AYODHYA PRASAD SINGH Vs. REGISTRAR CO-OPERATIVE SOCIETIES

JUDGEMENT

(1.) IN this writ application under Article 226 of the Constitution the petitioner seeks to challenge the validity of the order dated 29-11-63 terminating his service, on the ground that the said order is illegal and inoperative as the provisions of Article 311 (2) of the Constitution have not been followed. The petitioner was appointed as an Inspector of Co-operative Societies on probation by the order dated 10-1265 which " was to the following effect:-" office of the Registrar, Co-operative Societies, Orissa, Bhubaneswar. Order No. 16372 Dated Bhubaneswar xxva-Gen-228/55 the 20th Dec. 55. The following candidates are appointed temporarily as Inspectors of Co operative Societies in the scale of pay Rs. 85-2-97-115-E. B.-4-155/-P. M. with usual Dearness Allowance and posted to the places noted against their names. X X X X X

(2.) SHRI Ajodhya Prasad Singh Balangir Circle in place of Narayan Misra appointed but not joined. X X X X X the posts are temporary and are liable to be terminated at any time without notice and without assigning any reason whatsoever. . . . . The usual period of probation for them shall be two years and they will not be confirmed in the service unless they completely pass the prescribed departmental test and are considered otherwise suitable for confirmation at the end of the probationary period. They shall be liable to be discharged from service if they fail to pass the departmental test completely on the subjects noted below within 6 years from the date of their appointment to the service. " it is said that the petitioner passed the Departmental test examination on 26-7-57 and had been "promoted as a Senior Inspector of Co-operative Societies with effect from 18-1-62. 2. Mr. R. Mohanty, appearing for the petitioner, confines his submission to only one point before us at the time of argument, though several contentions had been raised in the writ application. According to him, in terms of the order of appointment, the petitioner should be taken to have been confirmed at the end of the probationary period of 2 years. Alternatively, at any rate, after lapse of 8 years from the date of the appointment, the petitioner could not be taken as either a temporary employee or a probationer. By November 1963, about 8 years after the first appointment, the petitioner, who, it is contended, is the holder of a permanent post, could not be asked to go out of service by the order dated 29-1163, which runs to the following effect:--"the services of Shri Ajodya Prasad Singh, Senior Inspector of Cooperative societies is terminated with effect from 29-12-1963 forenoon. This may be treated as one month's notice with effect from 29-11-63. " if Mr. Mohanty's contention that the petitioner was holding a permanent post by 1963 is accepted, there is no doubt that the order of termination is contrary to law and void for not following, the procedure laid down under Article 311 (2) of the constitution. It is equally conceded by Mr. Mohanty that if the petitioner is found not to have been confirmed by November 1963, the order of termination is not challengeable, there being no stigma against the petitioner in the impugned order and the termination being in the terms of the conditions of service.

(3.) IT has, therefore, become necessary to determine whether the petitioner had come to hold a permanent post by November 1963 when his service was terminated. Admittedly, no order confirming the petitioner in his service was ever passed. Mr. Mohanty relies upon the terms in the order of appointment and contends that the petitioner must be taken to have been confirmed in his post after the lapse of 6 years, as with the completion of 6 years from the date of appointment the employer's right to terminate the petitioner's service must be taken to have lapsed. He seeks support for his contention from a decision of the supreme Court in AIR 1968 SC 1210, State of Punjab v. Dharam Singh. Their lordships of the Supreme Court were dealing with the case of some teachers serving under the State of Punjab, whose conditions of service were governed by the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961. As far as material for our purpose, Rule 6 of the said Rules provided:--"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: provided that the total period of probation including extensions, if any, shall not exceed 3 years. X X X X X the teachers were officiating in permanent posts and continued to hold these posts on probation at the first instance for one year and the maximum period of probation was 3 years which expired on 1-10-1960. They continued in service, but formal order of confirmation had not been passed. In 1963, the appointing authority terminated their services treating them to be still probationers. His lordship Bachawat, J. , speaking for the Court, said:--"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 ser-vice 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. "