Harbans Lal Saroya vs State of Punjab

Ranjit Singh, J.—The appellant was initially appointed as Assistant Treasurer where he had joined on 14.1.1971. Subsequently, he was selected by the Public Service Commission as Assistant Treasury Officer against a reserved permanent vacancy. The appellant was posted as such at Sultanpur Lodhi on 24.5.1978. The appointment of the appellant was on probation for two years upto 23.5.1980. One of the condition imposed while appointing the appellant was that he would have to pass two departmental papers during the period of his probation and that his appointment would be governed by the service conditions as notified in Rules gazetted on 4.4.1962. There was a provision made in the Rules empowering the Government to exempt any person from passing the exam. Departmental exam was theoretical as well as practical.

As stated in the plaint, appellant had cleared first paper in an examination held on 28.4.1979. The second paper was cleared by him on 25.4.1981. It is also pleaded that the period of probation, which was upto 23.5.1980 was extended upto 23.11.1980, for a period of six months but was never extended beyond this period. Since the appellant had not qualified in the examination during the period of his probation, he alongwith one Sh. Raj Pal Kaushal were reverted to the post from where they were selected as Assistant Treasury Officer. The appellant would claim that once his period of probation was not extended beyond 23.11.1980, he would be deemed to be confirmed. Besides, he would also plead that his service conditions were changed inasmuch as, the departmental examination was unilaterally increased to three subjects for which the syllabus was also changed.

Pleadings on these lines, the appellant filed a suit, challenging his reversion, being bad, ineffective and against the service conditions. The respondent appeared and filed written statement. It is pointed out that the appellant had appeared in the examination held but had failed. Since he had not passed the departmental examination within the period of his probation, the order of his reversion was pressed. It is pointed out that the appellant had availed as many as five chances but had failed to qualify the examination within the probation period and accordingly he had to be reverted.

The Trial Court framed the following issues:

Whether the plaintiff was confirmed and posted against permanent vacancy as Assistant Treasury Officer? OPP

Whether the service conditions of the plaintiff were unilaterally changed. If so to what effect? OPP

Whether the order dated 22.5.81 passed by Joint Secretary to Government of Punjab, Finance Department, reverting the plaintiff from the post of Assistant Treasury Officer as District Treasurer is null and void and ultravires and not binding upon the plaintiff? OPP

What is the effect of non-reversion of Raj Pal Kaushal? OPP

Whether the present suit is barred by limitation? OPD

Whether the Civil Court at Kapurthala has no jurisdiction to entertain the present suit? OPD

Whether the suit is bad for non-joinder of necessary parties? OPD

Whether the suit is not maintainable in the present form? OPD

Whether the suit is properly valued for the purposes of Court fees and jurisdiction? OPP

10.Relief.

The suit filed by the appellant was dismissed. His appeal has also been dismissed. Hence, the present Regular Second Appeal.

The learned Counsel for the appellant has assailed the findings primarily on two grounds. He would first submit that the period of probation was for three years and as such, the appellant was required to be given chance to clear the departmental examination till completion of three years. He would then point out that the appellant had cleared the departmental examination by 25.4.1981, which was well within three years from the date of his appointment i.e. 24.5.1978. In addition, the counsel would also submit that another person, namely Raj Pal Kaushal, who was promoted alongwith him, was also ordered to be reverted on the ground that he had not qualified in the departmental examination but later on he was exempted from qualifying in the departmental examination and was allowed to work as Assistant Treasury Officer. This, as per the counsel, would be not only discriminatory but illegal as exemption could only be granted to a class and not to an individual. In support, the counsel has relied upon the observations made in Anupam Malik v. Kamal Singh Yadav and Ors. 2005 (1) RSJ 57.

To appreciate the line of submissions made by the counsel for the appellant, the condition on which the appellant was offered appointment would have to be seen. Exhibit P-1 is appointment letter of the appellant. The appointment was subject to the conditions mentioned in the said letter (Ex.P1). The relevant condition Nos. II, III and V were as under:

II. You will remain on probation for a period of two years will be governed by the Punjab Treasury Establishment Subordinate Service (Class III) Rules, 1962.

III. If your work and conduct during the period of probation has been in the opinion of appointing authority not satisfactory or you fail to pass the departmental examination as prescribed, the appointing authority may remove from service if recruited by direct appointment or revert you to your former post, if recruited otherwise, total period of probation including extension if any shall not excess three years. On the completion of your period of probation, the appointing authority may confirm you if a permanent vacancy exists.

IV. xx xx xx xx

V. After the completion of training period you will be required to take departmental examination will normally be held twice a years. There will be two papers for the departmental examination-One practical and other theoretical without books each carrying 150 marks. A candidate securing 40% marks in each paper and 45% in aggregate will be deemed to have passed the examination.

xx xx xx xx

A perusal of the conditions reproduced above would clearly show that the probation period was for two years and not three years as pleaded by the appellant. The period of probation was extendable and could not be extended beyond the period of three years. It was also specifically provided that the appellant would be required to take departmental examination and if he failed to pass the said examination, the appointing authority could remove him from service, if recruited directly or revert him to a former post, if recruited otherwise. Since the probation period was for two years and was extendable for another year, the appellant was required to qualify in the departmental examination either during the probation period as originally laid down or during the extended probation period. The two years period of probation was extended upto 23.11.1980. The appellant was, therefore, required to clear the departmental examination upto 23.11.1980 and if he had failed to do so, he was liable to be reverted in terms of the conditions of his appointment. The condition to pass the departmental examination was in terms of the Rules and the relevant Rule 12 in this regard is as under:

(1) Every member of the service, who has not already done so shall pass such examination, and undergo such training within the period of probation as may be required by the Government.

Provided that Government may except any candidate from passing the whole or any portion of the departmental examination or may extend the period within which the candidate shall pass the examination.

Note:- Members of the Service recruited to the post of Assistant Treasury Officer by direct appointment shall have to undergo training for a period of two months after selection.

(2) The rules regarding departmental examination of Assistant Treasury Officers shall be as given in Appendix `B'' to the rules.

This Rule not only made a provision for requirement of passing a departmental exam but also made a provision for extending the period within which the candidates were required to pass the examination. Once the appellant had failed to qualify in the departmental examination, the impugned order, reverting him and Raj Pal Kaushal was passed on 22.5.1981 (Ex.P8). It is clearly mentioned in this order that the appellant having failed to qualify in the examination within a maximum permissible probation period as provided in the Rules was, therefore, reverted to his former post in terms of Rule 10(2)(a) of Punjab Treasury State Service (Class III) Rules, 1979.

The whole basis of submission made by the counsel for the appellant is on the ground that the period of probation was three years. This plea is factually and legally misconceived. As per the Rules and also in terms of the appointment letter, the appellant was appointed on probation for a period of two years, which was extendable but not for a period more than one year. It could not be disputed before me that the appellant was required to qualify in the departmental examination as per the conditions contained in the Rules and this was to be done during the probation period only. No doubt, the appellant could qualify in this examination even during the extended probation period, which would be maximum permissible probation period but that too expired on 23.11.1980. The appellant had not cleared the departmental examination by this date. He accordingly was liable to be reverted and was rightly so reverted. The submission that he was required to be given chance till three years of service would be misconceived as his period of probation, though extendable, but was not extended beyond 23.11.1980. The net result is that the appellant was required to pass the departmental examination within his period of probation, which was upto 23.11.1980. The submissions, thus, made by the appellant can not be accepted.

The second limb of submission made by the counsel for the appellant again can not be accepted. The reliance on the case of Anupam Malik (supra) would be of no avail as the observation made in the said judgment and relied upon by the counsel were made on the basis of provisions made in the Rules for relaxation thereof. The word used in the Rules was `any class or category of person''. There is no such Rule applicable to the case of the appellant. The grant of exemption is regulated by Rule 12 already reproduced above. It clearly makes a provision that the Government may exempt any candidate from passing whole or any portion of the departmental examination. Accordingly, the submission that individual could not be exempted would amount to misreading the provision of this Rule. Thus, the ratio of law laid down in Anupam Malik''s case (supra) would have not applicability to the facts of the present case. The submission that grant of exemption to Raj Pal Kaushal and not showing this concession to the appellant would lead to discrimination is also not made out as this was done keeping in view the performance of Raj pal Kaushal, which was better than the appellant.

There is, thus, no merit in the Regular Second Appeal. The substantial questions of law as raised by the counsel are not made out and the appeal is accordingly dismissed.