STATE OF UTTAR PRADESH versus AKBAR ALI KHAN

Citation: [1966] 3 S.C.R. 821 · Decided: 09-03-1966 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Appeal(s) allowed
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Judgment (excerpt)

·' 
A 
STATE OF UITAR PRADESH 
v. 
AKBAR AU KHAN 
March 9, 1966 
B 
[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO, M. HIDAYA· 
TULLAH, J. C. SHAH AND S. M. SIKRI, JJ.j 
Constitution of India, Art. 311-0rder terminating probation--com-
blned with order stopping promotion on the same findin11s end without 
• 
complying with Art. 311-stoppage of promotion later wnhdrawn-whether 
order terminating probation vitliated or stands by itself. 
I 
, 
C 
U.P. Subordinate Revenue Execmive Service (Tehsildars) Rul-. 1944, 
D 
E 
F 
G 
H 
r. 12 and r. 14-scope of. 
Prabation-whether confirmatiori follows in the absence of express 
order. 
In April 1951, the respondent, who was a Naib Tehsildar in the U.P. 
Civil Service, 
was selected for permanent promotion to the post of 
Tehsildar and in accordance with Rule 12 of the Subordinate Revenue 
Executive Service (Tehsildars) Rules, 1944, wu placed on 
probation 
for a period of two years. 
On April 29, 1953, it was reported that ho 
had drawn excess travelling allowance in respect of certain journeys. 
After an enquiry into the matter and after an opportunity had been given 
to the respondent to show cause why his probation should not be termi-
nated, by an order of tho Governor dated August 13, 1957, the respon-
dent was informed that his probation was term:nated and he was Deverted 
to the post of Naib Tehsildar. The order also stated that he was not to 
be considered for promotion for a period of seven years from the date of 
reversion. 
Upon the respondent submitting a Memorial to the Governor 
against this order, the Governor passed another order on December 1, 
1958, cancelling that part of the earliei< order which related to the stop-
page of promotion of the respondent and confirming the termination of 
probation on the ground that the respondent "had during the probation 
not made sufficient use of his opportunities and had failed to give- satis-
faction". 
The reopondent then filed a petition under Article 226 challenging the 
orders of August 13, 1957, and December 1, 1958. This petition wa< 
allowed by the High Court on the ground that under Rule 12 of the 1944 
Rules, the power to revert could be exercised either during or at the 
end of the period of probation and if no order was passed extending the 
period of probation, the respondent was deemed to have been confirmed 
in the new post; accordingly, the order terminating the probation was 
erroneous and the respondent's reversion being in the nature of a penalty 
imposed without conforming to the requirements of Article 311 of the 
Constitution, was liable to be quashed. 
In appeal under the Letters Patent a Division Bench the High Court 
held that the respondent had not ceased to be a probationer on the expiry 
of tho two-year probation period and the order of the learned Single 
Judge could not therefore bo sustained. 
It held, however, that the two 
parts of the order dated August 13, 1957, being based on the same 
finding could not be dissociated and since the Governor had pa .. ed an 
order terminating the probation and had simultaneously therewith Imposed 
821 
822 
SUPllBME 
COURT 
REPORTS 
[1966] 3 S.CR. 
upon the respondent puo.ishmel\t without complying with the requiremcnls 
of Article 311, the entire order had to be set aside. The High Court also 
held that the Governor by his later order sought to convert the earlier 
order of pllllishment into an order under Rule 14 (which provided for 
the terminatioo of probation in certain cirewnstances including cases 
where the probationer had failed to give satisfaction). But the Governor 
had no power to convert an order of punishment retrospectively nor could 
he appropriate to himself the funct:on of interpreting the oarlier order 
and Iayinii down that the order was made under Rule 14 and l\Ol an order 
of punishment. 
On appeal t<> this Court. 
HELD : The High Court was in error in holding that the order mado 
by the Governor determining the probation of the respondent infringed 
the protection of Article 311. 
The Governor initially passed an order determining tbe probation and 
also paMCd an o'der stopping promotion. The Iauer part of the order 
which the Governor was incompetent to pass under Rule 14 did give 
rise to a justifiable grievance which the respondent could set up, but 
after that order was cancelled, tho respondent bad no cause for 
grievance. 
[828 F-GJ 
The order terminating probatioo was made under Rule 14 and conti-
nued to retain that characte
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