N. Raja vs The Joint Director of Agriculture and The Assistant Director of Agriculture

N. Paul Vasanthakumar, J.—This writ appeal is filed against the order of the learned Single Judge, dated 20.08.2009, made in W.P.(MD)

No. 2808 of 2005, wherein the learned Single Judge dismissed the writ petition filed by the Appellant challenging the order of the 2nd Respondent,

dated 11.03.2005, cancelling the probation already declared in favour of the Appellant. The order impugned in the writ petition was passed on

two grounds, namely, the Appellant has availed six days leave during the probation period and therefore the probation ought not to have been

declared from 18.09.1998 and further the Appellant has not completed the training in terms of G.O. Ms. No. 367, Agriculture (AA5) Department,

dated 14.10.2001, which was issued with effect from 30.12.1997.

The grievance of the Appellant is that even though such Government Order was issued with effect from 30.12.1997, the Department has not

sent him for training to undergo the Foundational B-Course in the Training Institute, Bhavanisagar and only in the year 2005, the Appellant and

others were sent for training and that he completed the training on 25.11.2005 and passed in all the subjects and a mark sheet showing that the

Appellant has passed in all the subjects and completed the course on 25.11.2005 has been issued on 27.01.2006.

Learned Counsel for the Appellant submitted that since the Government order was issued subsequent to the declaration of probation on

18.09.1998, the Appellant should have been given sufficient time to undergo the training and it is for the department to send the Appellant for

training and the Appellant himself cannot go for training. The learned Special Government Pleader submitted that the Appellant was sent for training

in the year 2005, along with other persons, and he has completed the training as early as on 27.01.2006.

From a perusal of the impugned order, which was the subject matter of challenge in the writ petition, it is seen that no notice was given to the

Appellant before passing the cancellation order. Learned Counsel for the Appellant submitted that only six days leave was taken by the Appellant

while he was on probation i.e. from 17.12.1996 to 22.12.1996 and therefore the probation already declared, that was on 18.09.1998, may be

postponed to 24.09.1998.

In the counter affidavit filed by the Respondents in the writ petition, it was stated that the Appellant was sent for training only in the year 2005,

along with other candidates and therefore Appellant cannot be found fault with for not completing the training in terms of the Government Order.

As rightly contended by the learned Counsel for the Appellant, for the leave taken by the Appellant during the probation period, the probation of

the Appellant can be deemed to have been declared only on 24.09.1998.

The above said two aspects have not been considered by the learned Single Judge, while dismissing the writ petition. Hence we are inclined to

allow the writ appeal and set aside the order of the learned Single Judge.

The Appellant''s probation is admittedly declared under Rule 27 of the Tamil Nadu State and Subordinate Service Rules. Even if the probation

is extended and an employee has not passed the prescribed test during the extended period of probation, sanction of increments alone could be

stopped under Rule 28 of the said Rules until he is declared to have satisfactorily completed his probation. After passing the prescribed test, future

increments can be sanctioned and no postponement of future increments can be ordered after an employee is declared to have satisfactorily

completed his probation.

The prescription of departmental tests and the effect of not passing the same was considered by a Division Bench of this Court in the decision

reported in Dr. N. Iyyanar Vs. The Secretary to Government, Health and Family Welfare Department and Others, . In paragraphs 7 and 8, the

Division Bench has held as follows:

Learned Counsel for the Petitioner first contended that in view of the categorical instructions contained in the notification issued by TNPSC on

the failure of Respondents 3 to 6 to obtain the qualification within the period of 4 years, their services were liable to be terminated and at any rate

such Respondents having obtained such diploma in Public Health after the Petitioner, it must be taken that they were juniors to the present petition.

So far as the first submission is concerned, we are in agreement with the conclusion of the Tribunal that the condition relating to acquiring of

Public Health"" qualification was only a directory provision and there is no automatic termination from service. If a person fails to acquire such

qualification with the stipulated period, the employee had the option of terminating the services, but there is no deemed termination from services.

From the above statutory rules as well as the Division Bench judgment extracted above, we are of the firm view that the impugned order passed

by the Respondents on the ground that the Appellant has not completed the training is wholly untenable and the said order is liable to be set aside.

Accordingly, the writ appeal is allowed and the order of the learned Single Judge is set aside. Consequently, the writ petition is allowed, setting

aside the order of the 2nd Respondent and holding that the Appellant''s probation shall be deemed to have been declared from 24.09.1998. No

costs. Connected M.P. (MD) No. 1 of 2010 is closed.