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1977 DIGILAW 121 (MP)

Ashok Kumar Mishra v. Municipal Corporation, Raipur

1977-04-11

K.K.DUBE

body1977
Short Note : The material facts of the case are not in dispute. On September 22, 1966, the appellant was appointed as a lower division clerk by the Municipal Council, Raipur. On coming into force of the M.P. Municipal Corporation Act, 1956 on August 29, 1969, the Municipal Council was converted into a Corporation. The appellant was served with one month's notice on December 9, 1968 informing him that he was no longer required by the Corporation and that he would cease to be the Corporation's employee with effect from January 1, 1969. The appellant was appointed as a probationer and he claims that he could not be removed from the services without a departmental enquiry as contemplated under rule 55-B of the Central Civil Services (Classification, Control and Appeal) Rules, 1930 which govern the service conditions of the employees of the Corporation. The only question that calls for consideration in this appeal is whether the Corporation was required to hold an enquiry as contemplated under rule 55-B before his services could be terminated. The petitioner also relies on the authority of this Court in Shri D.K. Rai v. Excise Commissioner, M.P., 1966 JLJ 132 . Held : It may not be necessary to consider the effect of B.K. Rai's case in this appeal, as it appears to me that rule 55-B of 1930 Rules would not apply to the Municipal Employees of the Raipur Municipal Corporation under section 25 read with sub-section (1) of section 176 of the Central Provinces and Berar Municipalities Act, 1922, the Government framed what are known as the Municipal Officers and Servants Recruitment Rules. These rules superseded the existing rules and were published under the department notifications No. 2857-1232-D-XIII and 8863-1834-D-XIII dated the 18th December 1940, Rule 14 is material and governed the service conditions of a probationer. 2. Under this rule when a probationer was found unfit, the Municipal Committee if he were a direct recruit could dispense with his services at the end of the probationary period. When the M.P. Municipal Corporation Act, 1956 came into force by section 3(2) the rules prevailing governing the service conditions were saved. Therefore, rule 14 applies to the probationer even when he was serving under the Corporation. Now, when there is a specific rule for the probationer, this provision would override other general provisions by which the service conditions were generally regulated. Therefore, rule 14 applies to the probationer even when he was serving under the Corporation. Now, when there is a specific rule for the probationer, this provision would override other general provisions by which the service conditions were generally regulated. In any case, the bye-laws would not apply where there was a specific rule to the contrary. Under rule 14, the probationer acquired no right to the post and his services were liable to be terminated after the period of probation was over. The Corporation could then under rule 14 dispense with the services of the probationer at the end of the probationary period when the probationer was found unfit. 3. The appellant was appointed on September 22, 1966. The two years of probation expired on September 21, 1968. Admittedly, the period was not extended. He was neither confirmed nor discharged. Now, rule 14 fixed a period of probation of two years beyond which the probationer could not continue nor could his services be extended. The appellant argued that in such a case he would be deemed to have been confirmed by implication. In The State of Punjab v. Dharamsingh, AIR 1968 SC 1210 , the Supreme Court considered the effect of continuing the probationer in service after the period of probation was completed. The Supreme Court pointed out that when there was no rule forbidding the extension of probationary period, the probationer continues in the post as a probationer only unless he was confirmed by a specific order. In such cases, the period of probation was extended by implication. However, the position was different when the probationary period could not be extended. When the Corporation allowed the appellant to continue in his post without passing any express order of confirmation, the Corporation must be taken to have confirmed the appellant by implication and not that his period of probation was extended. He could not be removed without following the procedure for terminating the services of a permanent employee. Appeal allowed. 1966 JLJ 132 distinguished. AIR 1968 SC 1210 relied on.