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R. Mohanarangam Vs. the Food Corporation of India, Represented by Zonal Manager, F.C.i. and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1985)2MLJ139
AppellantR. Mohanarangam
RespondentThe Food Corporation of India, Represented by Zonal Manager, F.C.i. and ors.
Cases ReferredState of Uttar Pradesh v. Chandra Mohan
Excerpt:
- .....him, which is not only against the regulations, but also against several circulars issued from time to time. as per the circular, probation reports have to be written every 6 months, and when no communication had been sent to him as per the circulars within the first period of one year, he believes that the probation reports have been deliberately re-written to prejudice his interests. failure to comply with the various circulars referred to in the affidavit, which have statutory force, has resulted in an illegal order being passed and hence, he is entitled to a direction to confirm him in the post of assistant manager (depot) with effect from 7.12.1978. he also refers to the transfer orders made, posting him to tuticorin, udumalpet and kurichi during the relevant period alleging.....
Judgment:
ORDER

T. Sathiadev, J.

1. Petitioner was appointed as Junior Godown Keeper on 19.7.1959 in the Department of Food, under Regional Directorate, Food, Madras. He was transferred to Food Corporation of India in 1965 and promoted as Senior Godown Keeper in 1969. He was promoted as Assistant Manager (Depot) and was placed on probation by order dated 29.10.1977 for a period of one year as per Regulation 15(1) of F.C.I. Staff Regulations, 1971, framed under Section 45 of Food Corporation Act, 1964. As the probation reports were found to be unsatisfactory, he was reverted to the post of Assistant, Grade I (Depot) under Regulation 15(3), by the impugned order dated 30.11.1979 which has resulted in the filing of this writ petition to quash the said order.

2. Petitioner submits that apart from Regulation 15, several administrative instructions have been issued regarding probation as per circulars dated 22.4.1967, 31.8.1974, 14.1.1977, 8.3.1979, 5.11.1979 etc, and that when the period of one year expired on 6.12.1978, and no adverse reports having been communicated to him, it is deemed that he had satisfactorily completed probation. When, as per the circulars when his probation had not been extended within a period of 4 weeks from the date of completion of the probation, as per Rule 15(1) he rightly presumed that he had satisfactorily completed probation. He received belatedly a communication dated 31.7.1979 i.e. after about 20 months of working as Assistant Manager (Depot), extending his period of probation, which is illegal. He submitted an appeal to the Zonal Manager on 24.9.1979 to review and nullify the extension order as seeking for declaration of confirmation, but he had not received any reply till date of filing of writ petition. Surprisingly, the impugned order was passed reverting him, which is not only against the Regulations, but also against several circulars issued from time to time. As per the circular, probation reports have to be written every 6 months, and when no communication had been sent to him as per the circulars within the first period of one year, he believes that the probation reports have been deliberately re-written to prejudice his interests. Failure to comply with the various circulars referred to in the affidavit, which have statutory force, has resulted in an illegal order being passed and hence, he is entitled to a direction to confirm him in the post of Assistant Manager (Depot) with effect from 7.12.1978. He also refers to the transfer orders made, posting him to Tuticorin, Udumalpet and Kurichi during the relevant period alleging that with mala fide intentions and with a view to victimise him, the decision having been taken, reverting him inspite of his unblemished record of service it had greatly prejudiced his prospects.

3. In the counter-affidavit filed by respondents 1 to 4, it is claimed that the circulars relied upon do not form part of the conditions of service and they have no statutory force on which any right could be founded resulting in this Court exercising powers under Article 226 of the Constitution of India. The instructions referred to by the petitioner contemplate early preparation of reports, and In this case, there was some delay in the reports being received, but that would not confer a right on the petitioner for automatic confirmation. Within the period of 2 years contemplated under Rules 15(1) and (2), the impugned order having been passed, petitioner cannot claim that any of the statutory regulations have been contravened. On the report received, it turned out that he had not devoted his full attention in discharging his duties by maintaining absolute integrity and devotion to duty and that he has failed to honestly and faithfully serve and endeavour to promote the interests of the Corporation during the period of his probation. He induced members of F.C.I.E.U, to agitate and demonstrate against his transfer for his personal gain. His behavious as an officer of the corporation was also not upto the mark. During the relevant period, he had brought the district administration almost to a grinding halt by making it as one of the issues involved in the disputes raised by the Union. The claim made that his performance was blemishless is not correct and it was only based upon two half yearly probation reports for the extended period, a decision was taken by the competent authority to revert him to the lower post, since there was no improvement and the performance for the entire period of two years was unsatisfactory. The allegation that reports have been re-written is incorrect because the two probation reports, one for the period from 7.12.1977 to 6.6.1978, and the other from 7.6.1978 to 6.12.1978 for the first year, and two reports for the subsequent year were written on time and only after consideration of the contents of the reports, an order . of reversion was passed. As per Rule 15(3) an order of reversion can be passed without notice and without assigning any reason. Hence, the impugned order being valid, the petition is liable to be dismissed.

4. Separate counter-affidavits have been filed by respondents 3 and 4.

5. A lengthy reply affidavit has been filed by petitioner taking strong objections to the stand taken by respondents and reiterating that the instructions issued under circulars dated 31.8.1973 and 16.6.1977 having not been complied with on time, and hence, there could have been no extension of probation as provided under Rule 15(2). In para 7, petitioner has catalogued 6 of the circulars which are relevant and applicable to confirm a probationer. Thereafter, in an elaborate manner he adverts to the circumstances under which he was transferred and to what extent, he was not to be blamed for such transfer orders being passed, and contends that it was done only with mala fide intentions.

6. When the writ petition came up for hearing in April 1982, an order was passed by this Court to communicate to the petitioner, the petitioner, the adverse remarks which have been taken into account. It was felt that in the event of himself being made aware of adverse remarks, he may then realise as to why he had been reverted and that he may also seek such remedies as are available as per the Regulations, against such adverse remarks. It is only thereafter, the adverse remarks were communicated, to which he made his representation and it was rejected by order dated 16.7.1982.

7. The foremost contention of the petitioner is that apart from the F.C.I., Staff Regulations, 1971 (hereinafter referred to as Regulations), there are various circulars which have been issued from time to time and which have statutory force, and since none of those circulars have been followed, the order of reversion is illegal.

8. It is the admitted case that in so far as probation is concerned, the statutory regulation is Rule 15. Clause 1 therein provides that the period of probation would be one year from the date of appointment. Clause 2 contemplates extension of the period of probation by a further period not exceeding one year. Clause 3 deals with a direct recruit being discharged with notice and a promotee being reverted to a lower post without notice and without assigning any reason. Clause 4 provides as follows:

An employee who has satisfactorily completed his probation in any post shall thereupon confirmed as soon thereafter as possible.

Clause 5 is not relevant. As per the statutory regulation, as soon as the period contemplated therein is over, it does not contemplate any automatic confirmation of probation. Petitioner claims in para. 9 of his affidavit that on completion of one year probation on 6.12.1978, he rightly presumed that he had satisfactorily completed his probation and that when his probation had not been extended within a period of 4 weeks from the date of the completion as stipulated in Head Office's Circular, the respondents have no power to extend the period of probation. Apart from other circulars, which would be referred to hereunder, considerable reliance is placed on Circular No. 16-1/77-EP dated 16.6.1977. This circular refers to the contents of Rule 15(1) and (2) and proceeds to deal with the aspect as to whether there could be automatic confirmation after the expiry of the prescribed period of probation. After referring to circular dated 31.8.1973 which stated that unless and until orders are passed confirming probation within a period of 2 years from the date of appointment on probation, then the persons concerned would not be , deemed to have been automatically confirmed but if period is formally extended for one year or less or where no such order is passed, then the concerned person is deemed to have been automatically confirmed after expirty of 2 years. It is to ensure appropriate action being taken, certain instructions were issued therein for guidance. It dealt with what should be done within 4 weeks of completion of one year and of the preparation of half-yearly probation report, which is unsatisfactory, and within what time, the report should reach the Head Office etc.,

9. Since petitioner has claimed in the affidavit that after the expiry of the period of one year, he presumed that he had satisfactorily completed his probation, it has to be seen whether any reliance could be placed on this circular as having a statutory force. When the regulation does not contemplate any automatic confirmation, no circular contrary to such a statutory regulation, could be enforced.

In Sukhbans Singh v. State of Punjab : (1963)ILLJ671SC it was held that a probationer cannot automatically acquire the status of a permanent member of a service, unless of course the rules under which he is appointed, expressly provide for such a result. This view was reported in G.S. Ramaswamy v. I.G. of Police : (1970)ILLJ649SC to the effect that:.even though a probationer may have continued to act in the post to. which he is appointed on probation for more than the initial period of brobation, he cannot become a permanent servant merely because of efflux of time, unless the rules of service which govern him. specifically lay down that the probationer will be automatically confirmed after the initial period of probation is over.

In State of U.P. v. Akbar Ali : (1967)ILLJ70SC it was held that in a case an employee is allowed to continue in the post even after the period of probation without passing an order of confirmation, the only possible view to take is that, by implication the period of probation was extended.

In Kedar Nath v. State of Punjab : AIR1972SC873 it was again held that when a period of probation is specified, it does not follow that at the end of the said period, there can be automatic confirmation even if no order is passed in that behalf. It is only when the terms of appointment clearly indicate that confirmation could be made or there is a specific service rule to that effect, the expiration of the period of probation does not necessarily lead to confirmation. At the end of period of probation, an order confirming the officer is required to be passed and if no such order is passed and if no reversion is ordered to his substantive post, the result merely is that he continues in his post as a probationer.

In State of Maharashtra v. V.R. Saboji : (1979)IILLJ393SC it was held as follows:

But it is a matter of common knowledge that in many branches of Government Service including the Judiciary that for administrative reasons or otherwise, the confirmation is delayed and is made at a subsequent time. It may also be delayed for watching the work of the Government servant for a further period. The expression 'unless otherwise expressly directed governs only the first part of Clause (iv) and not the second. The rule in question therefore, comes under the ordinary and normal rule that without an express order of confirmation a Government servant will not be taken to have been confirmed in the post to which he was appointed temporarily and/or on probation. An officer cannot be deemed to have been confirmed in service merely because after completion of probationary period he was appointed as officiating Civil Judge.

Therefore, in the light of such crystal and clear pronouncements made by Supreme Court, Rule 15 as it stands having not contemplated any automatic confirmation, the circular dated 16.6.1977 cannot envisage a deeming provision for automatic confirmation. When the circular is beset with such illegality, it cannot be claimed to have any statutory force. Perhaps realising this position, Mr. Govind Swaminathan, learned Counsel for the petitioner, during the course of the arguments had not stressed on this aspect, though this point had been taken in the affidavit, claiming that as soon as the period of one year was over, petitioner presumed that he had satisfactorily completed the period of probation.

10. Mr. Govind Swaminathan, learned Counsel for the petitioner, would submit that when the other circulars contemplate an opportunity being given to the probationer to show better performance, and when such opportunities having not been extended as per these circulars, which have statutory force, the order of reversion as passed, deserves to be set aside, and the petitioner be continued on probations and the circulars hereinafter referred to. He would submit that circular dated 16.6.1977 also deals with what should be done during the first year of probation.

11. Petitioner relies upon the circular dated 22.4.1967 as a relevant one, dealing with probation. Whereas, as pointed out by respondents, it does not deal with declaration of probation, but merely relates to communication of adverse remarks in the annual confidential report. It is the circular dated 31.8.1973 which contemplates action being taken within a period of 4 weeks from the date of completion of initial period of probation for taking a decision as to whether it should be extended or not. It is claimed that when no such action had been taken within 4 weeks from 6.12.1978, respondents have contravened this statutory circular. Circular dated 18.3.1976 deals with preparation of probation reports and laid emphasis that the report of the last quarter of the second year of probation should reach the concerned authority positively one month before the expiry of the extended probationary period. Again circular dated 30.11.1976 prescribed that reporting officer should be reminded once or twice, and failing compliance, a warning letter should be issued to him and any default committed should result in taking disciplinary proceedings.

12. Next circular dated 14.1.1977 after reiterating what had been stated, required strict compliance about submission of probationary reports on time. This was followed by circular dated 16.6.1977, already referred to. Later on circular dated 8.3.1979, once again exphasises that ' a probationer whose work is not considered satisfactory during the fist half-yearly probation period should be placed in a different seat and under different officer for the rest of the probationer period and he should invariably be informed of his shortcomings in writing well within a period of one month of the receipt of the first half-yearly probation report, so that he knows his drawback and could improve upon his performance and that these instructions should be strictly adhered to. Later, circular dated 5.11.1979 again dealt with the need for prompt preparation of periodical reports and about the employee being informed on time in writing about confirmation/extension of the period of probation, as far as possible.

13. To substantiate this contention, reference is made to Sukhdev Singh v. Bhagatram : [1974]3SCR678 , which held:

24. Broadly stated, the distinction between rules and regulations on the one hand and administrative instructions on the other is that rules and regulations can be made only after reciting the source of power whereas administrative instructions are not issued after reciting source of power. Second, the executive power of a State is not authorised to frame rules under Article 162. This Court held that the Public Works Department Code was not a subordinate legislation (See G.J. Fernandez v. State of Mysore : [1967]3SCR636 . The rules under Article 309 on the other hand constitute not only the constitutional rights of relationship between the State and the Government servants but also establish that there must be specific power to frame rules and regulations.

33. There is no substantial difference between a rule and regulation inasmuch as both are subordinate legislation under powers conferred by the statute. A regulation framed under a statute applied uniform treatment to every one or to all members of same group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Industrial Finance Corporation are all required by the statute to frame regulations inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees. These regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by courts to invalidate actions in violation of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard.

Then reliance is placed on C. Ramanathan v. Acting Zonal Manager F.C.I., (1980) 1 L.L.J.1 which dealt with a transfer of an employee of Food Corporation wherein it was held that guidelines fixed for transfer required to be followed and taking into account the other factors cumulatively, it was held that the transfer was not a fair order. Relying on this decision, it is pleaded that apart from the regulation dealing with transfer, guideline issued was treated as having statutory force. In this decision, there is hardly any discussion as to how far the said guideline could have the same force as that of the Regulations.

14. Union of India v. K.P. Joseph : [1973]2SCR752 dealt with the scope of an administrative order issued in the form of a memorandum dealing with the fixation of pay. It was held that 'generally speaking, an administrative order confers no justifiable right but this rule, like all other general rules, is subject to exception.' After adverting to Sant Ram Sharma v. State of Rajasthan : (1968)IILLJ830SC , which held that wherever rules framed under Article 309 of the Constitution are silent on any particular point, then the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules and that such instructions will govern the conditions of service, and it was also held that there are certain administrative orders, which confer rights and impose duties. When they abridge or take away the rights, then principles of natural justice of audi alteram partem enter into the area. Relying upon this decision, it is contended that circulars issued by first respondent are equatable to office memorandum relied upon in this decision. In paragraph 11 of the decision, it has been cautioned that it should not be understood that the Supreme Court was laying down any general proposition on this question. This shows that under the peculiar circumstances of the said case, it was considered that the said memorandum would be binding upon the Union of India. There is nothing to indicate . in the circulars that they have been issued exercising powers under Rule 91.

15. Yet another decision relied upon is State of Uttar Pradesh v. Chandra Mohan : (1978)ILLJ6SC . Supreme Court took the view that when certain guidelines are prescribed regarding premature retirements, then any non-compliance of the said guidelines would confer a right upon the Government servant to rest upon such guidelines and secure relief, because they fill up the yawning gaps in the rules, as to what procedure should be adopted in compulsorily retiring a Government servant.

16. Mr. Govind Swaminathan, learned Counsel for the petitioner, placed considerable stress upon this decision also to plead that the circulars relied upon prescribed the methodology to be adopted for considering how far the probationer had satisfactorily discharged his duties. This Court considers that a bunch of these circulars cannot be treated as justiciable orders, for more then one reason. It is always beneficial to service personnel to have definiteness regarding their service conditions. Piecemeal and indefinite changes affected by periodical circulars, would make it impossible for a clear comprehension of the rule, that would be applicable and it would bring about an unsettled situation resulting in ambiguity and no cogent application of rules. As held by the Supreme Court, administrative directions can fill up the gaps in the rules because they speak and do vitative service in a vacuous field, but at the same time it must be established that the administrative order or instruction or circular has resulted in a stable principle emerging out of such circulars, and which is not inconsistent with the rules or regulations or the provisions of the Act. As pointed out above, Circular Nos. 3-6/73 dated 31.8.1973 and Circular No. 16 dated 16.6.1967 contain a provision which is opposed to Rule 15. Further, none of the circulars even claim that they have been issued under Rule 91. It is not as if only by invoking a rule or regulation, its binding nature could be made out, this would be one of the indications to distinguish it from general orders or instructions issued for guidance. Thirdly, there is nothing to decipher that any unoccupied field is dealt with in the circulars. Rule 15 states that the period of probation would be for one year in the first instance and can be extended for one more year. During these periods, undoubtedly, the evaluation will have to be made about the performance of the incumbent. The circulars only spell out as to how these assessments could be made. To bring about co-ordination and identical approach to be made all over the country, there would be need to issue endless instructions to the concerned authorities from time to time, as to how best the existing procedures could be further modified, altered or amended etc., and such directions which are more of procedural nature, cannot be treated as justifiable and enforceable orders, when without all these circulars, the assessment of work of a probationer could be made under Rule 15. Therefore, it is not an unoccupied field, wherein the circulars have stepped in to fill up the gaps. This Court considers that the circulars are purely administrative instructions, to bring about uniformity, and from time to time they have been issued to streamline the procedure for preparation of probationary reports and for early decisions to be taken. Undoubtedly, non-compliance of such circulars would entail disciplinary action against the competent authority. But such an indication therein would not upgrade the circulars to equate them to the position of regulations and make them enforceable orders.

17. It is pointed out that in circulars dated 31.8.1973 and 16.6.1977, reference is made to Rule15, and therefore, they have been issued under the said regulation read with Rule 91. Rule 15 does not empower framing of any rules or instructions thereunder. It is only Rule 91 which enables the Board to issue general instructions not inconsistent with the Act, the rules and regulations, for the purpose of removing such doubt, difficulty, lacuna, for applying Rule 15 and the circulars have only prescribed the methodology for assessing the suitability and nothing more. Hence, the regulations do not deal with a vacuous, field for being treated as justiciable and enforceable orders.

18. It is then contended that, when certain opportunities are extended in circulars to a probationer by being put on notice about his unsatisfactory performance from time to time, and to improve his performance and when such opportunities had not been extended, he has the justiciable right to seek for relief by invoking Article 226 of the Constitution. This contention overlooks the essential features relating to probation, and more so, of what is provided under Rule 15(3). In respect of a promotee, he can be reverted to a lower post without notice and without assigning any reason. Such is the scope of the regulation. If any refinement had been conceived of in enforcing the regulation, and if there is any non-compliance of the internal circulars, then persons responsible for the same would be proceeded against departmentally. Any non-compliance of procedural aspects by the competent authority, would not in turn confer a right on a probationer to seek for extension of probation as attempted to be made in this case. There has been a delay of nearly 8 months in ordering extension of probation, which would be contrary to circular, but in the light of what has been held by Supreme Court, when a person is continued as a probationer beyond the initial period, it has to be deemed that he continues to be on probation. When such is the legal effect, and enforceable regulations having not contemplated anything different, the circulars which aim at certain efficiency to be achieved in assessing probation, cannot confer an enforceable and justiciable right in the probationer to claim that he should be continued in probation because he had not been informed within 4 weeks from the date of completion of probation or that the first half-yearly and the other half-yearly reports have not been sent to him within time. It is claimed that when disciplinary proceedings are contemplated for non-compliance of such circulars, it shows that they will have to be meticuously followed, failing which the affected person would have legal right to claim for continuance of probation. Merely because the superior authority may be subjected to disciplinary proceedings, it does not mean that the circulars could be placed at higher parlance than what they deserve. It is for the first respondent not to belittle the omission committed by the concerned person in not complying with the circulars, and if it is to avoid onslaughts of this nature against it, it should take the disciplinary proceedings, which it spells out in the circulars and firmly punish the persons, who. have failed to communicate the reports to the petitioner in time, if it is established.

19. Hence, when the circulars relied upon by the petitioner are not justiciable and enforceable orders, the writ petition is dismissed with costs. Advocate's fee fixed at Rs. 250/-.


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