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Judgment
D.N. Jha, J.
Lakshman Ram Kushwaha has directed this petition under Article 226 of the Constitution praying for quashing of the order of termination contained in Annexure 1 dated 3131982.
At the stage of admission notices were accepted and counter affidavit had been filed. Rejoinder affidavit has also been filed on behalf of the petitioner, therefore, instead of passing a forma order of admission we are proceeding to hear the arguments on merit and disposing of this petition finally.
The petitioner after having successfully completed his training for the post of Secretary, Gooperative Societies, was appointed Secretary, Sadhan Sahkari Samiti Pipri, by the District Administrative Committee in February, 1977. The petitioner was appointed admittedly on probation but, however, no confirmation order was issued to the petitioner. It is asserted that generally no confirmation orders are issued by the authorities to any person working as Secretary. Reference has been made to Rule 27 of the U.P. Primary Agricultural Cooperative Credit Societies Centralise Service Rules, 1976 (hereinafter to be referred as the Rules) made under Section 122A of the U.P. Cooperative Societies Act, 1965. It j may be mentioned that in pursuance of Rule 30 of the said Rules it is provided that the Authority shall frame regulations with the prior approval of the Registrar, Cooperative Societies Uttar Pradesh, for the members of the Centralised Service on their service matters relating to promotion, appointment, probation, confirmation and termination. It has been brought to our notice that in exercise of this power regulations had been framed which an known as the Uttar Pradesh Primary Agricultural Cooperative Credit Societies Centralised Service Regulations (hereinafter to be referred as the Regulations), The relevant regulations read as under:
�23(a). A member appointed by direct recruitment or through final absorption as well as by promotion shall be placed on probation for a period of two years which period may be extended by the District Committee for a further period of six months.
(b) If it appears at any time before or at the end of the period of probation or extended period of probation that a member has not availed the opportunity offered to him for picking up the work or has otherwise failed to give satisfactory performance, the District Committee may remove him from service or revert him to lower category from which promoted.
(c) A member removed from service during or at the end of the period of probation or extended period of probation shall not be given any compensation unless it is mandatory under any law which is applicable to him.
A member shall be confirmed by the District Committee on satisfactory conclusion of the probationary period.�
The assertion put forth in the petition is that since there was no extension of probationary period and the maximum period prescribed under the Rule having been completed by the petitioner he would be deemed to have been confirmed. The services of the petitioner, therefore, could not be terminated in an arbitrary manner as has been done in the instant case.
The petition has been resisted by the District Administrative Committee, opposite party No. 3, and counter affidavit has been filed. It has been asserted that there is no provision of automatic confirmation and it is the District Administrative Committee that was required to confirm the Secretary and since in the present case no confirmation had been made by the District Administrative committee the status of the petitioner remained temporary and his services could be terminated. It has also been asserted in para 6 of the counter affidavit that the work and conduct of the petitioner was unsatisfactory and on several occasions explanations had been called for from the petitioner with respect to poor recovery and further the petitioner was in the habit of absconding from duties. In the rejoinder affidavit this assertion has been repudiated.
We have heard the learned counsel for the parties and gone through the averments and the relevant rules and regulations referred to above. The dispute in the instant case lies in a very narrow ambit. It has to be decided by this court whether the manner in which the services of the petitioner were terminated was in accordance with the Regulations or his services had been arbitrarily terminated. It may be observed that consistently it has been held that when first appointment or promotion is made on probation for a specific period and the employee is allowed to continue even after expiry of the period without any specific order of confirmation he should be deemed to continue in office as 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 an employee a substantive right to the post and merely because a person has been allowed to continue in the post after expiry of the [specified period of probation it is not possible to hold that he should be deemed to have been confirmed. This view was considered by the Supreme Court in the case of State of Punjab v. Dharam Singh (AIR 1968 Supreme Court 1210). The Bench consisting of five Hon''ble Judges after giving due consideration to the law enunciated in:
Sukhbans Singh v. State of Punjab, (1963) 1 SCR 416)
B.S. Ramaswamy v. Inspector General of Police, Mysore State, Bangalore (1964) 6 SCR 279)
Accountant General, Madhya Pradesh, Gwalior v. Beni Prasad Bhatnagar, (Civil Appeal No. 548 of 1962), decided by the Supreme Court on 2311964) ;
(Illegible) (Civil Appeal No. 295 of 1963 decided by the Supreme Court on 2421965) ;
State of U.P. v. Akbar Ali (1966) 3 SCR 821); and
Narian Singh Ahluwalia v. State of Punjab, (Civil Appeal No. 492 of 1963, decided by the Supreme Court on 2911964).
observed that in all these cases the conditions of service of the employee permitted extension of the probationary period for an indefinite time and there was no service rule forbidding its extension beyond a maximum period. The Supreme Court proceeded to consider the case of Dharam Singh and observed that rule 6(3) of the Punjab Educational Service (provincialised Cadre) Class III Rules, 1961, forbids extension of the period of probation beyond three years. Where, as in the present case, the service rules 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, in view of their Lordships, is that such an implication is negatived by the service rule forbidding extention of the probationary period beyond the maximum period fixed by it. Similar is the situation in the instant case. It would be evident from the regulations quoted above that the maximum period for which a probation can be extended was six months beyond two years. Since the petitioner continued much beyond the maximum period we have no hesitation in holding that the petitioner in the circumstances would be deemed to have been confirmed on the post by implication.
No other point has been canvassed.
In view of the aforesaid discussion the petition succeeds and it is allowed with costs. The order of termination dated 3131982 contained in Annexure 1 is quashed. Let certiorari issue accordingly. If the petitioner has not been serving elsewhere then on his filing service certificate to the satisfaction of the authorities he would be entitled to full salary for the period and would be deemed to have continued in service.
(Petition Mowed.)