MAM CHAND Vs. STATE OF UTTAR PRADESH, THROUGH THE SECRETARY TO GOVERNMENT, IRRIGATION DEPARTMENT, LUCKNOW AND OTHERS

JUDGEMENT

(1.) This special appeal has been filed by Mani Chand and arises from the judgment of a Single Judge of this Court dated 9-5-1972 passed in writ petition No. 201 of 1970. The appellant was appointed an Overseer in the Irrigation Department of the Government of Uttar Pradesh in the year 1959 and was put on probation on 1-1-1964 for a period of two years. This period of probation was extended subsequently to end on 31-12-1967. As the petitioner failed to pass a qualifying departmental examination by 20-12-1966 he was required by the Executive Engineer to refund a sum of Rs. 592 and odd paid to him in excess of sums to which he was entitled. On 6-9-1968 the petitioner was served with a notice saying that he has been passed over for confirmation since he had failed to pass the departmental examinations during the period of probation, side annexure 7 of the writ petition. On 2-9-1968 he received also a notice saying that his services will be liable to termination if he fails to pass the departmental examination, vide annexure 6 of the writ petition. The appellant filed a writ petition under Art. 226 of the Constitution in this Court and prayed for quashing of the order directing refund of money received by him in excess and also prayed for mandamus directing the opposite parties to treat him as a confirmed overseer.

(2.) The order of cancellation of increment and for refund of Rs. 592 and odd was quashed by certiorari but the prayer for mandamus was rejected.

(3.) The only point urged by the learned counsel for the appellant in arguments is that the appellant should be deemed to have been confirmed by implication because he was permitted to continue to work as an overseer even after the end of extended period of probation, that is, 31-12-1967. For this submission learned counsel relied in the main, on the judgment of the Supreme Court in the case of State of Punjab Vs. Dharam Singh A.I.R. 1968 S.C. 1210 . This ruling was cited before the learned Single Judge also but was distinguished by the learned Single Judge. After hearing Sri A. Mannan learned counsel for the appellant, and Sri K. S. Verma, the Chief Standing Counsel, we are unable to find that on principle this ruling of the Supreme Court is distinguishable. In that case the Supreme Court observed that where 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 maxi-mum 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 Rules 19, 20 and 21 of the Service Rules governing the appellant are as follows :