Mehar Singh, J. - (1.) THIS judgment will dispose of two appeals (Nos. 202 and 203 of 1968) under Clause 10 of the Letters Patent, the first by Jugraj Singh, Appellant and the second by Jasmer Singh, Appellant, from the judgment and order, dated February 29, 1968, of a learned Single Judge dismissing the petition of each Appellant under Articles 226 and 227 of the Constitution, in which Jugraj Singh, Appellant sought the quashing of the order of the State of Punjab, Respondent 1, of May 11, 1966, terminating his services as Principal of the Industrial Training Institute at Kaithal, and Jasmer Singh, Appellant similarly sought quashing of the order of the same Respondent, of April 20, 1966, reverting him from the post of Principal of the Industrial Training Institute at Palwal.
(2.) THE question in these appeals is whether each one of the two Appellants is a 'probationer' as that expression is used in Rule 2.49 of the Punjab Civil Services Rules, Volume I, Part I, hereafter to be referred as 'the Services Rules', and thus the order terminating the services of Jugraj Singh Appellant, and the order reverting Jasmer Singh Appellant, could not be made without compliance with Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, hereafter to be referred as 'the Appeal Rules'? Admittedly, no show -cause notice before action taken against either Appellant was given to him under Rule 9 of the Appeal Rules to render an explanation why it should not be taken. So there was no compliance with the provisions of Rule 9 of the Appeal Rules. But that rule only applies to a 'probationer', and that is how the question arises whether each one of the Appellants was a probationer as that expression is used in Rule 2.49 of the Services Rules. An announcement, as an information for the candidates, was issued by the Punjab Public Service Commission, Patiala, on December 3, 1963, in regard to the recruitment to twenty posts of Principals/Assistant Directors, Government Industrial Training Institutes in the Punjab Industrial Service, Class II. The announcement among other matters said that the posts were temporary, sanctioned up to February 29, 1964, but were likely to continue indefinitely, that the same were non -pensionable, and that the selected candidates will be on probation for a period of two years, and if the work and conduct of the incumbents during the trial/probationary period is in the opinion of the Government not satisfactory, their services may be terminated at any time without notice if recruited direct, or they may be reverted to their original posts if recruited otherwise, and after the expiry of the period of trial/probation the services may be terminated on one month's notice or on payment of one month's pay and allowances in lieu thereof, and with further conditions that in case of abolition of the posts, the candidates appointed shall have to vacate the posts without any notice, and in case of resignation the candidate concerned shall have to give one month's notice or one month's pay in lieu thereof. The Punjab Public Service Commission selected both the Appellants for two of such temporary posts. The order with regard to Jugraj Singh Appellant's appointment was made on May 21, and that with regard to Jasmer Singh Appellant on May 17, 1964. The order in each case stated the terms and conditions upon which each Appellant was appointed and of those terms and conditions these are material for the purpose of the present appeals - - (i) The post is purely temporary but is likely to continue. (ii) You will be on probation for a period of two years from the date of your joining the post but confirmation, if and when due, will be according to combined seniority in the cadre. (iv) If at any time your work and conduct are not found satisfactory, you will be liable to revert to your substantive post/parent department. In case you are a new entrant in Government service, your services will be terminated without any notice. (v) Other conditions of service will be governed by the rules and instructions issued by the Government from time to time. (vi) You will have to vacate the post at any time, without notice, in case the post is abolished or there is no vacancy for any reason. The order terminating the services of Jugraj Singh Appellant was made on May 11 (Annexure 'B' to his petition), and the order of reversion with regard to Jasmer Singh Appellant was made on April 20, 1966 (Annexure 'J' to his petition). After reciting how each Appellant was appointed Principal, Assistant Director, Industrial Training Department, Punjab, in the Punjab Industrial Service, Class II, on two years' probation with effect from the date of his joining service, the impugned order in the case of each one of the Appellants read that in accordance with the terms and conditions of his service, as contained in Punjab Government Memorandum (concerning the appointment of each one of the Appellants as already referred to above) 'he should be relieved of his post immediately after handing over charge to a Foreman Supervisor', and in the case of Jasmer Singh Appellant it further said that on reversion he should be posted as Supervisor in the grade for that post.
(3.) EITHER Appellant in his petition under Articles 226 and 227 of the Constitution sought that the order with regard to him bringing to an end his service as Principal/Assistant Director be quashed. In their petitions the Appellants said that the order made against each was against Rule 9 of the Appeal Rules, which was not complied with. Jugraj Singh Appellant merely pointed out that an order of termination even of a probationer amounts to punishment and casts a stigma on his career so that he is entitled to the protection of Article 311. Similarly, Jasmer Singh Appellant said that his reversion from the probational post was a punishment and was liable to be set aside for non -compliance with Article 311. Some other grounds were also taken by the Appellants in their petitions, including the ground of mala fide by Jugraj Singh Appellant, but those grounds were not urged before the learned Single Judge and no reference to the same during the arguments in these appeals was made. It is a significant fact that neither Appellant in his petition said that he was a probationer as that expression is used in Rule 2.49 of the Services Rules. If anything, there was a vague reference to what happened in the case of a probationer when his service was terminated by way of punishment in so far as the petition of Jugraj Singh Appellant is concerned, and all that was said by Jasmer Singh Appellant was that his reversion from a probational post was a punishment. This was far from a claim by either Appellant that he was a probationer in the sense of the rule as above. In the return to the petition of Jugraj Singh Appellant the Respondents said that he was appointed a Principal for a period of two years from the date of joining the post and since the post on which he was appointed was purely on year to year basis, his contention that he was due to get confirmation was hardly tenable. It was further said that this Appellant was appointed against a temporary post and was to be on probation for a period of two years and so he could not claim to be a 'probationer', but was merely 'on probation'. Similarly, in the return on the side of the Respondents to the petition of Jasmer Singh Appellant it was said that he was appointed against a temporary post as Principal and was to be on probation for a period of two years, and thus he could not claim to be a probationer, but was merely on probation. It was pointed out that in either case Rule 9 of the Appeal Rules was not attracted. Either Appellant then filed a replication to the return of the Respondents, and it was in such replication that either of them came out with a clear statement that he was appointed a probationer against a substantive post and, therefore, Rule 9 of the Appeal Rules was attracted to his case. Jugraj Singh Appellant also said that it was wrong that the post against which he was appointed was a temporary post. Somewhat exactly the same position was taken on the side of the Respondents in the affidavits of the Joint Director of Industries. Haryana, the State of Haryana having been made a party to the petitions of the Appellants because of the reorganisation of the former Punjab State in the meanwhile. The Respondents having taken the position that Rule 9 of the Appeal Rules had no application to the case of either Appellant, obviously Article 311 of the Constitution could not be attracted either. The reason why I have given all these details is that it is surprising that in the original petitions neither Appellant made his position clear and not until either Appellant came to file replication, as a reply to the return of Respondents, did he turn round and make his case clear. These are not the only cases in which this has happened, but it is becoming too common, a practice which is much to be deprecated. Although in the petition of Jugraj Singh Appellant mala fide was alleged against the Respondents, but this matter was not even argued before the learned Single Judge and this is another matter which is too often alleged in such like petitions and is generally so unfounded that it is never even urged subsequently at the hearing of the petitions. This is done merely to obtain a rule nisi in a petition and not because it has any substance. This again is a practice which is much to be deprecated. So the only question which was canvassed in the end before the learned Single Judge was whether each one of the Appellants was or was not a probationer as that expression is used in Rule 2.49 of the Services Rules. The learned Judge answered the question in the negative relying in this respect on a decision of Falshaw, C.J. and Grover, J. in Raghbir Singh v. State of Punjab L.P.A. No. 130 of 1964 decided on September 28, 1964, in which the learned Chief Justice observed that obviously under the definition (referring to Rule 2.49 of the Services Rules) the Petitioner was a probationer and so was entitled to the benefit of Rule 9 (of the Appeal Rules) if he was occupying a substantive post, but if the post which he was occupying was only a temporary post, he would not be covered by the definition. 'The learned Single Judge also referred to P.C. Kunhikrishanan Nambiar v. State of Kerala , A.I.R. 1965 Ker 84 , in which the learned Judges observed that the word 'substantive' means 'permanent', so that a substantive vacancy would be a permanent vacancy and obviously not a temporary vacancy. The learned Judge, therefore, proceeded to dismiss the petition of each Appellant, leaving the parties to their own costs.;