JUDGMENT : ( 1. ) THE petitioner was a practising Advocate. In October, 1976, the State of Madhya Pradesh proposed to fill in certain posts of additional District and Sessions Judges by direct recruitment from the Bar. This was in accordance with the rules framed by the Law Department Notification, dated 26-4-1964 (hereinafter referred to as 1964 Rules ). The petitioner competed and was selected. By order dated 18-2-1978 (Anne xure p/l), he was appointed as Additional District and Sessions Judge, temporarily on probation for a period of 18 months from the date of his joining. He joined the service on 3-3-1978 at Raipur. On 28-10-1978, he was transferred and posted at Narsimhapur. The period of probation ended on 30-9-1979. In its meeting dated 11-4-1980, the High Court of Madhya pradesh resolved that the services of the petitioner be dispensed forthwith as he was not considered fit for confirmation as Additional District and sessions Judge. In the same meeting, it was also resolved to extend his period of probation up to 31-8-1980. The recommendation was, accordingly, made to the State Government to issue orders terminating the petitioners services. Accordingly, vide order Annexure p/5, petitioners services were terminated by the State Government. It is, however, common ground that the period of probation was not extended. During the period the petitioner remained in service as Additional District and Sessions Judge, he was given an annual increment and was also granted earned leave. He also encashed certain leave under the Rules. It was, however, subsequently found that the petitioner was not entitled to the increment and, therefore, a direction has also been issued to recover certain amount from the petitioner. In this petition under Article 226 of the Constitution of India, the petitioner claims that termination of his services is bad and the order Annexure p/5 be quashed. He also claimed that the direction to recover the amount already paid to him be also set aside. Relief of consequential benefits is also claimed. ( 2. ) SHRI R. K. Pandey, learned counsel for the petitioner, first argued that on the expiry of the probationary period of 18 months, the petitioner should be deemed to be confirmed as the period of probation was not extended. In any case, the petitioner assumed the character of a temporary employee and was, therefore, entitled to the protection guaranteed under Article 311 of the Constitution. In any case, the petitioner assumed the character of a temporary employee and was, therefore, entitled to the protection guaranteed under Article 311 of the Constitution. The argument is that in spite of 1964 Rules, the Madhya Pradesh Civil Services (General Conditions of service) Rules, 1961 continue to apply in so far as they are not inconsistent with the 1964 Rules. Since 1964 Rules do not contain any provision regarding the status of the probationer, on the expiry of his period of probation, his status thereafter shall be governed by Rules of 1961. The reply to this argument by Shri Y. S. Dharmadhikari, learned counsel appearing for the High Court, is that 1964 Rules alone govern the matter regarding direct recruitment of Additional District and Sessions Judges by the High court and there is no scope for application of the General Conditions of service Rules, 1961 and that sub-rule (c) of rule 3 expressly excludes the application of 1961 Rules to the person appointed to the M. P. Judicial services. Sub-rule (c) of rule 3 of 1961 Rules expressly excludes the persons appointed to the M. P. Judicial Service under 1964 Rules from operation of those Rules. Shri Pandey, however, relying upon the proviso to that sub-rule submitted that the matter is not covered by the special provisions relating to them, namely, 1964 Rules here, it is these Rules which shall govern the matter. Article 309 of the Constitution provides the source to the appropriate Legislature to pass Acts to regulate the recruitment and conditions of service of the person appointed to public services and posts in connection with the affairs of the Union or of any State. Before, however, such Acts are passed by the appropriate Legislature, proviso appended to that Article during the transitional period permits the executive to make rules having the force of law relating to the above matter. Such rules in case of the affairs of the State may be framed by the Governor or by such person as he may direct in case of services and posts in connection with the affairs of the State. These rules will continue to be in force and shall have statutory force until the power conferred by Article 309 is exercised. Such rules in case of the affairs of the State may be framed by the Governor or by such person as he may direct in case of services and posts in connection with the affairs of the State. These rules will continue to be in force and shall have statutory force until the power conferred by Article 309 is exercised. The State Legislature is entitled to pass laws with respect to state Public services under Article 246 read with Entry 41 in List II of the Seventh schedule. The state Public Services must include the Judicial Services of the State. The power under Article 307, however, is subject to the other provision of the Constitution, including, Article 235, according to which the control over the subordinate Judiciary vests in a High Court. The scope and field of the operation of the two Articles, namely, Articles 309 and 235, has been elaborately dealt with by the Supreme Court in B. S. Yadav v. State of Haryana ( AIR 1981 S C 56t ). and on a reference to it, a Division Bench of this High court in Smt. Beena Tiwuri v. State of M. P. and others ( Misc. Petition No 61 of 1980, decided on 9-4-1981.) observed that when read together these two Articles make it clear that "though the control over the subordinate judiciary is vested in the High Court, the appropriate Legislature and until that Legislature acts, the Governor of the State has the power to make rules regulating the recruitment and conditions of service of judicial officers of the State". ". . . . . . . . . leaving it to the High Court to apply them in each individual case, as and when the occasion arises, within the sphere of control over subordinate judiciary vested in it under Article 235 of the Constitution. " . We have for the M. P. State Judicial Services the Rules known as "madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Services) Rules, 1955". After the re-organisation of the state, it was felt that these Rules became unworkable giving rise to difficul-ties -and litigations and the need to frame Rules in that behalf was always felt. " . We have for the M. P. State Judicial Services the Rules known as "madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Services) Rules, 1955". After the re-organisation of the state, it was felt that these Rules became unworkable giving rise to difficul-ties -and litigations and the need to frame Rules in that behalf was always felt. To some extent, this situation was realised when in the matter of direct recruitment of Additional District and Sessions Judges, rules known as "rules for Special Direct Recruitment of Additional District and Sessions judges", were framed by the State Government, vide Notification No. 15706-6640-XXY-B, Bhopal the 25th April, 1964. These rules superseded the 1955 Rules in so far as they pertain to the direct recruitment of the Addi-tional District and Sessions Judges in this State. In view of the decision in b. S. Yadavs case (supra), as applied in Smt. Beena Tiwaris case {supra), it is these rules which shall govern the direct recruitment of Additional District and Sessions Judges subject to the control of the High Court in terms of article 235. Here, we are concerned with Rule 10 of 1964 Rules and it will, therefore, be useful to quote it now. This rule runs as follows- "10 (i) Every person appointed to the post of an Additional district Judge by direct recruitment shall be put on probation for a period of eighteen months out of which for the first six months, he shall undergo training. In case his mother tongue is not Hindi he shall have to pass a departmental examination in Hindi within a period of one year, and on his failure to do so, his services shall be liable to be terminated. (ii) The High Court may in any case, except one of a person rendering himself liable to termination of service for failure to pass a departmental examination in Hindi within a period of one year, recommend the extension of the period of training or a probation by a period of not exceeding one year. If the person concerned is not considered fit for confirmation at the end of such period, his services shall be dispensed with. (iii) The training shall be such as may be prescribed by the High court. (iv) The probationers may, at the end of the period of their probation, be confirmed subject to their fitness for confirmation. If the person concerned is not considered fit for confirmation at the end of such period, his services shall be dispensed with. (iii) The training shall be such as may be prescribed by the High court. (iv) The probationers may, at the end of the period of their probation, be confirmed subject to their fitness for confirmation. " This rule clearly indicates that every person appointed after due selection to the post of Additional District and Sessions Judge by direct recruitment has to be put on probation for a period of eighteen months. Under clause (ii), this period may be extended on recommendation by the High court for period not exceeding one year. Such person shall continue to be on probation until confirmed at the end of the period of that probation on his being found fit for such confirmation. According to clause (ii), if such person is not found fit for confirmation at the end of such period of probation, his services have to be dispensed with. In our opinion, various clauses of this rule clearly indicate that so long as the Additional District and Sessions Judge appointed by direct recruitment on probation is not confirmed at the end of period of probation, he continues to have the status only of a probationer. He has either to be confirmed on the expiry of that period if found fit but if found otherwise, i. e. , not fit, the services have to be terminated. In our opinion, 1964 Rules and particularly rule 10 thereof, does not leave any scope for applicability of 1961 Rules in so far they relate to the status of the person so appointed under 1964 Rules. We find ourselves unable to agree with Shri Pandey that sub-rule (7) of rule 8 of 1961 Rules would be attracted in the instant case. Sub-rule (7) of rule 8 of 1961 Rules follows sub-rule (6) which provides for confirmation of a probationer to a permanent post if available on successful completion of probation. It further provides for issuance of a certificate to such a probationer that he would have been confirmed but for non-availability of a permanent post. Sub-rule (7) of rule 8 of 1961 Rules follows sub-rule (6) which provides for confirmation of a probationer to a permanent post if available on successful completion of probation. It further provides for issuance of a certificate to such a probationer that he would have been confirmed but for non-availability of a permanent post. Sub-rule (7) comes into play when a probationer is not discharged under sub-rule (4) and has obtained a certificate in terms of sub-rule (6) and provides that he shall be deemed to be a temporary government servant after the expiry of the period of probation. On the language of sub-rules (4), (6) and (7) of rule 8, we find that a probationer is to be deemed a temporary Government servant only when after the expiry of period of probation he cannot be confirmed in the service or post to which he was appointed for the reason only of non-availability of such post and has thus to continue service without such confirmation. Rule 10 of 1964 Rules, however, does not contain any such provision. On the contrary it provides that the probationer may be confirmed at the end of the period of probation, if he is found fit and his services shall be terminated if not found fit for confirmation at the end of such period. Thus, the continuance of directly recruited Additional District and Sessions Judge after the expiry of period of probation is permissible under rule 10, if at the end of expiry of period of probation, he is found fit for confirmation and may be so confirmed. We are, therefore, of the opinion that the provisions of sub-rules (6) and (7) of rule 8 of 1961 Rules cannot be invoked in case of a directly recruited Additional District and Sessions Judge under the 1964 Rules. We are also unable to agree that on the expiry of period of probation which was not extended under sub-rule (ii) of rule 10 of 1964 rules, the petitioner should be deemed to be confirmed. This is more so because the petitioner was not considered by the High Court as fit for confirmation at the end of that period, vide its resolution, dated 12-4-1980. This is more so because the petitioner was not considered by the High Court as fit for confirmation at the end of that period, vide its resolution, dated 12-4-1980. Shri Pandey relied upon a decision of the Supreme Court in Mohan Lal v. Management, Bharat Electronics Ltd. ( AIR 1981 S C 1253), in support of his contention that the petitioner acquired the status at least of a temporary employee. The decision relied upon does not help the petitioner in view of the express terms of his order of appointment (Annexure p/1 ). In Mohanlals case (supra), the appointment was temporary in the first instance but was likely to be made permanent and that the service was terminable without notice and without any compensation in lieu of notice on either side. The employment of the appellant was to be governed by rules, regulations and standing orders of the company then in force and as may be amended, altered or extended from time to time. The appointment was thus absolutely temporary and was likely to be made permanent. The Supreme Court could not find anything to indicate that the appointment was on probation. However, even assuming it to be so, it was observed that as the period of probation was not extended and as the services were not terminated during or at the end of the probationary period on the ground of unsuitability, the consequence in law is that "either he would be a temporary employee or a permanent employee as per the rules governing the conduct of employment between the appellant and the respondent. " (Emphasis supplied ). We have earlier shown that the petitioners order of appointment clearly mentions that he was appointed on a period of probation and rule 10 of 1964 Rules provides that his services could be terminated on his being considered not fit for confirmation or he was to be confirmed if found otherwise. The high Court has found him to be not fit. That being so, the petitioner could not be treated as either temporary or confirmed as was held in mohanlals case (supra ). Where the appellant was appointed temporarily and was not found unfit at the end of or during the period he could be said to be on probation. The high Court has found him to be not fit. That being so, the petitioner could not be treated as either temporary or confirmed as was held in mohanlals case (supra ). Where the appellant was appointed temporarily and was not found unfit at the end of or during the period he could be said to be on probation. Reliance was also placed on decision in A jit Singh v. State of Punjab ( ( (1983) 2 S C C 217) ). This decision is an authority that where the termination is arbitrary and violative of the guarantee of equality of opportunity enshrined in Article 16 read with Article 14 of the Constitution such thoroughly arbitrary action cannot be sustained and must be quashed. The decision cannot be treated to be an authority to say that after the expiry of the period of probation and in spite of the clear terms to the contrary in the contract of appointment, the person appointed on probation has to be treated as temporary employee. Instead, in that case reliance is placed upon the decision in Manager, Government Branch Press v. D. S. Belliappa ( AIR 1979 SC 429 )laying down that if the services of a temporary Government servant are terminated arbitrarily and not on the ground of his unsuitability, unsatisfactory conduct and the like, which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service the appointing authority was purporting to act in accordance with the terms of employment. This decision in Ajit Singhs case (supra) tells us the purpose of appointing an employee on probation and says :- "in order that an incompetent or inefficient servant is not foisted upon him because the charge of incompetence or inefficiency is easy to make but difficult to prove, concept of probation was devised. To guard against errors of human judgment in selecting suitable personnel for service, the new recruit was put on test for a period before he is absorbed in service or gets a right to the post. To guard against errors of human judgment in selecting suitable personnel for service, the new recruit was put on test for a period before he is absorbed in service or gets a right to the post. Period of probation gave a sort of locus paenitentiae to the employer to observe the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserved a right to dispense with his service without anything more during or at the end of the prescribed period which is styled as period of probation. " Reliance was also placed upon decision of the Supreme Court in V. P. Gindroniya v. State of M. P. ( AIR 1970 SC 1494 ) and Ram Gopal v. State of M. P. ( AIR 1970 SC 158 ). In v. P. Gindroniya"s case (supra), it was agreed that Shri Gindroniya was a temporary public servant at the relevant time and, therefore, it was admitted that his conditions of services are governed by 1960 Rules. The position in Ramgopals case (supra) was not different. His order of appointment showed that he was appointed temporarily until further orders as Civil Judge and, therefore, rule 12 of the 1960 Rules became applicable. Reference may also be made to a decision of this Court in Ramanand v. State of M. P. ( 1979 MPLJ 498 ), upon which both the parties relied. That was a case of a Civil Judge appointed on probation in the State Judicial Service. Ramanand was appointed as a temporary Civil Judge and was placed on probation for a period of two years in accordance with the terms of his appointment. He joined his service on 17-5-1972 and by order dated 9-12-1973, his services were terminated on the expiry of the period of one month from the date of the service of the order on him. In view of rule 3 (c) of 1961 Rules, the Division Bench repelled the contention on behalf of Ramanand that after the expiry of period of probation he became the confirmed employee. It was held that in absence of formal order of confirmation the employee is allowed to continue in service after the original period of probation, he shall be deemed to continue as probationer until confirmation by a formal order and the period of probation must be deemed to be extended. It was held that in absence of formal order of confirmation the employee is allowed to continue in service after the original period of probation, he shall be deemed to continue as probationer until confirmation by a formal order and the period of probation must be deemed to be extended. The Division Bench found support for its conclusion from the decision in State of Punjab v. Dharam Singh ( AIR 1968 sc 1280 ). The Division Bench also overruled the contention that by force 0f rules 6, 7 and 8 of 1961 Rules, Ramanand should be deemed to be confirmed. In our opinion, that decision supports our view that the petitioner cannot be deemed to be a confirmed employee even on the expiry of the period of probation. In the case in hand, it is more so because on the expiry of the period of probation the High Court found the petitioners work to be not satisfactory. ( 3. ) IT has also been the contention on behalf of the petitioner that being a probationer, the petitioner is a temporary employee within the meaning of Madhya Pradesh Government Servants (Temporary and Quasi permanent Services) Rules, 1960. The contention cannot be accepted. These Rules apply to all persons who hold a civil post under the State government except those mentioned in sub-rule (3) of Rule 1. "temporary service" under rule 2 (d) is defined to mean officiating or substantive service in a temporary post, and officiating service in a permanent post, under state Government and also includes the period of leave with allowance taken while on temporary service and completed years of approved war-service, which have been counted for fixation of pay and seniority. In view of the status of a probationer as expounded in Ajit Singhs case (supra), and in view of 1964 Rules, we are of the opinion that the temporary service as defined in Rule 2 (d) of 1960 Rules will not include the service during the period of probation. It is true that in paragraph 21 of the report in ramanands case (supra), observations appear to the effect that after the expiry of specified probationary period, the employee shall not be deemed to be confirmed on that post but may continue as a temporary Government servant and shall be governed by the Quasi Permanent Rules, meaning thereby 1960 Rules. It is true that in paragraph 21 of the report in ramanands case (supra), observations appear to the effect that after the expiry of specified probationary period, the employee shall not be deemed to be confirmed on that post but may continue as a temporary Government servant and shall be governed by the Quasi Permanent Rules, meaning thereby 1960 Rules. First the Bench ruled out the applicability of 1961 rules and held that he could not be deemed to be confirmed. Considering ah alternative submission based upon the applicability of those rules, the division Bench observed that he may at best be deemed to continue as a temporary" Government servant governed by Quasi Permanent Rules. In fact, the question of Ramanands being a temporary employee was really not raised in that case as appears from paragraph 5 where the questions for consideration have been stated. Even otherwise, in our opinion, in view of 1964 Rules specifically governing the case of a person appointed as additional District and Sessions Judge on probation under rule 10 of those rules, 1960 or 1961 Rules cannot be made applicable to the petitioners case. It may also be mentioned that Ram Gopal Gupta and Ramanand in the aforesaid cases were Civil Judges. We have earlier shown that 1955 rules governing their, appointments had become unworkable after the integration of the States and on formation of the new State of M. P. [see : smt. Beena Tiwuris case (supra)]. In absence of any such rules, it may be possible to apply 1960 and/or 1961 Rules in any given case. But in view of 1964 Rules, 1960 and 1961 Rules cannot be pressed into service in the case of the present petitioner directly recruited as Additional District and sessions Judge on probation under those Rules. We, therefore, reject the contention that 1960 and 1961 Rules assign to the petitioner the status of a permanent or a temporary employee on the expiry of the period of probation particularly when he has been found unfit for that post by the High Court. ( 4. ) LEARNED counsel for the petitioner submitted that while holding the petitioner as not fit for being confirmed, the High Court took certain matters into consideration which reflected upon the petitioners conduct and without giving the petitioner any opportunity to explain them. ( 4. ) LEARNED counsel for the petitioner submitted that while holding the petitioner as not fit for being confirmed, the High Court took certain matters into consideration which reflected upon the petitioners conduct and without giving the petitioner any opportunity to explain them. It was urged that certain adverse remarks in the petitioners service book were considered without communicating the same to him and without obtaining his explanation. Complaints of the Advocates from Gadarwara, the material collected by the District Judge, Narsimhapur and his report and the report of the Registry regarding his judicial work were the facts which prompted the High Court to terminate his service and as he was not given any opportunity to explain these circumstances, the order was vitiated. In answer, it was submitted by the learned counsel for the High Court that the High Court while holding the petitioner not fit to be confirmed, only took into account the report of the Registry which was placed before it. In return, it is submitted that all relevant material was considered before the action to terminate the petitioners service was proposed. In B. S. Yadavs case (supra), (para 48 of the report), it has been pointed out that although the rules of recruitment can provide for a period of probation, the question whether a particular judicial officer has satisfactorily completed his probation or not is a matter which is exclusively in the domain of the High Court to decide. The return exhibited by the High Court shows that it took into consideration all relevant matters and it was specifically denied that any irrelevant consideration influenced the decision of the High Court. The order of termination does not carry with it any stigma and is strictly in accordance with the order of appointment and the 1964 Rules. Even if, therefore, the High Court has taken into consideration some entry in the confidential roll or the report of the District Judge, the best that can be said is that they furnish some motive or afford some inducive factor influencing the High Court to terminate the services of the petitioner, a power which the High Court undoubtedly possesses. The termination of service could not be termed as penalty or punishment. The termination of service could not be termed as penalty or punishment. It has been held in Oil and natural Gas Commission v. M d. Sikander Ali ( AIR 1967 SC 1264 ), that the remarks in the assessment roll cannot be said to indicate that the intention of the appointing authority was to proceed against the employee by way of punishment. The power to terminate the petitioners service and the manner in which it has been done flows from order of appointment and rule 10 of 1964 Rules and being strictly in accordance therewith, it cannot be said to be by way of punishment and it would not be necessary or desirable to dwell into faults to discover whether some action of stigma could be inferred on such research. See I. N. Saksena v. Slate of M. P. (AIR 1980 SC 1242) We are, there fore, of the opinion that the termination of petitioners service is not founded on various grounds alleged by him and is not questionable on that score even if it were possible to hold (although we do not hold so) that a few of such grounds furnish a motive to do so. ( 5. ) FOR what we have held above, the petitioners contention that he is entitled to protection under Article 311 of the Constitution has to be rejected. Further in Ajit Singhs case (supra), the Supreme Court ruled that termination of a Government servant during or at the end of the period of probation will not ordinarily and by itself be a punishment because the servant so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to. Even the Division Bench in D. K. Rai v. Excise Commissioner, m. P. ( 1966 MPLJ 41 = air 1966 MP 333 ), has repelled a like contention and for that it relied upon the decisions in Jagdish Mitter v. Union of India ( AIR 1964 SC 449 ) and purshottam Lal Dhingra v. Union of India ( AIR 1958 SC 36 ) and concluded that even where an enquiry on the charge of having accepted illegal gratification had been initiated against him and was pending when order of his discharge from service simpliciter was passed, the action cannot be said to be by way of punishment or in violation of article 311 (2) of the Constitution. In Commodore Commanding, Southern naval Area, Cochin v. V. N. Rajan ( AIR 1981 SC 965 ), the view taken is that where the decision to terminate the service of a servant has been taken at the highest level on the ground of his unsuitability in relation to the post held by him and is not by way of punishment and no stigma is attached to him by reason of termination of his service, the termination cannot be questioned as vitiated for non-observance of Article 311 (2 ). And, in Bishan Lai v. State of Haryana ( AIR 1978 SC 363 ), the Court even went to the extent of holding that even if an innocuous order of terminating the service of a probationer involves some reflection upon his capabilities, no question of injustice can arise in such a case as the probationer has no right to continue in service. In the present case, the order terminating the petitioners service only says that he could not be retained in service because his work was not found satisfactory. This order was strictly in accordance with rule 10 of 1964 Rules and as the petitioner being a mere probationer has no right to continue to hold the post, he cannot be heard to make any grievance of violation of Article 311. This contention is, therefore, rejected. ( 6. ) AN argument based upon the decision in D. K. Rais case (supra)was also advanced on behalf of the petitioner that the termination of service was bad in view of rule 55 (b) of the Madhya Pradesh Civil Service (Classi-fication, Control and Appeal) Rules, 1930 which, according to the petitioner, would still apply to him. ( 6. ) AN argument based upon the decision in D. K. Rais case (supra)was also advanced on behalf of the petitioner that the termination of service was bad in view of rule 55 (b) of the Madhya Pradesh Civil Service (Classi-fication, Control and Appeal) Rules, 1930 which, according to the petitioner, would still apply to him. The said rule is as follows:- "55-B. Where it is proposed to terminate the services of a probationer, whether during or at the end of the period of probation, for some specific fault or on the ground of unsatisfactory work, the procedure laid down in rule 55 shall be followed. " Rule 55 makes provision for framing of a charge and inquiry and affording an opportunity to the person concerned to defend. In D. K. Rais case (supra), services of Shri D. K. Rai, who was an Excise Sub-Inspector, were terminated, vide order dated 24th February, 1964, when the 1930 Rules were in force. These Rules were repealed by 1965 Rules, which came into force from 20th August, 1965. It was held that despite rule 29 of 1965 Rules under which the existing corresponding rules were repealed and in spite of rule 9 thereof which provides that the termination of service of a Govern-ment Servant appointed on probation during or at the end of the period of probation, in accordance with the terms of the appointment or the rules and orders governing probation, shall not amount to a penalty, termination of probationer prior to the enforcement of the later Rules would be governed by rule 55-B of the former Rules. It was, therefore, specifically held : "there being no provisions in the new Rules corresponding to the rule 55-B, the order passed under the old Rules terminating the petitioners services cannot be deemed to be one made under Rules of 1965 and cannot, therefore, be treated as a valid order of the petitioners discharge under those Rules. " Suffice it to say that the order in question was not passed nor was the action taken when the 1930 Rules were in force but was passed only after the 1965 Rules became applicable. That being so, the decision in D. K. Rais case (supra) does not help the petitioner at all. ( 7. ) YET another argument in support of the petition was based upon the effect of Article 356 of the Constitution. That being so, the decision in D. K. Rais case (supra) does not help the petitioner at all. ( 7. ) YET another argument in support of the petition was based upon the effect of Article 356 of the Constitution. It was submitted that as during the relevant period, the State Assembly was dissolved, all the powers of appointment and termination vested in the President and that this power could not be delegated. It was, therefore, suggested that the State Govern-ment then was not competent to terminate the petitioners service. It was not disputed that at the relevant time when the petitioners services were terminated, a proclamation in terms of Article 356 was made by the President of India and was duly published. The proclamation stated that on assumption by the President of India all functions of the Government of the state of Madhya Pradesh and all powers vested in or exercisable by the governor of that State, it would be lawful for the President of India to act to such extent as it thought fit through the Governor of the State. Yet another order was made by the President of India the same date, i. e. , on 17-2-1980: - "the following Order by the President is published for general information: in pursuance of sub-clause (i) of clause (c) of the proclamation issued on this the 17th day of February, 1980, by me under Article 356 of the Constitution of India, I hereby direct that all the functions of the government of the State of Madhya Pradesh and all the powers vested in or exercisable by the Governor of that State under the Constitution or under any law in force in that State, which have been assumed by the president by virtue of clause (a) of the said proclamation, shall, subject to the superintendence, direction and control of the President, be exercisable also by the Governor of the said State. " This order was made by the President on declaring the Presidents Rule in the State of Madhya Pradesh and assuming to himself all the functions of the Government of that State and upon vesting all the powers exercisable by the Governor. This order says that all such powers exercisable by him pursuant to the proclamation of Presidents Rule in the State shall also be exercisable by the Governor. This order says that all such powers exercisable by him pursuant to the proclamation of Presidents Rule in the State shall also be exercisable by the Governor. Article 356 empowers the President to make such a proclamation to make incidental and consequential provisions to give effect to. the objects of the Proclamation. What incidental and consequential proclamation has to be made is a matter entirely within the satisfaction of the President. Where by a notification the President authorises, the Governor to exercise such powers assumed by him as a consequence of declaration made under Article 356, it cannot be said that he completely abdicates the power in favour of the Governor. The power is still retained by him as he continues to exercise control and superintendence and retains to himself the power to act on his own without reference to the Governor despite such notification. We are unable to infer, as was. suggested by the learned counsel for the petitioner, that the Governor would be functioning as a delegate of the President while acting under that order. The effect of the order is that the Governor would be acting as a President himself to the extent indicated therein. The control and superintendence of the President shall nevertheless continue. We are supported in our view by a Division Bench decision of the Calcutta High Court in Gokulananda v. Tardpada ( AIR 1973 CAL 233 ). The Madras High Court also has taken a similar view in associated Transports v. Union of India ( AIR 1978 MAD 173 ). There on proclamation of the presidents Rule in the State of Tamil Nadu, the Governor by notification appointed two officers as advisers and allocated to them the business of the Government among them. The Governor also issued instructions regarding transaction of business of the Government. By another notification, it was directed that the distribution of business among the Departments, of the Secretariat shall continue to be the same as was in force immediately before that date. A draft scheme of Nationalisation of Bus routes under section 68-C of the Motor Vehicles Act was issued by the special Secretary to the Government of Tamil Nadu. It was held that the scheme was published under the notification of the Governor directing distribution of business among the departments of Secretariat to remain the same as immediately before the proclamation of Presidents Rule. It was held that the scheme was published under the notification of the Governor directing distribution of business among the departments of Secretariat to remain the same as immediately before the proclamation of Presidents Rule. It was held that the Governor during the proclamation of Presidents Rule in State while exercising functions taken over by the President acts subject to the Presidents control and direction of the President, yet it will be inappropriate to call him as a delegate or an agent. In our view, this decision correctly indicates the position of the Governor of a State during the Presidents Rule under Article 356. We do not find anything to the contrary in the decision in A. K. Gopalan v. Government of India ( AIR 1966 SC 816 ), which was relied by the petitioners learned counsel. ( 8. ) THE grievance regarding the recovery on account of over-payment made to the petitioner need not detain us much. It could not be disputed that the petitioner could not be given any increment unless he was confirmed. Similarly, he could also not be granted any earned leave for the similar reason. In awarding increment and leave to the petitioner, apparent mistakes were committed and its correction subsequently could not be questioned as penal, even if its effect was retrospective. Since the petitioner was not entitled to any such payment which was wrongly made to him, we would not interfere, in exercise of our powers under Article 226 of the Constitution, with an order correcting these mistakes in spite of the fact that the consequence would be recovery of certain amount which apparently was unauthorisedly paid to the petitioner. ( 9. ) NO other point was urged. ( 10. ) THE petition fails and is dismissed but without any order as to costs. The security amount be refunded to the petitioner. Petition dismissed.