Sukhbans Singh vs State of Punjab
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Civil Appeal No. 412/1960
Decision Date: 6 April 1962
Coram: J.R. Mudholkar, Bhuvneshwar P. Sinha, N. Rajagopala Ayyangar
In this case, the Supreme Court of India delivered its judgment on 6 April 1962 in the matter of Sukhbans Singh versus the State of Punjab. The judgment was authored by Justice J. R. Mudholkar and the bench was composed of Justice J. R. Mudholkar, Justice Bhuvneshwar P. Sinha, and Justice N. Rajagopala Ayyangar. The case is reported in the 1962 volume of the All India Reporter at page 1711 and also appears in the 1963 volume of the Supreme Court Reports (first series) at page 416. Subsequent citator references include reports in the 1964, 1966, 1968, 1971, 1979 and 1981 Supreme Court law reports, with specific citations such as R 1964 SC 449, RF 1964 SC 600, R 1966 SC 175, RF 1966 SC 1842, D 1968 SC 1210, RF 1971 SC 998, RF 1979 SC 1073 and RF 1981 SC 957. The legal provisions examined in the judgment include Article 311(2) of the Constitution of India, the Punjab Civil Service (Executive Branch) Rules of 1930 (rules 5, 17, 22, 23 and 24), and the Government of India Act 1919 (chapters 9 and 10 of the 9 & 10 Geo. VI, ch. 101). The principal issue centered on the status of a probationer, the absence of automatic confirmation, and whether a reversion to an earlier post constituted punishment and thus fell within the protective ambit of Article 311(2).
The factual background reveals that the petitioner, Sukhbans Singh, entered the Punjab civil service as a Tehsildar in 1936. After selection by the Punjab Public Services Commission, he was appointed as an Extra Assistant Commissioner on probation in 1945. During his probationary tenure he was charge‑sheeted, and an inquiry was consequently held, resulting in a one‑year suspension of his increment. Without any further inquiry, the Government reverted him to his original rank of Tehsildar in 1952. At the same time the Government conveyed that the petitioner was alleged to be involved in communalism, intrigue and a habit of loose talk. The petitioner repeatedly demanded that the Government disclose the specific grounds for his reversion, but the Government refused to furnish any reasons. The petitioner lodged a representation and later a memorial addressed to the Government challenging the reversion; both submissions were rejected. Consequently, the petitioner instituted a writ petition before the Punjab High Court under Article 226 of the Constitution, seeking relief on the ground that the reversion was punitive and violated the safeguards of Article 311. A single judge of the High Court granted the writ, holding that the reversion amounted to punishment and was therefore invalid. The State appealed the order under the Letters Patent, and the appellate authority set aside the High Court’s decision, reinstating the Government’s action.
The Supreme Court, after examining the material, held that the only reasonable inference was that the Government intended to punish the petitioner for conduct it regarded as misconduct, and that this intention was the true motive for the reversion. The Court observed that the Government’s failure to provide any reasons for the reversion did not diminish the punitive character of the action. It further characterized the Government’s act as malafide, concluding that the procedural requirements of Article 311(2) had not been satisfied, and therefore the reversion was illegal. The Court clarified that Article 311 makes no distinction between permanent and temporary government servants; its protective ambit extends equally to all government employees, but the protection is available only when dismissal, removal or reduction in rank is effected as a punishment. The Court further noted that a probationer cannot acquire the status of a permanent member of the service automatically, unless the governing rules expressly provide for such a result. Accordingly, the applicable service rules did not confer an automatic right of confirmation, and the reversion, being punitive, fell within the prohibition of Article 311(2). The rules
The rules that governed the Public Civil Servants of Punjab did not contain any provision providing that a probationer would automatically become a permanent member of the Civil Service at the end of the probationary period. When a probationer was not reverted by the Government before his probation ended, he continued to remain a probationer, although he then acquired the qualification for a substantive permanent appointment. The very status of being a probationer meant that the individual had to demonstrate his competence and suitability for the higher post in which he was acting. If the authorities found his work unsatisfactory, they could revert him to his original position without having to assign any reasons. Accordingly, a probationer possessed no entitlement to retain the higher post in which he was serving, nor did he have any right to be confirmed in that post. In this context, the Court relied upon the decision in Parshottam Lal Dhingra v. Union of India, (1958) S.C.R. 828.
The appeal arose in the Civil Appellate Jurisdiction, identified as Civil Appeal No. 412/1960, and was filed against the judgment and order dated 12 February 1957 of the Punjab High Court in L. P. A. No. 70 of 1954. The appellant was represented by counsel, while counsel for the respondent included the Advocate‑General of Punjab and two additional lawyers. The Judgment of the Court was delivered by Justice Mudholkar. The matter before the Court was an appeal from a Division Bench of the Punjab High Court, which had granted a certificate under Article 133(1)(a) of the Constitution declaring the case fit for appeal to this Court. The appellant had been directly recruited as a Tehsildar in 1936. He asserted that his performance had been extremely satisfactory, leading to his appointment as an Extra Assistant Commissioner on probation in 1945. This appointment represented a promotion to the Provincial Civil Service (Executive Branch) and had been made by selection through the Punjab Public Services Commission. The notification of his promotion appeared in the Gazette dated 5 June 1949 and was dated 31 May 1945. Throughout his career, the appellant claimed to have been honest, hardworking, impartial, and popular among all communities, including Hindus, Sikhs, and Muslims, and said that he had helped the public cause of all communities alike. However, he alleged that his popularity was not appreciated by at least two of his senior officers, one of whom was Dewan X Hukan Chand, Sub‑Divisional Magistrate of Fazilka. As a result, he faced an enquiry on seven charges. The enquiry was conducted by Mr. S. B. Kapur, Commissioner under the Public Servants (Inquiries) Act, 1850 (Act 37 of 1850). The Commissioner exonerated the appellant, noting that, contrary to the substance of the charges, extensive evidence—both from the defence and the prosecution—had established his good reputation for honesty and had shown that while serving at Fazilka he maintained a commendable reputation.
According to the report, the appellant possessed a reputation for honesty. Nevertheless, the Government decided to stop his salary increment for one year without any future effect. The reason given for this action was that the appellant had allotted some evacuee property to his father, who was an evacuee from West Pakistan. After being transferred from Fazilka, the appellant submitted a representation protesting the stoppage of his increment. In response to that representation, Mr S D Midha, the Deputy Commissioner, wrote that the appellant had worked very hard to clear heavy arrears and that his case deserved sympathetic consideration. Subsequently, in September 1950 the appellant was transferred to Jullundur as a Revenue Assistant. The appellant claims that before he could assume his new post, Deputy Commissioner Mr Kashyap’s mind was “poisoned” by certain persons, leading Kashyap to write to the Government protesting the appellant’s transfer to Jullundur. The Government ignored this protest, and the appellant alleges that Kashyap treated the matter as a personal grievance, initially refusing to allow the appellant to take independent charge of the post. The appellant refers to four specific incidents that, in his view, demonstrate Kashyap’s strong prejudice against him; however, the Court finds that reproducing those incidents would not serve any useful purpose.
The appellant further states that when he was asked to collect funds for Government College, Tanda, the Deputy Commissioner actually posted the C.I.D. to monitor his activities and instructed them to start a case against him if possible. Consequently, the appellant wrote to the Deputy Commissioner on 6 September 1951, after which the Deputy Commissioner asked him to cease the collection. Despite these events, Kashyap gave the appellant a favorable report on his work. Nevertheless, the appellant received a warning from the Government on 18 September 1953, which he contends was based on erroneous reports prepared by the Deputy Commissioner and was motivated by malice. Prior to receiving this warning, he had been reverted to his former post of Tehasildar on 20 May 1952; he argues that the warning was merely an after‑thought. The warning read, in part: “Government have noticed with regret that while you are hard‑working and honest and possess adequate knowledge of revenue law and procedure, you have created an impression during the period under report that you were not free from communalism or intrigue. It has also been reported that you were in the habit of indulging in loose talk unnecessarily which created difficulties for you. Government hope this warning will assist in affecting an improvement.” After his reversion, the appellant requested that the Government furnish the grounds for his reversion, but a letter dated 18 June 1952 from the Government declined to provide those grounds.
The Government declined to provide the appellant with the reasons for his reversion, stating in a letter that the reversion could be made under Rule 14.10 of the Civil Services Rules (Punjab) Volume 1, Part 1. The appellant contended that this action violated Article 311(2) of the Constitution. He submitted a representation against his reversion on 17 November 1952, but the Government rejected it on 2 March 1953. Subsequently, the appellant filed a memorial which was also rejected on 14 December 1953. He then filed a petition under Article 226 of the Constitution in the High Court of Punjab. A single judge of that Court set aside the Government’s order, holding that the appellant’s reversion to the post of Tehsildar amounted to punishment and that he had not been given an opportunity to show cause, thereby breaching Article 311. The Government of Punjab appealed the decision under the Letters Patent, and a Division Bench of the same Court reversed the single judge’s judgment. The Division Bench observed that the appellant was serving as an Extra Assistant Commissioner on probation, and that his reversion to his former post of Tehsildar did not constitute punishment; consequently, Article 311 was not attracted. The appellant now challenges that appellate order before this Court.
The appellant had been appointed to the post of Extra Assistant Commissioner by the Punjab Public Services Commission pursuant to Rule 17 of the Punjab Civil Services (Executive Branch) Rules, 1930, which were framed under Section 96‑B of the Government of India Act, 1919. Rule 17 provides that the Governor of Punjab shall ordinarily make appointments to the Service in accordance with Rule 5, selecting candidates from the various registers in a prescribed rotation. The rotation specified in Rule 17 is as follows: from Register B, two candidates; from Register A‑I (Tehsildars and Naib‑Tehsildars), one candidate; again from Register B, two candidates; from Register A‑I, one candidate; from Register B, two candidates; from Register A‑II (Ministerial Government servants), one candidate; from Register A‑I, one candidate; from Register B, two candidates; from Register C, one candidate; from Register B, two candidates; from Register A‑II, one candidate; from Register A‑I, one candidate; from Register B, two candidates; from Register A‑I, one candidate, and so on, continuing the same rotational pattern beginning again from Register B. The rule further states that all such appointments shall initially be either officer posts or substantive provisional posts. Rule 5, which is referred to in Rule 17, mandates that members of the service shall be appointed by the Governor from time to time, as required, from among the accepted candidates whose names have been duly entered in accordance with the applicable service rules.
Punjab Civil Service Rules require that candidates who are accepted and entered in any of the service registers be maintained under those rules. Rule 22 of the same rules stipulates that a person appointed for the first time to the service must remain on probation for a specified period; for candidates appointed from Register A‑I or Register A‑II that period is set at eighteen months. One of the three provisos attached to Rule 22 authorises the Governor to extend the probationary period of any candidate. Two additional rules are also relevant to the matters before the Court and therefore it is appropriate to set them out. Rule 23 provides that “Any officer appointed to the Service may, during the period of his probation be removed from the service under the orders of the Governor of Punjab; or if he was appointed from Register A‑I or A‑II may be prevented from his former appointment if, in the opinion of the Governor of Punjab, his work or conduct is unsatisfactory.” Rule 24 states that “On the completion of the period of probation prescribed by, or determined by, the Governor of Punjab under the provisions of Rule 22, a member of the Service shall be qualified for substantive permanent appointment.” It is agreed by the parties that the appellant’s probation was not extended by the Governor exercising the power conferred by the proviso to Rule 22. The first issue for consideration, therefore, is the legal position of the appellant after the expiry of his eighteen‑month probationary period.
The learned single Judge, after referring to the observations of Justice Khosla in a different case, expressed the Court’s view on this point. He observed that, according to this Court, a person who is on probation does not automatically become a permanent servant of the State merely because his probation continues beyond the period prescribed by the rules; however, if the probation is unduly prolonged or confirmation is unnecessarily delayed, the effect of confirmation will be presumed. The Judge then applied that principle to the facts, noting that the petitioner had been recruited to the Provincial Civil Service effective 31 May 1994 and had continued to work as an officer of that service until 17 May 1962. He further pointed out that, under the rules, the probationary period was eighteen months and that there was no indication that the Governor had issued any order extending the petitioner’s probation. Consequently, the Judge concluded that the petitioner was not on probation, contrary to the State’s submission. He also remarked that no rule had been cited, nor was he aware of any rule, which would allow a person who was recruited by the Public Service Commission to be reverted after seven years of service merely on the ground that he was officiating. The Judge suggested that, if his remarks were to be understood as implying that a probationer must be deemed to acquire permanent status merely by the lapse of time, such a view would be erroneous.
The Court observed that the proposition that a probationer is deemed to have been confirmed in his post solely by the lapse of time was incorrect. It held that a probationer cannot, as correctly pointed out by the Division Bench, acquire the status of a permanent member of the service automatically, unless the rules under which he was appointed expressly provide for such a result. The regulations governing the Provincial Civil Services of Punjab contain no provision whereby a probationer, upon the expiry of the probationary period, is automatically absorbed as a permanent member of the Civil Service. What happens to such a person is clearly set out in Rule 24 of the Supplement. Under that rule a probationer is merely qualified for a substantive permanent appointment. When Rules 23 and 24 are read together, it appears that if the Government does not revert a probationer before the termination of his probationary period, the person remains a probationer but acquires the qualification for a substantive permanent appointment.
The Court referred to its earlier decision in Parshotam Lal ‘Dhingra v. Union of India (1) which held that Article 311 makes no distinction between permanent and temporary posts and extends its protection equally to all Government servants holding permanent or temporary posts or officiating in any of them. However, the protection of Article 311 is available only where dismissal, removal or reduction in rank is inflicted as a punishment and not otherwise. One of the tests laid down in that case for determining whether the termination of service was by way of punishment is whether, under the service rules, the servant would, but for such termination, have the right to hold the post. Counsel relied upon Rule 24 of the Punjab Civil Service Rules and argued that because the rule qualifies a probationer for absorption in a substantive‑permanent appointment, it confers a right, and that reverting such a person deprives him of that right and therefore amounts to punishment. It was further argued that the provisions of Article 311(2) are attracted to the situation and, where they have not been complied with, the reversion must be regarded as illegal.
The Court explained that the argument assumes that a probationer who continues to be a probationer after the expiry of the probationary period, without being reverted, possesses a legal right to be confirmed or to be treated as if he were confirmed. The rule in question states only that at the end of the probationary period, the probationer, unless reverted or absorbed in a substantive post, will be eligible for being made permanent. In other words, the probationer will continue to be a probationer unless he is reverted or absorbed in a permanent post. The Court emphasized that the very fact of being a probationer implies that the person must prove his worth and suitability for the higher post in which he is officiating, and that if his work is not found to be satisfactory, he may be liable to be reverted to his original post without any reason being assigned.
In this case the Court observed that a probationer could be reverted to his original post without any need to assign a reason, and therefore it was incorrect to say that a probationer possessed any right to remain in the higher post he was temporarily officiating or to any right of confirmation. The Court explained that a probationer was merely made eligible for absorption in a permanent post and that such eligibility did not give him a better position than the ordinary probationary status. Nevertheless, as was pointed out in Dhingra’s case, a probationer could not be punished for misconduct unless the procedural requirements of Article 311(2) were observed. The Court then examined whether the appellant in the present matter had, in fact, been punished.
The Court set out the sequence of events that led to a departmental inquiry against the appellant, his subsequent exoneration, and his transfer to Jullundur. It noted that the Deputy Commissioner, Mr Kashyap, had unsuccessfully attempted to have the transfer cancelled, and that the appellant was later instructed to stop collecting funds for a Government College. The appellant was subsequently reverted on 20 May 1952, and no reason was provided for this reversion. The Court held that the absence of a stated reason made it difficult to conclude that the reversion had been made in the ordinary course or as a bona‑fide exercise of the Government’s power to revert a probationer on the ground of unsuitability for the higher post.
The Court examined the evidence of the appellant’s performance during his tenure as Revenue Assistant in Jullundur. It observed that Mr Kashyap had actually praised the appellant’s work in that capacity. Furthermore, the District Board of Jullundur had passed a resolution on 30 March 1951 expressing appreciation for the appellant’s efforts in combating a locust invasion. The Commissioner’s report for the year ending December 1951 stated that the appellant ranked first in the consolidation work undertaken throughout the Punjab State while he was stationed at Jullundur.
Additional records were considered. An extract from the second progress report on work in villages taken up after 1 April 1952 indicated that, as Revenue Assistant in Jullundur, the appellant stood first in his Division in land‑revenue collection and had also collected a sum of Rs 25,000 for the Red Cross, an achievement described as “outstanding performance” for which he received a Government of Punjab commendation certificate. The appellant had also been awarded the President of India’s Sanad and Silver Medal for his excellent work in the 1951 Census. Despite these commendations, the appellant was reverted shortly thereafter, again without any reasons being given.
The Court noted that, on 18 September 1953—approximately one and a half years after the reversion—the appellant received a warning from the Government, a document previously quoted by the Court. From the totality of the facts, the Court inferred that the Government intended to punish the appellant for conduct it deemed to be misconduct, and that the reversion was used as the vehicle for that punishment. The Court emphasized that the Government’s failure to provide reasons for the reversion did not diminish the punitive character of the act, and that the requirements of Article 311(2) had not been fulfilled. Consequently, the Court concluded that the reversion could not be regarded as an ordinary administrative action but was, in effect, an illegal punishment.
In this case, the Court observed that the Government had failed to satisfy the procedural safeguards mandated by Article 311(2) of the Constitution, as they ought to have been complied with before imposing any punitive measure. The Court further noted that, rather than observing those statutory requirements, the Government attempted to disguise the reversion of the appellant as a routine administrative act that would not attract any penal consequences. The surrounding facts and the manner in which the reversion was effected clearly indicated that the Government’s action was undertaken in bad faith, with the purpose of punishing the appellant for alleged misconduct. The Court pointed out that the reversion was imposed without the necessary compliance with the provisions of Article 311(2), and therefore could not be treated as a lawful administrative decision. Because the statutory conditions were not fulfilled, the Court held that the reversion was illegal and void. Consequently, the Court decided to allow the appellant’s appeal and to set aside the order dated 28 May 1952 that had effected the reversion. In addition, the Court directed that the costs of these proceedings, both in this Court and in the High Court, be borne by the Government. The appeal was thus allowed, the impugned order was quashed, and the Government was ordered to pay the costs incurred by the appellant.