STATE OF UTTAR PRADESH Vs. AKBAR ALL KHAN

JUDGEMENT

(1.) The respondent Akbar Ali Khan was appointed in July 1942 a Naib-Tahsildar in the United Provinces Civil Service and was confirmed in that post on November 1, 1943. In April 1951, the respondent was selected for permanent promotion to the post of Tahsildar and was placed, in accordance with Rule 12 of the Subordinate Revenue Executive Service (Tahsildars) Rules, 1944, on probation for a period of two years. On a report, dated April 29, 1953 from the Accountant-General of U. P. that the respondent had drawn excess travelling allowance in respect of certain journeys, the State Government directed the Deputy Commissioner, Hardoi to hold an inquiry after taking into consideration the explanation of the respondent. On September 27, 1956 the Government of U. P. directed that the respondent be apprised of the grounds for holding an inquiry and that he be given an opportunity to show cause why his probation be not terminated. The explanations submitted by the respondent with the comments of the Deputy Commissioner, the Commissioner of the Division and the Board of Revenue were forwarded to the Government. On August 13, 1957 the respondent was informed that the Governor of U. P. agreeing with the Board had ordered that the probation of the respondent be terminated, and that he be reverted to the post of Naib-Tahsildar. It was further recited that the respondent should not be considered for promotion for a period of seven years from the date of reversion. The respondent submitted a memorial to the Governor on October 12, 1957. After considering the memorial the Governor passed an order cancelling that part of the order which related to the stoppage of promotion of the respondent, and confirmed the termination of probation, because in the view of the Governor the respondent "had during the probation not made sufficient use of his opportunities and had failed to give satisfaction".

(2.) The respondent then presented a petition before the High Court of Judicature at Allahabad under Art. 226 of the Constitution challenging the orders, dated August 13, 1957 and December 1, 1958, on the grounds that on the expiry of the period of probation the respondent must be deemed to have been confirmed as a Tahsildar and that since the respondent was subject to punishment without affording him opportunity to render his explanation in respect of the charge against him, the order was invalid. In the view of Tandon, J., under R. 12 of the Sub-ordinate Revenue Executive Service (Tahsildars) Rules, 1944, power to revert could be exercised either during or at the end of the period of probation, and if no order was passed extending the period of probation the respondent could not on the expiry of the period for which he was originally appointed any longer be regarded as on probation. The learned Judge accordingly held that the order terminating the probation of the respondent was erroneous and his reversion being in the nature of a penalty imposed without conforming to the requirements of Art. 311 of the Constitution was liable to be quashed.

(3.) In appeal under the Letters Patent against the order of Tandon, J., quashing the orders, dated August 13, 1957, and December 1, 1958, the High Court following their earlier judgment in Chief Conservator of Forests, U. P., Nainital vs. D. A. Lyall, 1961 All LJ 458, held that the order passed by Tandon, J., that the respondent had ceased to be a probationer on the expiry of two years could not be sustained. But the High Court held that the two parts of the order, dated August 13, 1957 were based on the same finding recorded in the letter of the Board of Revenue and could not be dissociated, and since the Governor had passed an order terminating the probation and had simultaneously therewith imposed upon the respondent punishment without complying with the requirements of Art. 311 of the Constitution, the entire order was liable to be set aside. The High Court observed: