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Judgment
R. K. Mahajan, J.—Both the above writ petitions are disposed of by this order as the common question of law is involved in these petitions.
Writ Petition No. 39502 of 1993
By this petition the petitioner seeks a writ in the nature of certiorari quashing the impugned order dated 341993 passed by the respondent No. 1 (annexure No. 7). The petitioner further prays that the respondent be restrained not to interfere in the working of the petitioner as Assistant Teacher in Tahtania (Primary School Teacher) in the institution in question.
The petitioner was appointed as Assistant Teacher by the respondent No. 1, who is running Madarsa Hanfia Ahle Sunnat BaharulUloom. The institution receives grants and aids from the State Government and caters to the needs or the imparting education to class I to Vth. The petitioner was employed as a teacher to impart education to the students of Madarsa on the petitioner was terminated on 341993 by annexure No. 7 to the writ petition, it is alleged that the petitioner has been getting pay and various pay fixation certificate have been placed on record.
Writ Petition No. 39424 of 1993
Shri Mukhtar Ahmad was also appointed as Assistant Teacher on 131981 for imparting education to class 1st to Vth by the respondent No. 1. His services were terminated on 241993 (annexure No. 7). According to the petitioner, the period of probation expired on 2821991 and thereafter it is alleged by him that he has been deemed to have been confirmed.
The respondents case is that the petitioner was appointed on trial basis on 2221989 vide annexure No. CA1 for two years. Again his period of probation was extended for one year from 1041992 vide annexure No. CA3. His services were discharged vide annexure CA as he could not improve.
The short question which involved in writ petition No. 39502 of 1993 is that whether the petitioner''s services has been terminated by way of stigma or he was discharged during the probation period. The petitioner''s plea is that he was terminated by way of punishment it is not a simpliciter order of discharge.
The respondent plea as revealed from the counteraffidavit is that the petitioner could not improve his working and therefore showcause notice was given by order dated 1321993 (annexure No. CA4) and, therefore, on 3031993 the Management Committee resolved to dispense with services of the petitioner and the order was communicated to the petitioner on 341993. Further contention of the respondent is that the probation period was for two years but later in it was extended upto 1041993 and before it could expire the services of the petitioner was dispensed with. It was further contended that during the pendency of the writ petition the stay order was vacated and Special Appeal also failed.
Learned counsel for the petitioner submitted that according to Rule 26 of Uttar Pradesh �Ashaskiya Arabi and Farsi Madrason Ki Manyata Niymawali� the maximum period for probation is two years. English translation of Rule 26 of the said Rule is given below :
�Rule 26.The appointment of a candidate against the permanent vacancy shall be made for probation period. The period of probation shall be one year. It can be extended for one year more before completion of probation period, the committee of management shall be entitled to remove him from service.�
Learned counsel for the respondent submits that there was no sanctioned post against which the petitioner was appointed.
According to the counsel for the petitioner Shri R. G. Padia the maximum period of probation was two years,
Learned counsel for the respondents submits that it can be extended even further. He has pointed out on record the appointment letter as annexe No. CA1 to the counteraffidavit showing that he was appointed on probation and his work will be judged for making permanent. There is another letter dated 1321983 showing that his work was not found satisfactory despite period of probation has been extended. It was also mentioned in the letter, annexure No. 4, that on account of inefficiency etc. the students have migrated to other schools and the committee has reached the conclusion that the petitioner is not found fit for further extension of services during his trial period he was given notice of twenty days to reply.
It appears from the record that petitioner''s probation was further extended on 1041992 for a period of one year. The committee has been giving him chance to improve but he failed to improve while he was on trial basis.
Learned counsel for the petitioner further stated that the petitioner is deemed to have been confirmed after two years of service as there was no provision for extension of probation period and he had completed the probation period successfully. The counsel for the petitioner has cited the following authorities :
(i) AIR 1986 SC 1844Om Prakasn Maurya v. U. P. Cooperative Sugar
Factories.
(ii) 1986 (2) UPLBEC 1390Lakshman Rain Kushwaha v. Committee of
Management, Sudhan Sahkari Samiti.
(iii) 1991 (63) FLR 258Mool Chandra v. U. P. Financial Corporation.
(iv) AIR 1988 SC 286M. K. Agarwal v. Gurgaon Gramin Bank and others.
(v) 1994 LIC 859 (All)Shri Chandra v. U. P. Financial Corporation.
(vi) AIR 1968 SG 1210State of Punjab v. Dharam Singh.
There is no dispute regarding proposition of law laid down in these authorities but every case has its own facts and facts of each case differ from other cases. I am afraid to agree that probation period is successfully over and he has been confirmed automatically. It cannot be inferred that there will be automatic confirmation after two years. Rather the management showed sympathy and kindness but despite that the petitioner/petitioners could not improve during the extended period of probation one year more what is postulated under Rule 26.
While sitting in Division Bench with Hon''ble Mr. Justice B. M. Lai in writ petition No. 513 of 1986 ''we relied upon the case of Jai Kishan v. Commissioner of Police and another, 1995 Supp (3) SCC 364. In fact the ratio of this ruling is available. It lays down as under :
�Service lawProbationTerminationRules laying down the maximum period of probation and also providing for confirmation on successful completion of probation periodIn such circumstances, a probation failing to improve his performance, although allowed to continue in service beyond the maximum statutory period of probation, held, could not be deemed to have been confirmedHence, termination of his service even at that stage, held validConfirmationCentral Services (Temporary Service) Rules, 1966, Rule 5 (e). [State of Punjab v. Dharam Singh, AIR 1968 SC 1210 : 1968 SLR 247, Distinguished].� In the ruling quoted above, it is not mentioned that the maximum period of probation is one year and there would not be further extension. Rather, in the rule (supra), it is provided that there can be extension of probation. Even in the rule, it is not provided that the employer can extend the period of probation, and even then there is no bar to do so. Successful completion of probation is a condition precedent for confirmation. The petitioner would have been confirmed if the stage of Rule 18 would have been arrived. It is not fulfilled in the present case.
There is another Supreme Court authority 1996 (1) SCC 560, Satya Narayan Athya v. High Court of M. P. and another. It was held that service LawConfirmationProbationer whether on facts could be deemed to have been confirmedRelevant rule enabling the authorities to extend the two year probation period for a further period upto the specified limit or to confirm him subject to fitnessIn view of such a rule, on completion of the two years of probation,, even in absence of an order of extension, held, the probationer cannot be deemed to be confirmed automaticallyHe would be rather deemed to be continuing on probation for an extended period of two yearsM. P. Judicial Service (Classification. Recruitment and Conditions of Service) Rules, 1955, Rule 24(1)ProbationDeemed extension of.
So in the facts and circumstances of the case there is no foundation of stigma laid down and the termination is a simpliciter discharge during probation period and 1 further hold that Rule 26 of Uttar Pradesh Ashaskiya Arabi and Farsi Madarson Ki Manyata Niyamawali does not confer the right of automatic confirmation at all. Even further extension in the facts and circumstances of the case did not confer further right of confirmation. Submission of counsel for the petitioner though put very nicely, are repelled and has no force. The writ petitions are dismissed. ''No order as to costs.