Jagjit Singh v. State Of Punjab

D.K. Mahanjan, J. - This second appeal is directed against the decision of the Senior Subordinate Judge, Patiala reversing, on appeal, the decision of the trial Court decreeing the plaintiff's suit. 2. The plaintiff, Jagjit Singh was appointed as a direct recruit to the post of Prosecuting Sub-Inspector by the Inspector General of Police on 31st May, 1952. He was to be on probation for a period of three years, as required by Rule 12.8 of the Punjab Police Rules, 1934 (hereinafter referred to the Police Rules). Rule 19.26 of the Police Rules provides for the training of Prosecuting Sub-Inspectors. It is clearly provided therein that no Sub-Inspector, who does not pass the examination from the Training School, Phillur, would be entitled to confirmation. Jagjit Singh was sent to Phillaur for training; but he failed to pass in one subject. He was retained in service for two years after the period of probation presumably to give him an opportunity to pass the examination, as he failed to pass the examination he was discharged from service on the 30th of April, 1957. Jagjit Singh was dissatisfied with this order and called the same in question by instituting the present suit. His contention was that he automatically stood confirmed after the period of probation had expired; that the extention of the period of probation from three years to five years was illegal; that the order of his discharge amounted to an order of removal from service and as the provisions of Article 311(2) of the Constitution of India had not been complied with, the order of discharge was illegal. The suit has been filed for a declaration to the effect that the order of discharge is illegal and that it be declared that he continues in the Police service as a Prosecuting Sub-Inspector. The State contested the suit and pleaded that there could be no automatic confirmation; that the probationary period was extended as he could not pass the departmental examination at Phillaur which was a sine qua non for confirmation and that the order of discharge did not amount to removal and, therefore, the provisions of Article 311(2) of the Constitution did not come into play. On the pleadings of the parties, the following issues were framed :- "(1) Whether the order of discharge dated 29th April 1957, copy of which is Ex. D.I amounts to removal or dismissal of the plaintiff within the meaning of Article 311 of the Constitution of India ? (2) If issue No. (I) is proved then whether the plaintiff was given a reasonable opportunity of showing cause as contemplated by Article 311(2) of the Constitution of India ? (3) Whether the aforesaid order of discharge is illegal, ultra vires, null and void for the reasons as given in para 7 of the plaint ? (4) Whether a valid notice under Section 80, CPC was given ? (5) Whether the orders dated 30th May, 1955 and 15th June, 1956, copies of which are Exs. D-2, D-3, respectively extending the period of probation of the plaintiff are illegal, null and void and ultra vires as alleged ?" The trial Court held that the order of discharge amounted to removal within the meaning of Article 311(2) of the Constitution of India; that the plaintiff had not been given a reasonable opportunity as contemplated by Article 311(2) of the Constitution; that the order of discharge was illegal and ultra vires; that a valid notice under Section 80, Civil Procedure Code, had been given; that the extension of the period of probation was illegal;that Rule 9 of the Punjab Civil Services, Punishment and Appeal Rules, 1952 was not complied with and that the order of discharge, so far as the plaintiff was concerned, was discriminatory inasmuch as a similarly situate Prosecuting Sub-Inspector, namely, Sant Singh, had been retained in service. Against this decisions, the State of Punjab preferred an appeal, which came up for hearing before the Senior Subordinate Judge Patiala. The learned Senior Subordinate Judge has allowed the appeal and set aside the decision of the trial Court. The learned Judge has found that there can be no automatic confirmation because the plaintiff had failed to pass the departmental examination which was a sine qua non to confirmation. It has further been found that there is no violation of Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules and the order of discharge is not discriminatory vis-a-vis Sant Singh. It is against this decision that the present second appeal has been preferred by the plaintiff. 3. Mr. Baldev Singh Jawanda, learned counsel for the plaintiff, has contended in the first instance that the plaintiff was automatically confirmed in the Police Service and, therefore, he should not be dicharged from service without complying with the provisions of Article 311(2) of the Constitution of India. In support of his contention, the learned counsel relies upon the decision of the Punjab, High Court Dharam Singh v. State of Punjab, 1965 Cur LJ 149. After hearing the learned counsel, I am of the view that there is no substance in this contention. Rule 12.8 of the Police Rules prescribed the period of probation; and if Rule 19.26 had not put a further qualifications, namely, that there could be no confirmation unless the departmental examination was cleared, there would have been no difficulty in accepting the contention of the learned counsel because the decision in Dharam Singh,s case (supra) would come to his rescue. But in the present case, confirmation can only be if the departmental examination had been cleared. Therefore, in the absence of the plaintiff's getting over that hurdle, he could not merely rely on Rule 12.8 of the Police Rules and contend that after the expiry of the period of probation, he stands automatically confirmed. I, therefore, repel the first contention. 4. The second contention of the learned counsel is that there is no Rule in the Police Rules which permits discharge for failing to clear the departmental examination. For heat purpose, reliance is placed on Rule 19.26. It may be mentioned that Rule 19.26 is a Rule dealing with the training of Prosecuting Sub-Inspectors. It is Rule 12.8 which really governs the matter and that Rule also provides that confirmation can only be if the departmental examination is cleared. This provision is in addition to the three years' period of probation. It cannot be denied that Prosecuting Sub-Inspectors stand on the same footing as Sub-Inspectors of Police and their terms and conditions of service are identical. It is only in respect of the performance of duties that there is a difference. I am, therefore, unable to agree that if the plaintiff had failed to qualify for confirmation, he could not be discharged from service. The position of the plaintiff remained all through that of a probationer and till he was confirmed he had no right of any kind to the post and could be discharged at any time by the competent authority. 5. The third contention of the learned counsel is that Sant Singh, who had similarly failed in the examination, has been discharged from service. The lower appellate Court has found that Sant Singh is no longer in service. Therefore, the very basis of the contention disappears. Mr. Baldev Singh Jawanda, however, contended that there was no evidence on the basis of which it could be held that Sant Singh was no, longer in service. This contention is not correct because we have the direct testimony of D.W. 1, Brij Mohan. It is no doubt true that his statement was no accepted by the trial Court; but the lower appellate Court has accepted his statement. Moreover, if Sant Singh was still in service, there could be nothing ouster for the plaintiff than to produce him, and in any case, if the plaintiff had closed his case, he could have applied to the Court for permission to produce Sant Singh in order to contradict DW -1, Brij Mohan. This was not done. I am, therefore unable to hold that Sant Singh is still all in service. This finding of lower appellate Court, that he is not in service, is a finding of fact and being based on evidence, is binding on me in second appeal. 6. The last contention of the learned counsel is that Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules has been contravened. Rule 9 is in the following terms :- "9. - While it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of the unsatisfactory record or unfavorable reports implying the unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show-cause against it, before orders are passed by the authority competent to terminate the appointment." any case, this Rule will only come into play if, during the course of probation, the services of a person are sought to be terminated for any fault etc. But it has nothing to do with the situation where in order to get confirmed, a hurdle has to be crossed, namely a departmental examination has to be cleared. Therefore, this contention of the learned counsel is also without any force. 7. No other contention has been advanced. 8. For the reasons recorded above, this appeal fails and is dismissed with costs. 9. On an oral request made by the learned counsel, I certify this case as a fit one for appeal under Clause 10 of the Letters Patent. Appeal dismissed.