1. This is an appeal on a certificate granted by the Punjab High Court. Theappellant was selected for the post of Programme Assistant on May 3, 1949 andwas appointed on probation for one year, and the letter of appointment saidthat during the said period his services might be terminated without any noticeand without any cause being assigned. He was asked to accept the offer on thiscondition. The appellant accepted the offer and joined service on June 4, 1949.His period of probation expired on June 3, 1950, but it was extended from timeto time. On July 4, 1952, the appellant was informed that his probation periodcould not be extended and was called upon to show cause why his services shouldnot be terminated. The appellant showed cause. He was finally in formed thatthe explanation given by him was not satisfactory and that his services were tobe terminated after August 31, 1952.
2. The appellant then filed a petition under Art. 226 of the Constitution inthe Punjab High Court and his main contention was that he was entitled to theprotection of Art. 311(2) of the Constitution and as this was not afforded tohim the order terminating his services was illegal. Besides it was urged on hisbehalf that he was governed by Rules 49 and 55-B of the Civil Services(Classification, Control and appeal) Rules (hereinafter referred to as theRules) and therefore he was entitled to the protection of those rules. Ashowever his services had been terminated without compliance with those rules hewas in any case entitled to reinstatement.
3. The High Court held that the appellant was not entitled to the protectionof Art. 311(2), of the Constitution. It further held that Rules 49 and 55-B of theRules did not apply to the appellant and he was governed by the contract of hisservice which provided that his services might be terminated without any noticeand without any cause being assigned during the period of probation. The HighCourt further held that Rules 49 and 55-B would not in any case apply to theappellant in the face of the contract under which he was appointed in view ofr. 3(a) of the Rules. The petition was consequently dismissed, but the HighCourt granted a certificate to the appellant that the case was a fit one forappeal to this Court; and that is how the matter has come up before us.
4. It is not in dispute that the appellant was never confirmed in hisappointment. It is also not in dispute that though the letter of appointmentsaid that the appellant will be on probation for a period of one year, hisprobation period was extended from time to time. We agree with the High Courtthat though the letter of appointment did not say in so many words that theprobation was likely to be extended, it was implicit therein that the probationwould continue till such time as the appellant was confirmed or discharged andso would the term in the appointment letter that his services were liable to beterminated without any notice and without any cause being assigned, during theperiod of probation.
5. The first question that falls for determination is whether the appellantis entitled to the protection of Art. 311(2),; for if he is entitled to thatprotection it is not disputed that provision was not complied with in this casebefore his services were terminated. It is now well settled that the protectionof Art. 311 of the Constitution applies to temporary government servants alsowhere dismissal, removal or reduction in rank is sought to be inflicted by wayof punishment. But it is equally well settled that where the services of atemporary government servant are terminated not by way of punishment, Art. 311will not apply and the services of such a servant can be terminated under theterms of the contract or by giving him the usual one month's notice. [see,Parshotam Lal Dhingra v. Union of India : (1958)ILLJ544SC . Further it isequally well settled that a government servant who is on probation can bedischarged and such discharge would not amount to dismissal or removal withinthe meaning of Art. 311(2), and would not attract the protection of that Articlewhere the services of a probationer are terminated in accordance with the rulesand not by way of punishment. A probationer has no right to the post held byhim and under the terms of his appointment he is liable to be discharged at anytime during the period of his probation subject to the rules governing suchcases : [see The State of Orissa v. Ram Narain Das : (1961)ILLJ552SC ]. Theappellant in the present case was undoubtedly a probationer. There is also nodoubt that the termination of his service was not by way of punishment andcannot therefore amount to dismissal or removal within the meaning of Art. 311.As a probationer he would be liable to be discharged during the period ofprobation subject to the rules in force in that connection. The High Courttherefore was right in holding that the appellant was not entitled to theprotection of Art. 311(2), of the Constitution.
6. It is however urged on behalf of the appellant that the rules themselvesmade it obligatory that Art. 311(2), should be complied with before the servicesof a probationer were terminated. In this connection reliance is placed onExplanation 2 to r. 49 of the Rules, as amended on October 10, 1947. ThatExplanation read as follows :-
7. Now if this Explanation were in force in 1952 when action was takenagainst the appellant, his contention that Art. 311(2), applied to him would becorrect. But we find that r. 49 was further amended in November 1949 and bythat amendment Explanation 2 was deleted, and a new Explanation, which took theplace of Explanations 1 and 2 of the rule as it stood after the amendment ofOctober 10, 1947 was substituted. This new Explanation which was in force atthe relevant time, is in these terms :-
(a) of a person appointed onprobation during or at the end of the period of probation, in accordance withthe terms of the appointment and the rules governing the probationary service;or
(b) * * * * *
(b) * * * * *
does not amount to removal ordismissal within the meaning of this rule or of rule 55.'
8. Therefore when action was taken against the appellant in 1952, it wasthis Explanation which governed the appellant and accordingly if his serviceswere terminated in accordance with the terms of his appointment and the rulesgoverning his probationary service and not as a measure or punishment, theappellant cannot claim the protection of Art. 311(2),. His contention based onExplanation 2 to r. 49 as it existed after the amendment of October, 1947 musttherefore fail as that Explanation had been deleted long before action wastaken against the appellant. The main contention of the appellant thereforethat he was entitled to the protection of Art. 311 must fail.
9. In the alternative, it has been urged on behalf of the appellant that hewas entitled to the protection of r. 55-B and as that rule was not compliedwith, the termination of his service was illegal. The High Court held that r.55-B would not apply to the appellant because in the letter of appointmentissued to him it was said that his services were liable to be terminatedwithout any notice and without any cause being assigned. The reason why theHigh Court held that term in the letter of appointment would prevail over r.55-B is that where there is conflict between the terms of contract and therules, the former must prevail, under r. 3(a).
10. Two questions thus arise in this connection : the first is whether inview of r. 3(a) the appellant will not be entitled to the protection of r.55-B, and the second is whether he was afforded the protection of r. 55-Bbefore action was taken to terminate his service if that rule applies. Rule55-B was inserted in the Rules in November, 1949 and reads thus :-
11. This rule would clearly apply to the appellant who was a probationer asit was in force at the relevant time, unless r. 3(a) makes it inapplicable inview of the term mentioned above in the letter of appointment issued to him.Rule 3(a) lays down -
(a) persons for whoseappointment and conditions of employment special provision is made by or underany law for the time being in force;
(b) x x x x x x x
x x x x x x x
12. Rule 3(a) thus excludes the application of the Rules only in case ofpersons for whose appointment and conditions of employment special provision ismade by or under any law for the time being in force. It has not been shown tous that any special provision has been made as to the appointment andconditions of employment of persons in the all-India Radio service by or underany law for the time being in force. It cannot be said therefore that the termalready mentioned, which appears in the letter of appointment issued to theappellant, is a special provision by virtue of any law or was inserted underany law for the time being in force. That term is nothing more than the usualterm one finds in letters of appointment issued to persons appointed onprobation. The High Court was therefore in our opinion not right in holdingthat r. 55-B will not apply to the appellant because of this term in the letterof appointment issued to him. We hold that r. 55-B will apply to the appellantand is not excluded by r. 3(a).
13. The next question is whether r. 55-B was complied with. The facts inthat connection are these. On December 6, 1951 soon after the appellant'sprobation was extended up to June 3, 1952, he was informed that during theperiod he had been employed his work had been found to be much below thestandard required for the post. The main defects that were found were alsopointed out to him, namely, '(i) immature taste, (ii) cannot be entrustedto work without supervision, and (iii) has few ideas but cannot think logicallyand plan systematically.' He was therefore given an opportunity to remedythe defects and to make attempts to bring himself up to the standard at leastof an average Programme Assistant. He was further informed that he should do soby systematic concentration on his subjects, application to his job and bymaking wider studies and contacts. He was told to seek guidance and help of hissenior officers wherever required in effecting the necessary improvement.Finally he was told that it would not be possible to give him any furtherextention of probation after the present one and that if his work during thatperiod did not come up to the required standard, his services might have to beterminated. The appellant thus had been warned to improve his work as far backas December, 1951. On July 4, 1952, the appellant was given a notice by whichhe was afforded an opportunity to show cause why his services should not beterminated and was informed that any representation made by him in this regardwould be duly considered. The notice said that the appellant's work had notcome up to the average standard of a Programme Assistant and four defects werepointed out, namely, (i) immaturity in taste, and want of tact and discretion,(ii) inability to think logically and plan systematically, (iii) want ofprogramme sense and background necessary for an average programme man, and (iv)he could not be entrusted to work without supervision. The appellant gave hisexplanation in reply to this notice which was duly considered and on July 31,1962, he was informed that his explanation had not been considered satisfactoryand therefore his service would be terminated after August 31, 1952.
14. It has been contended on behalf of the appellant that this was notsufficient compliance with r. 55-B. That rule lays down that the probationershall be apprised of the grounds on which it was proposed to terminate hisservices and given an opportunity to show cause against it. We are of opinionthat the appellant's contention must be rejected. The appellant was apprised ofthe grounds on which it was proposed to discharge him. But what is urged isthat the elaborate procedure provided in r. 55 should have been gone throughunder r. 55-B also. Rule 55 however deals with cases of removal, dismissal orreduction in rank, which are specifically covered by Art. 311(2), of theConstitution and the procedure prescribed therein is meant for these threemajor punishments. That procedure is not meant to be applicable under r. 55-Bwhich deals with the discharge of a probationer which is not a punishment atall. Therefore in a case covered by r. 55-B all that is required is that thedefects noticed in the work which make a probationer unsuitable for retentionin the service should be pointed out to him and he should be given anopportunity to show cause against the notice, enabling him to give anexplanation as to the faults pointed out to him and show any reason why theproposal to terminate his services because of his unsuitability should not begiven effect to. If such an opportunity is given to a probationer and hisexplanation in reply thereto is given due consideration, there is in ouropinion sufficient compliance with r. 55-B. Generally speaking the purpose of anotice under r. 55-B is to ascertain, after considering the explanation which aprobationer may give, whether he should be retained or not and in such a caseit would be sufficient compliance with that rule if the grounds on which theprobationer is considered unsuitable for retention are communicated to him andany explanation given by him with respect to those grounds is duly consideredbefore an order is passed. This is what was done in the present case and itcannot therefore be said that the appellant was not given the opportunityenvisaged by r. 55-B. We therefore dismiss the appeal, though for slightlydifferent reasons. In the circumstances there will be no order as to costs.
15. Appeal dismissed.