LIHAZUR REHMAN KHAN Vs. STATE OF U P

JUDGEMENT

(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,

(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.