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Shanti Kusum Das Gupta Vs. the Oil and Natural Gas Commission, Dehra Dun, Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 42 of 1968
Judge
Reported inAIR1970Guj149
ActsCivil Services (Classification, Control and Appeal) Rules, 1930 - Rule 55-B; Central Services (Classification Control and Appeal ) Rules, 1957 - Rule 34
AppellantShanti Kusum Das Gupta
RespondentThe Oil and Natural Gas Commission, Dehra Dun, Uttar Pradesh and ors.
Appellant Advocate C.T. Daru, Adv.
Respondent Advocate I.M. Nanavati and; M.N. Patel, Advs.
Cases ReferredRaja Ram v. State
Excerpt:
service - transfer - rule 55-b of civil services (classification, control and appeal) rules, 1930 and rule 34 of central services (classification, control and appeal) rules, 1957 - petitioner working in temporary post promoted on probation - order passed by commission replacing his services - application challenging such order as illegal and inoperative - petitioner contended that being on different post benefit in terms and conditions of service under rule 55-b would not ensure to him in respect of impugned post - respondent contended that commission entitled to post him in any post - he would be entitled to protection of rule 55-b - question of fact raised - no question of law found - petition dismissed. - - daru, therefore, thought it best not to pursue the point in this petition.....1. the petitioner shanti kusum das gupta is an employee of the oil and natural gas commission (hereinafter referred to as the commission) which is respondent no 1 in this petition. the petition is directed against an order of the commission dated 12th march 1968 (annexure b to the petition.) at the time of the order the petitioner was serving in the commission in the temporary post of a deputy manager to which he had been promoted on probation on an earlier date to which reference will be made presently. by this order his services were replaced at the disposal of the geology directorate as senior geologist which was a post he occupied in a substantive capacity before the promotion just mentioned. this order is challenged as illegal, void and inoperative. the commission, as earlier stated,.....
Judgment:

1. The petitioner Shanti Kusum Das Gupta is an employee of the Oil and Natural Gas Commission (hereinafter referred to as the Commission) which is respondent No 1 in this petition. The petition is directed against an order of the Commission dated 12th March 1968 (Annexure B to the petition.) At the time of the order the petitioner was serving in the Commission in the temporary post of a Deputy Manager to which he had been promoted on probation on an earlier date to which reference will be made presently. By this order his services were replaced at the disposal of the Geology Directorate as Senior Geologist which was a post he occupied in a substantive capacity before the promotion just mentioned. This order is challenged as illegal, void and inoperative. The Commission, as earlier stated, is respondent No. 1 to the petition. Respondents Nos. 2 and 3 who are the only other respondents are respectively the Director of Administration who has signed the order Annexure B and the General Manager under whose orders this office order appears to have been issued. The respondent No. 1 being the principal respondent will be referred to hereinafter as the respondent.

2. The material facts are these. Before the Commission was incorporated by the Oil and Natural Gas Commission Act, 1959 (hereinafter referred to as the Act) it was a Department of the Government of India. While it was such a Department the petitioner was recruited in the Commission on 1-8-1957 as a Senior Geologist in the Scale of Rs. 700-50-1250 and was occupying that post in the Commission at the time the Commission was incorporated. The Act incorporating the Commission came into force on 15-10-1959. Under Section 13 of the Act the employees of the existing organization meaning the Commission before incorporation became the employees of the Commission as incorporated. The petitioner accordingly became such an employee and continued in the post of Senior Geologist. In 1964 it appears that the Commission decided to appoint technical men in managerial (executive) posts. Accordingly by an order dated 28-9-1964 (Annexure A to the petition) six technical men from different Directorates were appointed to the temporary posts of Deputy Managers in the pay scale of Rs. 1100-50-1400. The petitioner was one of them. The appointment under the order Annexure A was besides being stated to be an appointment to a temporary post and until further orders was also stated to be on probation for a period of six months from the date the appointee assumed charge of his appointment. Although there is no subsequent order extending the period of probation there has also not been any order terminating the period of probation or confirming the petitioner in that post. There was in the petition a contention that in the absence of such an order the petitioner must be deemed to have been confirmed but that contention has not been pursued at the time of hearing and Mr. Daru who appears for the petitioner concedes that in law the petitioner continued to be on probation and was on probation on the date the impugned order dated 19-3-1968 was passed. It will be convenient how to set out the terms of the impugned order. It reads as under:-

'Services of Shri S. K. Das Gupta, Deputy Manager, Oil and Natural Gas Commission, Baroda, are replaced at the disposal of the Geology Directorate as Senior Geologist Shri Das Gupta is posted against an existing vacancy.

Shri Das Gupta would be relieved of his duties in the afternoon of March 19, 1968 and will report for duty to the Deputy Manager, Oil and Natural Gas Commission Korraikkal, after availing usual joining time.'

3. In the petition this order is challenged on several grounds but at the time of hearing Mr. Daru made only two submissions namely,

(i) The petitioner though under probation was entitled to be apprised of the grounds of reversion and to be afforded an opportunity to show cause against it under Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules 1930 and such an opportunity was not given:

(ii) Neither the Director of Administration (respondent No. 2) under whose signature the impugned order is issued nor the Chairman of the Commission (respondent No. 3) had the power to make such an order.

At the fag end of his arguments Mr. Daru put forward a plea, which had been raised in the petition, that even if the impugned order was valid the petitioner could not be posted as a Senior Geologist but should have been posted to the higher post of Project Geologist having regard to what he called 'the next below rule'. His submission was that an employee junior to him as a Senior Geologist had been selected and appointed as a Project Geologist and therefore the petitioner should have been reverted to that higher post on the basis of the next below rule. That point no doubt has been made in the petition and has been controverted in the affidavits filed on behalf of the respondent. The point raises a question of fact, whether the post of Project Geologist was or was not a selection post on which parties are not in agreement. Besides, the question as to his being entitled to the benefit of the next below rule is a question independent of the question of reversion of the petitioner which is the main question in this petition and Mr. Daru, therefore, thought it best not to pursue the point in this petition but to take it up as and when occasion arises. Mr. Nanavati who appears on behalf of the respondent has no objection to the adoption of that course and therefore, it is not necessary to go into that particular question and the only submissions which therefore, call for consideration are the two submissions of Mr. Daru earlier set out.

4. To appreciate the first submission it is necessary to refer to some of the relevant rules governing the conditions of service of the petitioner. At the time the petitioner joined the service, that is in August 1957, the Government of India servants were governed as to their tenure and other terms and conditions of service by the Central Services (Classification, Control and Appeal) Rules, 1957, (hereinafter referred to as the 1957 Rules). These rules came into force on 28-8-1957. Before noticing the relevant provisions of these rules it will be convenient to notice in order to appreciate the arguments advanced an earlier set of rules which were repealed by Rule 34 of the 1957 rules. The earlier rules so repealed were the Civil Services (Classification Control and Appeal) Rules 1930 (hereinafter referred to as the 1930 rules). Under Rule 3 of 1930 rules, those rules applied to every person in the whole time civil employment of a Government in India except persons excepted by Cls (a), (b) and (c) there set out. Therefore, these rules applied not only to persons in the civil employment of the Central Government but also to those in civil employment of the Provincial Governments. The rules dealt with classification of the services which are covered by Parts II to XI, conduct and discipline, which are covered by part XII and appeal which is covered by Part XIII. Of the rules relating to conduct and discipline the rules which are required to be noticed for the purpose of this petition are Rules 49, 55 and 55-B. Rule 49 specifies the penalties which may for good and sufficient reasons be imposed on members of the services. There are seven different kinds of penalties specified, three of which are reduction, removal and dismissal. The explanation to Rule 49, which has been amended from time to time, deals with the discharge of persons appointed on probation during or at the end of the period of probation. Such a discharge was taken out of penalties of removal and dismissal prescribed under Rule 49 by providing that it does not amount to removal or dismissal within the meaning of that rule. Rule 55 prescribes the procedure to be followed if a penalty of dismissal, removal or reduction was to be imposed. Rule 55-B which has been the subject of much argument in this case reads as under:-

'Where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authority, competent to terminate the employment.' The rule, therefore, relates to the termination of employment of a probationer during or at the end of the period of probation and it provides that if such termination is for any specific fault or on account of his unsuitability for the service, he shall be apprised of the grounds of such proposal and given an opportunity to show cause against it before orders are passed by the authority competent to terminate the employment.

5. The first question which has been raised in the course of arguments is whether after the 1957 rules came into force Rule 55-B of the 1930 rules survived in respect of the subject-matter of that rule, and that question arises because there is no rule in the 1957 rules corresponding to Rule 55-B of the 1930 rules. If the rules does not survive the challenge of the petitioner to the impugned order on the ground that no opportunity to show cause was given to him contemplated by Rule 55-B would fail. There is no dispute about the fact that no such opportunity was given before the impugned order was made. That being so, it must be established as a first step to sustain the first submission made on behalf of the petitioner that Rule 55-B continued in force notwithstanding the repeal of 1930 rules by Rule 34 of the 1957 rules. It will have next to be established that Rule 55-B was attracted to the facts of this case.

6. Rule 34 of the 1957 rules deals with repeal and savings. Sub-rule (1) of that rule reads as under:-

'The Civil Services (Classification, Control and Appeal) Rules and the rules contained in the notification of the Government of India in the Home Department No. F/9/19/30 -Ests, dated 27th February 1932 and any notifications issued and order made under any such rules to the extent to which they apply to persons to whom these rules apply and in so far as they relate to classification of Central Services specified in the Schedules except the General Central Services or confer powers to make appointments, impose penalties or entertain appeals are hereby repealed.'

These are provisos to this sub-rule which are not material for our purpose. Therefore, under this rule what is repealed is (i) the Civil Services (Classification, Control and Appeal) Rules, 1930 (ii) the Rules contained in the notification of the Government of India dated 27th February 1932 and (iii) any notifications issued and orders made under any such rules. The repeal of these is to the extent they applied to persons to whom the 1957 rules applied and in so far as they relate to classification of central Services specified in the Schedule except the General Central Services or confer powers to make appointments, impose penalties or entertain appeals. Mr. Nanavati first endeavoured to argue that this qualifying clause beginning with the expression 'to the extent to which they apply' govern only the third item of repeal and not the earlier two items, but later he fairly conceded that that qualification would apply to all the three items. Now, the qualification broadly refers to two subjects namely persons and subject-matter. As to persons the rules are repealed only in respect of those persons to whom the 1957 rules apply and as to subject-matter they refer to the power to make appointments. Impose penalties and entertain appeals. The argument of Mr. Daru is that Rule 55-B does not fall under any of the subjects covered namely the power to appointment, impose penalty and entertain appeals as R. 55-B does not deal with imposition of penalty. The argument of Mr. Nanavati is that in a broad sense Rule 55-B is a penalising provision and it would therefore, fall within the expression 'to impose penalty.' I shall consider the respective submissions on the point later.

7. On the assumption that the R. 55-B survives the repeal of the 1930 rules the question still would be whether it survive in respect of the employees of the Government of India who were taken over by the Commission. The relevant provisions are Sections 12 and 13 of the Act. Under Section 12 the Commission is empowered to appoint such number of employees as it may consider necessary for the purpose of enabling it efficiently to perform its functions or exercise its powers under the Act and as to these employees the Commission has power under this section to provide by regulations for their functions and the terms and conditions of service. Section 13 (1) which is relevant for this case relates to the employees taken over from the existing organization and the petitioner is one of such employees. Such employees by reason of this provision became employees of the Commission with such designations as the Commission may determine. The sub-section goes on to say with respect to such employee that 'he shall hold his office or service therein by the same tenure, at the same remuneration and upon the same terms and conditions as he would have held the same on such date if the Commission had not been established and shall continue to do so unless and until his employment in the Commission is terminated or until such tenure, remuneration and terms and conditions are duly altered by the Commission.'

Therefore, if Rule 55-B survives the repeal of the 1930 rules by Rule 34 of the 1957 rules, the terms and conditions as embodied in that rule will be carried by the petitioner to the Commission until these terms and conditions are altered by the Commission. An alteration to the disadvantage of such an employee is required to have the previous approval of the Central Government under proviso (a) to that sub-section. It is not the case of the respondent that there has been any alteration. If so, the petitioner, if the rule survives and is attracted, would be entitled to have the rule observed before action contemplated by that rule is taken.

8. Now, the question of the survival of the rule depends, as earlier indicated, on the construction of Rule 34 of the 1957 rules and the point arising is a narrow one. The point is whether Rule 55-B is a rule imposing a penalty or it is not. If it is not a rule imposing a penalty it is not disputed that it would survive. Mr. Nanavati for the respondent argues that we must look at the substance of the matter and the substance of the matter is that the rule terminates the employment of a probationer on the ground of a specific fault or on the ground of unsuitability. What amounts to termination of employment within the meaning of R. 55-B is a matter of difference between the petitioner and the respondent, and I shall consider the respective submissions in that regard later but whatever the content of the expression 'terminate the employment'. Mr. Nanavati's argument is that the action taken being an action on the ground of specific fault or unsuitability for the service has a penal ring about it and therefore, it must be held that it is a rule imposing a penalty, in this connection Mr. Nanavati invited my attention to the scheme of the 1930 Rules. I have earlier referred to that scheme. Part I is general, Parts II to XI deal with classification, Part XII deals with conduct and discipline and Part XIII with appeal. He particularly invited my attention to the fact that the rules relating to the imposition of penalty all fall under Part XII which deals with conduct and discipline and this Rule 55-B also falls in that Part, and therefore, the rule must be treated as one falling within the board subject of conduct and discipline which includes the subject of imposition of penalty. Mr. Daru's submission on the other hand is that the expression 'to impose a penalty' as used in Rule 34 must be read in the light of the meaning of that expression as used in the rules themselves and in the light of the true content of Rule 55-B. He argued that under the 1930 Rules wherever imposition of penalty is contemplated, the rules specifically mention it in those very words, for example, R. 49, and that neither under the rules of 1930 nor under the Rules of 1957 is the termination of employment of the probationer treated as an imposition of a penalty. The judicial decisions also do not treat it as an imposition of penalty. Therefore, considering the rule in the light of the language of the other rules and in the light of the judicial interpretation of the expression 'to impose a penalty', that expression as used in Rule 34 would not cover a termination of employment of a probationer with which Rule 55-B is concerned. In my opinion, the submission of Mr. Daru will have to be accepted.

9. Rule 34 is a repealing legislative provision and the expressions used therein must be construed in the light of the meaning which they carry in the repealed rules or the repealing rules as the case may be. The expression 'to impose a penalty' has not been defined in the 1930 rules or in the 1957 rules and therefore, its meaning must be gathered from its context. Obviously imposition of penalty does not cover as large a field as conduct and discippline and therefore, the fact that Rule 55-B falls under the Part relating to conduct and discipline does not necessarilymean that it relates to imposition of penalty. What action amounts to imposition of penalty is indicated by Rule 49 of the 1930 Rules which corresponds to Rules 13 of the 1957 Rules. The termination of services of a probationer is expressly stated in both these rules not to amount to an action falling within the description of the penalties prescribed under both these rules. Reference may in this connection be made to the explanation to Rule 49 of 1930 Rules and the explanation to Rule 13(1) of 1957 Rules. It is not necessary to refer to the various judicial decisions under which it has been held that the termination of employment of a probationer during or at the end of the period of probation in accordance with the rules governing the subject or with the contract of employment is not a penalty. That position is not disputed by Mr. Nanavati, Mr. Nanavati's contention is that the termination with which R. 55-B is concerned does not fall within that category but has an added element of blemish. That is true, but a reversion from an officiating position to a substantive lower position on account of unsuitability is also a blemish; even so it is not a penalty, such a revision being an implied term of officiating promotion. The same is true of the termination of employment of a probationer on account of unsuitability. It is an implied term of appointment on probation. The expression 'penalty' carries with it a sense of punishment. In Ranendra Chandra v. Union of India, : [1964]2SCR135 where R. 55-B came up for consideration before the Supreme Court the contention urged was that before an action is taken under R. 55-B to terminate the employment of the probationer the procedure prescribed by Rule 55 of the said rules was required to be followed. Their Lordships said:

'Rule 55 however, desla with cases of removal, dismissal or reduction in rank, which are specifically covered by Art. 311(2) of the Constitution and the procedure prescribed therein is meant for these three major punishments. That procedure is not meant to be applicable under Rule 55-B which deals with the discharge of a probationer which is not a punishment at all.'

Therefore, they in terms say that section under Rule 55-B if not a punishment. It would not for these reasons, be possible to say that the said rule deals with the imposition of penalty. In my opinion, therefore, the submission of Mr. Daru that the rule survives the repeal of the 1930 Rules must be accepted.

10. The more important question, however, is whether that rule is attracted on the facts of this case. The rule would be attracted firstly if what is proposed or the action taken is to terminate the employment of the probationer whether during or at the end of the period of probation and secondly if this is done for any specific fault or on account of unsuitability for the service of the said probationer. The second is more or less a question of fac and I shall deal with that question later. The first is a question of construction of the rule and on that point two different constructions have been placed before me one by Mr. Daru for the petitioner and the other by Mr. Nanavati for the respondent. There is no dispute about the fact that the petitioner was a probationer and it was during the period of his probation that the impugned order was made. The only point is whether by the impugned order what was done was to terminate his employment. Whereas it is argued by Mr. Nanavati that the expression 'to terminate the employment' necessarily connotes cessation of relationship of employer and employee, the argument of Mr. Daru is that what is meant by that expressino is the cessation of employment in a particular post. In substance the question reduces itself to this, whether the rule applies only to the initial employment in Government on probation as contended by Mr. Nanavati or applies also to a promotion on probation of a person already in Government service.

11. Mr. Daru's argument is that an appointment could be made at different stages because even in respect of a promotion post what takes place is an appointment to that post. If that is so the termination can also take place at different stages. The next step of his argument is that what is true of an appointment is true of an employment that is to say the employment can also be to a particular post, the termination of which would be termination of employment to that post. Rule 55-B, he argues, is confined to suitability of a probationer to a particular post and therefore, termination of his employment means termination of employment of the probationer in that post. On principle, he argues, there is no reasonable ground for distinction between the two cases namely, the case of a person appointed for the first time in Government service on probation and the case of a person promoted on probation because the opportunity to be given under Rule 55-B is with respect to the work which the employee has been doing in the post which he occupies, and it is difficult to see why the rule making authority should contemplate different treatment when both are equally placed in respect of the occastion for the opportunity. If the rule is a rule made for the protection of the probationer, as he argued it is, there is no reason in principle why one probationer should be differentiated from another. It was conceded by him that the two categories of probationers did not stand wholly on the same footing becuae whereas one goes out of Government employment, the other remains in the employment on a lower post but his submission was that this did not make any substantial difference because the promotee who is reverted to his original post on which he has no doubt a lien may as well say that he did not want to go back to that post in which case the termination of his probation would be termination of his employment.

12. Mr. Nanavati's submission is that the expression to terminate the employment must be construed in its ordinary meaning which means cessation of relationship between the employer and the employee or as he puts it it means that the employee must go home. Unless that is the result there is no cessation because the relationship of employer and employee subsists in the post to which the promotee is reverted, what was being terminated under Rule 55-B was the employment as the rule itself says, and he argues that promotion is not an employment. When the petitioner, he argues, was promoted as Deputy Manager he was not being employed by the Commission and therefore the additional factor that he was put on probation in the promotion post does not make his appointment to that post an employment on probation. He argued that termination of employment of a probationer is treated under the rules themselves as a subject apart from reversion from officiation in a promotion post to the substantive post and in this connection he invited my attention to Cls (iv), (v) and (viii) of Rule 13 of the 1957 Rules. Clauses (iv) and (v) specifically deal with reversion; one from an officiating position and the other from a position held on probation. Clause (viii) specifically relates to termination of the services of a person appointed on probation duyring or at the end of the period of probation. If that is so then reading Rule 55-B consistently with those rules, it would not be possible, he argued, to construe it so as to cover a case of promotion on probation.

13. We may first look at the language of Rule 55-B. The expression used is 'to terminate the employment.' The word 'employment' in the context means 'occupation or act of employing' or 'state of being employed' and therefore, unless there is an indication to the contrary the normal meaning of termiantion of employment is the one which Mr. Nanavati put forward namely the cessation of the relationship between the employer and the employee. Obviously, the expression employment has reference to employment in Government. This is how the word 'employment' has been referred to in R. 3 of the 1930 Rules. No doubt the rule must now be construed in the light of 1957 Rules of which it must be deemed to form part but the historical association of the rule cannot be ignored while construing it. At any rate the use of the expression 'employment' must be construed as deliberately made. If Rule 55-B was meant to cover as wide a field as urged on behalf of the petitioner, that is to say, it was to cover termination of every character it would have used the word 'appointment' instead of the word 'employment' because in that case all appointments whether initialor on promotion would then be covered. It is not as if the expression 'appointment' was unknown to the legislating authority. The expression finds plae not only in the 1930 Rules but also in the 1957 Rules. Art 16 of the Consitution to which Mr. Daru invited my attention makes a distinction between employment and appointment, and the scope of the expression employment as used in that Article has been explained by the Supreme Court in General Manager S. Rly v. Rangachari, : (1970)IILLJ289SC . It is obvious that the word 'employment' covers a much larger field in matter of conditions of service, the right to promotion etc., than the word 'appointment.' Therefore, looking at the expression 'employment' both in its ordinary meaning and the meaning as derived from the language used in other rules it would be right to construe it as meaning the state of being employed or as referring to the existence of employer and employee relationship. The ground on which termiantion of the employment can be made, it will be noticed, in any specific fault or unsuitability for the post. The rule when enacted was obvisouly meant to be complementary to the explanation to Rules 49 of the 1930 Rules, just as Rules 55 and 55-A are substantially complementary to the main part of the said Rule 49. These considerations go to indicate that the rule is concerned with the cessser of employment in Government service and not with cesser of employment in a particular post. This construction gets support from R. 13 of the 1957 Rules. Rule 55-B must now be read along with the 1957 Rules and the construction must harmonise with these rules. Now Rule 13 of the 1957 Rules lays down the penalties which may for good and sufficient reasons be imposed on a Government servant. Three of the penalties are reduction to a lower service, grade or post, removal from service and dismissal from service. There is an explanation setting out the situations under which the action would not amount ot a penalty within the meaning of that rule. Three of the situations which are set out in Cls (iv), (v)and (viii) are as under:-

' (iv) Reversion to a lower service, grade or post of a Government servant officiating in a higher service, grade or post on the ground that he is considered, after trial, to be unsuitble for such higher service, grade or post or on administrative grounds unconnected with his conduct;

(v) Reversion to his permanent service, grade or post of a Government servant appointed on probation to another service, grade or post during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing probation;

(viii) termination of the services-

(a) of a Government servant appointed on probation during or at the end of the period of probation, in accordance with the terms of his appointment or the rules and orders governing probation, or

(b) of a temporary Government servant in accordance with Rule 5 of the Central Civil Services (Temporary Service) Rules 1949; or

(c) of a Government servant employed under an agreement in accordance with the terms of such agreement.

Therefore, Cl (iv) refers to a reversion to a lower service, grade or post of a Government servant officiating in the higher service, grade or post Cl (v) refers to reversion to his permanent service, grade or post of a Government servant appointed on probation to another service grade or psot. Clause (iv) therefore, concerns a person officiating on a higher post and Cl (v) concerns a person on probation on a different post. Their going back to their permanent post is termed 'reversion.' If however, a probationer goes out of service altogether it is termination of his service altogether it is termination of his services. Clause (viii) concerns such a case. Obviously Cl (viii) covers a category different from those covered by Cls (iv) and (v). It could not be that they overlap. Now, the expression 'termination of services' used in Cl (viii) obviously means termination of employer employee relationship. The question then is whether the expression 'terminatino of employment' used in Rule 55-B must carry a meaning which covers not only the termination of services referred to in Cl (viii) but also reversion of the kind referred to in Cl (v). If the construction canvassed of by Mr. Daru in respect of R. 55-B is to be accepted then it is apparent that in respect of a probationer reverted to his substantive post, a situation which is covered by Clause (V) of the explanation to Rule 13, he would be entitled to a show cause notice as contemplated by R. 55-B, if the reversion is on the ground of unsuitability but as that rule does not apply to a Government servant officiating in a higher post, such a servant when reverted under Cl (iv), even on the grund of unsuitability would not be entitled to an opportunity to show cause. Such a discrimination could not have been intended, Mr. Daru's argument that the promotee probationer and the appointee probationer are similarly situated in respect of the proposed action is no well founded. In one case the action does not server employer employee relationship, in the other it does. The reason of the rule is not protection of the probationer as urged by Mr. Daru but the serverityof the action. Therefore, reading the rule in the light of its own language and in the light of the context it appears to me that the construction canvassed for by Mr. Nanavati will have to be accepted. The rule does not apply to a reversion of a promotee probationer to his substantive post. If so the rule is not attracted in respect of the action taken in this case against the petitioner under the impugned order.

14. Counsel on neither side has been able to invite my attention to any ruling relating to Rule 55-B in which the expression 'to terminate the employment' has been construed but Mr. Daru invited my attention to two rulings of the Allahabad High Court namely Damodar Sinha v. Land Reforms Commr. : AIR1959All437 and State of U.P. v. Ansar Hussain, : AIR1964All346 In both these cases the rule which came up for considertaion was Rule 55(3) of the Civil Services (Classification, Control and Appeal) Rules applicable to the Government Servants in the State ofUttar Pradesh. It is not clear what the main part of the said Rule 55(3) was ; presumably it was the same as Rule 55 of the 1930 Rules. Sub-rule (3) of Rule 55 as in force in the State of Uttar Pradesh is set out in Raja Ram v. State : AIR1958All141 . It reads as under:-

'This rule shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation, or to dismiss, remove or redue in rank a temporary Government servant, for any specific fault or on account of his unsuitability for the service. In such cases, the probationer or temporary Government servant concerned shall be apprised of the grounds of such proposal, given an opportunity to show cause against the action to be taken against him, and his explanation in this behalf, if any, shall be duly considered before orders are passed by the competent authority.'

It will be noticed that this provision though not substantially the same as Rule 55-B under consideration here is more or less on the same lines. It was this provision that came up for consideration in the two decisions earlier mentioned. In the case reported in AIR 1959 All 437 the facts were that the petitoiner who had held a post of Naib Tehsildar since 1937 was selected in due course in 1950 to the post of Tehsilder through the Public Service Commission. He was appointed to that selection post on probation and that probationery period was extended from time to time. Then in July 1955 a show cause notice under the above mentioned. Rule 55(3) was issued to him wherein it was stated that there had been no improvement in his work but instead there was deterioration and therefore, it had been decided that his probation should be terminated and the notice went on to say

'as requird under Rule 55(3) of the Civil Services (Classification, Control and Appeal) Rules you are hereby apprised of the reasons of the terminating your probation and are also required to submit your explanation within a period of 15 days from the date of receipt of this order through the S.D.O. in triplicate.'

Thereafter, in August 1955 his reversion to the post of Naib Tahsildar was made and against that reversion he filed the petiton. The petition was allowed on the ground that the notice did not give sufficient particulars of his faults or his unsuitability. The applicability of R. 55(3) was not disputed on behalf of the State. In fact the State had purported to issue the notice under the said Rule 55(3) itself. In : AIR1964All346 , the case concerned an officiating Sales Tax Officer who had been reverted to his substantive post of an Assistant Sales Tax Officer. The only question before the Court was whether at the time of reversion he was or was not a probationer. The contention on behalf of the State was that he was not a probationer. It was held that he was a probationer and the petition was allowed. There also the question of constructon of the expression 'to terminate the employment' did not arise and the application of Rule 55 (3) was conceded by the State, if it was held that the petitioner was a probationer. Therefore, these two decisions do not throw any light on the construction of Rule 55-B with which we are concerned. But Mr. Daru argued that these two decisions at any rate show that the construction which he has canvassed for is a possible construction because the State of Uttar Pradesh in those two cases did not dispute the applicability of a similar rule to a person promoted on probation. But when a concession had been expressly made the decisions cannot be of any assistance on the question of the true construction of Rule 55-B. Besides, we do not know what were the other rules by which the U.P. Government servants, were governed because ultimately the applicabilty of Rule 55 (3) of the U.P. Government Rules would depend upon the totality of rules in force. It is not therefore, possible to draw any assistance from these decisions on the question before me.

15. Mr. Nanavati argues in the alternative that even if Rule 55-B covers a case of reversion of a person from a higher post to which he has been appointed on probation the petitioner would not be entitled to the benefit of that rule because in respect of the petitioner's appointment on promotion to the post of Deputy Manager the benefit of the provision of Section 13 of the Act is not available. The relevant provisions of that section have been already referred to. The extent of the protection of previous terms and conditions of service which sub-section (1) of that section gives to the petitioner is indicated by the words

'and shall hold his office or service therein by the same tenure, at the same remuneration and upon the same terms and conditions as he would have held the same on such date if the commission had not been established and shall continue to do so unless and until his employment in the commission is terminated or until such tenure, remuneration and terms and conditions are duly altered by the Commission.'

Mr. Nanavati argues that the rights of the petitioner in respect of terms and conditions of service as laid down in the 1957 Rules by which he was governed before he was taken over under the Act into the employment of the commission became crystallised ason the date on which he was so taken over i.e, 15th October 1959. He states that these rights would be available to him in the post to which he was posted tfrom that date and may also be available to him in a regular promotion, post, that is to say, as he argues, if it was a post on the same ladder. The post of the Deputy Manager, however, he argues, is not a post in the same ladder but is entirely a different post filled in by selection and therefore, the benefit in respect of terms and conditions of service under Rule 55-B would not enure to him in respect of that post. Mr. Daru's submission on the other hand is that thisbenefit does not remain crystallized with reference to the post which he occupied at the time he was taken over by the Commission but under the terms of sub-section (1) of S. 13 itself he shall continue to have the protection of this benefit until his employment in the commission is terminated and therefore, so long as he continues in the employment of the commission whether in one post or another, the commission being entitled to post him in any post, he would be entitled to the protection of Rule 55-B. Besides Mr. Daru did not accept the position that the Deputy Manager's post was outside the cadre of senior Geologist or was not in the same ladder. The point thus arising raises question of fact and of law for consideration of the relevant clause in section 13 (1). As on the view I have taken of Rule 55-B this point does not require to be decided. It do not propose to express myself on it.

16. Petition dismissed.


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