TMI Blog1983 (3) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... power on the State Government to constitute certain services in the manner therein prescribed. One such service contemplated by the section was Punjab Service of Trust-Executive officers. Sub-section (2) of section 17 conferred power on the State Government to make rules for regulating the recruitment and the conditions of service of members of the Trust Services constituted by the State Government. Armed with this power, the State Government constituted Punjab Service of Trust Executive officers. In exercise of the power conferred by sec. 73 read with sec. 17 (2) of the Act, the State Government framed rules styled as Punjab Trust Services (Recruitment and Conditions of Service) Rules, 1978 (Rules for short). Rule 5 (2) (i) inter alia provided that fifty percent of the vacancies in the cadre of Executive officers shall be filled by direct recruitment and for this purpose rule 5(4) envisaged the setting up of a Selection Committee called Punjab Trust Services Selection Committee. In the year 1978, Directorate of Local Government, Punjab issued advertisement No. 1078 inviting applications for the posts in Class I, II and III of Trust Executive officers Pursuant to this advertis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispensing with the service of each of the petitioner is questioned in this group of petitions on The ground that the action is thoroughly arbitrary actuated by extraneous considerations and violative of equality of opportunity in tho matter of employment. It is also challenged on the additional ground that after the completion of the period of probation it was not open to the State Government to terminate the service of the petitioners, in the manner in which it is done. One more ground of attack was that the action was malafide in that the petitioners were appointed when a political party of other hue and colour was in power and on a change of Government, the petitioners were victimised. In support of the last contention it was urged that the power to dissolve trust conferred by section 103 was used to get rid of the petitioners which can be demonstrably established by the fact s that after dispensing with the service of petitioners, the trusts have been reconstituted without calling back petitioners to their posts. A return was filed on behalf of the respondents-the State of Punjab and Director-cum-Joint Secretary, Local Government Department, Punjab by Prithipal Singh Sodhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of Trust Executive Service after they were recommended by the statutory body called Punjab Trust Service Selection Committee. That each petitioner in response to the appointment order dated May 28, 1979 joined the service is again undisputed. Terms and conditions were set out as an annexure to the appointment order of each of the petitioners and clause (c) in the annexure clearly specifies the probation period to be of one year as prescribed under Rule 10 (1) of 1978 Rules. Now if each of the petitioners was appointed as a probationer and the period of probation which he was informed by the annexure to the appointment order was of one year, indisputably on May 27, 1980 each one completed the period of probation. However, the contention of the respondents is that the recital in clause (c) of the annexure to the appointment order specifying the probation period of one year in respect of each petitioner is a typographical-cumclerical error in view of the provision contained in Rule 9 (1) of 1978 Rules . Rule 9 (1) and 9 (2) provide as under: 9-Probation:-(1) A person appointed to a service shall remain on probation for a period of two years, if appointed by direct recruitmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers were practising advocates. If the Service Selection Board had the bio-data of each of these persons before it, one can say with certain amount of confidence that the Service Selection Committee as well as the Punjab Government having taken into consideration such high educational attainments and past experience may prescribe a shorter period of probation. Mr. Hardy, learned counsel for the respondents, however, seriously contended that rule p 9(1) does not permit anyone to prescribe shorter period of probation than the prescribed period of two years. He relied on the use of the expression shall in Rule 9 (1) as mandatory and submitted that even if the appointment order did not carry any specification about the prescribed period of probation, the rule on its own force will apply and a direct recruit appointed to Trust Executive Service and governed by the 1978 Rules will automatically be on probation for a period of two years. It was also pointed out that the rules do not confer any power or discretion on many authority to reduce this period. We find it difficult to subscribe to this view. This requires examination of the genesis why period of probation is prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to prescribe a period of probation. It is always open to the employer to employ a person without putting him on probation. Power to put the employee on probation for watching his performance and the period during which the performance is to be observed is the prerogative of the employer. Rule 9 (2) provides that a person appointed to a service shall A remain on probation for a period of two years if appointed by direct recruitment etc. Emphasis was placed on the use of the expression shall and it was urged that it is mandatory. It was also urged that the rule leaves no discretion in the appointing authority to prescribe a period of probation shorter than two years. And even if someone has attempted to do the same that being clearly illegal, the person concerned having been fastened with the knowledge of the statutory rule cannot contend that his period of probation is less than two years, and the court will have to proceed on the basis that period of probation shall be two years. This submission raises a vital question whether the use of the expression shall in rule 9 (2) indicates that the rule was to be mandatory in its application and no one will have a discretion to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom and, above all, whether the object of the Legislation will be defeated or furthered. This rule of interpretation was re-affirmed recently in Municipal Corporation of Greater Bombay v. B. E. S. T. Workers Union(4). In order to ascertain whether rule 9(2) is mandatory or directory, the setting in which it is placed, the purpose under lying the provision, the object sought to be achieved would help in determining whether it is mandatory or directory. As we have pointed out above that rule 9(2) was an enabling provision conferring power on the State Government to put a person appointed by direct recruitment on a probation of maximum period of two years and no consequence or failure to comply with the same is provided in the relevant rules, the provision app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach of the petitioners completed his one year of service, which marked the expiration of the period of probation, an increment was released in his favour. Subject to the specific rule to the contrary, ordinarily no increment is earned during the period of probation. But at any rate, if an increment can be earned after the expiry of the period of probation, it would depend upon the satisfaction of the appointing authority that the work and conduct of the probationer was satisfactory. Further rule 4.7 of the Punjab Civil Service Rules Vol. 1 provides that an increment shall ordinarily be drawn as a matter of course, unless it is withheld. An increment may be withheld from a Government employee by a competent authority if his conduct has not been good or his work has not been satisfactory. Now almost all the petitioners completed their one year service by June, 1980. An increment was released in favour of each of them. lt is implicit in release of increment that the petitioners had satisfactorily discharged their duty during the probation period, and at any rate the work and conduct was not shown to be unsatisfactory, which permitted an increment to be earned. Assuming, as contended f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se :- (i) They had not completed their period of probation on the date of order; (ii) Their services were no longer required as the Improvement Trusts in the State of Punjab had been dissolved; (iii) Their Continuance in service was only causing unnecessary burden to the State Exchequer; (iv) They being probationers had no right to the posts. (v) Their performance, in the opinion of the appointing authority, was not upto the mark. We will meticulously examine the validity of each one of these reasons seriatim. The first submission is that each of the petitioners had not completed the period of probation on the date of impugned order. This proceeds on the assumption that the period of probation was two years. For the reasons hereinabove stated, this submission is contrary to the record. If the period of probation was one year as held by us, indisputably each one of the petitioners had completed his period of probation on the date of the impugned order. Therefore this reason is untenable and will have to be ignored. The second reason assigned for the impugned action was that the services of the petitioners were no longer required as the Improvement Trusts in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of its development scheme. Similarly on October ll, 1980 Amritsar Improvement Trust invited applications for allotment of plots to the local displaced persons available in certain schemes framed by it. We can multiply such illustration. But we consider it unnecessary to do so. And it is impossible to believe that on mere dissolution of the Board of Trustees, all its functions were wound up. As many as 1500 officers and other members of the staff continued to work for the so-called dissolved Trusts. The only persons whose services were dispensed with as no more necessary were the 11 petitioners i. e. the direct recruits of 1979. In this background, it become difficult to escape the conclusion though we are trying our level best to do so that dissolution of the Trusts was a device to get rid of the petitioners. But on that point we say no more. Mr. Hardy pointed out that by the ordinance No. 6 of 1980 styled as Punjab Town improvement (Amendment) ordinance, 1980, subsec. (2) was introduced to sec. 103 which took care of the situation arising out of the dissolution of the Trusts. It provided that all properties, funds and dues vested in or realisable by the Trust and Chairman resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion does not commend to us for the additional reason that the State Exchequer was not responsible for the salary and perquisites of the Trust Executive officers, in view of the provision contained in sub sec (4) of sec 17 of the Act which provides that salary, allowances, gratuity, annuity, pension and other payments required to be made to the members of the Trust Service in accordance with the conditions of their service shall be charged from the funds of the Trust in the prescribed manner. The fourth and fifth grounds for dispensing with the services of the petitioners were that the petitioners being probationers had no right to the posts, and their performance in the opinion of the appointing authority was not satisfactory are wholly untenable because the period of probation had expired and they were continued in service after allowing each one of them to earn an increment. It is a permissible inference that till allowing each petitioner to earn his increment, his service and work were deemed to be satisfactory and nothing is pointed out to us as to what occurred in respect of 11 petitioners simultaneously within hardly a period of less than six weeks since the release of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t acquiring power to dissolve the trusts and then ordering their dissolution was to dispense with service of only 11 Trusts Executive officers of 1979 recruitment. And having achieved the desired result the Trusts have been reconstituted albeit without showing the fairness of recalling the discharged 11 Trust Executive officers. Therefore, without imputing any motive, the conclusion is inescapable that the action was thoroughly arbitrary and violative of the guarantee of equality of opportunity enshrined in Art. 16 read with Art. 14 of the Constitution and such thoroughly arbitrary action cannot be sustained, and deserves to be quashed. The last contention of Mr. Hardy was that in any event even if the Court comes to the conclusion that the petitioners had completed the period of probation, yet they would be temporary government servants and their services were dispensed with after giving them salary for one month in lieu of notice and as the Trusts no more exists, they at least cannot be reinstated. We find no substance in this contention. We would have beer. required to examine this contention in some depth, but we are spared the exercise in view of the decision of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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