R.R.K.Trivedi, J. - (1.) AFORESAID two Special Appeals are directed against the same judgment. The questions of fact and law involved are also identical, hence both the appeals can be conveniently decided by a common judgment. Special Appeal No. 445 of 1996 shall be the leading case.
(2.) FACTS, in short, necessary for ap preciating the controversy in these appeals are that Madarsa Hanfia Able Sunnat Bahar-Ul- Uloom (hereinafter referred to as the Institution) is an Arabian Madarsa imparting religious education and also Arabic and Percian languages n various dis ciplines. The examinations of this Institu tion are held by Registrar of Arabic Madarsas, U.P., at Allahabad. The Institution is in grant-in-aid list of the State Government and gets maintenance grant. Mohammad Zahoor (petitioner of Writ Petition No. 39602 of 1993) and Mukhtar Ahmad (petitioner of Writ Petition No. 39424 of 1993 were appointed as assistant teachers in Alia Section of the Institution where teach ing is imparted from Class I to V. Both were appointed under separate orders of ap pointment dated 22-2-1989 with effect from 1-3-1989 on probation. The orders of ap pointment in favour of aforesaid two appel lants have been filed as Annexure 1 to the counter affidavit filed in the writ petition. The aforesaid period of probation was ex tended by order dated 20-3-1991 for another period of one year. The period of probation was further extended in case of both the appellants by order dated 10-4-1992 for a period of one year. On 13-2-1993, however, both the appellants were served with a notice that by extending the period of probation, opportunity was provided to them for improvement but on account of iheir lethargy and inefficiency, the standard of education has gone down which has af fected the reputation of the Institution and the students have started deserting it. The Committee of Management is of the view that they may not be continued on the post, hence notice is given that if they have noth ing to say in their defence, they may submit their explanation within 22 days. There after, by order dated 3-4-1993. (Annexure '7 to Writ Petition No. 39502 of 1993) ap pellant Mohd. Zahoor was discharged from service and by order dated 2-4-1993 (An nexure '?' to Writ Petition No. 39424 of 1993) appellant Mukhtar Ahmad was dis charged from service. Challenging the or ders terminating them from service, both the appellants have filed separate writ peti tions as mentioned above, which have been decided by a common judgment dated 15-4-1996. Aggrieved by the aforesaid judgment, both have preferred separate special ap peals. We have heard Shri R. G. Padia, learned counsel for appellants and Shri M. A. Qadeer, learned counsel appearing for the Management and the learned standing counsel. Shri R. G. Padia has submitted that under the Rules applicable to the appel lants, the initial period of probation con templated is one year which could be further extended for another period of one year. In the present case, however, appellants were appointed on 1-3-1989. The maximum period of probation contemplated in the Rules expired on 1-3-1991 and both the ap pellants ought to have been treated con firmed after expiry of the period of proba tion. However, the Management acting against the provisions contained in the Rules, exended the period of probation on 20-3-1991 and on 10-4-1992 for period of one year on each occasion and thus appel lants were illegally continued on probation and they have been illegally terminated from service. It has also been submitted that as clear from the order terminating the ap pellants from service, it is based on specific charges and it is not an order of discharge of a probationer simpliciter. As the order ter minating the appellants from service con tained allegations and it cast stigma, there ought to have been an inquiry providing an opportunity of hearing to the appellants. It has also been submitted that under the Government Orders, the order of termina tion could not have effect without approval of the Inspector Arabic and Percian Madarsas, U.P., Allahabad. As there was no ap proval, the order of termination is void ab initio and the appellants are entitled for relief claimed in the writ petition from this Court. The learned Single Judge, however, failed to appreciate properly the aforesaid legal questions involved and has illegally dismissed the writ petition.
(3.) SHRI M. A. Qadeer, on the other hand, submitted that the appointment of the appellants was beyond the sanctioned post and was itself illegal, hence they are not entitled for any relief. It has been further submitted that the Rules are not statutory and no approval was legally required in the facts and circumstances of the case. It has been further submitted that appellants were continuing on probation which was ex tended from time to time on their own re quest. The Committee of Management on assurance of appellants acted in bona fide belief that they will show improvement in their work and conduct though it was not satisfied with the performance of the appel lants. Appellants cannot now question the validity of the extension of the period of probation as it was extended at their in stance. Both the appellants have been dis charged from service during the period of probation which is in conformity with the terms and conditions in the order of ap pointment and it is a legal and valid order in view of the provisions contained in Rule 26. The appellants could not be treated as con firmed employees as the order of confirma tion was not passed by the Committee of Management at any point of time. No inquiry or opportunity of hearing to the ap pellants was legally necessary. The order of discharge is a termination simpliciter and the facts narrated therein indicate only mo tive of the employer and they are not basis of the order passed against the appellants. We have thoroughly considered the submissions made by learned counsel for the parties. There is no doubt about the legal position that the object of probation is to test the suitability of the person ap pointed. If the appointing authority finds that the. candidate is not suitable, the employer certainly has power to terminate the services of the employee. There is also no doubt about the legal position that there is nothing like automatic confirmation/ab sorption of a candidate in service on expiry of the period of probation unless specifical ly provided so in the Rules applicable to the service. In the circumstances, it is necessary to examinations the contention of the par ties in context with the Rules governing the employment of the appellants. The Gover nor of Uttar Pradesh no 23-8-1987 ap proved non-statutory Rules for regulating recognition of Arabic and Percian Madarsas which are known as Uttar Pradesh Ashas-kiya Arabi Tatha Farsi Madarson Ki Manyata Niyamawali. A copy of the Rules has been filed as Annexure 2 to the writ petition Rule 26 of these Rules contains provision with regard to probation. Rule 26 as provided under the Rules (in Hindi) and its English translation is being given herein again as, in our opinion, the translation of Rule 26 as provided in the judgment of the learned single Judge is not correct. "(Appointments on clear vacancies shall be on probation. The period of probation shall be for one year. The period of probation may be ex tended for one year. The Management shall have right to terminate before expiry of the period of probation.)";