Kalam Dass vs The Chief Electoral Officer etc.

R.S. Pathak, C.J.—This Letters Patent appeal is directed against the order of D.B. Lal, J., dismissing the Appellant''s writ petition.

The Appellant, who was a teacher in the Welfare Department of the Tibetan Refugees Camp at Kasumpti, was appointed an Election Kanungo by the Chief Electoral Officer, Himachal Pradesh. By the letter of appointment dated July 31, 1965, it was stipulated that "his appointment shall be temporary and his confirmation against a permanent post when available will be subject to his work and conduct being satisfactory" His services were liable to be terminated at any time on giving a month''s notice without assigning any reason. The Appellant has been working as an Election Kanungo ever since. On December 10, 1971, the Chief Electoral Officer made an order reverting the Appellant to his parent department on the ground that he was no longer required in the Election Department.

The Appellant filed a writ petition in this Court challenging the order of reversion.

The case of the Appellant briefly was that he held the permanent post of an Election Kanungo in a substantive capacity and therefore could not be reverted unless compliance was made with Article 311(2) of the Constitution. In support of the claim that he held a permanent post reliance was placed on a seniority list of Election Kanungos as on November 1, 1966, showing the Appellant at serial No. 23 in the order of seniority. It was pointed out that the sanctioned strength of the Election Department as on December 1, 1971, included 26 permanent posts of Election Kanungos. The assertion that the Appellant held the post in a substantive capacity rested on the proviso to Clause (iii) of Rule 8 of the Himachal Pradesh Election Department Subordinate Class III Services (Recruitment, Promotions and certain Conditions of Service) Rules, 1966. The proviso declares that the total period of probation including extensions shall not exceed three years and, therefore, the Appellant urges, having served for more than three years he automatically stood confirmed in the post of Election Kanungo. The learned single Judge found that the Appellant could not be considered as holding a permanent post because no specific order to that effect had been passed by the Government. He observed that therefore no question arose of the completion of any probationary period, and consequently the proviso to Clause (iii) of Rule 8 could not be invoked. It was also pointed out that the terms of the Appellant''s appointment did not indicate that confirmation would follow automatically.

The Appellant also contended before the learned single Judge that the order of reversion had been made with a view to punish the Appellant and that no opportunity had been provided to show cause against the punishment, and therefore there was a violation of Article 311(2) of the Constitution. The earned single Judge held that the reversion was effected only because the work and conduct of the Appellant were found unsatisfactory and not with a view to punish him.

The writ petition was dismissed by the learned single Judge by his order dated July 14, 1972. And now this Letters Patent Appeal.

Learned Counsel for the Appellant reiterates the contention that the Appellant was holding a permanent post in a substantive capacity and was, therefore, entitled to the protection of Article 311(2) of the Constitution. He assails the finding of the learned single Judge that the Appellant did not hold a permanent post when he was reverted. He contends that the learned single Judge has erred in assuming that an order of the Government was necessary in order that he should hold a permanent post. To my mind, it is not necessary to enter into that controversy. Even assuming that the Appellant held a permanent post, he must further establish that he held the post in a substantive capacity on the date he was reverted. His case is that he was officiating as Election Kanungo at least from November 1, 1966 (according to the Seniority List), that the period of officiating service must, by virtue of the proviso to Clause (i) of Rule 8, be counted as a period spent on probation, and that as the period of officiating service exceeded three years, he stood automatically confirmed by reason of the proviso to Clause (iii) of Rule 8.

Rule 8 provides:

Probation and Confirmation of members of the service.-- (i) Members of the service who are appointed against permanent vacancies shall, on appointment to any post in the service, remain on probation for a period of two years in the case of direct recruitment and on trial for a period of one year in case of promotion:

Provided that a person who is already confirmed in an identical or an equivalent scale of pay and is transferred for appointment in the service shall not be placed on probation. Approved officiating service shall be taken as a period spent on probation but no member who is officiating in any appointment shall on the completion of the probationary period prescribed, be confirmed until he is appointed against a permanent vacancy;

(ii) If the work or conduct of any member during this period of probation in the opinion of the appointing authority is not satisfactory, the appointing authority, may dispense with his services or revert him to his former post if he has been recruited otherwise than by direct appointment;

(iii) On the completion of the period of probation of any member, the appointing authority may confirm such member, in his appointment if there is a permanent vacancy, or if his work or conduct has in the opinion of the appointing authority not been satisfactory, may dispense with his services or revert him to his former post, if he has been appointed otherwise than by direct appointment, or may extend the period of probation and thereafter pass such orders on the expiry of extended period as it could have passed on the expiry of the first period of probation:

Provided always that the total period of probation including extensions, shall not exceed three years.

The contention of learned Counsel for the Appellant that the officiating service performed by the Appellant must be considered as a period spent on probation within the meaning of the proviso to Clause (i) of Rule 8 may now be examined. It is apparent that the proviso speaks of "approved" officiating service, and not of all kinds of officiating service. The qualifying word "approved" singles out the kind of officiating service which alone can be equated with a period of probationary service. The rules do not define what is intended by "approved officiating service". However, in the context in which the expression occurs, it is evident that the approval is directed to the equating of the officiating service with probationary service. The status of a probationer is very different from that of a Government servant holding an officiating appointment. A Government servant on probation is entitled to expect that on his work and conduct being found satisfactory he will be confirmed and made a permanent Government servant. No such expectation can arise in the mind of an officiating Government servant. A Government servant holding an officiating appointment holds it so long as the exigency lasts for which the officiating appointment has been made. It is because the service of a Government servant holding an officiating appointment is distinct in its nature and incidents from the service of a Government servants on probation that it was felt necessary to provide by the first proviso to Clause (i) of Rule 8 that the period of approved officiating service would be counted as period sent on probation. It is counted in order that a Government servant may enjoy the benefit of his officiating service for the purpose of confirmation. Such officiating service as is approved for the purpose will alone be so counted. The officiating service of one Government servant may be approved while that of another may not be. In the case of the same Government servant, the entire period of officiating service may not be approved but only a part of it. The approval of the officiating service must be with reference to those factors which arise for consideration when determining whether the probationary service of a Government servant entitles him to confirmation. Those factors include the quality of the work and conduct of the Government servant. Approval implies the application of the mind by the requisite authority. No evidence has been placed before us to show that the work and conduct of the Appellant during the period in question has been approved.

Then, learned Counsel for the Appellant contends that the approval is embodied in the terms of the appointment letter itself, and was stipulated in the assurance conveyed to the Appellant therein that he would be confirmed when a permanent post was available. A careful reading of the relevant clause in the appointment letter indicates that the confirmation of the Appellant to a permanent post was contemplated only if a permanent post was available and his work and conduct were found satisfactory. The test of satisfactory work and conduct, as has already been indicated, points to considerations constituting the concept of probationary service and its raison d''etre. Therefore, even if the clause in the appointment letter be considered, the application of the mind by the requisite authority to the quality of the work and conduct of the Appellant is a necessary condition. There is no evidence before us that the period of officiating service performed by the Appellant ever received the attention of the requisite authority and was marked with the seal of its approval. In the circumstances, I am unable to hold that the Appellant is entitled to the benefit of the first proviso to Clause (i) of Rule 8 and that, therefore, the period of his officiating service can be considered as a period spent on probation. When no period of probation can be spelt out by the Appellant, the second proviso to Clause (iii) of Rule 8 cannot be invoked. In my opinion, learned Counsel for the Appellant has failed to establish that the Appellant can be said to have held the post in a substantive capacity.

It is next contended by the Appellant that, even if he is regarded as temporary Government servant or a Government servant on officiating appointment he cannot be reverted by an order which amounts to an order of punishment without complying with Article 311(2) of the Constitution. We have been taken through the record of the case, and it seems clear to us that the Appellant was reverted not because it was intended to punish him but because he was not found suitable to continue as Election Kanungo. Throughout, the complaint against the Appellant was that he had not been discharging his duties with the efficiency and loyalty expected of him having regard to the duties and responsibilities of the post. The criticism levelled against his work and conduct point to his unsuitability to continue in the post. That conclusion follows irresistibly from a cumulative consideration of the material before us. The test applied by the courts in India in such cases is well settled, and reference may be made to the case decided by the Supreme Court: The State of Bihar and Others Vs. Shiva Bhikshuk Mishra, Although the result of applying the test has necessarily varied from case to case, the question to be answered in each case is whether the dissatisfaction with the work and conduct of the Government servant constitutes the motive for the impugned order or constitutes its very foundation. Where it constitutes the motive merely, the law is that no punishment is intended. Where, however, it constitutes the foundation of the order, it can be regarded as an order of punishment. Being of opinion that the order reverting the Appellant was passed merely on the ground that he was unsuitable to continue as Election Kanungo, and not by way of punishment, I hold that the Appellant is not entitled to invoke the protection of Article 311(2) of the Constitution.

In the result, the appeal is dismissed, and the order of the learned single Judge dismissing the writ petition is affirmed. There is, however, no order as to costs of this appeal.

C.R. Thakur, J:

I agree.