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Judgment
V. Ramasubramanian, J.—The petitioner had filed O.A. No. 1759 of 1996 on the file of the Tamilnadu Administrative Tribunal, challenging
a notice dated 04.03.1996 issued by the first respondent, calling upon the petitioner to show cause as to why his service shall not be terminated.
The said application has been transferred to this Court in W.P. No. 20469 of 2006 on abolition of the Tribunal.
Heard Mr. L. Chandrakumar learned Counsel appearing for the petitioner as well as Mr. V. Arun learned Government Advocate appearing for
the respondents.
The petitioner is a Post Graduate in Commerce who had passed M. Com., with Co-operation and Rural Economics as optional subjects. He
was selected and directly recruited to the post of the Senior Inspector of the Co-operative societies in the year 1986-1987 and he had joined duty
on 22.02.1989.
He was placed under probation, and by an order dated 29.07.1992 passed by the first respondent, he was declared to have satisfactorily
completed the period of probation with effect from the Afternoon of 03.05.1992, in accordance with Rule 27 B of the General Rules for
Tamilnadu State and Subordinate Services.
However, according to the reply affidavit filed by the respondents, the said order of the first respondent dated 29.07.1992 was later modified
by another order dated 09.10.1995, declaring the satisfactory completion of probation of the petitioner with effect from 02.11.1991 itself. Thus, it
is clear that the first respondent had passed 2 orders, one in the year 1992 and another in the year 1995, declaring satisfactory completion of
probation of the petitioner with effect from 03.05.1992 and later with effect from 02.11.1991. By the time, the second order was passed on
09.10.1995, the petitioner had already completed six years of service and had also earned his increments.
But thereafter, the first respondent issued the impugned show cause notice dated 04.03.1996, on the ground that as a person who had passed
M. Com., degree with Co-operation as one of the subjects, the petitioner was entitled to exemption from appearing in the departmental tests in the
subjects of co-operation and Book keeping. However, he was exempted from appearing for the departmental tests in the subjects of Banking and
Auditing erroneously. Therefore, as per the show cause notice of the first respondent, the petitioner failed to pass the departmental tests prescribed
by the special Rules for Tamilnadu Co-operative Subordinate Service Rules, before completion of the period of probation and consequently his
services were liable to be terminated.
As per Rule 26 of Tamilnadu State and Subordinate Service Rules, a person who failed to pass the departmental test prescribed for satisfactory
completion of probation, is liable to have his probation terminated, unless it was extended by virtue of Rule 28. The period of probation of a
person could be extended upto a maximum of 5 years to enable a person to pass the tests, under Rule 28. Invoking the provisions of these rules,
the first respondent issued the impugned show cause notice, proposing to terminate the service of the petitioner on the ground that he failed to pass
the prescribed test within five years of entry into service, since the maximum period for which the probation of a person could be extended is only
5 years.
Challenging the said show cause notice the petitioner filed the above O.A. No. 1759 of 1996 on the file of the Tamilnadu Administrative
Tribunal and at the time of the admission of said application, the Tribunal also granted an interim stay of operation of the said show cause notice.
Consequently, the petitioner is continuing in service till date and had already completed 17 years of service in the Department.
In the light of the above facts, the question that arises for consideration in this writ petition is as to whether the first respondent was entitled to
terminate the services of the petitioner, on the ground stated in the show cause notice.
Admittedly, Rule 8 of the special Rules for Tamilnadu Co-operative Subordinate Service, prescribes that a person with a Post Graduate degree
in commerce with Co-operation as one of the subjects, is exempt from appearing in the departmental tests in co-operation and Book keeping. But
an entry was made in the service register of the petitioner that he was exempt from appearing for the departmental tests in Banking and Auditing.
According to the petitioner, it was not his mistake that a wrong entry was made in the service register relating to the subjects for which he was
entitled to exemption. In the reply affidavit filed by the respondents, they did not dispute the fact that the petitioner was not at fault for the wrong
entry made in the service register.
As a matter of fact, the respondents admitted that it was not the mistake of the petitioner that a wrong entry was made in the service register of
the petitioner with regard to the departmental test for which he was eligible for exemption. The relevant portion of the reply affidavit of the
respondents reads as follows:
The contention raised by the application in para VI (8) of the application that the entries in the service book at Pg. Nos. 15, 19, etc., were not at
the instance of the applicant may be true.
Thus it is clear that at the time of entry into the service, the department made entries in the service register of the petitioner, as though he was
exempt from appearing for the departmental tests in Banking and Auditing. The petitioner admittedly did not contribute to the said mistake in the
entry in his service register relating to the exemption from the departmental tests. Under such circumstances, the petitioner cannot be expected to
verify and to appear for the departmental tests, on the basis that the entry in the service register could have been wrongly made by the department.
Admittedly, the first respondent, passed orders originally in the year 1992, declaring satisfactory completion of probation of the petitioner with
effect from 03.05.1992 and modified the same by a subsequent proceeding passed after three years in 1995, by preponing the date of declaration
of probation to take effect from 02.11.1991. In other words, the third respondent had applied his mind in passing orders for declaration and
satisfactory completion of probation in respect of the petitioner twice, once in the year 1992 and the second time in the year 1995. After having
done so, it was not open to the first respondent to invoke Rule 26 of General Rules for Tamilnadu State and Subordinate Service and claim that
the petitioner was not entitled to have his probation declared.
Rule 26 of the General Rules for Tamilnadu State and Subordinate Service provides for discharge of a probationer for want of vacancy or for
termination of probation, after giving a reasonable opportunity of showing cause against the proposed termination of probation. Rule 28 of the said
rules provides for extension of probation of a person, to enable him to acquire the qualification or to pass the prescribed test. However the period
for which such extension could be ordered, is restricted to five years. It is in the teeth of these rules that the first respondent chose to issue the
show cause notice impugned in the writ petition, contending that the petitioner failed to pass the departmental test within the period of five years.
But the first respondent has obviously lost sight of the crucial fact namely that Rule 26 applies only to a situation where a person is on probation or
on extended period of probation. In so far as the case of the petitioner is concerned, his probation has already been declared to have been
satisfactory completed, with effect from 02.11.1991. Therefore on the date on which the impugned notice was issued namely 04.03.1996, the
petitioner was no longer a probationer. If a person had ceased to be a probationer, the question of invocation of Rule 26 does not arise. As stated
earlier, Rule 26 can be invoked only in the case of a person who is undergoing probation, within the original period or the extended period.
Therefore the impugned show cause notice invoking the provisions of Rule 26, is not legally tenable.
At any rate, the failure of the petitioner to pass the departmental test, was not his own mistake. It was only on account of the entry made in the
service register by the respondents, exempting him from appearing in the departmental tests that he did not appear for those tests. That the mistake
is not on the part of the petitioner, is also admitted by the respondents in the reply affidavit. In such circumstances, the impugned show cause notice
is devoid of merits and liable to be set aside. Accordingly the impugned notice is set aside. The writ petition is allowed. No costs.