# State of U.P. and another v. U.P. Public Service Tribunal- III, Lucknow and another

- **Citation:** (2001) 2 ILRA 195
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-another-v-u-p-public-service-tribunal-iii-lucknow-and-another-39847
- **Pages:** 7

## Text

2All] State of U.P. and another V. U.P. Public Service Tribunal- III, Lucknow and another 195
counsel for the parties, within twenty four
hours, on payment of usual charges.

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By the Court

1. Heard Shri Vinay Malviya, the
learned Standing Counsel representing the
petitioners and Shri K.P. Agrawal, learned
Senior Advocate representing respondent
no. 2.

2. The petitioner - State of U.P. has
filed the instant petition praying for
issuing a writ, order or direction in the
nature of certiorari quashing the order of
the tribunal dated 4.2.1980, and has
further prayed for issuing a writ, order or
direction in the nature of mandamus
directing the respondents not to give
effect to the order dated 4.2.1980.

3. The respondent no. 2 was
appointed on the post of Taqavi Accounts
Clerk by an order dated 9th July, 1963, a
copy whereof is Annexure '3' to the writ
petition. The relevant portion of the said
order runs as follows:

"The
following
candidates
who
appeared for the Competitive Test for the
post of Taqavi Accounts Clerk, in the
scale 60-3-72 EB-3-87-EB-3-90-4-110,
are posted in the blocks noted against
them. They should report for duty to the
B.D.O.s concerned within 7 days. The
appointment is purely temporary they will
remain on probation for six months during
which the services can be terminated at
any time without notice ......."
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
196
4. It is admitted case of the parties
that on the completion of the period of
probation, no order either confirming the
respondent no. 2 or terminating his
services was passed and the respondent
no. 2 was allowed to continue on the post
of Taqavi Accounts Clerk, but his
services were terminated after about four
and a half years by an order dated
6thFebruary, 1968, a copy whereof is
Annexure 'K'. It runs as follows:

"Shri Rama Kant Agnihotri Taqavi
Accounts Clerk of Block Derapur is
hereby given one month's notice for
termination of his services with effect
from the date of issue of this notice".

5. According to the petition, the
respondent no. 2 challenged the said order
of termination dated 6.2.1968 in the court
of Munsif, Kanpur, being Suit No. 718 of
1971, but on the enforcement of the U.P.
Public Service Tribunal Act, 1976, it was
transferred to the U.P. Public Service
Tribunal, III, Lucknow, being Reference
Case No. 677 (T)/III/1978. The tribunal
by
its
impugned
judgement
dated
4.2.1980 has allowed the claim petition,
set aside the order of termination and
declared that the claimant will be deemed
to have continued in service and will be
entitled to the benefit of continuous
service. Aggrieved, the State of U.P. has
filed the instant petition challenging the
said judgement of the Tribunal.

6. A perusal of the impugned
judgement shows that the Tribunal has
allowed the claim petition holding that the
claimant will be deemed to have been
confirmed on his post after the expiry of
the period of probation.

7. The learned counsel for the
petitioner
has
contended
that
the
respondent no. 2 could not be said to be
confirmed on the expiry of the period of
probation and the view taken to the
contrary by the Tribunal is illegal and
liable to be set aside. His contention is
that the appointment of respondent no. 2
was purely temporary and he continued to
be a temporary Government servant
whose services could be terminated by
giving one month's notice. He has placed
reliance on the judgements of Hon'ble
Supreme Court rendered in Wasim Beg
vs. State of U.P. and others, reported in
(1998) 3 Supreme Court Cases 321 and
State of Punjab vs. Dharam Singh ,
reported in A.I.R. 1968 Supreme Court
1210.

8. On the other hand, the learned
counsel for the respondent no. 2 has
contended that the appointment of the
respondent no. 2 was on probation and
was not merely a temporary appointment
and since there was no stipulation in the
order of appointment that his services
were liable to be terminated on giving one
month's notice, the order of termination
dated 6.2.1968 terminating his services on
giving one month's notice was illegal and
that the Tribunal has rightly set aside the
same. His contention is that the view
taken by the Tribunal that the claimant
(respondent no. 2 herein) will be deemed
to have been confirmed after the expiry of
the period of probation is perfectly
justified and needs no interference. In
support of his contention the learned
counsel has placed reliance on the
judgement of the Hon'ble Supreme Court
rendered in State of Punjab vs. Dharam
Singh (A.I.R. 1968 Supreme Court 1210)
Om Prakash vs. U.P. Co-operative
Sugar Factories Federation, Lucknow
2All] State of U.P. and another V. U.P. Public Service Tribunal- III, Lucknow and another 197
and others (A.I.R. 1986 Supreme Court
1844) and M.K. Agarwal vs. Gurgaon
Gramin Bank and others (A.I.R. 1988
Supreme Court 286).

9. A perusal of the order of
appointment dated 9.7.1963 shows that
the respondent no. 2 was appointed on the
post of Taqavi Accounts Clerk after the
competitive test in the pay scale of Rs.
60-3-72-EB-3-87-EB-3-90-4-110 and it
was
mentioned
therein
that
the
appointment was purely temporary and
they will remain on probation for six
months during which the services could
be terminated at any time without notice.
Admittedly, no order either confirming
him or terminating his services or
extending the period of probation was
passed during the period of probation or
at the completion of the said period of
probation.

10. The question to be determined is
as to whether the respondent no. 2 would
be deemed to have been confirmed after
the expiry of the period of probation as no
order whatsoever was passed on the
completion of the period of probation. It
is significant to point out here that the
petitioner has not placed before the Court
any statutory rule or executive instruction
governing the service conditions of the
post of Taqavi Accounts Clerk, rather it is
admitted by the petitioner that there are
no such rules. Therefore, in the absence of
any statutory rule or executive instruction
in that behalf, the service conditions of
Taqavi Accounts Clerk shall be governed
by the general Law of Contract and
stipulations
therein.
Admittedly,
as
pointed out above, there is neither any
statutory rule nor executive instruction
governing the post of Taqavi Accounts
Clerk. Thus, the contract emerging from
the order of appointment which was
accepted by the petitioner shows that the
appointment was purely temporary; that
the petitioner was to remain on probation
for six months; and that during the period
of probation his services could be
terminated at any time without notice. No
other agreement, apart from what has
been mentioned in the said appointment
letter has been placed on record by the
parties.

11. A perusal of the order of
appointment as quoted above, shows that
the appointment of the candidates, whose
names have been mentioned therein, was
purely temporary. They were allowed to
remain on probation for six months during
which the services could be terminated at
any time without notice. It is significant to
note that there was no stipulation that on
the completion of the period of probation
the authority concerned may confirm
them in the service or if the work and
conduct during the period of probation
was found to be unsatisfactory, their
services may be dispensed with. It was
also not mentioned therein that the period
of probation may be extended by such
period as may be deemed fit. There was
also no stipulation forbidding extension of
the period of probation beyond six
months.

12. The Hon'ble Supreme Court in
the judgement rendered in State of
Punjab vs. Dharam Singh (A.I.R. 1968
Supreme Court 1210) has, in paragraph 3,
observed as follows:
"(3). This Court has consistently
held that when a first appointment or
promotion is made on probation for a
specific period and the employee is
allowed to continue in the post after the
expiry of the period without any specific
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
198
order of confirmation, he should be
deemed to continue in his post as a
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
the employee a substantive right to the
post, and from the mere fact that he is
allowed to continue in the post after the
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 taken in Sukhbans Singh v.
State of Punjab, 1963-I SCR 416 at pp.
424-426-(AIR 1962 SC 1711at pp. 17141715), G.S. Ramaswamy v. InspectorGeneral
of
Police,
Mysore
State,
Bangalore, (1964) 6 SCR 279 at pp. 288289=(AIR 1966 SC 175 at pp. 179-180),
Accountant-General,
Madhya
Pradesh,
Gwalior v. Beni Prasad Bhatnagar Civil
Appeal No. 548 of 1962, D/-23-1-1964
(SC), D.A. Lyall v. Chief Conservator of
Forests, U.P. Civil Appeal No. 259 of
1963, D/-24-2-1965 (SC) and State of
U.P. v. Akbar Ali, (1966) 3 SCR 821 at
pp. 825-826=(AIR 1966 SC 1842 at p.
1845). The reason for this conclusion is
that where on the completion of the
specified
period
of
probation
the
employee is allowed to continue in the
post without an order of confirmation the
only possible view to take in the absence
of anything to the contrary in the original
order of appointment or promotion or the
service rules, is that the initial period of
probation has been extended by necessary
implication. In all these cases, the
conditions of services of the employee
permitted extension of the probationary
period for an indefinite time and there
was no service rule forbidding its
extension beyond a certain maximum
period."
13. The Hon'ble Supreme Court, in
the aforesaid case, while interpreting the
relevant rules as applicable in that case,
observed in paragraph 5 as follows:

"(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
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."

14. In the judgement rendered in
Wasim Beg vs. State of U.P. and others,
reported in (1998) 3 Supreme Court Cases
321, the Hon'ble Supreme Court observed
in paragraph 15 as follows:
"15. ..... There are broadly two sets
of authorities of this Court dealing with
this question. In those cases where the
Rules provide for a maximum period of
probation beyond which probation cannot
be extended, this Court has held that at
the end of the maximum probationary
period
there
will
be
a
deemed
confirmation of the employee unless
Rules provide to the contrary ........"
2All] State of U.P. and another V. U.P. Public Service Tribunal- III, Lucknow and another 199
15. In Paragraph 17, the Hon'ble
Supreme Court observed as follows:

"17. The other line of cases deals
with Rules where there is no maximum
period prescribed for probation and either
there is a Rule providing for extension of
probation or there is a Rule which
requires a specific act on the part of the
employer (either by issuing an order of
confirmation or any similar act) which
would result in confirmation of the
employee. In these cases unless there is
such an order of confirmation, the period
of probation would continue and there
would be no deemed confirmation at the
end of the prescribed probationary period
------ ."

16. From the observations made by
Hon'ble Supreme Court in the aforesaid
cases, it is clear that where the service
rules or stipulation forbid or prohibit the
extension of the period of probation
beyond a specified period, the employee
would be deemed to be confirmed if
allowed to continue on the completion of
specified period of probation. And, in
cases where there are no such rules or
stipulation, the employee cannot be
deemed to be confirmed and be deemed to
continue as a probationer only.

17. In the instant case as mentioned
above, there are no rules governing the
appointment to the post of Taqavi
Accounts
Clerk and there was no
stipulation prohibiting the extension of
the period of probation beyond six
months. In this view of the matter, the
view taken by the Hon'ble Supreme Court
in paragraph 3 of the case of Dharam
Singh (Supra) will apply and it must be
held that the respondent no. 2 could not
be deemed to have been confirmed. The
view expressed by the Hon'ble Supreme
Court in paragraph 5 of the said case, will
apply to cases where the rules provide
otherwise.

18. In the judgement of the Hon'ble
Supreme Court rendered in Om Prakash
Maurya vs. U.P. Co-operative Sugar
Factories
Federation
(A.I.R.
1986
Supreme Court 1844) and in M.K.
Agrawal vs. Gurgaon Gramin Bank
and others (A.I.R. 1988 Supreme Court
286), on which reliance has been placed
by the learned counsel for the respondent
no. 2, there were rules/regulations which
provide for recruitment, probation and
confirmation etc. in the case of Om
Prakash Maurya (Supra), Regulation 17
provided that all persons on appointment
against regular vacancies shall be placed
on probation for a period of one year, and
under the proviso to the said Regulation
the
appointing
authority
may,
in
individual cases, extend the period of
probation in writing for further period not
exceeding one year, as it may deem fit.
The Hon'ble Supreme Court observed
that
the
proviso
to
Regulation 17
restricted the power of the appointing
authority in extending period of probation
beyond
the
period
of
one
year.
Interpreting Regulation 17 and 18 and
placing reliance on the cases of State of
Punjab vs. Dharam Singh (Supra), the
Hon'ble Supreme Court held in Paragraph
4 that on the expiry of the maximum
probationary period of two years, the
appellant could not be deemed to continue
on probation, instead he stood confirmed
in the post by implication.

19. Similarly, in the case of M.K.
Agarwal Vs. Gurgaon Gramin Bank
and others (Supra), the Hon'ble Supreme
Court observed in Paragraph 4 as follows:
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
200
"(4). ----- The period of the probation
was one year, in the first instance, the
employer could extend it only for a
further period of six more months. The
limitation on the power of the employer to
extend the probation beyond 18 months
coupled with the further requirement that
at the end of it the services of the
probationer should either be confirmed or
discharged
render
the
inference
inescapable that if the probationer was not
discharged at or before the expiry of the
maximum period of probation, then there
would be an implied confirmation as there
was no statutory indication as to what
should follow in the absence of express
confirmation at the end of even the
maximum
permissible
period
of
probation. ---- ."

20. Thus, the judgement of the
Hon'ble Supreme Court rendered in Om
Prakash Maurya vs. U.P. Co-operative
Sugar Factories Federation (Supra) and
M.K. Agrawal vs. Gurgaon Gramin
Bank
and
others
(Supra)
are
distinguishable on facts and are of no help
to the respondent no. 2.

21. Now comes the question
whether the services of a temporary
Government servant could be terminated
by giving one month's notice. In this
connection, it is relevant to refer to the
'General Rule regarding termination of
services of a temporary Government
Servant', which was made by the
Governor of U.P. in exercise of powers
conferred by the proviso to Article 309 of
the Constitution of India, and published
with
Notification
No.
230/II-B-1953
dated January 30, 1953 it runs as follows:

"In exercise of the powers conferred
by the proviso to Article 309 of the
Constitution of India, the Governor of
U.P. is pleased to make the following
general rule regulating the termination of
services
of
temporary
government
servants:

1.
Notwithstanding
anything
to the
contrary in any existing rules and orders
on
the
subject,
the
service
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 such notice shall be
one month given either by the appointing
authority to the government servant, or by
the government servant to the appointing
authority, provided that in the case of
notice by the appointing authority, the
latter may substitute for the whole or part
of this period of notice, pay in lieu
thereof; 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.

3.
This rule shall take immediate effect
and shall apply to all persons who are
appointed hereafter in a civil post in
connection with the affairs of Uttar
Pradesh and who are under the rulemaking control of the Governor, but who
do not hold a lien on any permanent
government post.

4.
In this rule, "temporary service"
means officiating and substantive service
in a temporary post, and officiating
service in a permanent post under the U.P.
Government.
2All] Kamlesh Kumar Gupta V. Special Judge, Dacoity Affected Area, Banda and another 201
5.
Nothing in this rule shall apply to -
(a) government servants engaged on
contract;
(b) government servants not in wholetime employment;
(c) government servants paid out of
contingencies; and
(d) persons employed in work-charged
establishments."

22. The aforesaid Rule provides that
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. Under Paragraph 2 it
is provided that the period of such notice
shall be one month. This makes it clear
that
the
services
of
a
temporary
Government servant could be terminated
at any time by giving one month's notice
to the Government servant.

23. In view of the discussions made
above, it is clear that the petitioners could
terminate the services of the respondent
no. 2 by giving one month's notice and
the
order
of
termination
dated
6th
February, 1968 was perfectly valid and
legal. The Tribunal has committed an
error in allowing the claim petition filed
by the respondent no. 2 and setting aside
the said order of termination. Therefore,
the impugned judgement dated 4.2.1980,
passed by the Tribunal in liable to be
quashed.

24. In the result, the petition
succeeds and is allowed. The impugned
judgement dated 4.2.1980 is quashed.

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