought

not have passed the order dated 1.7.1971 as there was no compulsion, and it is the order of the respondent himself in which the petitioner had no

part to play. We fail to understand the distinction sought to be made between the completion of the probation period and satisfactory completion

of the probation period. The probation shall be declared only after satisfaction of the services within the prescribed petition. In our view it is not

necessary that the order declaring the probation period should say that a candidate has satisfactorily completed the period of probation. Once the

probation of the candidate is declared, it essentially follows that it was so declared because the candidate concerned has satisfactorily completed

the probation period.

Assuming that the order dated 1.7.1971 was defective, we fail to understand how the petitioner can be punished for that, apart from the fact

that we do not find that the said order is defective or ambiguous having regard to the duty period of the petitioner. In paragraph 2 of the counter

affidavit, the respondent himself has stated that the petitioner having become an approved probationer, he discharged his duties as a Typist to the

best of his ability and with utmost devotion. If this be so, now is it open to contend that the petitioner did not complete the probation period

satisfactorily.

Rule 27-A deals with completion of probation and drawal of arrears of increments. In our view it deals with drawal of arrears of increments

and date from which it will be allowed, subject to conditions 1 to 4 enumerated in the said Rule. The learned Additional Government Pleader

wanted to take shelter under Rule 27-A condition (3) to contend that the petitioner was not qualified on 1.7.1971. We are unable to agree with

him. When he was appointed he was qualified to hold the post. The probation period of the petitioner was declared by the order dated 1.7.1971

with the specific clause that he was not entitled to draw any increment in the time scale as he had not qualified himself in typewriting higher grade in

English. The said clause itself is consistent with Rule 27-A (3) so far it relates to the drawal of increments. Rule 27-A (3) in our view does not help

the respondent in any way so as to sustain the impugned order of termination of the services of the petitioner.

The respondent himself has stated in the counter affidavit that the petitioner was an approved probationer, apart from the fact that under the

order dated 1.7.1971 it is declared that the petitioner has completed the period of probation. This being the position, Rule 30 (c)(i) and (ii) will

have a bearing on the point in controversy. Admittedly under the order dated 1.7.1971 the period of. probation of the petitioner has been declared

as completed. It may be added that the probation period of the petitioner was also not extended. If the appointing authority considered the

probationer not suitable for such membership in service he could have discharged from service after giving him a reasonable opportunity of

showing cause against the action proposed to be taken. The respondent has not taken action under this rule.

The view we have taken gets support from the decision of this Court, viz., (i) V. Vedham v. The Director of School Education, Madras-6 and

Ors. 1990 W.L.R. 508 D. B, and (ii) V.P. Thirunavukkarasu v. The State of Tamil Nadu 1974 L.L.J. 323.

In the first case, the Division Bench of this court set aside the order of reversion of a Tamil Pandit Grade I to the post of Tamil Pandit Grade II

and directing recovery of excess payments, holding that no wrong information was furnished by the petitioner about her qualification at any point of

time; posting was given to her as Tamil Pandit Grade I and work was taken from her as such for several year''s; as such the Division Bench of this

Court applied the principle of promissory estoppel and quashed the order of reversion and direction for recovery of excess payment.

In the second case also the order of reversion reverting the petitioner as a Field Surveyor from the post of Deputy Surveyor was challenged;

for no fault of the petitioner he was made to suffer after he had put in 20 years of service in the belief that he was qualified to be continued in

service. It was not a case where the petitioner at any time represented that he was fully qualified to hold the post. Noticing that it was open to the

Government to relax the rule prescribing the minimum general educational qualification and appoint the petitioner if at the time of appointment the

lack of minimum general educational qualification had been noticed, and there was no absolute bar in the statute for relaxation of qualification. In

the circumstances, the learned Judge found that it was eminently a fit case for application of the doctrine of equitable estoppel and quashed the

order of reversion.

In the instant case, the petitioner was eligible and qualified to be appointed as a Typist and the Tamil Nadu Public Service Commissioner

selected him as such. Thereafter, he was appointed as Typist in the Judicial Department, Tiruchirapalli District. Passing of further tests were

prescribed by the State Government, and failure to pass those tests prevented the petitioner only from getting promotion, transfer or increment.

The services of an approved probationer could not be terminated for want of passing further tests which were not the pre-qualifications prescribed

at the time of selection and appointment of the petitioner unless the rules so provided. But as already noticed above, neither the rules nor the

Government orders relied on by the respondent made any provision for terminating the services of the petitioner who was an approved probationer

on the ground of not passing the further tests, when the very Government order on which the respondent placed reliance specifically stated that

such persons cannot claim promotion, transfer or increments only on his failure to pass the tests, and they did not empower the authorities to

terminate the services. The ratio of the aforementioned two decisions of this Court supports the case of the petitioner with greater force having

regard to the facts and circumstances of the case.

Thus, viewed from any angle, we have no hesitation to hold that the impugned order is patently unsustainable.

In the result, for the reasons stated above, we pass the following order:-

(i.) This writ petition is allowed;

(ii.) The impugned order R.O.C. 608/86-A1 dated 25..3..1988 of the respondent is quashed;

(iii.) The petitioner shall be entitled for all the consequential benefits that flow from quashing of this order; and

(iv.) There shall be no order as to costs.