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1990 DIGILAW 40 (MAD)

K. Venkataraman v. The State Of Tamil Nadu Represented By The Secretary To Government

1990-01-10

NAINAR SUNDARAM

body1990
JUDGMENT Nainar Sundaram, J. 1. The appellant originally got inducted into the services of the Judicial Department and became a permanent Chief Clerk, Metropolitan Magistrate's Court, George Town, Madras, when he was drafted into the Civil Supplies Department; and on 19.9.1979 while he was working as Assistant Commissioner of Civil Supplies, Nungamgbakkam Zone, he was reverted to the Judicial Department. The appellant put that order in issue in W.P. No. 4169 of 1979. Two contentions were advanced by the appellant before the learned single Judge, who heard and disposed of the writ petition. The learned single Judge did not accept either of the contentions and dismissed the writ petition and this has obliged the appellant to prefer the present writ appeal. 2. The very same two contentions are being pressed forth before us. The first contention is that the services of the appellant were regularised in the Civil Supplies Department and hence he cannot be reverted to the Judicial Department. That the services of the appellant in the Civil Supplies Department were regularised is not being disputed by the respondents. Their answer is what is expressed in paragraph 4 of the counter-affidavit filed by them in the writ petition, which runs as follows: Though the services of the petitioner were regularised no formal order declaring the completion of probation of the petitioner was issued by the competent authority under Rule 27 of the Tamil Nadu State and Subordinate Services Part II General Rules. However, he is deemed to have satisfactorily completed his probation on the date of expiry of the prescribed period of probation in the post of Assistant Commissioner of Civil Supplies. He has not been confirmed as Assistant Commissioner. The individual is therefore liable for reversion at any time. This stand of the respondents has found favour with the learned single Judge and on the basis that no formal order declaring the completion of probation of the appellant was issued by the competent authority, as contemplated under Rule 27 of the Tamil Nadu States and Subordinate Services Rules (viz., The Preliminary and the General Rules, hereinafter referred to as the Rules) and hence the appellant was only a temporary hand in the Civil Supplies Department and could be reverted back to the Judicial Department, the learned single Judge discountenanced this contention, put forth on behalf of the appellant. This thinking of the learned single Judge is the subject matter of attack before us. The relevant part of Rule 27(b), which alone has got to be looked into, reads as follows: If the appointing authority decides that a probationer is suitable for such membership, it shall, as soon as possible, issue an order declaring the probationer to have satisfactorily completed his probation. If no such order is issued within six months from the date on which he is eligible for such declaration, the probationer shall be deemed to have satisfactorily completed his probation on the date of expiry of the prescribed or extended period of probation. A formal order declaring the completion of probation shall, however, be issued by the competent authority. G.O.Ms. No. 249, Food Department, dated 4.11.1978, issued by the first-respondent, clearly bears out that the appellant's services in the Civil Supplies Department were regularised with effect from 10-12-1975 F.N. and there was a direction to the Second -respondent to send the necessary proposals declaring the satisfactory completion of probation of the officers, including the appellant, whose services have been regularised. That the appellant completed the prescribed period of probation in the Civil Supplies Department is also not in dispute. The respondents bank upon and take cover under the lack of a formal order declaring the completion of probation to deny him the status of a permanent servant in the Civil Supplies Department. It is true that expiration of the probation period would not necessarily lead to regularisation or confirmation. But, if the service rule, by the force of its working, brings about that result, that must prevail. Here, we have noted the service Rule, namely, Rule 27 (b) of the Rules and it enjoins upon the appointing authority to issue an order declaring the probationer to have satisfactorily completed his probation and if no such order is issued within six months from the date on which the probationer becomes eligible for such declaration, the probationer shall be deemed to have completed his probation on the date of expiry of the concerned period. Though a formal order declaring the completion of probation shall be issued by the competent authority, the omission to issue the formal order will not take away the force of the implications of the rule, namely that while an order declaring the probationer to have satisfactorily completed his probation will have to be issued by" the appointing authority, the failure on his part to do so will not alter the position and the probationer shall be deemed to have satisfactorily completed his probation, despite the fact that no such order has been issued. Hence, it is not possible to hang on to the theory that the lack of declaration of completion of probation on the part of the second respondent will negative the appellant the benefits of the legal implications of the completion of the probation period and his services in the Civil Supplies Department getting regularised. It must be noted here that the Second-respondent cannot take advantage of his omission to issue the declaration of completion of probation of the appellant in spite of G.O.Ms. No. 249, Food Department, dated 4-11-1979, issued by the first-respondent and that would be permitting the respondents to take advantage of their own wrong to stultify the legitimate claim of the appellant. Once it is found that the services of the Appellant in the Civil Supplies Department were regularised, it is not possible to resort to the process of reversion of the appellant to the Judicial Department. There had been a complete severance between the two services and the appellant had gone into Civil Supplies Department as a permanent hand and there is no question of reversion of the appellant to the Judicial Department. There are two pronouncements of a Bench of this Court, which have taken views similar to the above and they are: K. Ramachandra Perumal v. The Commissioner of Agricultural Income-tax and Anr. (W.P. No. 3606 of 1977, order dated 23.10.1979) and The Commissioner of Civil Supplies, Madras and Anr. v. P. Annamalai and Ors. (WA. Nos. 741, etc. of 1980, Judgment dated 27.4.1982). Hence, we are not able to fall in line with the thinking of the learned single Judge over the first contention and we entirely agree with the learned Counsel for the appellant on the first contention and sustain it. 3. v. P. Annamalai and Ors. (WA. Nos. 741, etc. of 1980, Judgment dated 27.4.1982). Hence, we are not able to fall in line with the thinking of the learned single Judge over the first contention and we entirely agree with the learned Counsel for the appellant on the first contention and sustain it. 3. The second contention put forth on behalf of the appellant is that the appellant has been actually sent out of the services of the Civil Supplies Department by way of punishment and the order of reversion is only a camouflage for the punitive action. As to what exactly weighed with the respondents in passing the impugned order of reversion has been exposed by them in paragraph 3 of their counter-affidavit as follows: In the year 1977, the Second-respondent reported to the first-respondent that complaints have been received that the petitioner who was working as Assistant Commissioner of Civil Supplies, Belt area zone was corrupt and that he had illegal gratification through agents for grant and renewal of wholesale licences to deal in paddy and rice. The Commissioner of Civil Supplies has also reported that enquiries revealed that only after the licensees approached him directly or through agents, he used to pick out cases, signed the renewal endorsements under ante date and handed over the licences to the parties after getting their acknowledgements in separate sheets of paper. It was also alleged that the Officer extracted money from rice mill owners at Red Hills and Moolakkadai by allowing them to hull paddy unauthorisedly and without collecting levy. He, therefore, recommended for investigation by the Director of Vigilance and Anti-corruption. The originals of complaint petitions and certain renewal files were also sent to Government for entrusting the case for investigation by the Director of Vigilance and Anti-Corruption. Accordingly, the case was entrusted to the Director of Vigilance and Anti-corruption for a thorough investigation in the month of September, 1977. The Director of vigilance and Anti-corruption, after due investigation, sent a report to the vigilance Commission stating that the allegations are not substantiated and that further action in the matter may be dropped. The vigilance Commission endorsed the views of the Director of vigilance and Anti-corruption. Accepting the views of the vigilance Commission, the Government decided not to take any action against the petitioner. However, they decided to revert him to his parent department and accordingly orders were issued. The vigilance Commission endorsed the views of the Director of vigilance and Anti-corruption. Accepting the views of the vigilance Commission, the Government decided not to take any action against the petitioner. However, they decided to revert him to his parent department and accordingly orders were issued. Aggrieved by this order, the petitioner has filed the above writ petition. The facts stated in the affidavit are admitted only to the extent that they are not contrary to the facts stated above. When we go through the above averments, there cannot be any doubt in our mind that though the impugned order of reversion appears innocuous, what weighed with the respondents in passing the same are the alleged culpable conduct on the part of the appellant during his functioning in the Civil Supplies Department. Thus, lifting the veil and seeing the real circumstances, we find that the basis and the foundation of the impugned order of reversion is the alleged misconduct on the part of the appellant. Hence, we find that the complaint of the learned Counsel for the appellant that the services of the appellant have come to be terminated by way of punitive action is a legitimate one. Obviously the requisite formalities in law for taking a punitive action have not been gone through. This aspect also vitiates the impugned order. Sustaining these two contentions put forth on behalf of the appellant, we allow this writ appeal; set aside the order of the learned single Judge and allow the Writ petition. We make no order as to costs. We find that during the pendency of the proceedings before the learned single Judge and before us, the appellant has obtained stay of the impugned order of reversion and has continued in service in the Civil Supplies Department and he attained his normal age of superannuation on 31-10-1988. The result of our allowing the writ appeal is, his continuation in the services of the Civil Supplies Department till 31-10-88 stands upheld and he will be entitled to all the service benefits on that basis.