- (1.) D. K. Seth, J. The petitioner alleges that he was on medical leave since 3rd October, 1983 and had been applying for extension of such medical leave from time to time. Only when the petitioner sought to resume his duties after having become fit sometimes in 1992, he was informed that the petitioner's service was ter minated by an order dated 12th April, 1985. Then he made successive repre sentations which were rejected on 8th February, 1992 and 24th April, 1992. Thereupon, he had preferred an appeal before the Divisional Forest Officer, Varanasi who had rejected the same on 25th October, 1996. These orders are Annexures 34, 35, 37 and 52 respectively. These orders have since been challenged in this writ petition with a prayer that the petitioner should be reinstated from 3rd October, 1983.
(2.) MR. C. B. Yadava, learned Counsel for the petitioner contends that the petitioner's service has been sought to be terminated under the U. P Temporary Government Service (Termination of Ser vice) Rules, 1975. Since according to him, the petitioner having completed the probation period, he shall be deemed to have been confirmed and, therefore, the 1975 Rules could not be applied in his case. Alternatively, he contended that even if the said Rules could be applied in the absence of one month notice pay in lieu of notice, the order of termination on 1975 Rules is violative of the proviso of Sub-rule 3 of the said Rules and such can not be sustained. He then contends that the petitioner had been making successive applications for extension of the medical leave which had never been replied to by the respondents necessarily implying that these applications were accepted and the medical leave was being extended. There fore, there could not be any occassion to terminate his service. He next contends that the alleged notice purported to have been served on the petitioner by the respondents before passing the order dated 12th April, 1985 had never been received by the petitioner. The alleged notice which was published in newspaper 'aaj', a newspaper published from Varanasi. According to him, the newspaper Aaj' had no circulation in Al lahabad in 1985. Therefore, the alleged publication cannot suffice the purpose of notice. He further contends that there was no delay or laches on the part of the petitioner since he had been applying for extension of leave till 1992 ; until he was informed that his service was terminated and then pursuing the remedy by way of approaching the respondents through representations which were turned down one after the other and against which he appealed to the Divisional Forest Officer which was dismissed only in 1994. Therefore, there was no delay on his part to approach this Court in 1996. The learned Standing Counsel on the other hand contends that none of the alleged applications for extension of medi cal leave was ever received in the depart ment. It appears from those applications which are annexures in the writ petition that those were purported to have been sent Under Certificate of Posting. He points out from each of those annexures that those were noted to have been sent Under Certificate of Posting. He also points out from the medical certificates annexed with the writ petition that those were granted by private practitioner ex cept Annexure 31. Annexure 31 is for a period in 1991 which had nothing to do with the earlier periods. He further points out that the illness referred to in those medical certificates differs from one cer tificate to the other. It is not a continuous one illness from which the petitioner al leged to have been suffering. On this basis, he submits that there are scope of doubt in the genuineness of the illness of the petitioner. Be that as it may, in view of absence, the petitioner was given notice at the address given in the service record through registered post and then it was published in Aaj' which is widely circu lated in Varanasi and Allahabad and that an edition used to be published from Al lahabad. Relying on Annexures 3 and 4, he points out that the notices were given to the Editor of Aaj' for publishing both in the Varanasi and Allahabad edition. Ac cording to him, there is no infirmity in the order of termination of service since it was done after giving adequate notice to the petitioner. He further contends that there was no order of confirmation of the petitioner. Expiry of the probationary period and continuation thereafter, does not automatically imply that the petitioner was confirmed in the service. Therefore, according to him, there is no infirmity in the orders impugned in this writ petition. I have heard both the Counsel at length.
(3.) THE petitioner was appointed on temporary basis and was under probation for some period. THE Lower Subordinate Forest Service Rules, 1980 in Rule 19 prescribes the period of probation and in Rule 20 prescribes the manner of confir mation. Rule 19 prescribes that a person employed against a substantive vacancy shall be placed on probation for a period of two years which may be extended maxi mum to a further period of two years. It provides that in case, he is unable to utilise the period of probation properly in that event, his service may be dispensed with. Admittedly, in that present case, the petitioner's service has not been dispensed with under sub-rule (3) of Rule 19. Rule 20 prescribes that a probationer would be confirmed at the end of probation period or after expiry to the extended period if (a) his work and conduct are reported to be satisfactory ; (b) his integrity is certified ; (c) he has successfully undergone the prescribed training, if any ; and (d) the appointing authority is satisfied that he is otherwise fit for confirmation. This provision clearly indicates that all these Clauses (a), (b), (c) and (d) of Rule 20 are to be satisfied in order to confirm a person. The existence of these clauses preclude the resumption that a person is confirmed automatically immediately, after the probation period is over. Even if the sub-rule (3) of Rule 19 does not say that after completion of probation period, the service must be dis pensed with if he fails to utilise the period satisfactorily. On the other hand, it is provided that his service may be dispensed with. The use of the expression 'may' im plies discretion and not mandate. Thus, the continuation after the expiry of two years or four years as the case may be does not imply that the person would become confirmed unless his service is dispensed with. On the other hand, if Rules 19 and 20 are reconciled together in that event, it implies that a person can be confirmed after the probation period only if he satis fies the conditions contained in Clauses (a), (b), (c) and (d) respectively. The very existence of Clause (d) implies that the confirmation would be a positive action and not a passive one. In as much as the confirmation is due only when the ap pointing authority is satisfied that he is otherwise fit for confirmation even though his work and conduct are reported to be satisfactory ; his integrity is certified ; he has undergone the prescribed training if any; and he has successfully completed the probation period. Rule 20 conceived of a situation for non-confirmation even after satisfying Clauses (a), (b) and (c ). After completion of probation, unless the Ap pointing Authority is satisfied that he is otherwise fit for confirmation. Thus, un less there is specific order of confirmation, it cannot be said that the petitioner is deemed to be confirmed on the expiry of the period of probation.;