W. Selvarani vs The Administrator-General and Official Trustee and Others

V. Ramaswami, J.—The petitioner on allotment by the High Court to the office of the Administrator-General and Official Trustee, was

appointed by the Administrator-General and Official Trustee as Steno-typist in his proceedings R.O.C. No. 9096 dated 5th September, 1974.

She completed the probation period of two years on 30th September, 1976. However the first respondent, the Administrator-General, in his

proceedings dated 24th January, 1977 purported to extend the period of probation by six months, that is, upto 30th March, 1977. By another

proceeding dated 6th June, 1977, the period of probation was further extended by another three months from 30th March, 1977. On 17th June,

certain charges were framed against the petitioner and she was asked to show cause why her probation should not be terminated. Ultimately, by an

order dated 15th July, 1977, the first respondent Administrator-General, holding that the petitioner was not suitable to become a full member of

the service and her work and conduct were not found to be satisfactory, terminated the probation of the petitioner and discharged her from service

with effect from 16th July, 1977 ""under Rule 26 of the Tamil Nadu State and Subordinate Service Rules"". It is now admitted by the learned

Government Pleader that Rule 26 of the Tamil Nadu State and Subordinate Service Rules is not the correct provision under which the petitioner''s

probation could have been terminated but the corresponding power could be traced to Rule 30 of the Tamil Nadu Judicial Ministerial Service

Rules (hereinafter referred to as the Rules). Since the power is traceable to that provision, even if we take it as a misquoting of the provision of

law, that by itself will not make the order invalid. Therefore I have to proceed to consider the case on merits. The petitioner preferred an appeal to

the High Court but without success. Thereafter, she has filed this writ petition praying for the issue of a writ of certiorari to quash the order of the

Administrator-General dated 15th July, 1977. as confirmed by the High Court on appeal.

The contention of the learned Counsel for the petitioner is that the petitioner had completed her probation on 30th September, 1976, the orders

of extension of probation made on 24th January, 1977 and 6th June, 1977 were illegal invalid and of no effect and that therefore no question of

termination of the probation arises. Since there were no proceedings initiated against the petitioner as an approved probationer, the termination of

probation and discharge were illegal.

Under Rule 27(a) of the Rules, every person appointed to any class or category otherwise than by promotion shall be on probation for a total

period of two years on duty within a continuous period of three years. There is no dispute that the petitioner had completed such ""total period of

two years"" on 30th September, 1976. Rule 30(a) of the Rules enables the competent authority to extend the period of probation ""at any time

before the expiry of the period of probation referred to in Rule 27"". Necessarily, therefore, if this power of extension was to be exercised, it should

have been done in this case before 30th September, 1976. But what was contended by the learned Government Pleader was that though the

petitioner had completed a total period of two years on duty by 30th September, 1976 since a continuous period of three years was not over from

the date of her appointment, it was possible for the competent authority to have extended the period of probation. The learned Government

Pleader is not well-founded in this contention. The continuous period of three years referred to in Rule 27(a) of the Rules is for the purpose of

calculating the period of two years'' probation. If once a person appointed had been in service for a total period of two years on duty continuously,

the probation is competed and the question of extension of probation does not arise. In fact, under Rule 30(c) (i) of the Rules the appointing

authority is obliged at the end of the period of probation to issue an order declaring the probationer to have satisfactorily completed the period of

probation and on such issue the probationer shall be deemed to have satisfactorily completed the probation. It also provides that if no such order

was issued within six months from the date on which he is eligible for such declaration, the probationer shall be deemed to have satisfactorily

completed his probation on the date of the expiry of the prescribed period of probation. Therefore, even if there was no order of the competent

authority declaring that the petitioner had satisfactorily completed her period of probation before 30th March, 1977, i.e., on the completion of six

months from 30th September, 1976, she should be deemed to have satisfactorily completed her probation. The learned. Government Pleader

relied on the last sentence in Clause (c) (i) of Rule 30 of the Rules, wherein it is stated that in all cases in which serious charges are pending and,

therefore, probation cannot be declared, the final orders on probation shall be passed after the disposal of the charges. In this case, admittedly, no

charges were pending against the petitioner as on 30th March, 1977. Therefore, this provision is also not applicable for not declaring the petitioner

to have satisfactorily completed the period of probation as on 30th September, 1976, itself.

Since the extension of probation was after the completion of two years on 30th September, 1976 and since there were no charges pending as

on 30th March, 1977, the petitioner shall be deemed to have satisfactorily completed her probation and become an approved probationer even as

on 30th September, 1976.

The petitioner bad been discharged under Rule 30(a) (ii) of the Rules. Since that provision is not applicable in view of the fact that the period of

probation had already expired, the discharge order was illegal and without jurisdiction. In view of this, it is not necessary for me to go into the other

questions raised in the writ petition.

The writ petition is accordingly allowed. The rule nisi is made absolute. But there will be no order as to costs.