1. This is a petition under Articles 226 and 227 of the Constitution for the issuance of an appropriate writ, direction or order. The petitioner was working as a substantive Naib Tehsildar (Revenue) in the erstwhile State of Pepsu in 1954. Thereafter, on 9-11-1954, he was appointed as Consolidation Officer. On the integration of Pepsu with Punjab, he was on 1-11-1956, integrated as Consolidation Officer in the new State of Punjab (copy of the order Annexure 'A'). Since 9-11-1954 the petitioner has been continuously working as Consolidastion Officer and has completed more than 10 years' service on that post. On 26-5-1964, the Governor of Punjab passed an order that all Consolidation Officers, who had worked as such for ten years or more, be confirmed straightway against the posts held by them (copy of the circular order is Annexure 'B' to the writ petition).
Subsequently, on 29-3-1966, the Government of Punjab issued another order (copy Annexure 'C' to the writ petition) intimating the director of Consolidation that those employees who had completed ten years' continuous service on a particular post on or before 31-3-1966 will be eligible for confirmation. The Director was further ordered to work out immediately the number of posts to be sanctioned on a permanent basis. In pursuance of the aforesaid decision, the Punjab government on 14-10-1966, confirmed eight Consolidation Officers with effect from 31-3-1966 against eight out of seventeen permanent posts sanctioned by it. These confirmations also included persons junior to the petitioner. In the case of the petitioner, however, it was decided that his work should be watched for one year more before he was to be considered for confirmation (copy of the order is Annexure 'D' to the writ petition).
On 1-11-1966, that is, on the reorganisation of Punjab, the petitioners was provisionally allocated to the State of Haryana. The petitioner represented against his allocation, but he has not been apprised of the result of that representation so far. On 17-8-1967, the petitioner submitted a representation to the Director, Consolidation of Holdings, Haryana, praying that since a year had already elapsed he should be considered for confirmation as Consolidation Officer. Instead of accepting that representation, the petitioner has been reverted to his parent Department as Naib Tehsildar by an order, dated 5-12-1967 (copy Annexure 'R-2' to the returned).
2. The petitioner challenges the validity of the order dated 14-10-1966 (copy Annexure 'D' to the writ petition), and the order dated 5-12-1967 (copy Annexure 'R-2' to the return) on the following grounds:-
(i) The impugned order (copy Annexure 'D') is arbitrary and violative of Article 16 of the Constitution;
(ii) The petitioner has completed the period of three years' probation within the meaning of rule 6 of the Punjab Consolidation of Holdings State service Class III (Executive Service) rules, 1962 (hereinafter referred to as the Rules), and on th expiry of such period he stood automatically confirmed in the post of Consolidation Officer;
(iii) The petitioner's non-confirmation is in violation of the provisions of Section 82 of the Punjab reorganisation Act, 1966, inasmuch as the impugned order has he effect of varying to his disadvantage the conditions of service which were applicable to him immediately before 1-11-1966;
(iv) The impugned order, dated 5-12-1967 (copy Annexure 'R-2'), is violative of the provisions of Articles 16 and 311 of the Constitution inasmuch as no opportunity to show cause was afforded to the petitioner before passing this order. If due to some retrenchment or shrinkage of cadre strength or any other administrative exigencies reversion of some Consolidation Officers was necessitated, it was incumbent upon the respondents to revert only the junior-most officers on the principle of 'Last come First go,' but this has not been done.
3. Respondent 1 and 2 in their return have mainly admitted the factual position. In reply to paragraph 10 of the writ petition it is submitted that the case of the petitioner relating to his confirmation as Consolidation Officer was considered and it was decided to take up his case for confirmation after the finalisation of the provisional allocation by the Government of India. It is added that the Consolidation Department was to be wound up with effect from 1-4-1968 and that was why the petitioner was reverted to his parent Department vide orders dated 5-12-1967 (copy Annexure 'R-2'). It was denied that nay discriminatory treatment was meted out to the petitioner. It was also denied that any officer junior to the petitioner was confirmed as Consolidation Officer by the State of Haryana after 1-11-1966.
It was further denied that under Rule 6 of the Rules the petitioner was entitled to automatic confirmation on the expiry of his period of probation. It was asserted that he was still an officiating Consolidation Officer. It was also maintained that the impugned orders were perfectly legal and justified in the circumstances when the whole Consolidation Department was being wound up. In the supplementary return the respondents stated that the petitioner was ignored for promotion for a year or so on account of his bad record. In reply to amended paras 11-A and 11-B of the petition, the respondents denied that all the Consolidation Officers were appointed as Tahsildars (Settlement) and asserted that the petitioner had no legal or vested right to be appointed as Tahsildar (Settlement).
4. The first contention of Mr. J.N. Kaushal, the learned Counsel for the petitioner, is that under th Rules of Service governing the petitioner he automatically stood confirmed on the successful completion of his maximum period of probation fixed by the Rules. It is maintained that his status was that of a probationer. On the other hand, Mr.G.S. Chawla, learned Counsel for the respondent State, maintains that the petitioner was not a probationer and, as such, the rule of automatic confirmation applicable to probationers did not apply to him.
5. The material part of the Rules may here be noticed. Rule 2 (e) defines 'service' to mean the Punjab Consolidation of Holdings State Service Class III (Executive Service). Rule 3 says that the Service shall comprise of posts shown in Appendix 'A' to these Rules. There is a proviso appended to this rule which says that 'nothing in these Rules shall affect the right of Government to make additions to or reductions in the number of such posts, whether permanently or temporarily'. Rule 4 provides as to who would be the authority empowered to make appointments of Consolidation Officers. The appointing authority, according to this rule, in the case of Consolidation Officers, is the Government. The Director can, however, make officiating or temporary appointments for a period not exceeding two months. Rule 5 says that in the case of Consolidation Officers appointments shall be made by selection from amongst Assistant Consolidation Officers, Naib Tahsildars, etc.
Rule 6 is important. It reads-
'(i) Members of Service shall remain on probation for two years:
Provided that the period of service spent on deputation to a corresponding or a higher post may be allowed to be counted towards the period of probation fixed under this rule. Explanation:
Officiating service shall be reckoned as period spent on probation, but no member who is officiating in any appointment shall on the completion of two years in Service, be entitled to be confirmed unless he is appointed against a permanent vacancy. (2) IF the work or conduct of any member of the service during the period of probation is, in the opinion of the appointing authority, not satisfactory, he may revert him to his former post.
(3) On the completion of the period of probation of any member, the appointing authority may confirm such member in his appointment or, if his work and conduct has, in his opinion, not been satisfactory he may revert him to his previous post, or may extent his period of probation and thereafter pass such orders as he could have passed on the expiry of the first period of probation:
Provided that the total period of probation, including extensions, if any, shall not exceed three years. (4) On the completion of the period of probation satisfactorily, the appointing authority shall confirm such member, if working against a permanent vacancy. During the period intervening between the dte of completion of probationary period and the date of confirmation, he shall be considered to have qualified for confirmation.'
6. Rule 7 provides how seniority interest of the members of the Service shall be determined. IN this connection it will also be useful to reproduce here the Government instructions contained in their memorandum No. 5459-CHI (I)2452 dated 26th of May, 1964, (copy Annexure 'B' to the writ petition). Paragraph 3 (IV) of that memorandum reads as follows:
'All Consolidation Officers, who have worked as such in the Consolidation Department for ten years or more, be confirmed straightway against these posts; if they have worked for ten years as Consolidation Officers/Assistant Consolidation Officers, then they would be liable to confirmation as Assistant Consolidation Officers'.
The instructions contained ins the above-aid memorandum were to take effect from 1st of April, 1964.
7. This directive was followed by another memorandum No. 1922-CHI(1)-65/1304 dated 29th of March, 1966, from the Punjab Government (copy Annexure 'C' to the writ petition), the material part of which reads as under:-
'Government have decided that the decision regarding the conversion of temporary posts into permanent ones conveyed to you vide memorandum No. 5459-CHI(1)-64/2452, dated the 26th May, 1964, should stand, with the modification that reference to date of 1st April, 1964, should now be changed to 31st of March, 1966, i.e., those employees who completed ten years' continuous service on a particular post or on before 31st March, 1966, will be eligible for confirmation subject to other conditions laid down in the memorandum referred to above.
The number of posts to be sanctioned on permanent basis may also be worked out immediately so that further action is taken in this behalf.'
8. By the first impugned order (copy Annexure 'D' to the writ petition), dated 14th of October, 1966, the Government confirmed eight persons as Consolidation Officers with effect from 31st of March, 1966, against eight out of seventeen permanent posts sanctioned by Punjab Government Memorandum No. 4633-CHI(1)-66/2966, dated 2nd of June, 1966. By the same memorandum it was further laid down-
'As regards Sarvashri Jagir Singh and Ram Dutt (The writ petitioner), Consolidation Officers, it has been decided that their work should be watched for a year or so before they are considered for confirmation. In so far as Shri Mal Singh Consolidation Officer is concerned, his case has been considered and it has been decided that he does not merit confirmation.'
It may be noted that Mal Singh referred to in the above-quoted order also preferred Civil Writ No. 2860 of 1967 for quashing this impugned order of 14th of October, 1966. His writ was allowed by B.R. tuli, J., by an order, dated 19th of September, 1968, (Punj) and it was held that the case was covered by the rule laid down by their Lordships of the Supreme Court in State of Punjab v. Dharam Singh, 1968 SLR 247 = (AIR 1968 SC 1210), and that under the above-quoted Rule 6 of the Rules, Mal Singh was, on the expiry of three years' period of his probation, entitled to be confirmed as soon as a permanent vacancy occurred against which he could be appointed. I am in respectful agreement with the view taken in Mal Singh's case, Civil Writ No. 2860 of 1967, D/- 19-9-1968 (Punj).
9. A reading of Rules 2(e) and 3 of the Rules along with Appendix ;'A' to the rules makes it clear tht the cadre of this Service included permanent as well as temporary posts. The petitioner was admittedly appointed to the Service on 9-111-1954, in Pepsu. Thereafter he continued to hold that post of Consolidation Officer continuously for a period of more than 13 years. Rule 6 (1) of the Rules indicates that all members of the service, - which means members whether appointed against permanent or temporary posts in the service, - shall remain on probation for two years. It will, therefore, be deemed that the petitioner was appointed on probation, if not from the date of his original appointment, with effect from 17th of August, 1962, when the aforesaid Rules were promulgated under Article 309 of the Constitution. Explanation to Rule 6 (1) of the Rules leaves no doubt that even officiating service shall be reckoned as 'period spent on probation' within the meaning f this rule. However, mere completion of the two years' probation will not entitle a member of the service to be confirmed unless he is appointed against a permanent vacancy. The first impugned order, dated 14th of October, 1966, (copy Annexure 'D' to the writ petition), shows two things: (1) that the petitioner had on that date completed his period of probation; and (2) that he was at the time working as Consolidation Officer against a permanent vacancy. In short he was eligible for confirmation on that date. The proviso to sub-rule (3) of rule 6 of the Rules lays down Th the total period of probation, including extensions, shall not exceed three years. In the instant case, on the date of the impugned order (copy Annexure 'D' to the writ petition), the petitioner had completed his three years' period of probation, even if the same is counted, as already observed, from 17th of August, 1962.
In terms of sub-rule (4) of Rules 6 of the Rules, therefore, the petitioner had become entitled to be confirmed against the permanent post which was then available to permanent post which was then available to him. The action taken by means of this impugned order, that is postponing his confirmation for as period of another year,. Was clearly ultra vires and contrary to Rule 6 of the Rules. That rule not only specifies the action that can be taken against a member of the Service on probation whose work and conduct is not satisfactory, but also defines the stages at or during which such action can be taken. Action under sub-rule (2) can be taken during the period of two years' probation. Its sub-rule (3) relates to the stage when the period of probation concludes. At the latest, it is at this stage that the Government has to make up its mind as to the adoption of any of the three courses of action in relation to the incumbent, viz, (a) confirmation in the appointment, or (b) reversion to his previous post (in case of a promotee), or (c) extension of his period of probation. Proviso to sub-rule (3) delimits this stage and gives a clears mandate that no order extending the period of probation can be validly made under that sub-rule after the expiry of three years from the date of the initial appointment on probation. In the present case, the first impugned order (Annexure 'D' to the writ petition), which purported to extent the petitioner's period of probation by one year, was passed on 14th of October, 1966, long after the stage indicated in sub-rule (3) had passed . IT was clearly volatile of the proviso to that sub-rule and as such was void and ineffectual.
10. In Dharam Singh's case, 1968 SLR 247 = (AIR 1968 SC 1210) (Supra) their Lordships of the Supreme Court considered Rule 6 (3) of the Punjab Educational (Provincialised Cadre) Class III Rules, 1961, which is in the same terms as rule 6 (3) of the Rules. It was held:
'Rules 6 (3) forbids extension of the period of probation beyond three years. Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication . The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such as case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication.'
Thus there is no escape from the conclusion that the petitioner was, in terms of the Rules of Service governing him, entitled to be confirmed on the expiry of three years' period of probation (Even if the same is counted from 17th of August, 1962, i.e., the date on which the Rules came into force), as soon as a permanent vacancy became available to him.
11. The learned Counsel for the respondent State has relied on Jit Singh v. Secretary to Government Haryana, 1968 Cur LJ (Punj and Har) 331= (1968 Lab IC 1342) (Punj & Har), a Single Bench judgment of this Court, in which it was held that 'according to Rule 6 (4) of the Rules, even on the satisfactory completion of the period of probation, the appointing authority would confirm such employees who were working against permanent vacancies. Applying this rule, it had to be seen,. Firstly, as to whether the work of the petitioner during the probationary period was satisfactory or not and, secondly, if all or any of them had been working against permanent vacancies.' I do not think that the rule laid down in Jit Singh's case, 1968 Cur LJ 331 = (1968 Lab IC 1342) (Punj & Har) advances the case of the respondent State. On the contrary, it supports the contention of the petitioner. That was a case of Assistant Consolidation Officers.
In that case the Government in their return had admitted that 20 permanent posts of Assistant Consolidation Officers had come to the share of Haryana State at the time of the reorganisation of the Punjab State. Fifteen incumbents had already been confirmed and five permanent posts of Assistant Consolidation Officers were vacant. It had further been admitted by the respondent State that the case regarding the confirmation of eligible officers as Assistant Consolidation Officers was under consideration, but it was deferred due to the fact that restrictions on confirmations ahd been imposed by the Government by their letter dated 1st of May, 1967, till the finalisation of the allocation of the officials to the State of Haryana.
Precisely the same plea has been set up in reply to paragraph 10 of the petition by the respondent State in the case before me. It is stated in the return:
'It was decided to take up his (the petitioner's) case for confirmation after the provisional allocation is finalised by the Government of India in view of the orders of the Government of Haryana State contained in their letter No. 1215-5GS-67/7324, dated 1st of may 1967 (copy enclosed as Annexure 'R-1')'
I can do better than reproduce here the comments of P.C. Pandit, J., on this point made in Jit Singh's case, 1968 Cur LJ 331=(1968 Lab IC 1342) (Punj & Har) (supra)-
'It is not understandable as to why the case regarding the confirmation of the eligible officers had been deferred till the finalisation of the allocation, because that has nothing to do with the confirmation undr Rule 6 (4).'
In Jit Singh's case the Court did not issue a mandamus to the respondent to treat the petitioners as confirmed with effect from any particular date, because the petitioners had not made any averment in the petition as to who out of them were working against permanent vacancies. The Court, therefore, gave a direction to the Government to consider the case of all the petitioners and if any of them were found eligible for confirmation under Rule 6 (4), they could be confirmed against those five permanent vacancies. In the instant case, however, it is implicit in the impugned order, itself, that the petitioner was working against a permanent post on the date of that order.
12. Be that as it may, the matter can be looked at from another angle. The Government had by its order, dated 26th of May, 1964 (Copy Annexure 'B' to the writ petition)', directed in paragraph 3 (IV) that all Consolidation Officers who had worked as such for ten years or more be straight way confirmed against those posts. The petitioner is asking for nothing more than issuance of a direction or mandamus to the Government to enforce and implement its own decision. If the work of the petitioner was not found to be satisfactory, he should have been reverted long before the date of the impugned order (Copy Annexure 'D' to the writ petition). Such as order could not be made long after the petitioner had successfully completed the maximum period of three years' probation without any action having been taken by the Government against him under sub-rule (3) of Rule 6 of the Rules.
Such a mandamus was issued by this Court in Dilbagh Rai v. The Punjab State, 1968 SLR 503 (Punj & Har). In that case the petitioner had joined as clear in Transport Department on 23rd of December, 1946, after rendering war service. He was given benefit of war service towards seniority and promotion, vide Government's order dated 18th of October, 1966, after he had made several representations. The order of the Government, however, was only partially implemented by the Officials who manipulated and succeeded in evading the order. Allowing the petition. 'the court directed the State of Punjab by a writ of mandamus to enforce and implement its decision, dated 18th of October, 1966, in full.
13. Since the impugned order, dated 14th of October, 1966 (copy Annexure 'D' to the writ petition), itself was bad in law and the petitioner would in terms of rule 6 be deemed to have been confirmed as Consolidation Officer against the permanent post which he was holding on the completion of his three years' probation counted from 17th of August, 1962, the subsequent impugned order, dated 5th December, 1967, of the respondent State reverting him to the post of Naib Tahsildar automatically falls to the ground. The petitioner had a right to hold the post of Consolidation Officer and he could not be reverted without compliance with the provisions of Article 311(2) of the Constitution, which was not done in this case.
14. Of course, it would have been anther matter had the petitioner and all others junior to him been retrenched as a matter of administrative economy or for like reason. In that case also, no 'pick and choose policy' could be adopted; the policy of 'first come last to go had to be adopted. But in this case, it is common ground that persons junior to the petitioner have been confirmed, thought the respondent (State of Haryana) has denied that this was done by its predecessor State of composite Punjab. In the supplementary return, however, the respondent has stated that the petitioner has been ignored for promotion on account of his bad record. Thus, it means that in reality, he ahs been reverted to a lower rank by way of punishment and not for administrative reasons. In this view of the matter also, the impugned order would be hit by Article 311(2) of the Constitution.
15. For the foregoing reasons, I would allow this writ petition, quash the impugned orders, dated 14th of October, 1966 (Copy Annexure 'D' to the writ petition), and 5th of December, 1967 (copy Annexure'R-2' to the return), and direct by a writ of mandamus the respondent State to implement the order of its predecessor Government, as modified subsequently, and consider the petitioner as confirmed with effect from 31st of March, 1966, when a permanent post fell vacant against which he could b e appointed. The petitioner shall be entitled to get his costs from the respondent State. Counsel's fee Rs. 100/-.
16. Petition allowed