SAMARU DAS BANJARE Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS petition was heard by learned single Judge who after hearing made a reference to this Bench for answering the following question :

(2.) THE facts necessary for consideration in this petition are that the petitioner was appointed as Civil Judge in Madhya Pradesh Judicial Service, class II, by the respondent State by its order dated 15th July 1976 and he joined the said assignment on 4th August 1976. The appointment was temporary and on officiating basis for a period of six months for training and thereafter for a period of two years on probation. It is not disputed that the petitioner completed the training and also the period of probation without any complaint whatsoever. He was, however, not confirmed after the aforesaid period and continued without an order of confirmation or discharge. It appears that on 31st August 1981 (Annexure-D) an adverse confidential report for the period ending 31st March 1981 was communicated to him by the Registrar of this Court earlier as decision had been taken in the full Court meeting held on 27th February 1981 not to confirm the petitioner (Annexure R-1 ). However, before the above mentioned confidential report could be communicated to the petitioner, a decision to terminate his service was taken in the Court meeting dated 28th August 1981 (Annexure R. 2 ). Except for the aforesaid adverse confidential report there is nothing adverse against the petitioner. On the contrary, reports of various District and Sessions Judges under whom he had worked showed that his work and conduct was satisfactory. Even the report of the District and sessions Judge, Jabalpur, who has recorded the adverse confidential report above, shows that his disposal of cases between July to December 1980 was above average and nothing adverse was mentioned against him in the report for the said period. These reports are filed as Annexures C-1 and C-2. In pursuance to the decision taken in the Court Meeting, the impugned order of termination of his employment purporting to be under Rule 12 of the m. P. Government Servants (Temporary and Quasi-Permanent Service)Rules, 1960, has been passed by the respondent, State Government. Before the learned single Judge, reliance was placed on a Division Bench decision of this Court in Smt. Beena Tiwari v. State of M. P. and another M. P No 61 of 1980, decided on 9th April 1981. where in identical circumstances the matter was considered and Rule 3-A of the above Rules was considered. The Division Bench decision in Beena Tiwari's case took the view that Rule 3-A in view of Article 235 of the Constitution could be read as workable if the term appointing authority occurring in this rule is read as competent authority. As under Article 235 the control vests in the High Court, the High Court will be the competent authority and if in Rule 3-A instead of appointing authority, competent authority is read, the rule will be workable and, therefore, it was held that the otherwise order contemplated in Rule 3-A could be the order passed by the High court. In this decision the Division Bench also took the view that the requirement of the otherwise order as contemplated in Rule 3-A is satisfied when the High Court found the officer not fit for confirmation and it is this which the learned single Judge felt required reconsideration in the light of the language of Rule 3-A as Rule 3-A reads :

(3.) AT the time of hearing, learned counsel for the petitioner and also counsel appearing for the High Court and the Deputy Advocate General appearing for the State frankly conceded that in view of the nature of the matter and in view of the fact that this question is of every day occurrence, it will be appropriate to hear the petition itself and not restrict the hearing to the question referred to by the learned single Judge.