# Arvind Kumar Sinha v. State of U.P. and others

- **Citation:** (2007) 3 ILRA 778
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-09-20
- **Case number:** Civil Misc. Writ Petition No. 37367 of 2007
- **Bench:** V.K. Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-kumar-sinha-v-state-of-u-p-and-others-41180
- **Pages:** 28

## Headnote

Gazetted) Service Rule 1980, rule-20,21readwith
U.P.
State
Government
Servants Confirmation Rules 1991-Rule4-termination of service-appointment on
the post of Deputy Jailor-after facing
selection process though Public Service
Commission-joined on 22.4.01-probation
period come to an end on 21.4.03-prior
to it on 24.3.03 left the Jail without by
making forged signature - confirmation
3 All] Arvind Kumar Sinha V. State of U.P. and others
779
based
on
only
satisfaction
of
the
authority-before confirmation-the status
of petitioner as temporary employeeheld-termination by invoking temporary
government servant Rules 1974-held
proper.

Held: Para 23 & 28

Once petitioner's service had not been
confirmed
then
as
per
term
and
condition the appointment, petitioner
continued to be temporary employee and
in this background provision of U.P.
Temporary
Government
Servants
(Termination of Service) Rules 1975
could
have
been
invoked
and
consequently in the present case as per
term and condition of the appointment
action has been taken.

Ratio of the aforesaid two judgments
quoted above fully applies to the fact of
the present case also and once petitioner
was temporary employee and his service
have been dispensed with as per the
terms and condition of appointment then
there is hardly any scope of interference.
Case law discussed:
AIR 1968 sC-1210, 1974 (2) SCC-831, 1987
(Supp.) SCC-643, 1997 (L&S) SCC-1997
1998 (3) SCC-321, 2001 (7) SCC-161, 2004
(10) SCC-721, AIR 2001 SC-625, AIR 2005 SC2960

## Text

_Characters 0–39,944 of 94,656. This is a partial read: ask again with offset=39944 for what follows._

778 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Act). The provisions of Payment of
Wages Act have been made applicable by
in corporation. The aforesaid aspect of the
matter has completely been ignored by the
Appellate Authority while passing the
impugned order. Consequently the finding
recorded in the impugned order to the
effect that provisions of Payment of
Wages Act do not apply to Cinema
Halls.is totally misconceived.

8. The issue, which remains for
consideration before this Court is as to
whether in view of Section 3 of the U.P.
Dookan
Aur
Vanijya
Adhishthan
Adhiniyam,
1962
the
petitioner
is
excluded from the purview of the said Act
on the plea that in his applications he has
stated that he has employed as Manager
of the Cinema Hall.

9. Counsel for the petitioner submits
that the petitioner although designated as
Manager in fact did not discharge any
duties, which can be termed as managerial
in nature. He clarifies that it is the
character of the duties discharged which
is material and not the designation.

10. In the opinion of the Court the
contention so raised is based on correct
reading of Section 3 (a) of the Act. Mere
designation of a workman as a Manager
will not exclude him from the operation
of the provision of U.P. Dookan Aur
Vanijya Adhishthan Adhiniyam, 1962.

11. The authorities are under legal
obligation to examine as to whether
employee occupies as a Managerial or
supervisory position or not. The aforesaid
aspect of the matter has not been
examined by the Appellate Authority in
its impugned order. No final opinion can
be expressed by this Court at this stage of
proceedings. The issue is left open to the
Appellate Authority to adjudicate upon
the same after examining the record as are
available and after affording opportunity
of hearing to the parties concerned.

12. Accordingly the writ petition is
allowed. The order dated 12th July, 2007
is quashed. Let the Appellate Authority
decide the Appeal filed by the petitioner
afresh preferably within three months
from the date a certified copy of this order
is filed before him specifically in light of
the observations made herein above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2007

BEFORE
THE HON'BLE V.K. SHUKLA, J.

Civil Misc. Writ Petition No. 37367 of 2007

Arvind Kumar Sinha

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Arun Kumar Mishra

Counsel for the Respondents:
Sri Piyush Shukla
Sri R.S. Parihar
S.C.

U.P. Jail Executive Subordinate (Non
Gazetted) Service Rule 1980, rule-20,21readwith
U.P.
State
Government
Servants Confirmation Rules 1991-Rule4-termination of service-appointment on
the post of Deputy Jailor-after facing
selection process though Public Service
Commission-joined on 22.4.01-probation
period come to an end on 21.4.03-prior
to it on 24.3.03 left the Jail without by
making forged signature - confirmation
3 All] Arvind Kumar Sinha V. State of U.P. and others
779
based
on
only
satisfaction
of
the
authority-before confirmation-the status
of petitioner as temporary employeeheld-termination by invoking temporary
government servant Rules 1974-held
proper.

Held: Para 23 & 28

Once petitioner's service had not been
confirmed
then
as
per
term
and
condition the appointment, petitioner
continued to be temporary employee and
in this background provision of U.P.
Temporary
Government
Servants
(Termination of Service) Rules 1975
could
have
been
invoked
and
consequently in the present case as per
term and condition of the appointment
action has been taken.

Ratio of the aforesaid two judgments
quoted above fully applies to the fact of
the present case also and once petitioner
was temporary employee and his service
have been dispensed with as per the
terms and condition of appointment then
there is hardly any scope of interference.
Case law discussed:
AIR 1968 sC-1210, 1974 (2) SCC-831, 1987
(Supp.) SCC-643, 1997 (L&S) SCC-1997
1998 (3) SCC-321, 2001 (7) SCC-161, 2004
(10) SCC-721, AIR 2001 SC-625, AIR 2005 SC2960

(Delivered by Hon'ble V.K. Shukla, J.)

1. Petitioner has approached this
Court questioning the validity of the order
dated 26.07.2007 passed by Director
General (Prisons Jail Administration &
Reform
Service)
U.P.
Lucknow,
respondent no. 2 dispensing with the
service of petitioner by mentioning that
services of petitioner is no longer required
in exercise of power vested under U.P.
Temporary
Government
Servants
(Termination of Service) Rules 1975.

2. Brief background of the case as
mentioned in the writ petition is that in
the year 1999 U.P. Public Service
Commission U.P. invited application from
eligible and desirous candidate for being
considered for several category of posts.
Petitioner also applied for consideration
of his claim. Petitioner participated in
each and every stages of the selection
which
comprised
preliminary
examination, mains written examination
and interview. Petitioner was declared
successful in each of the aforesaid stages
and ultimately final result of the aforesaid
selection
was
published
wherein
petitioner was shown to have been
selected for the post of Deputy Jailor. On
25.03.2001 appointment order was issued
to the petitioner mentioning therein that
petitioner can be posted/transferred at any
Jail/institution under the Jail Department.
Further it was mentioned that nature of
appointment of petitioner is temporary
and said appointment can be dispensed
with at any point of time without giving
any notice. Further mention was made
that from the date of appointment for
period of two years it would be
probationary
period
of
petitioner.
Petitioner was posted at District Jail
Ghazipur and he joined on 22.04.2001
and
has
started
performing
and
discharging duties. Probation period of
petitioner
has
been
completed
on
21.04.2003 and at no point of time period
of probation as mentioned in the letter of
appointment of petitioner has ever been
extended. On 02.02.2004 censor entry
was awarded to the petitioner by the
Director
General
(Prisons
Jail
Administration & Reform Service) U.P.
Lucknow, respondent no. 2 and thereafter
on 27.05.2005 again censor entry was
awarded to petitioner by the Director
General (Prisons Jail Administration &
780 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Reform
Service)
U.P.
Lucknow,
respondent no. 2. Petitioner has contended
that he has been sanctioned all benefits
available to a confirmed and permanent
employee including sanction of annual
increment, regular monthly deductions
from his salary towards G.P.F. and also
Group Insurance. On 19.06.2007 an order
was issued by the Director General
notifying list of transferred Deputy Jailors
and therein petitioner has been transferred
and posted at Central Jail Bareilly.
Petitioner was relieved on 07.07.2007
from District Jail, Ghazipur for joining at
Central Jail Bareilly. Petitioner claims
that he joined at Central Jail Bareilly on
09.07.2007 and thereafter after his joining
he applied for leave for the period starting
with
effect
from
10.07.2007
to
15.07.2007 for availing admissible joining
time. Petitioner has further contended that
he could not resume duties on 16.07.2007
on account of his illness accordingly an
application
on
14.07.2007
seeking
medical leave had been sent. Petitioner
has contended that said application has
been sent by Speed Post accompanied by
Medical certificate and on 17.07.2007 he
has further intimated in regard to his
illness by telegram. On 26.07.2007
petitioner sent a communication to the
Director
General
(Prisons
Jail
Administration & Reform Service) U.P.
Lucknow, respondent no. 2 detailing the
facts pertaining to his illness as also the
fact that he has been given medical fitness
certificate and he would be resuming his
duties at Central Jail, Bareilly on
27.07.2007. Thereafter on 28.07.2007,
petitioner submitted his joining before
Senior Superintendent of Jail Central Jail,
Bareilly alongwith the fitness certificate
dated 26.07.2007 then at the said juncture
petitioner has been served with an order
dated 26.07.2007 issued by the Director
General (Prisons Jail Administration &
Reform
Service)
U.P.
Lucknow,
respondent no. 2 terminating the service
of the petitioner in exercise of power
vested
under
U.P.
Temporary
Government Servant (Termination of
Services)
Rules
1975.
Thereafter
petitioner
has
submitted
that
he
represented the matter on 01.08.2007
before the respondent no. 2 and thereafter
nothing has been done then present writ
petition has been filed questioning the
validity of the decision taken against him.

3. Counter affidavit has been filed in
the present case and it has been asserted
that petitioner was appointed on purely
temporary
basis
and
during
his
continuance in service while he was under
probation committed number of faults and
as such rightly authority vested under
U.P. Temporary Government Servant
(Termination of Services) Rules 1975 has
been invoked. It has also been contended
that petitioner was transferred from
District Jail Ghazipur to Central Jail
Bareilly and petitioner in spite of joining,
never turned up again and has been
absconding from service without any
notice and it has been reiterated that
petitioner's status is that of temporary
employee and on earlier three occasion he
committed
misconduct
which
were
prejudicial and against the interest of the
State as well as against the norms of and
provisions
of
service
and
in
this
background it has been conducted that
petitioner was unsuitable and unfit for the
Jail services which is highly disciplined
services, as such action taken is not liable
to be interfered with.

4. Rejoinder affidavit has been filed
and therein it has been reiterated that
appointment is to be considered in the
3 All] Arvind Kumar Sinha V. State of U.P. and others
781
light of recruitment rules and as far as
appointment
of
Deputy
Jailor
is
concerned same is governed by the
provisions as contained under U.P. Jail
Executive Subordinate (Non Gazetted)
Service Rule 1980 and Rule 20 stipulated
an appointment to be on probation for the
period of two years which can be
extended for reasons to be recorded by the
appointing authority and that the period of
probation except for exceptional reason
will not be extended for more than one
years and in no circumstances beyond the
limit of two years in this background
there exists a maximum period of four
years of probation period and there can be
no extension of probation period beyond
the period of four years and on
completion of four years of services from
the date of joining the petitioner stands
confirmed on the post of Deputy Jailor, in
this background by invoking the authority
vested
under
U.P.
Temporary
Government Servant (Termination of
Services) Rules 1975, petitioner's services
cannot be dispensed with. It has also been
contended that 3rd censor entry which has
been awarded to the petitioner on
19.07.2007
same
had
not
been
communicated
to
him
and
through
counter affidavit petitioner has acquired
knowledge of the same.

5. After pleadings mentioned above
have been exchanged present writ petition
is being taken up for final hearing and
disposal with the consent of parties.

6.

Sri Ashok Khare, Senior
Advocate, assisted by Sri A.K. Mishra,
Advocate made following submissions; (i)
that petitioner is confirmed employee
under
the
provisions
of
U.P.
Jail
Executive Subordinate (Non Gazetted)
Service Rule 1980 and service of the
petitioner could not have been dispensed
in exercise of authority vested under U.P.
Temporary
Government
Servant
(Termination of Services) Rules 1975, as
such exercise of authority in the fact of
present case is nothing but misuser of the
authority. (ii) Petitioner's appointment has
been made on substantive basis on
substantive post then by no stretch of
imagination petitioner's services could
have been treated as temporary services in
terms of Rule 2 of U.P. Temporary
Government Servant (Termination of
Services) Rules 1975 and as petitioner
does not all fall within the scope and
ambit of "temporary employee" defined
under aforesaid Rules as such provision of
U.P. Temporary Government Servant
(Termination of Services) Rules 1975
could not have been invoked. (iii)
averments mentioned in the counter
affidavit reflects that non-joining of duties
at Central Jail Bareilly has been made
foundation and basis for dispensing with
the services of the petitioner in this
background without undertaking regular
departmental proceedings services of the
petitioner could not have been dispensed
with.

7. Sri Piyush Shukla, learned
Standing counsel on the other hand
countered
the
said
submission
by
contending that petitioner is temporary
government servant and as per the term
and condition of the appointment order, as
during probation period conduct of the
petitioner has not been found fair and as
he has not been confirmed, as such rightly
said power has been exercised dispensing
with the service of the petitioner, in this
background it has been contended that
writ petition is liable to be dismissed.
782 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
8. To start with the first question is
to be considered is as to whether
petitioner
is
temporary
government
servant or services of the petitioner would
be deemed to be confirmed as per the
provisions
of
U.P.
Jail
Executive
Subordinate (Non Gazetted) Service Rule
1980.

9. In order to appreciate the
arguments, relevant provisions of all the
three Rules are being looked into:

1.
"U.P.
Temporary
Government
Servant
(Termination
of
Services)
Rules 1975

In exercise of powers conferred by
the proviso to Article 309 of the
Constitution, the Governor is pleased to
make following Rules:
1. Short title, commencement and
application- (i) These rules may be called
the Uttar Pradesh Temporary Government
Servants (Termination of Service) Rules
1975.
(ii) This rule and rules 2,3, and 4
shall be deemed to have been come into
force on 30th January, 1953 and rule 5
shall come into force at once.
(iii) They shall apply to all persons
holding a civil post in connection with the
affairs of Uttar Pradesh and who are
under
the
rule-making
control
of
Governor, but who do not hold a lien on
permanent post under the Government of
Uttar Praesh.
2. Definition: In these rules "temporary
service" means officiating or substantive
service on a temporary post, or officiating
service on a permanent post under the
Uttar Pradesh Government.
3.
Termination
of
Service-
(1)
Notwithstanding anything to the contrary
in any existing rules or orders on the
subject the services of a government
servant in temporary service shall be
liable to termination at any time by notice
in writing given either by the government
servant to the appointing authority, or by
the
appointing
authority
to
the
government servant.
(2) The period of notice shall be one
month:

Provided that the services of any
such
government
servant
may
be
terminated
forthwith
and
on
such
termination the government servant shall
be entitled to claim a sum equivalent to
the amount of his pay plus allowances, if
any, for the period of the notice or as the
case may be, for the period by which such
notice falls, short of one month at the
same rates at which he has drawing them
immediately before the termination of his
services.
Provided further that it shall be open
to the appointing authority to relieve a
government servant without any notice or
accept notice for a shorter period without
requiring the government servant to pay
any penalty in lieu of notice.
Provided also that such notice given
by the government servant against whom
a disciplinary proceeding is pending or
contemplated shall be effective only if it
is accepted by the appointing, authority,
provided in the case of contemplated
disciplinary proceedings the government
servant is informed of the non-acceptance
of his notice before the expiry of that
notice.

4. Savings:- Notwithstanding anything in
these rules, the tenure or continuance of
engagement
or
employment
of
the
following categories of persons shall be
governed
by
the
terms
of
their
engagement or employment, and nothing
3 All] Arvind Kumar Sinha V. State of U.P. and others
783
in these rules shall be construed to require
the giving to them, or by them of one
month's notice or pay or penalty in lieu
thereof before the termination of their
engagement of employment-
(a) Persons engaged on contract;
(b) persons
not
in
whole-time
employment of Government
(c) Persons paid out of contingencies
(d) Persons employed in work-charged
establishment
(e) Persons
re-employed
after
superannuation
(f) persons employed for a specified
period
whose
services
stand
determined on the expiry of that
period.
(g) Persons employed for a specified
period on condition that the period
may be curtailed at any time.
(h) Persons appointed in short-term
arrangement or vacancies whose
service stand determined on the
expiry
of
the
arrangement
or
vacancy.

5. Rescission and saving- (1) The Rule
promulgated
with
Appointment
(B)
Department Notification No. 230/II B1953, dated January, 30, 1953 shall stand
rescinded with effect from the date.
(2) Notwithstanding such rescission,
anything done or any action taken or
purporting to be done or taken under the
said rule shall be deemed to have been
done or taken under these rules."

2. U.P. Jail Executive Subordinate (Non
Gazetted) Service Rule 1980
English translation of Grih (Karagar)
Anubhag-1 Noti. No. 2374/XXII-1392-5
June 6, 1980 published in U.P. Gazette,
Extra dated 9th June, 1980. pp 8-13.
In exercise of the powers conferred
by the proviso to Article 309 of the
Constitution and in super session of all
existing rules and orders on the subject
the Government is pleased to make the
following rules regulating recruitment and
conditions of service of persons appointed
to the Uttar Pradesh Jail Executive
Subordinate (Non-Gazetted) Service:

PART I-GENERAL

1. Short title and commencement -
.....................................
2. Status of service...........
3. Definition:- In these rules unless there
is anything repugnant in the subject or
context:-

(a)...................................
(b)...................................
(c) ...................................
(d)....................................
(e)....................................
(g)....................................
(h) "Member of service" means a person
appointed in substantive capacity under
these rules or the rules or orders on force
prior to the commencement of these rules
to a post in the cadre of the service.
(i) "Service" means the Uttar Pradesh Jail
Executive Subordinate (Non-Gazetted)
Service and
PART II- CADRE
4. Cadre of service- (1) The strength of
the service and of each category of posts
therein shall be such as may be
determined by the Governor from time to
time.
(2) The strength of the service and each
category of posts therein shall until orders
varying the same are passed under subrule (9) shall be as given as Appendix "A"
Provided that -

(1) the appointing authority may leave
unfilled or the Governor may hold in
784 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
abeyance
any
vacant
post
without
entitling any person to payment of
compensation
(2) the Governor may create from time
to time such additional permanent or
temporary posts as he may consider
proper.

PART VI- APPOINTMENT, PROBATION,
CONFIRMATION AND SENIORITY

19.
APPOINTMENT-
(1)
On
the
occurrence of substantive vacancies, the
appointing
authority
shall
make
appointments by taking candidates in the
order in which they stand in the lists
prepared under Rule 15,16,17 or 18 as the
case may.
(2) The appointing authority may make
appointment in temporary and officiating
vacancies also from the lists, referred to in
sub-rule (1). If no candidates borne on
these lists is available, he may make
appointments in such vacancies from
persons eligible for appointment under
these
rules,
provided
that
such
appointment shall not exceeded the period
of one year without the Commission
being consulted.
20. PROBATION - (1) A person on
appointment to a post in the service in or
against a substantive vacancy shall be
placed on probation for a period of two
years.
(2) The appointing authority may for
reasons to be recorded extend the period
of
probation
in
individual
cases
specifying the date up to which the
extension is granted.
Provided that save for exceptional
reasons, the period of probation shall not
be extended for more than one year and in
no circumstances beyond the limit of two
years.
(3) If it appears to the appointing
authority at any time during or at the end
of the period of probation or extended
period of probation that a probationer has
not made sufficient use of his substantive
post opportunities or has otherwise failed
to give satisfaction he may be reverted to
his, if any, and if he does not hold a lien
on any post, his services may be
dispensed with.
(4) A probationer who is reverted or
whose services are dispensed with under
sub-rule (3) shall not be entitled to any
compensation.
(5) The appointing authority may allow
continuous
service,
rendered
in
an
officiating or temporary capacity in a post
included in the cadre or any other
equivalent or higher post to be taken into
account for the purpose of computing the
period of probation.

21. Confirmation- A probationer shall be
confirmed in his appointment at the end
of the period of probation or the extended
period of probation if

(a) he has successfully undergone the
prescribed training
(b) his work and conduct are reported to
be satisfactory.
(c) his integrity is certified and
(d) the appointing authority is satisfied
that he is otherwise fit for confirmation.

APPENDIX A
The sanctioned strength of the service is
as follows:

Number

Name of Post
Permanent temporary
1.
Deputy Jailer
107
18
2
Assistant Jailer
218
19
3
Paid Apprentice
Assistant Jailer
35
-
3 All] Arvind Kumar Sinha V. State of U.P. and others
785
NOTE- (1) (*) Including two posts held in
abeyance

(2) (**) Including eight posts held in
abeyance.

3.
The
U.P.
State
Governments
Servants Confirmation Rules 1991:

English
translation
of
Karmik
Anubhag-4 Noti No. 1648/XLV VII Ka4090--48-89 dated February, 07,1991
published in the U.P. Gazette, Extra, Part4 Section (Ka) dated 7th February, 1991,
pp 4-6

1.
Short
title,
commencement
and
application-
(1)...................
(2)..................
(3).................
2. Overriding effect-.......................
3 Definitions..................................
4. Confirmation where necessary -(1)
Confirmation of a Government servant
shall be made only on the post on which
he is substantively appointed (i) through
direct recruitment or (ii) by promotion, if
direct recruitment is one of the sources of
recruitment or (iii) by promotion if the
post belongs to a different service.
(2) Such confirmation shall be made:-
(i) against a post, whether permanent or
temporary on which any other person
does not hold a lien:
(ii) subject to the fulfilment of the
conditions of confirmation laid down in
the relevant service rules, or executive
instructions issued by the Government as
the case may be
(iii) formal order shall be necessary to be
issued by the appointing authority with
regard to confirmation
Explanation- Notwithstanding the
fact that a Government servant is
confirmed anywhere else. If he is directly
recruited on any post, or is promoted to a
post where direct recruitment is one of the
sources of recruitment he will have to be
confirmed thereon.
5. Confirmation where not necessary- (1)
Confirmation will not be necessary if a
Government servant is promoted on a
regular
basis
after
following
the
prescribed procedure to a post in cadre
where promotion is the only source of
recruitment.
(2) On promotion to a post referred to in
sub-rule(1) the Government servant will
have all the benefits that a person
confirmed in that grade would have if no
promotion had been prescribed.
(3) Where probation is prescribed the
appointing authority shall on completion
of the prescribed period of probation
assess the work and conduct of the
Government servant himself and in case
the conclusion is that the Government
servant is fit to hold the higher grade he
will issue a order declaring that the person
concerned has successfully completed the
probation. If the appointing authority
considers that the work and conduct of the
Government servant concerned has not
been satisfactory or needs to be watched
for some more time, he may revert him to
the post of grade from which he was
promoted or extended the period of
probation in the manner prescribed.
(4) where confirmation on a lower feeding
post is prescribed as a necessary condition
for eligibility for promotion to a higher
post, a person confirmed on the lowest
under sub-rule (1) of Rule 4 shall be
eligible for promotion to the higher post
and his confirmation on the lower feeding
post shall not be necessary , if his work
and conduct on that post has been
satisfactory.
786 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Illustrations- (1) in the "Lekhpal Service
Rules" direct recruitment is the only
source of recruitment to the post of
Lekhpal "A" is appointed as Lekhpal
through direct recruitment "A" will have
to be confirmed on the said post under
sub-rule (1) of Rule 4
(2) ........................
(3).........................
(4).........................
(5).........................
(5)..........................

10. Bare perusal of the provisions as
contained
under
U.P.
Temporary
Government Servant (Termination of
Services) Rules 1975 would go to show
that Rule 2 defines "temporary service"
meaning as officiating or substantive
service on a temporary post, or officiating
service on a permanent post under the
Uttar Pradesh Government. Rule 3 of the
said Rule starts with non-obstinate clause
by mentioning that the services of a
government servant in temporary service,
can be terminated at any time by notice in
writing given either by the government
servant to the appointing authority, or by
the
appointing
authority
to
the
government servant. Period of notice has
been prescribed as one month, as per subrule (2) of Rule 3. First proviso to the said
rule provides that the services of any such
government servant may be terminated
forthwith and on such termination the
government servant shall be entitled to
claim a sum equivalent to the amount of
his pay plus allowances, if any, for the
period of the notice or as the case may be,
for the period by which such notice falls,
short of one month at the same rates at
which he has drawing them immediately
before the termination of his services.
Second proviso further provides that it
shall be open to the appointing authority
to relieve a government servant without
any notice or accept notice for a shorter
period without requiring the government
servant to pay any penalty in lieu of
notice. Third proviso deals with situation
wherein Government servant against
whom disciplinary proceeding is pending
or contemplated has given notice and the
respective date from which said notice
would be effective. Rule 4 deals with
saving provision in respect of incumbent
who are governed by the terms of their
engagement or employment.

11. Under U.P. Jail Executive
Subordinate (Non Gazetted) Service Rule
1980, Rule 3(h) defines "Member of
service" a person appointed in substantive
capacity under these rules or the rules or
orders
in
force
prior
to
the
commencement of these rules to a post in
the cadre of the service. Rule 3(i) defines
"Service" as the Uttar Pradesh Jail
Executive Subordinate (Non-Gazetted)
Service. Part II deals with cadre of
service, and sub rule (1) of Rule 4 of the
aforesaid Rules clearly mentions that the
strength of the service and of each
category of posts therein shall be such as
may be determined by the Governor from
time to time. Sub rule (1) of Rule 4 of the
aforesaid Rules deals with strength of the
service and each category of posts to be
such as determined by the Government
from time to time and further sub-rule (2)
of Rule 4 provides that strength of service
and each category of post therein shall
until orders varying the same are passed
under sub-rule (9) shall be as given as
Appendix "A". Provisos have been added,
wherein first proviso gives authority to
the appointing authority to leave unfilled
or the Governor hold in abeyance any
vacant post without entitling any person
to payment of compensation. Second
3 All] Arvind Kumar Sinha V. State of U.P. and others
787
proviso authorizes the Governor to create
from time to time such additional
permanent or temporary posts as he may
consider proper. Part V deals with
procedure of recruitment. Rule 14 deals
with determination of vacancies and
Rules 15 deals with procedure for direct
recruitment of the posts of Deputy Jailor,
Assistant Jailor. Part VI deals with
appointment, probation, confirmation and
seniority. Sub-rule (1) of Rule 19
provides that on the occurrence of
substantive vacancies, the appointing
authority shall make appointments by
taking candidates in the order in which
they stand in the lists prepared under Rule
15, 16, 17 or 18 as the case may. Sub-rule
(2) of Rule 19 provides that the
appointing
authority
may
make
appointment in temporary and officiating
vacancies also from the lists, referred to in
sub-rule (1) and if no candidates borne on
these lists is available, he may make
appointments in such vacancies from
persons eligible for appointment under
these
rules,
provided
that
such
appointment shall not exceeded the period
of one year without the Commission
being consulted. Thus, sub-rule (1) of
Rule 19 deals with appointment on the
occurrence
of
substantive
vacancies
wherein appointing authority has to make
appointments by taking candidates in
order in which they stand in the lists
prepared under Rules 15,16,17 or 18 as
the case may be. Under sub-rule (2) of
Rule 19 the appointment authority may
make appointment in temporary and
officiating vacancies also from the said
list. In respect of substantive vacancies,
word "shall" has been used and in respect
of temporary and officiating vacancies
word "may be" has been used. Rule 20 of
the aforesaid Rules 1980 is clear and
specific which deals with probation
specially Sub-rule (1) of Rule 20 which
provides that a person on appointment to
a post in the service in or against a
substantive vacancy shall be placed on
probation for a period of two years. Subrule (2) of Rule 20 provides that
appointing authority may for reasons to be
recorded extend the period of probation in
individual cases specifying the date up to
which the extension is granted. Proviso
has been added therein which provides
that save for exceptional reasons, the
period of probation shall not be extended
for more than one year and in no
circumstances beyond the limit of two
years. Thus, appointments which are
made under sub-Rule (1) of Rule 19 i.e.
against substantive vacancy are clearly
referable to the incumbent who are to be
kept on probation in term of Rule 20 and
same is clearly indicative of the fact that
incumbents appointment has been made
against substantive vacancy. Normal rule
of placement of an incumbent on
probation is two years and thereafter
extension of probation period is not to be
done in mechanical manner or routine
manner rather reasons will have to be
recorded for extending the same and save
for exceptional reasons the period of
probation is not be extended for more
than one year and in no circumstance
beyond the limit of two years. Thus,
normal period of probation is two years
and in exceptional circumstance extra two
years can be extended but not four years.
Sub-rule (3) of Rule 20 clearly provides
that if it appears to the appointing
authority at any time during or at the end
of the period of probation or extended
period of probation that a probationer has
not
made
sufficient
use
of
his
opportunities or has otherwise failed to
give satisfactions. If any, and if he does
not hold a lien on any post, his services
788 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
may be dispensed with. Rule 21 of the
aforesaid Rules deals with confirmation
and provides that probationer shall be
confirmed in his appointment at the end
of the period of probation or the extended
period of probation if, he has successfully
undergone the prescribed training; his
work and conduct are reported to be
satisfactory; his integrity is certified and
the appointing authority is satisfied that
he is otherwise fit for confirmation. In
view of this exercise of confirmation has
to be done at the end of the period of
probation or the extended of period of
probation. The U.P. State Government
servants confirmation Rules 1991, is a
special provision holding the field of
confirmation, qua all persons holding a
civil post in connection with the affairs of
the State of U.P. and who are under the
rule making control of the Governor
under the proviso to Article 309 of the
Constitution of India. Rule 2 of the said
rules makes the intention clear, that same
has overriding effect and provisions of
said
Rules
shall
have
effect,
notwithstanding anything to the contrary
contained in any other Rules made by the
Governor, under the proviso to Article
309 of the Constitution of India or orders
in force. Rule 4 prescribes confirmation
where necessary, and further prescribes
that subject to the fulfillment of the
conditions of confirmation laid down in
the relevant service rules or executive
instructions issued by the Government, as
the case may be formal order shall be
necessary to be issued by the appointing
authority with regard to confirmation.

12. After noticing the provisions as
quoted above, the view point of Hon'ble
Apex Court on this aspect of the matter,
as to when no order of confirmation has
been passed in writing and the outer limit
of probation period prescribed has come
to an end then as to whether it would be
the case of deemed confirmation or not is
being looked into:

13. Hon'ble Apex Court in the case
of State of Punjab Vs. Dharam Singh
reported in AIR 1968 SC 1210 took the
view that where 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 in such
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.
Relevant paragraphs 1, 5 6, 8 and 9 are
being quoted below:

"6 (1) Members of the Service,
officiating or to be promoted against
permanent posts, shall be on probation in
the first instance for one year.
(2) Officiating service shall be reckoned
as period spent on probation, but no
member who has officiated in any
appointment for one year shall be entitled
to be confirmed unless he is appointed
against a permanent vacancy.
(3) On the completion of the period of
probation the authority competent to
make appointment may confirm the
member in his appointment or if his work
or conduct during the period of probation
has been in his opinion unsatisfactory he
may dispense with his services or may
extend his period of probation by such
period as he may deem fit or revert him to
his former post if he was promoted from
some lower post :
3 All] Arvind Kumar Sinha V. State of U.P. and others
789
Provided that the total period of probation
including extensions, if any, shall not
exceed three years.
(4) Service spent on deputation to a
corresponding or higher post may be
allowed to count towards the period of
probation if there is a permanent vacancy
against which such member can be
confirmed.'
The respondents were officiating in
permanent posts and under Rule 6 (3)
they continued to hold those posts on
probation in the first instance for one
year. The maximum period of probation
fixed by the rules was three years which
expired
on October
1,
1960.
The
respondents continued to hold their posts
after October 1, 1960, but formal orders
confirming them in their posts were not
passed. Under Rule 7, the Director of
Public
Instruction,
Punjab
was
the
appointing authority. By two separate
orders passed on February 10, 1963 and
April 4, l963, the Director terminated
their services. The order in each case
stated that the services of the respondent
concerned '`are hereby terminated in
accordance
with
the
terms
of
his
employment. The order shall take effect
after one month from the date it is served
on him". Rule 12 provides that ill matters
relating to discipline, punishment and
appeals, members of the service shall be
governed by the Punjab Civil Services
(Punishment and Appeal) Rules, 1952.
The orders dated February 10 and April 4,
1963 were passed without holding any
departmental enquiry and without giving
the respondents any opportunity of
making representations against the action
taken against them. The respondents filed
separate writ petitions in the Punjab High
Court challenging the aforesaid orders on
the ground that they had acquired
substantive rights to their posts, and that
the orders amounted to removal from
service, and were passed in violation of
Article 311 of the Constitution. The
appellants pleaded that the respondents
were temporary employees, that their
services were terminated in accordance
with the terms of their employment, and
that the impugned orders did not amount
to removal from service and were not in
violation of Article 311. Learned single
Judge of the High Court rejected the
respondents contentions and dismissed the
writ petitions. The respondents filed
separate Letters Patent appeals against
these judgments. The appellate Court
allowed the appeals and set aside the
impugned orders. The appellate Court
held that the respondents were not
temporary employees, that they held the
posts on probation, that on the expiry of
three years period of probation they must
be deemed to have been confirmed in
their posts, that the impugned orders
having deprived them of their right to
those posts amounted to removal from
service by way of punishment and were
passed in violation of Article 311 and the
Punjab Civil Services (Punishment and
Appeal) Rules, 1952. It is against these
appellate orders that the present appeals
have been filed after obtaining special
leave.
5. In the present case, Rule 6 (3) 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
790 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
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.
6. The employees referred to in R.