COURT NO.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) 2778/2001 (Old No. 29627/1996) Udai Mishra & Others …….Petitioners Versus State of U.P. through Secretary, Rural Development, Lucknow & Others …….Respondents Sri V.B.S. Negi, learned Counsel for the petitioners. Smt. Bina Pande, learned Standing Counsel (U.P.) for the respondent no. 1 & 2. Sri Gopal Narain, learned Brief Holder for the respondent no. 3 & 4. 25th June, 2008 Hon’ble P.C. Verma, J. By means of this writ petition, the petitioners have prayed for a writ of certiorari to quash the order dated 30.8.1996 passed by the District Development Officer, Haridwar. The impugned order is contained in Annexure 8 to the writ petition. The perusal of the impugned order shows that the order has been passed under the U.P. Temporary Government Servant (Termination of Services) Rules, 1975. It further indicates that the impugned order was passed at the dictate of the Commissioner, Gramya Vikas, U.P. communicated vide his letter dated 3.8.1996. The petitioners were appointed on various dates i.e. on 11.6.1993, 16.6.1993 and 1.1.1994 (Annexure 5, 6 & 7 to the writ petition) after calling the names from the employment exchange and holding the DPC for selection of the candidates. The petitioners were regularly selected and appointed in accordance with the provisions of the U.P. Agricultural Production & Rural Development Department Ministerial Service Rules, 1980 and were 2 placed on probation for a period of two years as provided under Rule 19 of the said Rules, which reads as under: “19. Probation.—(1) A person on appointment to a post in the service in or against a substantive vacancy shall be placed on probation for a period of two years. (2) The appointing authority may, for reasons to be recorded, extend the period of probation in individual cases specifying the date up to which the extension is granted: Provided that, save in exceptional circumstances, the period of probation shall not be extended beyond one year and in no circumstances beyond two years. (3) If it appears to the appointing authority at any time during or at the end of the period of probation that a probationer has not made sufficient use of his opportunities or has otherwise failed to give satisfaction, he may be reverted to his substantive post, if any, and if does not hold a lien on any post, his services may be dispensed with. (4) A probationer who is reverted or whose services are dispensed with under sub- rule(3) shall not be entitled to any compensation. (5) The appointing authority may allow continuous service, rendered in an officiating or temporary capacity in a post included in the cadre or any other equivalent or higher post, to be taken into 3 account for the purpose of computing the period of probation.” 2. The probation period of the petitioners expired after two years i.e. on 11.6.1995, 16.6.1995 and 1.1.1996 respectively. 3. A perusal of Rule 19 of the Rules of 1980 shows that if a person is found unsuitable during the period of probation, the probation period may be extended for one year and in exceptional circumstances it can be extended up to two years and in no circumstances beyond two years. But in the case of the petitioners, it was not done and the probation period expired without any adverse remark. 4. Rule 20 of the Rules of 1980 deals with the confirmation, which reads as under: “20. Confirmation.—A probationer shall be confirmed in his appointment at the end of the period of probation or the extended period of probation if – (a) His work and conduct are reported to be satisfactory; (b) His integrity is certified; and (c) The appointing authority is satisfied that he is otherwise fit for confirmation.” 5. Thus, it is evident from the perusal of Rule 20 that if the probation period has not been extended, it will be deemed that the employee has been confirmed. Thus, the petitioners stood confirmed on the post of Jr. Clerk after 4 expiry of probation period of two years as per the provisions of Rule 20. Therefore, since the petitioners were confirmed employees, the provisions of the U.P. Temporary Government Servant (Termination of Service) Rules, 1975 could not have been attracted. If the petitioners had committed any misconduct, they could have been chargesheeted and their services could have been terminated in accordance with the provisions of Article 311(2) of the Constitution of India which is akin to the provisions contained in Rule 7 & 10 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999. Impugned order also cannot be sustained in the eye of law as the same has been passed at the dictate of the Commissioner, which is evident from the fact that a confirmed employee has been terminated by the appointing authority under the U.P. Temporary Government Servant (Termination of Service) Rules, which was not applicable. Appointing authority has totally surrendered his power which amounts to abdication of his discretion. 6. For the reasons recorded above, the writ petition is allowed. The order impugned is quashed. Petitioners shall be treated to have been confirmed. No order as to costs. (P.C. Verma, J.) 25.6.2008 Prabodh