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1996 DIGILAW 1396 (ALL)

State of U. P. v. Nand Kishore Harbola

1996-12-05

R.H.ZAIDI

body1996
Judgment : R. H. Zaidi, J. 1. BY means of this writ petition under Article 226 of the Constitution of India, the petitioners pray for issuance of a writ, order or direction in the nature of certiorari quashing the impugned order dated 23.11.1980, whereby the claim petition filed by the contesting respondent No. 1, against the order of termination dated 23.5.1975 was allowed by the U. P. Public Services Tribunal-IV, Lucknow (from hereinafter referred to as the tribunal). 2. THE brief facts, which are relevant for the purposes of resolving the controversy involved in the case are that in the year 1963 the respondent No. 1 was appointed as supervisor in the temporary capacity on an ex-cadre post. It was on 1.4.1971 that the said respondent was appointed as junior engineer on a probation of one year along with fifteen others. THE period of probation of the respondent No. 1 was not specifically extended, but he was permitted to continue till 23.5.1975 when his services were terminated by means of the said date, which is contained in Annexure-2 to the writ petition. THE respondent No. 1 challenged the validity of the order of termination before the tribunal by means of Claim Petition No. 502/T/4/1979. THE tribunal allowed the claim petition of the respondent No. 1 by its impugned judgment and order dated 29.11.1980. THE operative portion of the said judgment and orders reads as under : "THE petition is allowed and it is held that the termination order dated 23.5.75 was invalid and the petitioner shall be deemed to have remained in continuous service. He shall be entitled to the salary and allowances. THE petitioner is awarded costs of this petition." I have heard learned standing counsel for the petitioners and Sri Yatindra Singh, learned counsel appearing for the respondent No.1. 3. THE learned counsel for the petitioner submitted that the respondent No. 1 was appointed in temporary capacity but on probation. His period of probation was never extended and as the work of the said respondent was not found satisfactory, and further since there was no need of his services in the department, his services were dispensed with in accordance with law. In lieu thereof the respondent No. 1 was allowed one month's salary vide order dated 23.5.1975. His period of probation was never extended and as the work of the said respondent was not found satisfactory, and further since there was no need of his services in the department, his services were dispensed with in accordance with law. In lieu thereof the respondent No. 1 was allowed one month's salary vide order dated 23.5.1975. Placing reliance on Rule 23 of the U. P. Subordinate Engineering Services Rules, 1951 learned standing counsel submitted that the Chief Engineer never found the respondent No. 1 fit to continue on the said post, and his integrity was also not certified. Therefore, the respondent No. 1 cannot claim himself to be in continuous service. THE view taken to the contrary by the tribunal was manifestly erroneous and illegal. 4. ON the other hand Sri Yatindra Singh, learned counsel for the respondent No. 1 submitted that in view of Rules 19, 20 and 23 of the said Rules and in view of the interpretation of the said rules given by this Court in the case of Peshawari Lal v. State of U. P., (1979) LU 240, the tribunal has rightly accepted the claim of the respondent No. 2 and rightly allowed the claim petition filed by the respondent No. 1. He has also referred to and relied upon the other decisions in support of his submission that the respondent No. 1 shall be deemed to have been confirmed on the post of junior engineer on expiry of the period of probation, and his services could not be terminated arbitrarily by means of a non-speaking order. Said decisions are of Apex Court in the cases of State of Punjab v. Dharam Singh, AIR 1968 (ii) SC 1210, and State of Maharashtra v. Neerappa R. Saboji and another, AIR 1980 SC 42 . The Rules 19, 20 and 23 of the U. P. Subordinate Engineering Services Rules, 1961 are relevant for the purposes of the present case, which are being quoted herein below: "19. Probation.- A person on appointment in or against a substantive vacancy shall be placed on probation for a period of two years. 20. Extension of the period of probation-The Chief Engineer may extend the period of probation in Individual cases from time to time but except with the sanction of the Governor not for a period exceeding two years in the aggregate. 20. Extension of the period of probation-The Chief Engineer may extend the period of probation in Individual cases from time to time but except with the sanction of the Governor not for a period exceeding two years in the aggregate. The order shall specify the exact date up to which the extension is made. 23. Confirmation.- Subject to the provisions of Rule 22, a probation of shall be confirmed In his appointment at the end of his period of probation or extended period of probation, if the Chief Engineer considered him fit for confirmation and his Integrity is certified." 5. IT Is not disputed that the respondent No. 1 was appointed on probation on 1.4.1971 for a period of one year. Such probation period came to an end after expiry of one year on 1.4.1972. On expiry of probation, the services of the petitioner were not dispensed with, but he was permitted to continue in service till 23.5.1975. 6. THE aforesaid rules came Into consideration before this Court In the case of Peshawari Lal (supra), where in it was held by a Division Bench of this Court as under: "We are thus of the view that Rules 19 and 20 of U. P. P. W. D. (Irrigation Branch) Subordinate Engineering Service Rules, 1951, prescribe a maximum period of probation beyond which the said period cannot be extended and if an employee Is allowed to continue even thereafter, he will be deemed to be confirmed and for that no specific order of confirmation will be required. In this view the petitioner was to be deemed to be a confirmed employee." Similar view was also taken In the case of Moolchandra v. State of U.P., (1974) LLJ (1) 7, when the similar rules came into consideration before the Lucknow Bench of this Court 7. IN the case of State of Maharashtra v. Veerappa R. Saboji (supra), it was observed as under: "IN Rule 6 (3) of the Punjab Educational Service (Provincial Cadre) Class III Rules, 1961 a certain period had been fixed beyond which the probationary period could not be extended. It was because of that it was held that when the Government servant was allowed to continue in the post after completion of the maximum period of probation without an express order of confirmation, he could not be deemed to continue in that post as a probationer by implication. It was because of that it was held that when the Government servant was allowed to continue in the post after completion of the maximum period of probation without an express order of confirmation, he could not be deemed to continue in that post as a probationer by implication. IN other words because of the maximum period of probation, the confirmation was automatic." 8. SIMILARLY in the case of State of Punjab v. Dharam Singh (supra), the Apex Court has observed as under: "Where, as in the present case, the service rule fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue In that post as a probationer by implication. The reason Is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by It. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication." In view of the aforesaid authoritative pronouncements of Apex Court as well as of this Court, I am of the considered opinion that the view taken by the tribunal and the order passed by it cannot be said to be. In any view of matter, erroneous or Illegal. The writ petition has got no force and the same Is liable to be dismissed. 9. HOWEVER, since the respondent No. 1 has retired and his gratuity and other pensionary benefits have not been paid to the respondent No. 1, as such the competent authority is directed to make payment of the pension and other retiral benefits, admissible to the respondent No. 1, within a period of two months from the date a certified copy of this order is produced before it. 10. SUBJECT to what has been stated above, the writ petition fails and is dismissed with costs.