O.H. Mootham, C.J.
1. This is an appeal from an order of Mr. Justice Mehrotra dated the 20th October, 1955, whichgives rise to a question of some interest.
2. The relevant facts are these: The respondent, who had obtained the degree of M.B.B.S. from the King Edward Medical College, Lahore, in 1939, migrated to India from Pakistan in 1947. He applied for appointment in the Public Health Service of this State, and on the 20th June, 1949, he was appointed temporarily in that Service for a period of six months in the Dehra Dun district. By a subsequent order dated the 24th June, 1950, he was appointed as Medical Officer in the Service on two years' probation from the date on which he had originally joined, namely the 20th June, 1949.
On the 16th October, 1950, he was informed by the Director of Medical and Health Services, U. P., that the post to which he had been appointed was permanent and pensionable and that Hewould be confirmed in it in due course provided his work was satisfactory. The period of probation expired on the 19th June, 1951. No formal order was made confirming the respondent's appointment but he continued in the service of the State, and on the 2nd September, 1952, he was posted to Saharanpur as Malaria Survey Officer --a post which it appears he held until some date in August, 1954, when he was discharged from Government service.
3. In April, 1950, during the period of probation, the respondent had appeared before and had been found fit by a State Medical Board. It seems that he suffered from a stammer, and on the 3rd July, 1954, he again appeared before the State Medical Board at Lucknow and that the Board on this occasion considered the respondent 'to be completely and permanently incapacitated for further service on any account in consequence of impediment of speech and to have lost all earning capacity.'
It was in consequence of this report that the State Government by an order dated the 5th August, 1954, directed that the respondent 'be invalided out of Government service and discharged with! effect from the date of relief'. The appellant protested both to the Director of Medical and Health Services, U. P., and to the Governor against his discharge, but without avail. The respondent then filed a petition in this Court in which he challenged on various grounds the validity of the order discharging him from service. Mehrotra, J., was of opinion that although the respondent had not been formally confirmed in his appointment he was in the permanent employment of the state and could not be discharged save in accordance with the provisions of R, 55 of the Civil Services (Classification, Control and Appeal) Rules, as they then stood. As it was not in dispute that that rule had not been complied with the learned Judge allowed the petition, quashed the order of discharge and directed that the respondent be reinstated. The State Government now appeals.
4. The first problem which arises is to determine the nature of the respondent's engagement with the State at the time his services were dispensed with. For this purpose it is necessary to refer to the United Provinces Public Health Service Rules of which rules 18 (excluding Sub-rule (ii) which is not relevant), 19 and 20 read as follows :--
'(i). Recruits directly appointed shall be on probation for two years and will draw a pay of Rs. 200 per mensem during the first year and Rs. 215 per mensem on completion of the first year of service. On comfirmation they shall be placed at the Rs. 230 stage of the time-scale of pay for future entrants laid down in Rule 21(a). Temporary or officiating service shall count towards probation.
'19. The services of a probationer may be dispensed with by the Government at any time during the period of probation or at its end. The Government may also extend the period of probation in the case of any particular member for any further period up to one year.
20. A probationer shall be confirmed in his appointment when-
(a) he has completed the prescribed period of probation and
(b) the Government are satisfied that (i) he is sufficiently acquainted with all local enactments relating to public health, municipal and district organization, the administrative work of local bodies, and the relations of those bodies to the Various departments of the Government; (ii) he is otherwise fit for confirmation. (c) All confirmations under this rule shall be notified in the Government Gazette.'
5. In my opinion a recruit directly appointed (such as was the respondent) is appointed to a permanent post on probation. The period of probation is ordinarily two years but may in the case of any particular member -- the use of the word 'member' in Rule 19 is significant -- be extended for any further period up to one year, and during the period of probation the services of the member may be dispensed with at any time. There is no provision for the probationary period exceeding three years and in no case, in my opinion, can a member on probation after the expiry of that period or such reasonable time thereafter as is necessary for the Government to decide whether on a review of his work during the probationary period his services should be dispensed with.
6. Rule 20 states the conditions subject to which a probationer shall be confirmed. It imposes a duty on the Government to confirm the probationer in the circumstances therein stated, and that duty is one which the Government has to perform if at all, at the expiration of the period of probation.
7. In the present case the Government did not confirm the respondent at the end of his period of probation. He admittedly was allowed to continue in Government service for three more years. In such circumstances it appears to me that there are only two possibilities : that respondent's further employment must be either permanent or temporary. I am disposed to think that the former view is the better, and that if the Government does not exercise its right under Rule 19 to dispense with a member of the service during or at the end of his period of probation, but retains him in its employment, it must be deemed to have confirmed him in his appointment. It is not however necessary for me to express a final opinion on this point for, whichever be the correct view, a second question arises.
It is whether it was within the power of the Government to terminate the Respondent's employment, whether permanent or temporary, in the circumstances which obtain in this case without affording him an opportunity of showing cause against the action proposed to be taken. Now the Government had dispensed with the respondent's services because he has been declared on medical grounds to be unfit for retention. It is a condition implied in an ordinary contract of service that it comes to an end in the event of a supervening incapacity of an employee as Bramwell, B. said in Jackson v. Union Marine Insurance Co. Ltd., (1874) 10 CP 125 (A) at p. 145.
'Thus, A enters the service of B and is ill and cannot perform his work. No action will lie against him; but B may hire a fresh servant and not waitfor his recovery if his illness would put an end, in a business sense, to their business engagement, and would frustrate the object of that engagement.''
This principle was recognised in the later cases of Poussard v. Spiers and Pond, (1876) 1 QBD 410 (B) and Storey v. Fulham Steel Works Company, (1907) 24 TLR 89 (C), and in my view it applies also in the case of Government servants.
But on such material as is before us -- and I do not think it is disputed by learned counsel --the physical defect from which the respondent suffered, namely a stammer, is not something which came into existence after he had entered into the service of Government but was a defect from which he suffered, and must have been known to have suffered, at the time of his appointment. In fact it seems that he has been removed for a defect which he had when he was engaged and for which, if it impairs his efficiency, his services could have been dispensed with during the probationary period.
I know no principle of law which would justify the respondent's removal after being in the service of the State Government for live years for a physical defect which he possessed and was known to possess, at the time he was first employed. In the circumstances I do not think that the respondents' removal from service can be justified on the basis of an implied condition of his employment, and that therefore his discharge, whether he be a permanent or temporary servant involves the forfeiture of the rights which in either case he possessed.
It accordingly amounts to a punishment as defined in Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 (D), and Article 311(2) of the Constitution is attracted. The respondent admittedly was not afforded an opportunity of showing cause against the action proposed to be taken in regard to him, and I am of opinion therefore that the order dispensing with his services dated 5th August, 1954, cannot be upheld. I would therefore dismiss this appeal with costs.
Raghubar Dayal, J.
8. I agree. It is not the case of the appellant that the services of the respondent were terminated during his period of probation. The services have not been dispensed with in the exercise of the powers given by Rule 19 of the United Provinces Public Health Service Rules. The respondents' services have been dispensed with because he has been found by the Medical Board to be completely and permanently incapacitated for further service on any account in consequence of the impediment of speech and to have lost all earning capacity.
The question is whether the State can terminate his services even for this reason without complying with the provisions of Article 311 of the Constitution. I am of the opinion that it could not. The respondent has to be given an opportunity to show cause why his services be not terminated on account of the report of the Medical Board. However slender the chances, the respondent could have done his best to show that the report of the Medical Board was not to be accepted in its entirety and that he could still efficiently discharge the duties of some of the posts in the ser-vice, if not of some others which required a considerable amount of speaking by him.
His attempt could be a reasonable one in this case in view of the facts that he suffered from stammering from his birth as mentioned by him in his letter to the Director of Medical and Health Services (Annexure 'D' to his affidavit), that he was considered fit by the Medical Board in 1950, that appointment to the service is made after_ an examination by a Medical Board and that the first Medical Board in 1954 certified that he was fit for service, that this stammering did not interfere with the efficient discharge of his duties of field work as Malaria Survey Officer and that it would stand in his way if his duties involved prolonged speeches or addressing of big audiences.
Of the three doctors who were members of the Second Medical Board one, a Military Officer, expressed the opinion that the impediment of speech was a minor defect and was not enough to cause rejection as to his fitness for continuance in service.
9. We have not been referred to any provision of law which authorises the State compulsorily to invalid out a Government servant. The compulsory removal of a Government servant on the ground of ill health amounts to dismissing him on a finding that he is unfit to discharge the duties of his office. A dismissal on such a charge must come within the ambit of Article 311 of the Constitution.
10. The appeal is dismissed with costs.