DAYARAM DAYAL Vs. STATE OF M.P.

JUDGEMENT

(1.) THE appellant, after going through the process of selection by the Public Service Commission, was appointed as Civil Judge, Class 2 in the Madhya Pradesh Subordinate Judicial Service by an order dated 22.10.1985. The order stated that he would have to undergo training for six months and be on probation for 2 years. The appellant completed training on 29.5.1986 and was put on probation for 2 years. He completed probation by 22.5.1988. On 2.3.1990, he was placed under suspension pending some charges. The charges were served on 3.3.1990, an inquiry report was given by the District Judge on 12.4.1991 and the High Court, in its Full Court Meeting dt. 27/28.4.1991 resolved to impose a punishment of stoppage of two annual increments with cumulative effect. On 7.8.1991, the suspension was revoked and he resumed duties as Civil Judge Class II w.e.f 7.8.1991. There were certain adverse remakrs in the ACRs during 1987 -88, 88 -89,89 -90, 91 -92 and 92 -93. The inspection Judge of the High Court who inspected appellant's Court on 26.2,92 also referred to certain irregularities. In the Full Court Meeting dated 3.5.92, the appellant was not found fit for confirmation and his case for promotion as Civil Judge, Class I was postponed. In a subsequent Full Court Meeting dt. 30.4.93, 1st, 2nd May, 1993, it was decided that appellant was not fit for confirmation and looking at his overall performance, his services should be terminated after giving him one month's salary in lieu of notice. The resolution was forwarded to the Madhya Pradesh State Government on 19.7.1993. The State Government by orders dated 8.11.1993, terminated the appellant's services by paying one month's salary in lieu of notice. The order was served on 17.12.1993. The writ petition filed by the appellant being MP 627/94 was dismissed by the learned single Judge on 25.4.1994.

(2.) THE learned Single Judge held that during the period of probation, the appellant was found guilty and punished by orders dated 23.8.1991 by stoppage of 2 increments with cumulative effect; that the appellant's Court was inspected by the inspection Judge and the appellant's work was not found satisfactory and adverse remarks were made and duly communicated to the appellant; that the overall performance was considered by the Full Court Meeting and it was decided to "discharge" him from service by giving him one month's salary in lieu of notice and that this was not illegal. In LPA 27/94, the Division Bench in its judgment dated 7.7.1994 dismissed the appeal. It was contended in the appeal that the appellant was appointed in 1985 prescribing a period of 2 years probation, that according to the M.P. Judicial Services (Classification, Recruitment and Condition of Service) Rules, 1955, probation cannot be extended beyond 2 years in addition to the initial period of2 years (i.e. in all four years) and that therefore the appellant must be deemed to have been confirmed and hence a simple order of termination by issuing one month's notice or one month salary in lieu of notice, was not sufficient. This contention was rejected stating that "the 1955 Rules are not applicable" and that therefore, the "so called limitation on the extension of probation period cannot be accepted". The charges framed against the appellant were acts of misconduct from April, 1989, which were well within the period of four years of service of the appellant. It was held that, in the circumstances, there could be no presumption that by not extending the probation or by not confirming him within the period of four years, it was intended to confirm him in service. The contention as to lack of opportunity was rejected. It is against this judgment that the appeal has been filed by the writ petitioner.

(3.) ON the other hand, learned counsel for the respondents, contends that the maximum period of probation extended up to 22.5.90 and that before that date, the High court had taken note of the charges served on the appellant on 3.3.90 during the period of probation and the notes of inspection of the appellant's Court on 3.5.92, and that in view thereof, the Full Court decided initially on 3.5.92, he was not fit for confirmation/promotion and then decided on 30.4.93, 1st and 2nd May, 1993 that his services had to be terminated on one month notice. As long as there was no order of confirmation even after the expiry of the 4 years period, the appellant could not be deemed to have been confirmed and must be deemed to be continuing under probation. If he was continuing under probation even after 22.5.90, then his termination with one month salary on 8.11.93 was valid. He relies upon Beena Tiwari v. State of M.P. [1988 JLJ 208 = 1988 Suppl SCC 213] to say that the powers of the High Court under Article 235 are not subject to anything in the Rules.