Aloke Chakrabarti, J. - (1.) THIS writ petition was filed challenging the order dated 13.8.1996 at annexure No. 5 to the writ petition whereby the service of the petitioner was terminated. Learned counsel for the petitioner contended that in view of the nature of appointment of the petitioner as it appears from annexure No. 1 and 2 to the writ petition the petitioner's a service was against a permanent post and on probationary basis. Learned counsel for the petitioner contended that the initial period of two years of probation was over on 25.7.1996 and as no extension was made of such probation the petitioner was entitled to be treated as confirmed automatically. Next contention of the learned counsel for the petitioner is that the powers purported to have been exercised under the proviso to sub -rule (1) of Rule 5 of the Central Service (Temporary Service) Rules, 1965 (hereinafter referred to as Rules of 1965) are not available in respect of the petitioner's service as appointment of the petitioner was under the Cantonment Board and the law as contained in the Cantonment Fund Servants Rules, 1937 (hereinafter referred to as Rules of 1937) is applicable. Further contention of the learned counsel for the petitioner is that there were several show cause notices issued to the petitioner before passing the impugned order and the same is actually punishment under the garb of termination of service under Rule 5(1) of the aforesaid Rules of 1965.
(2.) LEARNED counsel for the respondent stated that the appointment of the petitioner is temporary as he was appointed on probation initially for two years and thereafter such probation was extended by order dated 2.8.1986 for a period of three months as appears from annexure No. 1 to the counter affidavit. Next contention for the learned counsel for the respondents in that as petitioner's service was never confirmed remained a temporary servant and as such the aforesaid rules of 1965 were very much applicable. Therefore, the order of termination exercising such power under such rule is valid and proper. Learned counsel for the respondents further states that though show cause notices were issued to the petitioner but the present termination order under Rule 5(1) of the said Rules of 1965 in the facts of the case is absolutely permissible. After considering the aforesaid contentions of the respective parties, I find that the terms of the appointment as appears from annexure No. 2 to the writ petition dated 26.7.1994 make it clear that the appointment of the petitioner was on probation for a period of two years at the first instance and the said terms and conditions contained in the said letter of appointment also provides for termination under the specified circumstances. Learned counsel for the petitioner contends that the extension of probation was never communicated to the petitioner and as such the petitioner's service stood confirmed automatically. In view of the terms of appointment and the provision as contained in Rule 6 of the Cantonment Fund Servants Rules, 1937, the petitioner's service does not become automatically confirmed even if extension is not granted before the expiry of the probation period. Law as contained in the said Rules of 1937 requires a satisfaction of the authority before confirmation and in absence of confirmation probationary period will stand extended. Learned counsel for the respondents in this connection referred to the decision in the case of Municipal Corporation, Raipur v. Ashok Kumar Misra : AIR 1991 SC 1402 and M. Venugopall, v. Divisional Manager, L.I.C. : 1994 (68) FLR 443. In this case the extension of probation had been granted and I have no reason to disbelieve such extension as the petitioner has failed to raise any doubt about extension. Therefore, on facts I find that the petitioner's service was on probation on the date the impugned order was passed.
(3.) WITH regard to the applicability of the Rules, the learned counsel for both the parties admitted that the petitioner's service is governed by the Rules of 1937 but the dispute is there as regards applicability of the Rules of 1965 in the case of the petitioner. For the purpose of the same various provisions of law have been referred to.;