- (1.) The petitioner was in the service of the State Government as a Judicial Officer. He was placed under suspension in July. 1967. Departmental disciplinary proceedings were taken against him on certain charges and the enquiry was referred to the Administrative Tribunal. During the pendency of proceedings before the Tribunal, he attained the age of superannuation. The Government did not issue any order retaining the petitioner in service. It permitted the petitioner to retire on his attaining the age of superannuation. Thereafter the petitioner claimed pension and gratuity. The State Government by its order dated 8-5-1972 rejected the petitioners' claim. Aggrieved the petitioner filed the present petition under Article 226 of the Constitution for the issue of a writ in the nature of certiorari to quash the .orders of the State Government dated 8-5-1972 and for the issue of mandamus directing the State Government to treat the petitioner as confirmed Judicial Officer with effect from. 22-11-1964.
(2.) The petitioner was a temporary Government servant, he was never confirmed on the post of judicial Magistrate, He has failed to place any order of the State Government making him permanent on that post. Thus he continued to be a temporary Government servant throughout his service. Under Articles 349 and 361 of the Civil Service Regulations only a confirmed Government servant appointed in substantive capacity is entitled to pension. Since the petitioner was a temporary Government servant, he is not entitled to any pension. I have taken a similar view in Swami Saran Saxena v. State of U. P., Writ Petition No. 6203 of 1974, decided on 17-9-1975 (All).
(3.) Learned counsel for the petitioner urged that as the petitioner was appointed substantively against a permanent post on probation for a period of two years he became permanent on the expiry of period of probation because no order was issued extending the petitioner's period of probation. He further urged that by the order dated 27-7-1963. Annexure A-1 to the petition, the petitioner was appointed permanently on the post of Judicial Officer, as such he acquired status of a permanent Government servant, therefore, he is entitled to pension and gratuity and other allowances after his retirement. The Governor has framed Rules under Article 309 of the Constitution laying down rules for recruitment, appointment, confirmation and fixation of seniority of Judicial Officers. These rules are known as U. P. Judicial Officer Service Rules, 1962. Rules 22 and 23 are in the following terms : "Rule 22. Probation (1) Every candidate on appointment to the service in or against a substantive vacancy shall be placed on probation for two years, provided that the Governor may extend the period of probation upto a specified date in individual cases. (2) If it appears at any time during or at the end of the period of Probation or extended period of Probation that an officer has not made sufficient use of his opportunities or has otherwise failed to give satisfaction, he may be removed from service without entitling him to any compensation. (3) Continuous service rendered in any officiating or temporary capacity in a post included in the cadre of the service may be taken into account in computing the period of probation. Rule 23. Confirmation (1) A probationer shall be confirmed in the post at the end of his period of probation or extended period of probation if the Commission (Public Service Commission) reports that he is fit for confirmation and that his integrity is certified and the Governor is satisfied that he is otherwise fit for confirmation. (2) All confirmations made under this rule shall be notified in the Official Gazette." Rule 22 lays down that every candidate shall be appointed against a substantive vacancy on probation for a period of two years. The Governor may extend that period upto a "specified date" in individual cases. It is open to the State Government to dispense with the services of a probationer during the period of probation or during the extended period of probation. Rule 23 lays down that a probationer shall be confirmed on the post of Judicial Officer, if he successfully completes the period of probation or extended period of probation and if the Public Service Commission finds him fit for confirmation and if his integrity is certified. Even after this report is obtained and certificate is issued the officer is not entitled to confirmation as of right unless the Governor is satisfied that the officer is otherwise fit for confirmation. It is noteworthy that Rule 22 does not prescribe any other limit on the power of the State Government or the Governor to extend the period of probation unlike rules applicable to other services where the power to extend period of probation is restricted by fixing period for which probationary period can be extended. Rule 22, however, places no such restriction on the power of the Governor with the result the period of probation can be extended without any limit. Rule 23 does not contemplate automatic confirmation on the expiry of period of probation. On the contrary it contemplates a positive order by the Governor confirming an officer who is found otherwise fit for confirmation. There is no provision in the Rules that an officer shall be deemed confirmed after the expiry of period of probation. If the extended period of probation expires and no further order of extension is issued, the Officer cannot claim automatic confirmation, instead he Continues to be on probation. In Sukhbans Singh v. The State of Punjab, 1962 AIR(SC) 1711 it was laid down that a probationer cannot after the expiry of probation, automatically, acquire the status of a permanent member of service, only of course if the rules under which he is appointed expressly provide for such a result. In the absence of any such rule the officer after the expiry of period of probation continues to be a probationer and he acquires no title for a substantive permanent appointment, and he does not become a permanent member of service. The principles laid down in Sukhbans Singh's case are fully applicable to the facts of the present case.;