D K RAI Vs. EXCISE COMMISSIONER

JUDGEMENT

(1.) BY this application under article 226 of the Constitution, the petitioner seeks a writ of certiorari for quashing an order passed by the respondent No. 1, the Excise commissioner, on 24th February 1964 terminating the applicant's services on the expiry of one calendar month from the date of the receipt of the notice on that behalf.

(2.) THE applicant was selected for the post of Excise Sub-Inspector on 1st June 1948 and appointed on probation. No order was passed by the respondent even till 24th February 1964 confirming the applicant. On 28th November 1963 the Excise commissioner issued a notice to the applicant asking him to show cause why he should not be punished suitably inasmuch as on 17th June 1962, while posted at beohari, he had demanded and accepted an illegal gratification of Rs. 100/- from one Shivratan Gour of Dhodar village. A departmental enquiry was then started on this charge by the Collector, Shahdol, who sent a memorandum to the petitioner on 31st December 1963 informing him that it was proposed to institute disciplinary proceedings against him under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, and asking him to submit his statement in writing in defence. It was enquired of him whether he desired to be heard in person and wanted an oral enquiry to be held. By the memorandum the applicant was also asked to furnish the names and addresses of witnesses, if any, whom he wished to call in support of his defence; to furnish a list of documents on which he intended to rely; and to furnish a list of records which he wished to inspect. In reply, the petitioner wrote back to the District Excise Officer denying the charge levelled against him, and expressing his desire for the holding of an enquiry and for inspection of all documents, records, papers etc. on which the charge against him was based. The impugned order terminating the petitioner's services was passed while this enquiry was pending. It seems that on the date of the order under challenge the petitioner had not even submitted his full explanation to the charge levelled against him, and the recording of evidence had also not begun. That enquiry was not proceeded with when the petitioner's services were terminated by the order dated the 24th february 1964.

(3.) THE applicant's contention is that on the completion of three years' probationary period he automatically became a permanent civil servant and was, therefore, entitled to the protection of Article 311 of the Constitution; and that as the order terminating his services was passed without complying with the provisions of article 311 (2) of the Constitution, it was illegal. It was also urged on his behalf that in any case he had the status of a quasi-permanent employee and was, therefore, entitled to the protection of Article 311; and further if he was a probationer, he was governed by Rule 55-B of the Civil Services (Classification, control and Appeal) Rules, and thereunder his services could not be terminated without following the procedure laid down in Rule 55. The petitioner's contention that on the expiry of his probationary period he automatically acquired the status of a permanent member of the service and, therefore, he was entitled to the benefit of Article 311 (2) of the Constitution, cannot be accepted. It is not disputed that the respondents did not at any lime pass any order confirming the applicant. The rules under which the petitioner was appointed as a probationary Excise Sub-Inspector nowhere provide that a probationer at the end of the probationary period would be deemed to have been confirmed. It has been held by the Supreme Court in Sukhbans Singh v. State of Punjab AIR 1962 SC 1711 that a probationary cannot, after the expiry of probationary period, automatically acquire the status of a permanent member of a service, unless of course the rules under which, he is appointed expressly provide for such a result and if there is no such rule, then an officer placed on probation cannot be deemed to be confirmed unless and until an express order of confirmation is passed. The applicant says that as in the provisional combined gradation list of the Excise department, which was published on 30th November 1961, his name was shown in the category of permanent Sub-Inspectors, he must he regarded as having been confirmed in his appointment. There is no substance in this contention. It is true that he was shown in the provisional combined gradation list in the category of permanent sub-inspectors. But that list expressly described the applicant as "excise Sub-Inspector Probationary". In the circumstances stated above, it cannot be held that the applicant was a permanent member of the service on the date when his services were terminated. Equally untenable is the contention of the applicant that he had acquired the status of a quasi-permanent servant. The quasi-permanent status is a creature of the Madhya Pradesh Government Servants (Temporary and Quasi-permanent Service) Rules, 1960. Under rule 3 of the said rules there must be a declaration conferring quasi-permanent status on the civil servant concerned. In the present case, no such declaration was ever made in regard to the petitioner. The applicant was, therefore, clearly a probationer on the date when his services were terminated.