M BHASKARA RAO Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This writ petition, having been referred by one of us to a Bench, has come up for hearing before as. The petitioner impugns G. O. Ms. No. 2454 Revenue Department dated 26-11-1959 (sic) of the Government of Andhra Pradesh and prays that the same may be quashed.

(2.) The facts leading to the filing of this petition under Article 226 of the Constitution may be briefly set out: The petitioner was entertained in service in the composite State of Madras in the year 1937 as a clerk in the Revenue Department. Thereafter, after he had put in five years of service in the Commercial Taxes Department to which he was transferred, he was put on probation as an Assistant Commercial Tax Officer till 24-7-1952. The prescribed period of probation for appointment as a full member of that service was two years. According to Rule 13(b) of the Commercial Taxes Subordinate Services Rules, he was required to pass the tests specified under Rule 6(c) of the said rules within the period of his probation. The petitioner, however, did not pass any tests within this period of probation. A reference to the records showed that the Deputy Commissioner of Commercial Taxes, Kakinada, issued a declaration dated 4-2-1955 to the petitioner that he had completed his period of probation as an Assistant Commercial Tax Officer with effect from the afternoon of 23-7-1954. The petitioner has been since then holding the substantive post of Assistant Commercial Tax Officer. But the Board of Revenue gave him a notice dated 19-3-1959 to show cause why his probation in the cadre of Assistant Commercial Tax Officer should not be terminated with immediate effect. The petitioner submitted his explanation dated 13-5-1959. He maintained that the declaration made on 4-2-1955 was not subject to the condition that he should pass the tests within a specified time. He pointed out that he passed two of the tests after 23-7-1954 and that he has to pass only the Account Test (Part I) prescribed for Subordinate Officers. He also requested that he may be allowed reasonable time to pass that remaining test. Thereupon, the Board of Revenue recommended la the Government and pointed out to the Government that the Deputy Commissioner, Kakinada, declared that the petitioner satisfactorily completed the probation without due regard to the rules as the petitioner has not passed the tests within the period of his probation. The Board of Revenue was further of the view that the probation should have been either terminated or extended till the petitioner passed the prescribed tests. The only way of helping the petitioner who has put in seven years of service as Assistant Commercial Tax Officer was to extend his period of probation after relaxing the general Rule 28 of the State and Subordinate Service Rules so that he may pass the Account Test also with in that extended period of probation. This recommendation by the Board of Revenue has therefore been responsible for the passing of the impugned order by the Government. It may be mentioned that G. O. Ms. No. 2454 Revenue dated 28-11-1959" (sic) (impugned order) cancelled the order of the Deputy Commissioner of. Commercial Taxes, Kakinada dated 4-2-1955 and made mention of the relaxation of Rule 28 by the Governor of Andhra Pradesh, who acted under general Rule 49 of the State and Subordinate Services Rules. The purpose for which such an extension has been granted has also been specifically mentioned in that G.O. as with a view to enable the petitioner to pass the Account Test. The G.O. also directed the Board of Revenue to consider the question of recovery from the petitioner of sums drawn as increments in the time scale of pay of Assistant Commercial Tax Officer.

(3.) Mr. K. Ramachandra Rao, the learned counsel for the petitioner, raised before us almost the identical contentions set forth in para 5 of the affidavit of the petitioner filed in support of the writ petition. The contentions on behalf of the petitioner as thus put forward proceed mainly on the basis that (1) there is no power in the Government to cancel the order of declaration issued by the Deputy Commissioner and that neither Rule 28 or Rule 49 has any application so as to confer power to extend the probation which has been declared under Rule 27 to have been satisfactorily completed; (2) that the exercise of any such power by the Governor or the Government has been arbitrary and discriminatory inasmuch as the impugned order has been passed about four yean after the order of declaration which is dated 4-2-1955; (3) that the want of a second notice for offering the final explanation has vitiated the proceedings, as such a procedure has been made obligatory lay what has been laid down in Khem Chand v. Union of India, AIR 1958 SC 300; (4) that inasmuch as the petitioner is relegated to the position of a probationer while he has been occupying the substantive post, in any case, the inhibition contained in Article 311(2) will apply as be had been denied reasonable opportunity to show cause against the action; and (5) that the Government is estopped from going behind the declaration issued by the Deputy Commissioner, inasmuch as it has allowed the petitioner to believe that he was fully qualified and eligible to hold the post and thereafter caused serious detriment to his seniority, rank, salary, allowances and also future career and prospects.