Sobat Singh vs District Judge and Others

J.S. Khehar, C.J.—Through the instant special appeal learned Counsel for the appellant has assailed the order passed by the learned Single Judge dated 7.12.2009 disposing of Writ Petition (S/S) No. 641 of 2008.

Through the aforesaid writ petition the appellant had assailed the order passed on 25.05.1993 whereby his services had been dispensed with. The aforesaid order was considered to have been justifiably passed by the learned Single Judge under Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975.

During the course of the hearing today learned Counsel for the appellant assailed the decision rendered by the learned Single Judge by placing express reliance on Rule 14 of the U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955. Rule 14 aforementioned is being extracted hereunder.

Probation confirmation etc. - Every person on appointment to promotion to a post in the establishment in a substantive vacancy, shall be placed on probation for a period of one year at the end of which he shall be confirmed in the post if the appointing authority considers that his work has been satisfactory; but if he is not considered fit for confirmation in the post he will be reverted to his substantive post, if he has one, and if he has none his services will be dispensed with or without entitling him to any compensation.

While examining the claim of the appellant on the basis of the aforesaid Rule, the learned Single Judge had expressly arrived at the conclusion that the appellant having not been appointed on a substantive vacancy could not claim the benefit of Rule 14. On a perusal of Rule 14 extracted here above, we are satisfied that the same is applicable only to persons appointed against the substantive vacancy. In order to demonstrate that the appellant was appointed against a substantive vacancy, learned Counsel for the appellant invited our attention to the averments made in paragraph 2 of Writ Petition (S/S) No. 641 of 2008. The same is also being extracted hereunder.

That the petitioner was appointed on regular basis in an open competitive test taken by duly constituted selection Committee for the purpose, against a newly sanctioned post. The appointment on the petitioner was made on the post of Tamil Kunida (Process Server), by the District Judge Uttarkashi by means of his order dated 25.8.1983, in the Pay Scale of Rs. 305- 390 per month. A true copy of the said appointment Order No. 447 dated July 25, 1983 is enclosed herewith and marked as Annexure- 1 to this writ petition.

In the pleadings it was averred by the appellant- petitioner that he was appointed against a newly sanctioned post. It is not clear whether the aforesaid post was sanctioned on a substantive or a temporary basis. In the absence of express pleadings to depict that the appointment of the appellant was against a substantive vacancy, it will not be possible for us to infer from the averments made in paragraph 2 of the Writ Petition (S/S) No. 641 of 2008 that the vacancy against which the appellant/petitioner was appointed was indeed a substantive vacancy (which could have only arisen, in the eventuality of the availability of a substantive post). In view of the above as also on account of facts that no material has been placed before us to establish that the post against which the appellant/petitioner was appointed was a substantive post. We are satisfied that the learned Single Judge was fully justified in concluding that the aforesaid Rule was not applicable to the controversy raised by the appellant/petitioner.

The second contention advanced by the learned Counsel for the appellant was based on the judgment rendered in Jaswantsingh Pratapsingh Jadeja v. Rajkot Municipal Corporation and Anr. (2007) 10 SCC 71. The aforesaid judgment per se is not applicable to the facts and circumstances in this case, inasmuch as, in the case relied upon by the learned Counsel for the appellant, the concerned employee had been discharged after the prescribed period of probation was over. Since the appellant in this case has not been shown to have been appointed against a substantive vacancy, his appointment could not have been on probation, and therefore, there can be no question that his period of probation had expired when the impugned order was passed. Additionally in the discharge order passed in the case relied upon by the learned Counsel for the appellant, allegations of misdemeanour had been recorded in the impugned order in Jaswantsingh Pratapsing Jadeja�s case (supra), that also is not the case in the present controversy. Since it was open to the appointing authority under Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 so as to dispense with the services of the appellant, the aforesaid Rule must be deemed to have been validly invoked. Specially when in invoking the aforesaid Rule the authority did not base its determination on any allegation of misdemeanour in respect to the appellant/petitioner. We are therefore satisfied that the learned Single Judge was fully justified in arriving at the conclusion, that the judgment Jaswantsingh Pratapsingh Jadeja�s case (supra) was not applicable to the facts of the case of the appellant.

For the reasons recorded here, we find no merit in the present special appeal and the same is accordingly dismissed.