(P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta, J.C. Shah and N. Rajagopala Ayyangar, JJ.)
Accountant General, Madhya Pradesh, Gwalior __________ Appellant;
v.
Beni Prasad Bhatnagar ___________________________ Respondent.
Civil Appeal No. 548 of 1962†, decided on January 23, 1964
The Judgment of the Court was delivered by
K.C. Das Gupta, J.:—
1. The appeal is against an order of the High Court of Madhya Pradesh in an application by the respondent Bhatnagar under Article 226 of the Constitution. Bhatnagar, who was formerly an Auditor in the Commercial Department of the Gwalior State, having been appointed to that post in July 1947, was posted after the formation of the Madhya Bharat as a Superintendent of Commercial Audit in the office of the Accountant General of Madhya Bharat. He was later promoted provisionally as a selection grade clerk. At the time of this appointment he was informed by an order dated 1-9-1951 that this appointment as a selection grade clerk was provisional, that his basic place will be in the grade of Upper Division Clerks from 1-4-1951 but that he had been allowed to officiate in the selection grade from the same date. The order further stated that the question of his absorption in the selection grade would be decided on the result of his work for one year with effect from 1-4-1951. No order confirming him in the selection grade was however made at the end of the year or later on, though he continued to work in the selection grade. On 7-11-1956, he was informed by an Express Telegram that he had been reverted with effect from that very date from the selection grade to Upper Division Clerk.
2. The respondent’s case is that as his appointment in the selection grade was on a year’s probation from 1-4-1951 he must be deemed to have been substantively appointed to this grade at the end of the year. So, according to him, the order of reversion amounted to a reduction in rank and as the provisions of Article 311(2) were admittedly not complied with, the order was void. This was the ground on which the respondent prayed to the High Court for a writ or order declaring the order of reversion as unconstitutional and invalid and directing his reinstatement in the selection grade.
3. The Accountant General, Madhya Pradesh, contested this application. His case was that as Bhatnagar was never confirmed in the selection grade he continued to be a probationer in that grade and as his substantive post was that of an Upper Division Clerk, the order of reversion did not amount to a reduction in rank and the provisions of Article 311 of the Constitution were not attracted.
4. The High Court held that the result of Bhatnagar being allowed to continue to work as a selection grade clerk for a long time after 1-4-1952 was that he was by implication finally absorbed in the selection grade with effect from that date, his reversion as Upper Division Clerk was therefore a punishment and Article 311 of the Constitution had to be complied with. The High Court also observed that the order amounted to a punishment inasmuch as the reversion was not “because of a decision on the result of his work for the specified period of one year”. In this view the High Court allowed1 the petition, quashing the order of reversion and directed the issue of a mandamus to the appellant directing him to treat the order dated 7-11-1956, as null and void and to give effect to the necessary consequences. Against this decision the present appeal has been preferred.
5. In support of the appeal it is urged that the High Court erred in law in thinking that at the end of the period of probation stated in the order dated 1-9-1951, Bhatnagar acquired a substantive right to hold the post in the selection grade even without an order of confirmation. This question has been finally concluded by several decisions of this Court. In these decisions it has been consistently held that when a first appointment or promotion is made on probation for a specified period and the employee is allowed to continue in the post after the expiry of the said period without any specific order of confirmation he continues as a probationer only and acquires no substantive right to hold the post. If the order of appointment itself states that at the end of the period of probation the appointee will stand confirmed in the absence of any order to the contrary, the appointee will acquire a substantive right to the post even without an order of confirmation. In all other cases, in the absence of such an order or a service rule an express order of confirmation is necessary to give him such a right. Where after the period of probation an appointee is allowed to continue in the post without an order of confirmation the only possible view to take is that by implication the period of probation has been extended. Much can be said for the view that it is desirable in such cases that an express order extending the period of probation should be made, as otherwise the appointed person may be under a misapprehension about the exact position. There is however no basis for the conclusion that from the mere fact that an appointee is allowed to continue after the end of the period of probation stated in the first order, he should be demeed to have been confirmed. This view was taken by this Court in S. Sukhbans Singh v. State of Punjab2 and has been followed recently in G.S. Ramaswamy v. I.G. of Police3. The same view was also taken as regards the first appointment on probation in Express Newspapers (P) Ltd. v. Labour Court4.
6. In our opinion, the High Court was clearly wrong in thinking that Bhatnagar had become substantively appointed to the selection grade with effect from 1-4-1952, merely because he was allowed to continue in the post for a long time without an order of confirmation. The High Court was also wrong in thinking that it was not open to the Accountant General to make an order of reversion on the result of Bhatnagar’s work for any period after 1-4-1952.
7. On a consideration of all the facts and circumstances, we have come to the conclusion that the order of reversion was not a punishment and did not amount to a reduction in rank within the meaning of Article 311 of the Constitution.
8. In the result, the appeal is allowed, the order passed by the High Court is set aside, and the respondent’s application under Article 226 of the Constitution is dismissed. There will be no order as to costs throughout.
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†Appeal by special leave from the Judgment and Order dated 14-3-1961 of the Madhya Pradesh High Court (Gwalior Bench) in Civil Miscellaneous Case No. 56 of 1959
1 Beni Prasad v. Accountant General, 1961 SCC OnLine MP 121
2 S. Sukhbans Singh v. State of Punjab, AIR 1962 SC 1711
3 G.S. Ramaswamy v. I.G. of Police, Civil Appeal No. 972 to 977 of 1963, decided on 21-1-1964 (SC)
4 Express Newspapers (P) Ltd. v. Labour Court, Civil Appeal No. 526 of 1963, decided on 18-12-1963 (SC)
