LODHA, J. - (1.) THIS is plaintiff's appeal arising out of a suit for declaration that the order of Divisional Engineer, Telegraphs, Ajmer Division Ajmer dated 12. 7. 60 marked Ex. 13 terminating the plaintiff's services is void and that he still continues in the service and is entitled to all the benefits thereof. A money decree for Rs. 5153. 72 paisa was also prayed for on amount of arrears of pay and allowances for the period commencing from 12. 7. 1960 upto the date of the suit, i. e. 12-9-1963.
(2.) THE facts of the case lie within a narrow compass: THE plaintiff was appointed as officiating clerk on a temporary basis in existing vacancy by an order dated 24 4-1956 (Ex. 1 ). He was declared successful in the examination (prescribed for clerks and R. M S. Sorters before being declared quasi-permanent or confirmed) by an office order dated 11-2-1960 (Ex. 2 ). On 25-4-1960 a notice was issued to the plaintiff by the Sub-divisional Officer, Telegraphs, Bikaner Sub-division, Bikaner to show cause why the penalty of censure be not imposed on him for leaving Head-quarters without permission on 5. 3. 1950 and availing leave without the permission of Sub divisional Officer, Telegraph, Bikaner and thereby behaving in a most irresponsible manner and causing breach or discipline. This is notice Ex. 8. Another notice dated 17. 5. 1960 (Ex. 4 was issued to the plaintiff to show cause why the penalty of withholding one increment without affecting future increments be not imposed upon him for not submitting Public Complaint Statement for February, 1960 on the date. This notice is Ex. 4. On 17-6-1960 the plaintiff submitted two separate replies to the aforesaid notices Ex. A. 5 and Ex. A. 6. No evidence was recorded in support of the charges nor any conclusion was arrived at but the plaintiff was served with notice of discharge dated 9-6-1960 (Ex. 12) and on completion of the period of one month's notice, his service was terminated with effect from 12-7-1960 by order dated 12. 7. 1960 (Ex. 13 ). THE plaintiff filed appeal to the higher authority but was unsuccessful and then instituted the present suit on two grounds viz. (i) that he was a confirmed employee and therefore his services could not be terminated under Rule 5 of the Central Civil Services Rules (Temporary Services) Rules, 1949, and (ii) that the impugned order of termination (Ex. 13) is by way of punishment and it therefore had been in violation of Art 311 of the Constitution. THE suit was resisted by the Union of India, which pleaded inter alia that the order dated 12-7-1969 was not void and illegal. Certain other pleas regarding limitation and validity of notice under sec. 20 Civil P. C. were also taken, but they were decided against the defendant by the trial court and have not been pressed thereafter. The Civil Judge, Ajmer dismissed the suit by his judgment and decree dated 29-10-1966 and on appeal by the plaintiff the learned District Judge, Ajmer affirmed the judgment and decree by the trial court. Hence this appeal. Learned counsel for the appellant has urged in the first instance that the plaintiff was a confirmed candidate and therefore his service could not have been terminated by one month's notice In this connection reliance has been placed on para 15 of Ex. 5, "recruitment to Central Subordinate Services of the Indian Posts and Telegraphs Department (Instructions to Applicants)". It is contended that the plaintiff was an approved candidate having undergone Clerks' Training for the prescribed period with effect from 28. 12. 1955 to 27. 3. 56 and was appointed in a permanent vacancy and had been thereafter declared successful in the examination prescribed lor clerks before being declared quasi permanent or confirmed. It may be pointed out that the learned District Judge has held in this connection that Ex. 5 contains only instructions to the applicants and does not have the force of law and further that the plaintiff was not appointed on probation for one year. Learned counsel for the appellant expressed his inability to point out any provision of law under which Ex. 5 had been issued. He was not even able to show on what date these instructions had been issued. I am, therefore, unable to agree with the learned counsel that Ex. 5 has the force of law and the plaintiff can avail of the benefits provided therein. Para 15 of Ex. 5 reads as under: "appointment - After the prescribed course of training, a trained and qualified candidates will on the occurrence of a vacancy, be appointed on probation for one year at the end of which he will be confirmed if found suitable in every respect. If during the period his work or conduct is not found satisfactory, he will be liable to be removed from service without notice. Candidates selected for clerical and Sorter's Cadre will have to pass confirmation as prescribed by the rules. " The order of appointment of the plaintiff (Ex. 1) does not show that the plaintiff was appointed on probation for one year. On the other hand it clearly provides that the appointment confers no right on the official to permanent appointment in the Depart-ment and his services are liable to termination at any time on one month's notice, and without assigning any reasons whatsoever. In these circumstances, Ex. 5 can be of no help to the appellant. In the alternative, learned counsel for the appellant relied on para 12 of Appendix 17 of the Posts and Telegraphs Manual, Volume IV Establishments (Third Edition) which provides for appointments on probation. It is sufficient to state that this provision also applies only to candidates appointed on probation for one pear, a condition not fulfilled by the appellant. Moreover, it has not been proved that the plaintiff was appointed in a permanent vacancy. The plaintiff, therefore, cannot be said to be a confirmed candidate. The authorities relied upon by the learned counsel for the appellant in this connection: State of Haryana vs. Rajindra Sareen (l), and Shri Kedar Nath Bahl vs. The State of Punjab (2) are distinguishable and have no application to the facts and circumstances of the present case. Both these cases pertain to persons appointed as probationers. In Shri Kadarnath Bahl vs. The State of Punjab (2) it was observed that "unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period or there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. No such conditions exist in the present case. Hence, I do not see any force in the first contention of the learned counsel and hereby over-rule it.
(3.) COMING to the second contention the argument of the learned counsel is that the order of termination of the plaintiff's service was not a pure "accident of service" but was an order in the nature of punishment and therefore Art. 311 of the Constitution is attracted. In this connection reliance was placed on Appar Apar Singh vs. The State of Punjab (3), K. H. Phadnis vs. State of Maharashtra (4 ). The State of Bihar vs. Shiva Bhikshuk Mishra (5), State of Utter Pradesh vs. Sughor Singh (6), State of Punjab vs. Manoharlal (7), Sharat Chand Misra vs. State of Uttar Pradesh (8) and Sarju Singh vs. The Additional District Magistrate (planning) 9 ). On the other hand Mr. Ashok Mathur, learned Deputy Government Advocate appearing for the Union of India has contended that the order Ex. 13 is innocuous and it cannot be said that it has an inherent stigma or that it otherwise suffers from any such vice and consequently, it is argued, that Art. 311 is not attracted. In support of his contention he has relied upon The State of U. P. vs. Shyamlal Sharma (l0), Benjamin vs. Union of India (11) and State of Punjab vs. Sukhraj (12 ). In Appar Apar Singh vs. The State of Punjab (3) after a review of the earlier decisions of the Supreme Court, it was observed that "in order to find out whether an impugnad order is one passed by way of punishment, the form in which the order is expressed is not decisive and the circumstances preceding or attendant on the order have to be examined in each case. It is also clear that the motive behind the passing of the order is of no consequence. " In that case, the plea of the State that the enquiry conducted against the appellant was only to find out the suitability of the appellant to continue as a Principal and that as he was found to be unsuitable he was reverted, was not accepted by their Lordships. On the other hand, they found that the enquiry was held with a view to investigate into the allegations made against the appellant and one of the allegations related to a very serious matter. Their Lordships further found that no doubt the order by itself and on the face of it was innocuous but the finding recorded by the Deputy Directors against the appellant and their ecommendation to impose punishment upon the appellant were the very foundation for the Government for passing the impugned order of reversion. In this view of the matter, their Lordships set aside the impugned order being in violation of Art. 311 (2) of the Constitution. In K. H. Phadnis vs. State of Maharashtra (4) their Lordships came to the conclusion that the facts and circumstances brought out in bold relief that the order of reversion was in the nature of punishment. In that case the appellant was faced with certain charges of receiving money and gifts at the time of marriage of his daughter. The appellant denied the allegations. The Secretary to the Government virtually threatened to repatriate the appellant to his parent Department. The Minister visited the office of the appellant. The police conducted an enquiry. The appellant himself had asked for an enquiry. At the time of the passing of the order of reversion, the appellant not only protested but also asked the Government to wait for the completion of the investigation. The Government did not accede to that request. Subsequently, the investigation indicated that the appellant was totally free from blame or taint. In these circumstances it was held that the order of reversion was not 'a pure accident of service' but an order in the nature of punishment which attracted Art. 311. ;