Mohinder Singh vs Deputy Commissioner, Karnal and Others

Mohinder Singh petitioner joined the office of the Deputy Commissioner, Sheikhpura, and was confirmed as such in that office shortly before the partition of the country in 1947 against a war service vacancy as he was an ex-service-main. After the partition of the country his lien was fixed as a Clerk in the Deputy Commissioner''s Office, Rohtak. Between March, 1948 and June, 1959 he worked in the Rehabilitation Department as Clerk, Senior Clerk, Sub-Inspector and Head Clerk. In June, 1959 he was sent back to his parent department as Clerk in the Deputy Commissioner''s Office, Rohtak.

In September, 1959, he was transferred to the Deputy Commissioner''s Office, Karnal, by the order of the Commissioner, Ambala Division. On February 17, 1962 the petitioner was promoted by the Deputy Commissioner, Karnal, as an officiating Assistant in the Copying Agency against a substantive permanent post. The order shows that he was so promoted because all persons senior to him had declined to accept that post. Shortly after getting the promotion the petitioner qualified in the prescribed test held by the Punjab Subordinate Services, Selection Board by the end of 1962.

Sarvshri Nathi Ram, Jagiri Lal, Hukam Chand and Budh Dev were promoted to the post of officiating Assistant against temporary posts after the date of promotion of the petitioner. Thereafter Dharm Dev, Jagat Parshad, Ram Parshad and Jai Parshad and Jai Bhagwan were also promoted against temporary posts. These eight persons were thus junior to the petitioner. The petitioner was not confirmed as an Assistant and by order dated October 31, 1968, the Deputy Commissioner, Karnal, reverted the petitioner and one Bishambar Nath Bahl to their substantive posts of Clerk with immediate effect and they were directed to relinquish charge at once and to report themselves for further posting to the General Assistant. It may be mentioned here that Bishambar Nath Bahl was senior to the petitioner. Instead of pursuing any remedies by way of appeal or memorial to the higher authorities the petitioner filed the present writ petition in this Court on November 8, 1968 which was admitted on November 12, 1968. It was ordered to be heard very early but the stay of the operation of the order was refused.

The respondents to the writ petition are Deputy Commissioner, Karnal, Commissioner, Ambala Division, State of Haryana, Shrimati Om Prabha Jain, Shri M. L. Batra a former Commissioner of Ambala Division, and Shri Jagiri Lal, Steno to Deputy Commissioner, Karnal. All the respondents except the State of Haryana have filed their affidavits by way of written statements to the writ petition and the petitioner had filed a replication. The Deputy Commissioner, Karnal, and Shrimati Om Prabha Jain have filed additional affidavits in reply to the replication filed by the petitioner.

Shrimati Om Prabha Jain has been made a respondent as she is a Minister in the Haryana Cabinet and allegations of mala fides have been made against her but at the hearing of the writ petitioner, Mr. Abnasha Singh, the learned counsel for the petitioner, expressly stated that he did not press the allegations of mala fides against her. He has confined his arguments to the legality of the reversion of the petitioner.

The learned counsel for the petitioner has relied on Rules 12 to 15 of the Punjab District Subordinate Services Rules, 1942, which read as under:

"12. All posts in the service are selection of posts and no member of the Service shall be deemed to have had promotion withheld by reason of his not having been selected or transferred to fill such a post, except in the case of an appointment having been made in direct contravention of these rules.

No person shall be appointed substantively in any post whether the vacancy is permanent or temporary, until he has undergone the following period of probation during which his appointment shall be regarded as officiating:-

By direct appointment

2 years

By selection or transfer of a Government servant.

6 months.

Broken periods of service in the post may be counted as part of the period of probation.

If the work or conduct of any member during his period of probation is, in the opinion of the appointing authority, not satisfactory, the appointing authority concerned may dispense with his services if he has been recruited by direct appointment or may revert him to his former post, if he has been recruited otherwise than by direct appointment. This course shall not be deemed to be dismissal or removal or reduction to a lower post.

On the conclusion of the period of probation of any person, the appointing authority may, if a vacancy exists, appoint him substantively with retrospective effect of, if his work or conduct has, in the opinion of the appointing authority, not been satisfactory, the appointing authority may dispense with his services if he has been recruited by directly appointment, or may revert him to his former post, if he has been recruited otherwise than by direct appointment, or may extent the period of probation, and on the expiry of the extended period of probation, may pass such order as it could have passed on the expiry of the first period of probation."

His argument is that the petitioner had been appointed to a substantive post in an officiating capacity under Rules 13 (supra) and as he was previously a Government servant he had to undergo a period of probation of six months and he could be reverted to his substantive post of a Clerk if within those six months he had been found unsuitable for the post of Assistant. Since he has served on that post for nearly seven years before the date of his reversion, the reversion amounts to reduction in rank and is by way of punishment.

In support of his submission that the reversion is by way of punishment, he has submitted that the order of reversion dated October 31, 1968 communicated to him is no doubt an innocuous order and does not cast any stigma on the efficiency, work or conduct of the petitioner but this order has to be read along with another order passed by the Deputy Commissioner, Karnal, on August 8, 1968 but which was given effect to on October 31, 1968 when the order of reversion of the petitioner was passed. A copy of that order is Annexure ''B'' to the replication filed by the petitioner and the heading of this order is "Order dated the 8th August, 1968, read with orders dated the 31st October, 1968." This heading of the order clearly shows that effect was given to this order on October 31, 1968 irrespective of the fact that it had been dated 8th August, 1968.

In this order Sarvshri Surya Mani, Chuni Lal, Niranjan Parashad, Nathi Ram and Jagiri Lal have been confirmed as substantive permanent Assistants with effect from various dates in place of the persons who retired or died. Shri Hukam Chand was confirmed as substantive provisional against suspended lien of Shri Raj Kishan, permanent Assistant on deputation to Rehabilitation Department. Thereafter, it is mentioned:

"S/Shri Bishambar Nath Bahl and Mohinder Singh, officiating Assistants, have been ignored from confirmation on account of their inefficiency and poor performance of work as officiating Assistants, Orders have been issued separately in this respect."

The learned counsel submits that the last sentence clearly shows that the last sentence clearly shows that this order, though dated 8th August, 1968, was really passed on October 31, 1968, as the orders of reversion of the petitioner and Bishambar Nath Bahl had been made on the latter date.

The learned counsel further submits that the words, "that the petitioner has been ignored from confirmation on account of his inefficiency and poor performance of work as officiating Assistant." Clearly casts a stigma on the work and conduct of the petitioner and the order becomes punitive. He has relied upon a Division Bench judgment of this court in State of Punjab v. Darshan Singh, 1968 Ser LR 734 (Punj) in which the order under attack read as under:-

"Since your work and conduct, during the period you have worked as Shop Inspector in this department, has not been found satisfactory, your services are hereby terminated in accordance with the terms and conditions of your employment as contained in the appointment letter issued to you with this office letter No. 9953, dated 27-5-57, with effect from the date your substitute reaches Kot Kapura to take over the charge from you."

It was held that the words "work and conduct has not been found satisfactory" in the order of removal cast stigma as-

"anybody reading this order of termination of the service of the respondent would reach the immediate conclusion that the respondent is not a person who is entitled to employment, because not only his work but his conduct also was not found satisfactory. This attaches a stigma to him and casts an aspersion against his capacity for work as also against his conduct."

The facts of that case are distinguishable. The order of removal of Darshan Singh in the reported case contained those words, that is, "work and conduct has been found to be unsatisfactory" but in the instant case the order of reversion does not contain any such words. The order only shows that he is being reverted to his post of a Clerk. The opinion expressed in the order dated August 8, 1968/October 31, 1968 on the case of the confirmation of the various officiating Assistants including the petitioner to the effect that the petitioner has been ignored from confirmation on account of his inefficiency and poor performance of work as officiating Assistant, related to his confirmation and not reversion. Because he was being ignored for confirmation, a reason had to be given and that reason was stated in that connection and not in connection with his reversion. It will not , therefore, be correct to read the opinion expressed in the case of confirmation in the order of reversion communicated to the petitioner. I, therefore, find that the order of reversion of the petitioner does not cast any stigma on his work and conduct and is not objectionable.

It cannot be termed as punitive and, therefore, does not attract the provisions of Art. 311(2) of the Constitution. The petitioner as officiating Assistant had no right to that post and could be reverted to his substantive post of a clerk at any time. The order of reversion did not jeopardise his chances of promotion or emoluments as a Clerk nor was anything said in the order to obstruct his promotion in future. The order of reversion, therefore, is not liable to be struck down on this ground.

The next submission made by the learned counsel for the petitioner is that it has been admitted in para 5 of the return filed by the Deputy Commissioner, Karnal, that the post of Assistant was substantive in the Copying Agency and, therefore, the petitioner was appointed as officiating Assistant against a substantive vacancy. From this he concludes that the period of probation was six months according to Rule 13 set out above and after the expiry of that period of probation the petitioner could not be reverted and had to be confirmed as an Assistant.

It is admitted by the learned counsel that there is no provision in the rules that the period of probation could not be extended or could not exceed six months. The fact that the petitioner was not being confirmed and continued to be officiating Assistant clearly leads to the conclusion that the Deputy Commissioner was not satisfied with his performance and did not consider him suitable for being confirmed as Assistant and the petitioner was being given a long trial. Ultimately when it was found that he was not amenable to improvement, he was ignored for confirmation and was reverted to his substantive post of a Clerk.

I have seen the note prepared by the officer of the Deputy Commissioner at the time. Various officiating Assistants were considered for confirmation in July, 1968. Against the petitioner the following note has been made:-

"Character roll of Shri Mohinder Singh contains 17 entries in all, out of which entries for the years 1964-65, 1965-66 and 1967-68, were adverse. In 1965 Shri R. C. Kapila, the then D. C. observed:

''His reputation for honesty and getting on with others is extremely poor. He is yet to justify his promotion as Assistant.''

In 1966, it was observed:

''Incapable of working hard, careless and irresponsible by nature. No justification for keeping him as an Assistant.''

In 1968, it was remarked that he is-

''somewhat lethargic'' and ''average worker''."

Further, it was mentioned-

"Similarly the record of Assistant at Serial No. 3 viz. Shri Mohinder Singh, is also not upto the mark. A good report is rather an exception for him. Practically all his reports are adverse and I do not think it would be advisable to confirm him. Even otherwise he has earned a notoriety to incite other officials towards indiscipline and disobedience. He played a very ignominious role during the recent strike of Government employees."

The adverse remarks were communicated to the petitioner by letters dated September 9, 1966 and July 9, 1968 but he did not file any representations against those remarks. It cannot, therefore, be said that he was kept ignorant of the adverse entries against him. The Deputy Commissioner, in para 11 of his return, stated that the adverse reports were communicated to him but he failed to show any improvement in his output. In his replication to this paragraph, the petitioner did not controvert this allegation.

In para 11 of the return it had also been mentioned:-

"According to the record the output of the work of the petitioner was not upto the mark. His one increment was stopped during 1967. He did not earn good reports."

To this allegation he replied as under in para 12 of his replication:-

"The increment in 1967 was not stopped on account of inefficiency but on another ground. The Commissioner, Ambala Division, on appeal accepted the appeal of the petitioner on 10-10-1968, a copy of which order is attached as Annexure ''C'' to this replication. Respondent No. 1 has intentionally suppressed this fact."

The petitioner has thus admitted that the output of his work was not upto the mark, that he did not earn good reports and that adverse reports were communicated to him but he failed to show any improvement in his output.

Their Lordships of the Supreme Court have held in State of Punjab and Another Vs. Shri Sukh Raj Bahadur, that the services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of the Art. 311 of the Constitution and that the circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. It was after the assessment of the work of the petitioner that he was not found suitable to be continued as officiating Assistant that a decision was taken to revert to him to his substantive post. The order communicated to him was unexceptional in nature and did not cast any aspersion on him nor did it give any reason. No order of confirmation having been made, the petitioner had not acquired the status of a permanent incumbent on the post of an Assistant. He was still a probationer and, therefore, could be reverted to his substantive rank at any time and not only within the first six months. As I have said above, the rules do not prescribe any maximum period of probation.

The learned counsel for the petitioner lastly submitted that it could not be said that the performance or output of the petitioner was not upto the mark because he was allowed regular increments every year and in support of his submission he has relied upon a judgment of a Division Bench of this Court, in Civil Writ No. 240 of 1961 Harbans Singh v. State of Punjab, decided on 24-10-1962 (Punj). In this judgment the learned Judges observed:-

"it is not denied that the petitioner earned four successive increments. In the departmental instructions contained in the letter of Mr. F. H. Puckle, Chief Secretary to Government, Punjab, sent on 27th of November, 1933, it is stated that ''the view taken by the Public Service Commission and upheld by the Government of Indian, is that the grant of increments, which is the hall-mark of ''approved service'' ................. must be regarded as giving him a clean sheet upto the time of his selection. The petitioner had been selected to officiate in the Punjab Civil Service from 20th of February, 1956 and for more than four years he continued to be on probation till he was reverted on 22nd of November, 1960, after having earned four annual increments. It is true that the petitioner is a probationer and has o right to remain in the Punjab Civil Service till he is confirmed."

The learned Judges then referred to the observations of their Lordships of the Supreme Court, in Sukhbans Singh Vs. State of Punjab, to the effect:-

"Reading Rules 23 and 24 together it would appear that where a probationer is not reverted by the Government before the termination of his period of probation, he continues to be a probationer but acquires the qualification for substantive permanent appointment."

Their Lordships further observed:

''After having earned some goods reports and some bad ones at the instance of the wrong reports sent by the Deputy Commissioner which were based on malice, Sukhbans Singh was reverted to the post of Tahsildar on 20th May, 1952."

Mr. Justice Mudholkar had also observed:-

".................... at the end of the probationary period the probationer, unless reverted or absorbed in a substantive post, will be eligible for being made permanent. In other words, it means that he will continue to be a probationer unless he is reverted or absorbed in a permanent post .................... a probationer cannot be as pointed out in Parshotam Lal Dhingra Vs. Union of India (UOI), punished for misconduct without complying with the requirements of Art. 311(2)."

In view of the Supreme Court, the sequence of events in that case led to the conclusion that the reversion was made as a measure of punishment.

After examining the material with regard to the work and conduct of Harbans Singh Petitioner, the learned Judges of the Division Bench remarked:

"We feel constrained to reach the same conclusion in this case. If the Government intended to take action on the adverse reports of the Deputy Commissioner and the Commissioner in the year 1957, the petitioner should have been reverted much earlier. It is difficult to avoid the conclusion that the Government took an adverse view against the petitioner with regard to the incident at Ferozepur though a resolute denial has been made against this assertion. The letter asking for the explanation is indicative of the mind and attitude of the respondent towards the petitioner. The reversion of an officer to his original post after he has earned four successive increments without any substantial reasons must inevitably lead us to the conclusion that the impugned order was made as a measure of punishment, and for such an action notice under Art. 311 was imperative."

It is evident that the facts of Harbans Singh''s case, C. W. No. 240 of 1961, D/- 24-10-1962 (Punj) and Sukhbans Singh Vs. State of Punjab, were entirely different.

In the instant case, the adverse remarks are there from 1964 onwards and were being communicated to the petitioner who was being afforded opportunity for improvement but he did not avail of the same. The allegation of mala fides against Shrimati Om Prabha Jain having been given up, there is no allegation that the Deputy Commissioner was working against the petitioner with malice or with some ulterior motive. The adverse remarks were not given by the Deputy Commissioner who decided the case of confirmation and reversion but by his predecessors against whom nothing has been said. AS has been held by their Lordships of the Supreme Court in Sukhbans Singh Vs. State of Punjab, , the petitioner continued to be a probationer throughout because he was not confirmed and was liable to be reverted to his substantive rank. He was so reverted not by way of punishment but because he was not found suitable for the post of Assistant. The order was in simple terms and did not cast any stigma or slur on the character or work or conduct of the petitioner.

For the reasons given above, there is no merit in the writ petition which is dismissed but in the circumstances of the case I do not wish to burden the petitioner with costs.

Petition dismissed.