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Fernandez (J.C.P.) Vs. State of Andhra Pradesh (Secretary to Government, Agriculture Department) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1962)IILLJ34AP
AppellantFernandez (J.C.P.)
RespondentState of Andhra Pradesh (Secretary to Government, Agriculture Department)
Excerpt:
.....the part of appointing authority as the petitioner had passed the tests and rendered satisfactory service during his probation. even the question of his appointment having been regularly made with effect from 15 july 1953 was decided in his favour only in 1957. the rights which accrued to the petitioner as a result of this decision were subsequently investigated and he could not be declared as an approved probationer for the very good reason that be could not pass the prescribed tests. as already mentioned, the language of the order dated 15 july 1953 clearly shows that he was appointed temporarily. apparently, as all the procedural requirements for his regular appointment were subsequently found to have been satisfied, he was held in 1957 to have been regularly appointed with effect..........falls to be decided on the terms of rules 27 and 28 of the madras state and subordinate service rules. rule 27 of the madras state and subordinate service rules is in the following terms:(a) at the end of the prescribed or extended period of probation, as the case may be, the appointing authority shall consider the probationer's suitability for full membership of the service, class or category for which he was selected.(b) if the appointing authority decides that a probationer is suitable for such membership, it shall as soon as possible issue an order declaring the probationer to have satisfactorily completed his probation. on the issue of such order, the probationer shall be deemed to have satisfactorily completed his probation on the date of the expiry of the prescribed or extended.....
Judgment:
ORDER

Krishna Rao, J.

1. This is a petition under Article 228 of the Constitution for the issue of a writ of mandamus compelling the Government of the State of Andhra Pradesh to treat the petitioner as a permanent employee in the post of Superintendent, Dairy cum-Bull Farm, category 2 of class 5 of the Madras (Andhra) Animal Husbandry Service from 15 July 1955.

2. The facts are briefly these. By G.O. Ms. No. 32-87, dated 15 July 1953, the Government of Madras appointed the petitioner temporarily to the post of Superintendent, Dairy-cum-Bull Farm, Visakhapatnam, in category 2 of class 5 of the Madras Animal Husbandry Service with effect from the date of the order, i.e., 15 July 1953. He worked in the post from 27 July 1953 and proceeded on leave from 26 December 1953 afternoon. On return from leave he was appointed as District Veterinary Officer, Nellore. It was a post falling under category 1 of class 5 of the Madras Animal Husbandry Service, and he took charge of that post on 13 February 1954. The temporary post at Visakhapatnam was retained permanently with effect from 1 April 1955. In G.O. Ms. No. 5657, Development, dated 25 November 1949, the Government issued the ad hoc rules governing the appointment of the said temporary post and Rule (1) of those rules declared that the general and special rules applicable to the holders of the permanent posts of Superintendents of Livestock Research Stations in the Madras Animal Husbandry Service shall apply to the holder of the said temporary post, subject to certain specified modification which are immaterial for the purpose of this petition. The result was that Rule 7(a) of the special rules for the Animal Husbandry Service became applicable to him and being a direct recruit selected by the Madras Public Service Commission be bad to be on probation for a total period of two years on duty within a continuous period of three years. As his transfer from the post in category 2 of class 5 at Visakhapatnam to the post of category 1 of the same class at Nellore was declared to be in the exigencies of public service, he became eligible under Rule 7(b) to count the period of duty in both the categories towards his probation. He was on medical leave for five months from January 1955 and he thus completed two years of duty on 2 February 1956 afternoon. In response to his representations, the Director of Animal Husbandry and Fisheries, Andhra Pradesh in his memo dated 16 March 1957 informed the petitioner that the Government considered that he was regularly appointed with effect from 15 July 1953 and directed him to furnish the history of his service for the purpose of declaring satisfactorily the completion of his probation and stated further that after such declaration he would be eligible for increments and for confirmation. But it was found that he did not pass the language, accounts and departmental tests required by Rule 27 of general rules and the Government, therefore, could not issue an order declaring that he was an approved probationer. He represented, that he had passed certain accounts and administration tests during his service in the Indian Army prior to the partition of India, and certain departmental tests in Pakistan before he left service there and returned to India. The petitioner was however unable to furnish the syllabi of the tests passed by him on the ground that they related to a period of more than ten years. The Andhra Public service Commission, which was consulted in the matter, stated that in the absence of syllabi of the tests passed, it is not possible to decide whether the tests are equivalent to those prescribed by the Government of Andhra Pradesh for Gazetted Officers of the Animal Husbandry Department. The Government, therefore, considered that he could not be deemed to have passed the tests prescribed by Rule 10 of the special rules. In 1958, the petitioner was transferred to the Mysore State at his request. Rule 28 of the general rules permits the appointing authority to extend the period of probation up to a maximum of one year to enable a probationer to pass the prescribed teats. By G.O. Ms. No. 2151, Agriculture, dated 26 September 1959, the Government of Andhra Pradesh relaxed Rule 28 in his favour and extended his period of probation up to 9 May 1958, i.e., the date on which he was relieved from the service of the Government of Andhra Pradesh. The gist of the petitioner's grievance is that he is not eligible to draw the increments in his scale of salary, because he has not been declared as an approved probationer nor appointed a full member of the Animal Husbandry Service. The short answer of the Government is that he is not eligible to be declared as an approved probationer, as he has not qualified himself by passing the tests prescribed.

3. The learned Counsel for the petitioner has raised a threefold contention in support of the petition. His first contention is that once the maximum period of one year of extension of probation under Rule 28 came to an end, the petitioner is entitled to be treated as an approved probationer and to be appointed a full member of the service in the existing vacancy since he continued to be retained in service without being discharged. The second contention is that by the terms of his appointment he was exempted from the tests prescribed by Rule 10 of the special rules for the Madras Animal Husbandry Service. The third contention is that the tests which the petitioner had passed during his service in the Indian Army and Pakistan were of a higher standard than the tests prescribed by Rule 10.

4. In support of the first contention, reliance is placed on the decisions in Kanshi Ram v. State of Uttar Pradesh : AIR1956All330 , Ramchandra v. State of Mysore 1960-I L.L.J. 210 and A.M. Singh v. Officer on special duty A.I.R. 1960 Manipur 45. In Kanshi Ram v. State of Uttar Pradesh : AIR1956All330 the question arose whether the discharge of a probationer in the Uttar Pradesh Public Health Service in 1954, more than two years subsequent to the period up to which his probation could have been extended under the relevant rules, amounted to his removal from service or was a mere termination of employment. Having regard to the terms of the relevant Civil Services (Classification, Control and Appeal) Rules, Mehrotra, J., held that it was not a termination of employment but was a removal entitling him to a reasonable opportunity to show cause against the action proposed to be taken. A similar question arose in Ramachandra v. State of Mysore 1960-I L.L.J. 210 and it was decided in the same way with reference to the terms of the Mysore Civil Service Rules, 1958. The decision in A.M. Singh v. Officer on special duty A.I.R. 1960 Manipur 45 proceeded on the view that the failure to pass the order of confirmation of the petitioner there was a mere omission on the part of appointing authority as the petitioner had passed the tests and rendered satisfactory service during his probation. These decisions have no bearing on the facts and rules applicable to the petitioner. The petitioner's case falls to be decided on the terms of Rules 27 and 28 of the Madras State and Subordinate Service Rules. Rule 27 of the Madras State and Subordinate Service Rules is in the following terms:

(a) At the end of the prescribed or extended period of probation, as the case may be, the appointing authority shall consider the probationer's suitability for full membership of the service, class or category for which he was selected.

(b) If the appointing authority decides that a probationer is suitable for such membership, it shall as soon as possible issue an order declaring the probationer to have satisfactorily completed his probation. On the issue of such order, the probationer shall be deemed to have satisfactorily completed his probation on the date of the expiry of the prescribed or extended period of probation.

(c) If the appointing authority decides that the probationer is not suitable for such membership, it shall, unless the period of probation is extended under Rule 28, by order, discharge him from the service after giving him a reasonable opportunity of showing cause against the action proposed to be taken in regard to him:

Provided that where a probationer has been given a reasonable opportunity of showing cause against the imposition on him of any of the penalties specified in Clauses (iv), (vi), (vii) and (viii) of Rule 8 of the Madras Civil Services (Classification, Control and Appeal) Rules and at the conclusion of the disciplinary proceedings, a tentative conclusion is arrived at to discharge him from the service, a further opportunity of showing cause specifically against such discharge need not be given to him.

Explanation I: The decision of the appointing authority that the probationer is not suitable for full membership may be based also on his work and conduct till the date of the decision, inclusive of the period subsequent to the prescribed or extended period of probation.

Explanation II: An opportunity to show cause may be given after the appointing authority arrives at a provisional conclusion on the suitability or otherwise of the probationer for full membership of the service, either by such authority himself or by a subordinate authority who is superior in rank to the probationer.

In Venkatapathi v. Deputy Inspector-General of Police A.I.R. 1958 Mad. 216 the effect of the rule fell to be considered. Rajamannar, C.J., who spoke for the Division Bench, said:

The contention of Mr. Kumaramangalam was really twofold; firstly, that once the extended period of probation came to an end, the appellant automatically became a full member of the service. We are unable to find anything in the rules to support this contention. It is one thing to say that the period of probation had come to an end on 2 July 1651: it is quite another thing to say his probation was found satisfactory, and he was admitted as a full member of the service. Before the latter could be done, there should be a finding by the concerned superior officer that his probation has been found to be satisfactory.

Necessarily the determination of this question can only be taken up after the period of probation has come to an end. It is idle to contend that the superior officer has no right even to come to a conclusion whether the probation has been satisfactory and whether he is entitled to be admitted as a full member of the service.

Mere delay on the part of the appointing authority to consider and decide a probationer's suitability for full membership cannot imply a decision in favour of the probationer, however injurious the result of the delay may be to the probationer. The presumption arising under illustration (a) of Section 114 is merely that if an official act has been proved to have been performed it has been regularly performed. In the instant case, the petitioner was appointed temporarily by the terms of the order dated 15 July 1953. As he was a temporary employee, he was not even entitled to the rights of a probationer. Even the question of his appointment having been regularly made with effect from 15 July 1953 was decided in his favour only in 1957. The rights which accrued to the petitioner as a result of this decision were subsequently investigated and he could not be declared as an approved probationer for the very good reason that be could not pass the prescribed tests. On these facts, I see no force in the contention that the petitioner became entitled to be an approved probationer either on 2 February 1956, the date on which he completed two years of duty within a continuous period of three years, or within one year thereafter up to which his probation could have been extended under Rule 28.

5. With regard to the second contention, the petitioner has not been able to produce any order to show that he was exempted from Rule 7 or Rule 10 of the special rules. As already mentioned, the language of the order dated 15 July 1953 clearly shows that he was appointed temporarily. Apparently, as all the procedural requirements for his regular appointment were subsequently found to have been satisfied, he was held in 1957 to have been regularly appointed with effect from 15 July 1953. No materials have been placed by the petitioner to prove that he was exempted from the tests prescribed.

6. With regard to the third contention, the question whether the tests the petitioner had passed prior to his appointment were equal to or of higher standard than the tests prescribed under Rule 10 is a matter to be decided by the exempting authority in its discretion and it does not fall for consideration by this Court.

7. At the close of the hearing it was urged that under Para. 2, Clause (3), of G.O. Ms. No. 188, General Administration (Services-C) Department, dated 31 January 1962, issued by the Government of Andhra Pradesh, Government servants of the age of 45 or more are exempted from passing the departmental tests and that the petitioner who is aged 51 years is entitled to this benefit. But obviously the power exercised by the Government of Andhra Pradesh can apply only to Government servants, who are in their service on or after that date, i.e., 31 January 1962. It does not therefore avail the petitioner whose services were transferred to the Mysore State four years earlier, i.e., in 1958. Whether a similar exemption ought to be given by the Mysore Government for Government servants under their control is a matter for the discretion of that Government.

8. This writ petition fails and is dismissed with costs. Advocate's fee Rs. 100.


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