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Allahabad High Court · body

2012 DIGILAW 430 (ALL)

MUNENDRA SINGH v. STATE OF U. P.

2012-02-16

SUNIL HALI

body2012
JUDGMENT Hon’ble Sunil Hali, J.—Four posts of Assistant Teacher fell vacant in Prem Kumari Deshraj Singh Junior High School, Bhatauli, Budaun in the year 1992. For filling up the said vacancies, advertisement was issued after seeking permission from the District Basic Shiksha Adhikari, Budaun. After conclusion of the selection process, name of the petitioners was put in select list which was followed by an order of appointment issued in favour of the petitioners. They joined the Institution on 5.8.1992 and since then are discharging their duties in the said institution. District Basic Shiksha Adhikari granted approval for their appointment for one year i.e. for probation period vide order dated 30.10.1992. It is alleged that vide order dated 6.10.1994 services of the petitioners were regularized by the District Basic Shiksha Adhikari. Petitioners continued to serve in the Institution thereafter. The said institution was enlisted for grant in aid vide G.O. dated [2.2.2012]1 as a result of which the salary of the staffs of the Institution is required to be paid by the Government and for the said purpose the U.P. Junior High School (Payment of Salaries ot Teachers and other Employees) Act 1978 was made applicable to the Institution. As per Rule 10 of the said Act 1978 the State Government shall be liable for payment of salaries of teachers and employees of every institution due in respect of any period after the appointed day. 2. On inspection, respondents found that the appointment of the petitioners was not in permanent character on the basis of an order passed by District Basic Shiksha Adhikari who had regularizes their services in the year 1994. It was contended that there was no provision for regularization of the services of the petitioner under the rules, therefore, the orders of the District Basic Education Officer do not confer any such right to the petitioners to claim salary. As such they are not entitled to receive any salary from the Government. This in nutshell the controversy involved in the present case. 3. On being granted recognition in the year 1984 the U.P. Recognized Basic Schools (Junior High Schools) Recruitment and Conditions of Services of Teachers) Rules 1978 were made applicable to the Institution. Rule 11 of Rules 1978 provides that on receipt of communication of approval in the management appointment order shall be issued in favour of the person on the basis of the advertisement. Rule 11 of Rules 1978 provides that on receipt of communication of approval in the management appointment order shall be issued in favour of the person on the basis of the advertisement. Rule 12 of Rules 1978 provides that the appointment of every Head-Master or assistant teacher as the case may of a recognized school, not being an appointment under Rule 20 shall be on probation of one year, which may be extended for a further period not exceeding one year. Sub-rule (2) of Rule 12 provides that in case the service of Head-Master or teacher of a recognized school are not terminated before the expiry of the period of the extended period of probation, as the case may be, he shall be deemed to have been automatically confirmed on the expiry of such period. 4. Undoubtedly, there is no dispute that the said rules are applicable to the petitioners. Initial appointment of the petitioners were made and they were put on probation for a period of one year. It is in the year 1994 petitioners’ services were regularized. Argument raised by the respondents that there is no provision for regularization as such appointment of the petitioners is de-horse the rules. 5. In the service jurisprudence putting a fresh appointee on probation is a general rule. Successful completion of the probation includes confirmation on the post. It is also settled principle that during the period of probation services of the appointee can be dispensed with if his performance is not satisfactory as probationer. In case during the period of probation if the services of the employee are not terminated it shall be construed that same stands confirmed. However, exception to this principle is that in case rule governing services provides that on successful completion of the probation an order of confirmation is required to be passed, then in that eventuality unless the order is passed it shall always be deemed that the probation has been extended. 6. In the present case, also petitioners in consonance with the Rule 12 of Rules 1978 were put on probation for a period of one year and after completion of the period of one year their services were not terminated but they were continued till 6.10.1994 when an order of regularization was passed. 6. In the present case, also petitioners in consonance with the Rule 12 of Rules 1978 were put on probation for a period of one year and after completion of the period of one year their services were not terminated but they were continued till 6.10.1994 when an order of regularization was passed. Even though, there is no provision for regularization, it shall always be deemed that by operation of Rule 12(2) the services of the petitioners have been confirmed. Rule 12(2) as stated herein supra contemplates that in case the service of Head-Master or teacher of a recognized school are not terminated before the expiry of the period of the extended period of probation, as the case may be, he shall be deemed to have been automatically confirmed on the expiry of such period. In the present case, after the expiry of the probation there is no order granting further extension of probation of the petitioners. They continued to work till 1994 when their services were regularized. By operation of the rule, their services are deemed to have been confirmed as no order for their termination was passed during the period of probation nor their period of probation was extended. Even if, it is accepted that there is no power of regularization as contemplated by the respondents by operation of Rule 12(2) petitioners shall be deemed to have been automatically confirmed on the expiry of one year of their period of probation. Since the petitioners have continued to remain in service even after expiry of probation they shall always be deemed to have been confirmed. Considering the facts and circumstances of the case, I, therefore, hold that the petitioners after completion of one year of their probation continued to remain in service as their services were not terminated by any order. They shall be deemed to have been automatically confirmed on the expiry of their probation. 7. In the result the writ petition is allowed. Impugned order dated 23.3.2007 is hereby quashed. Respondents are directed to release the salary of the petitioners from the date it has been withheld within a period of two months from the date of production of certified copy of this order on the respondents. 7. In the result the writ petition is allowed. Impugned order dated 23.3.2007 is hereby quashed. Respondents are directed to release the salary of the petitioners from the date it has been withheld within a period of two months from the date of production of certified copy of this order on the respondents. In case payment is not released in favour of the petitioners, interest @ 8 % per annum shall be paid to the petitioner from the date the amount is due till its actual payment. ——————