- (1.) G. P. Matsrar, J. Parties have exchanged affidavits and therefore, the writ petition is being disposed of finally at the admission stage.
(2.) THE petitioner was appointed as a temporary Munsiff by the State Government dated August 9, 1995. THE appointment order (Annexure 1 to the writ petition) is a long one and towards the end some conditions were mentioned. One of these was that he had been appointed as a Munsiff in a temporary capacity on the condition that till he was appointed as a Munsiff in substantive capacity, he would he governed by Notification No. 20/l-74-appointment-3 dated June 11, 1974 which are applicable to temporary employees. THE Full Court passed a resolution on July 23, 1994 that haying regard to the work and conduct of the petitioner his service be dispensed with in accordance with the relevant service rules and a recommendation to that effect be made to the Governor. THEre after, the Governor of U. P. exercising powers under U. P. Temporary Government Servants (Termination of Service) Rules, 1975, passed on March 7, 1995 terminating the service of the petitioner w. e. f. the date of receipt of notice. THE order further mentions that the petitioner would be entitled to a sum equivalent to the amount of his pay and other allowances for one month in lieu of notice. This order is impugned in the present petition, The principal submission of S/sri Sudhir Chandra and Ravi Kant, learned counsel for the petitioner, is based on Rules 23 to 25 of U. P. Nyayik Sewa Niyamali, 1951 (hereinafter referred to as the Rules) which have been framed by the Governor in exercise of powers conferred by Article 224 and proviso to Article 309 of the Constitution and in consultation with U. P. Public Service Commission and the High Court of Judicature at Allahabad and are applicable to Munsiffs and Civil Judges. Rule 23 provides that all candidates on appointment to the service shall be placed on proba tion for two years, provided that, in the recommendations of the court, the Governor may in special cases extend the period of probation. It further lays down that the order sanctioning any such extension of probation shall specify the exact date upto which extension is granted. Rule 24 provides that if it appears to the Governor at any time during or at the end of the period of probation or extended period of probation as the case may be that a probationer has not made sufficient use of his opportunities or has otherwise failed to give satisfaction, he may be reverted to his substantive post, if any, or if he does not hold a lien on any substantive post, his services may be dispensed with. It is urged that no order extending the period of probation was passed and therefore after expiry of period of two years, by operation of Rules 23 to 25 of the Rules, the petitioner acquired the status of a confirmed employee and his service could not be terminated by taking recourse to the power under U. P. Temporary Government Servants (Termination of Service) Rules, 1975. Reliance in support of this submission is placed upon State of Punjab v. Dharam Singh, AIR 1968 SC 1210 and Om Prakash Maurya v. U. P. Co-operative, and Sugar Factories Federation, AIR 1986 SC 1844. The question to be considered is whether every appointment of a Munsiff will be governed by Rules 23 to 25 of the Rules or it is permissible to appoint a person on a purely temporary capacity to whom the aforesaid provisions will not apply. Rule 4 of the Rules gives the definitions and sub-rule (e) lays down that 'member of the Service' means a person appointed in a substantive capacity under the provisions of these rules, or of the rules enforce previous to the introduction of these rules, to a post in the cadre of the service. Sub-rule (1) of Rule 5 provides that the strength of the service and of each kind of posts shall be determined by the Governor from time to time in consultation with the High Court and sub-rule (2) provides that the permanent strength of service and each kind of posts therein shall be as specified in Appendix A. Sub-rub (3) of the same Rule lays down that the Governor may from time to time leave unfilled or hold in abeyance, any post, or may increase tha cades by the creation of additional permanent or temporary posts, as may be found necessary. Rule 21 deals with appointment and sub- rule (2) lays down that the Governor may make appointment in temporary or officiating vacancies proscribed under these rules. Rule 23 deals with probation and sub-rule (3) thereof lays down that service rendered in an officiating or temporary capacity shall be taken into account in computing the period of probation. These provisions show that the rules do contemplate making 'appointment in a temporary capacity and every appointment need not be made on a substantive capacity. Appendix A shows that the sanctioned permanent strength of the service for the post of Munsiff is only 161. The require ment of number of Munsiffs in the State is many times more than the aforesaid figure. If no temporary appointments are made besides substan tive appointment on permanent posts, the judicial work will suffer greatly. Therefore, the Government makes appointment as temporary Munsiffs which is also contemplated under the Rules. The appoint ment order of the petitioner, Copy of which has been filed as Annexure 1 to the writ petition, clearly shows that the same was made on a temporary post of Munsiff. Towards the end of the order it was clearly mentioned that he was being appointed on the post of Munsiff in a temporary capacity with the condition that he will have to pass departmental examination in the Administrative Training College and till he was appointed on the post of Munsiff in a substantive capacity, he would be governed by Notification No. 20/1-74, Appointment-3 dated June 11, 1975. By means of the aforesaid Notification, the U. P. Govern ment Servants (Termination of Service) Rules, 1975 framed under Article 309 of the Constitution, have been promulgated. Rule 3 of these Rules provides that the services of a Government servant in temporary service shall be liable to termination at any time by notice in writing given by the ap pointing authority to the Government servant and the period of notice shall be one month. The proviso lays down that the services of any such Government servants may be terminated forthwith and on such termination, he snail be entitled to claim a sum equivalent to the amount of his pay and allowances for the period of notice. The appointment order of the petitioner clearly mentions that he was being appointed in a temporary capacity and on a temporary post and further till he was confirmed, he will be governed by the 1975 Rules. The contention that he stood automatically confirmed after expiry of a period of two years has thus no substance and cannot be accepted. In view of the fact that the petitioner was working in a temporary capacity, the 1975 Rules were applicable to him and the appointing authority had the power to terminate his services in accordance with the said Rules, once a recommendation to that effect had been made by the High Court.
(3.) THE interpretation sought to be placed upon Rule 23 of the Rules that after expiry of period of two years, or the extended period of probation, as the case may be, the member of the service shall stand automatically confirmed, does not appear to be correct. Rule 25 speci fically deals with confirmation and it lays down that if at the end of the period of probation or at the end of extended period of probation in any particular case, the Court recommends that a candidate is fit for confirmation, he shall be confirmed by the Governor in his appointment and that all confirmations under this rule shall be notified in the official Gazette. THE High Court of Judicature at Allahabad in exercise of powers conferred by Article 225 of the Constitution and all other powers enabling it in that behalf has framed the Allahabad High Court Rules, 192 and Chapter 111 Rule 4 (D) (ii) provides that the matter of confirmation of officers of the subordinate Judiciary shall be considered by the Full Court. It is noteworthy that no maximum limit of extension of period of probation has been provided in Rule 23 and thus there is no embargo on the power of the Governor to extend the period of probation to any length of time. Secondly the rules contemplate a specific order of confirmation to be passed by the Governor and this can be done only after a recommendation to that effect has been made and in view of the provisions of the Allahabad High Court Rules such a recommendation can only be made by the Full Court. After an order of confirmation is passed the same has to be notified in the official Gazette. THErefore, a perusal of the rules will show that they do not contemplate an automatic confirmation of a Member of the Judicial Service merely on the ground of his having worked for a certain number of years. A member of service can be confirmed only if a recommendation to that effect is made after considera tion of his case by the Full Court and the order passed by the Governor is notified in the Official Gazette. It is well settled principle of law that if a person appointed on probation for a specific period is allowed to continue in service beyond the expiry of the period of probation, he does not acquire the status of a confirmed employee in absence of a specific order to that effect. This question has been examined in a considerable detail by a Constitution Bench in State of Punjab v. Dharam Singh, AIR 1968 SC 1210, where after noticing several earlier decisions, it was held as follows in Para 3 of the report : "this Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation, he should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules. In such a case, an express order of confirmation is necessary to give the employee a substantive right to the post and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation it is not possible to hold that he should be deemed to have been confirmed. " This has been reiterated in State of Maharashtra v. V. R. Saboji, AIR 1980 SC 42, which also related to a case of Civil Judge (Junior Division) and in Dhanji Bhai v. State of Gujarat, AIR 1985 SC 603. THErefore the law is well-settled that there is no right in the probationer to be confirmed merely because he had completed the period of probation. THE function of confirmation implies the exercise of judgment by the confirming autho rity on the over all suitability of the employee for permanent absorption in service. An employee does not enjoy any greater right to confirmation if he is allowed to continue beyond the initial period of probation. THE only exception to this principle is where the service rules prohibit attention of period of probation beyond a certain maximum period and the employee continues to work beyond the aforesaid maximum period. In such a case he may acquire the status of a confirmed employee. In Dharam Singh and Om Prakash Maurya, (supra), the relevant service rules prescribed a maximum period beyond which the period of probation could not be extended and the employees concerned continued to work even beyond the said period. Such is not the case here. THE rules have not laid down any maximum period of extension of the period of probation. Learned counsel has next submitted that the petitioner was appointed by the order dated August 9, 1985 had worked for nearly ten years and after such a long period termination of his service without affording him any opportunity of hearing is wholly illegal. It is averred in the counter-affidavit filed on behalf of the High Court that the petitioner joined as Munsiff on December 17, 1985 and the Full Court while passing a resolution on July 23, 1994 that his services be dispensed with further resolved that all judicial work be immediately withdrawn from him. Thus he had actually worked for about eight and half years. The U. P. Temporary Government Servants (Termination of Service) Rules, 1975 are applicable to all such Government servants who are in temporary service and 'temporary Service' has been defined as an 'officiating or substantive service on a temporary post or officiating service on a permanent post under U. P. Government'. The application of Rules is not dependent upon the period of service put is by a Government servant and therefore, the mere fact that the petitioner has worked as Munsiff for about eight and half years cannot make the exercise of powers the aforesaid rules invalid. In State of V. P. v. Kaushal Kisore Shukla, 1991 (1) SCC 691 while considering the case of an employee governed by the same Rule it was held that the temporary Government servant has not right to hold the post, his services are liable to be terminated giving him one month's notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary Government servants. This has been reiterated in State of U. P. v. Prem Lata Misra, AIR 1994 SC 2411 and in Triveni Shanker Sexena v. State ofu. P. , AIR 1992 SC 496, wherein termination of service of a temporary Government servant who had put in more than eighteen years of service was upheld. Thus the mere fact that the petitioner had worked for more than eight years, cannot render the order invalid.;