Shri D.N. Rampal Assistant Advocate General, Punjab vs The State of Punjab

Rajendra Nath Mittal, J.—Briefly the case of the petitioner is that he was appointed on probation for a period of one year, as Assistant Advocate General, Punjab, on July 17, 1967, by the Governor of Punjab, vide order of even date (copy Annexure ''B'')-Subsequently a revised order (Copy Annexure ''C'') was issued on March 7, 1968, with the concurrence of the Finance Department, which contained similar terms and conditions of service. In pursuance of the letter of appointment dated July 17, 1967, the petitioner took charge on July 18, 1967. On January 4, 1969, the President of India was pleased to order his confirmation vide order Annexure ''D''. Thereafter on March 16, 1971, an order (copy Annexure ''E'') was passed deconfirming the petitioner against the post of Assistant Advocate General on the ground that the order of confirmation had been passed due to a bono fide mistake. The petitioner filed a representation (copy Annexure ''F'') on April 1, 1971, which was rejected vide order dated June 5, 1972 (copy Annexure ''G''). The order of deconfirmation has been challenged by him through this writ petition.

The first contention of Mr. Agnihotri is that the petitioner was appointed against permanent post on probation for a period of one year. Thereafter he was confirmed on January 4, 1969 According to the counsel, there was no mistake in the confirmation of the petitioner as he had been appointed on probation against a permanent post. He submits that in the aforesaid circumstances he could not be deconfirmed by the Government.

I have given a deep thought to the argument of the learned counsel and find force in it. En order to determine this question, it will be appropriate to refer to various documents which have been placed on record. The petitioner received a letter dated July, 11 1967 (Annexure ''A'') from the Joint Legal Remembrancer and Joint Secretary to Government, Punjab, requesting him that if he was interested in the appointment as Assistant Advocate General, Punjab, in the scale of Rs. 1300-50-1600, he might make it convenient to present himself before the Selection Committee on July 13, 1967. Along with the letter, a statement of terms and conditions of appointment to the post was annexed. In condition (a), it was specifically mentioned that "he will remain on probation for one year. He was appointed on July 17, 1967, vide order Annexure ''B'' wherein alto the same condition regarding probation finds place. It appears that while issuing letter Annexure ''B'', the Government had not obtained concurrence of the Finance Department. It, therefore after obtaining the concurrence issued a substituted letter dated March 7, 1068 (Annexure ''C'') incorporating the same conditions which were contained in Annexure ''B''. The only addition in the letter was that it was being issued with the concurrence of the Finance Department conveyed vide their U.O. advice No. 88 4FG 68 dated 27/28th February, 1968. From the aforesaid letters it is clear that the petitioner was appointed in the first instance on probation for one year. If there had been any mistake in appointing him on probation, it would have been rectified at last in the letter (Annexure ''C''). He continued on probation for about one year and four months and was confirmed on January 4, 1969 on being found to have successfully completed the period of probation, vide order annexure ''D''. Even no mistake in the appointment order wag found at that stage. He continued in the same position for a period of more than two years, when he was deconfirmed vide order Annexure ''E'', on the ground that he had been confirmed under a bona fide mistake It may, however, be mentioned that in the order it has not been pointed out what was the mistake and how it crept in when the petitioner was confirmed. It will also be relevant to point out that the petitioner has since then been promoted as Deputy Advocate-General.

In reply to the writ petition, a similar plea has been taken and it is further stated that the appointment of the petitioner was on contractual basis. It is also mentioned that the letter showing his appointment as such was Annexure ''R. 1''. It is, however, strange that no letter was annexed with the return. Mr. Sayal, learned counsel for the respondents, could not show from the record that letter Annexure ''R.1'' was annexed with the return. On the other hand, he fairly admitted that even no such letter was found by him with the copy of the return retained in the office of the Advocate General, Punjab. It may also be pointed out that the number and date of the letter has not been given in the return. From the aforesaid circumstances, the plea that the petitioner was appointed on contractual basis, is not established.

Facing with the aforesaid difficulty, the counsel for the respondent sought to urge that the post of Assistant Advocate General was a temporary one and the petitioner could not be confirmed against it. This, plea, however, has not been taken in the return in spite of the fact that the petitioner had specifically stated that he had been posted against a permanent post. No document has been placed on the record by the State to show that the post of Assistant Advocate General was a temporary one. I am, therefore, not convinced with this argument of Mr. Sayal.

The question that arises now is if a Government servant is confirmed against a permanent post, whether he can be deconfirmed subsequently ? It is an established law that if a Government servant is confirmed against a permanent post, he is entitled to continue in that post as long as the post remains. He can be removed only by resorting to a procedure which is in consonance with Article 311 of the Constitution of India. In other words, he it entitled to the protection of the aforesaid Article. On the other hand, a temporary Government servant has no right to a post. His services can be terminated at any time after giving him reasonable notice. Thus by deconfirming an employee, a valuable right which accrued to him, is taken away. In the aforesaid view I am fortified by the observations of Assam and Nagaland High Court in Beni Madhab Pal Chaudhari v. State of Assam 1968 S.L.R. 616, which was as follows:--

It is common knowledge that confirmation gives certain rights to the Government servant who is confirmed, the rights being that he cannot be removed from service except on disciplinary grounds or on medical unfitness...... It would be most dangerous to assume that such a power exists in the Government for, then there will be absolutely no certainty to the service of a Government servant. Any such stand on behalf of the Government will certainly be contrary to all recognised principles of Government employment. It is because confirmation gives a permanent footing in the service that employees are anxious to get themselves confirmed and in the Central Government service there is the system of quasi permanancy in regard to the officers and employees, who have done three years of continuous service. ......Once a confirmation order is made, we have no doubt whatsoever that that confirmation could only be interfered with by applying the procedure indicated in Article 311 of the Constitution.

A similar view was taken by Mehar Singh, C.J. in Municipal Committee Rohtak v. Shri Johri Mal Mitter, Ex-Municipal Engineer 1970 S.L.R. 29. The learned Judge observed that de confirmation would amount to removal or dismissal from service as a permanent servant. Mr. Sayal, counsel for the respondent, referred to The State of Punjab Vs. Jagdip Singh and Others, wherein an order of confirmation was cancelled. The facts of that case were, however, distinguishable. There no posts were available at the time when the respondent was confirmed. Therefore, the order of confirmation could not be made. In my view, Mr. Sayal cannot derive any benefit from the observations in that case. He also referred to Bachitar Singh Grewal v. The State of Punjab (1973) 1 S.L.R. 863, wherein it was observed that the Government could revise an order if it was made under a bona fide mistake. There is no quarrel with the proposition. The question is whether the ratio applies to the present case ? I have already given the facts of the case in detail. In my view, the ratio in the above case does not apply to the facts of this case as the counsel for the State has failed to point out that the order of confirmation had been made by the Government under a bona fide mistake. A Government servant, who has been confirmed against a permanent post, can be deconfirmed after he has been given a reasonable opportunity to show cause against such deconfirmation. I am, therefore, of the opinion that the order of deconfirmation is illegal and liable to be quashed.

It is next contended by Mr. Agnihotri that the impugned order of de-confirmation violates the principles of natural justice as no opportunity was given to the petitioner before passing it. He submits that certain rights had been conferred on him after the order of confirmation and the same could not be withdrawn unless he had been given adequate opportunity of representing his case.

I also find force in this contention of the learned counsel. As already mentioned above, after confirmation, the petitioner became entitled to the protection of Article 311 of the Constitution. His services could not be terminated except in consonance with the provisions of the said Article. By passing the order of deconfirmation, the aforesaid rights were taken away The Government, in my view, as already observed above, could not do so except by giving the petitioner adequate opportunity of showing cause against that order. The impugned order violates the principles of natural justice. It is bad on this account too.

For the reasons recorded above, I accept the writ petition and quash the order dated March 16, 1971 (Annexure ''E''). I, however, make no order as to costs.