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TMI Blog2011 (9) TMI 1160X X X X Extracts X X X X X X X X Extracts X X X X ..... ution on an interpretation of Rule 26 of the Uttar Pradesh Ashaskiya Arabi Tatha Farsi Madarson Ki Manyata Niyamawali. However, before we deal with the contentions on the legal issues which arise for our consideration, it would be necessary to state certain facts for proper appreciation of the issues. 3. The Appellant was appointed on 1st March, 1989 as an Assistant Teacher in the primary section of Madarsa Hanifa Ahle Sunnat Bahrul Uloom, Mau. A copy of the appointment order dated 22.2.1989 is placed on record. The said order not only states that by virtue of the said order, the Appellant was appointed in the said Madarsa to the post of Assistant Teacher Tahtania(primary) but it was also mentioned therein that the said appointment is pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot possess teaching capability at all. By the said letter, the Appellant was directed to show cause as to why his service should not be dispensed with from the Madarsa. 6. Even thereafter, there is a letter issued on 3.4.1993 wherein his attention was drawn to the earlier letters directing him to improve his performance to which according to Respondent No. 1, the Appellant did not pay any heed or attention. The Appellant was, therefore, intimated that his service now stood terminated in terms of Clause 26 of Rules, 1987. 7. The aforesaid order came to be challenged by the Appellant by filing a writ petition in the Allahabad High Court which was allowed on the ground that on expiry of the two years' period of probation, there is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, the counsel has relied upon the decision of this Court in Dharam Singh (supra). She has also drawn our attention to the decision of this Court in the case of M.K. Agarwal v. Gurgaon Gramin Bank and Ors. 1987 Supp. SCC 643. 10. Learned Counsel appearing for the Respondent Nos. 1 and 2 Mr. Anis Suhrawardy and Mr. Shrish Mishra respectively, however, has drawn our attention to the aforesaid correspondences between Respondent No. 1 and the Appellant. In support of their submission that the service of the Appellant continued on probation they referred to the contents of the order of appointment and the series of the letters. In terms and conditions of his appointment, his services could be terminated without assigning any reason or on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which was considered by this Court in the case of Akbar Ali Khan (supra). A constitution Bench of this Court in the case of Akbar Ali Khan (supra) examined relevant provisions contained in Rules 12 and 14 of the UP Subordinate Revenue Executive Service (Tahsildar) Rules dealing with the provision of probation period. The said rule provided that the period of probation would be two years which could be extended by the Board to three years. The Constitution Bench of this Court considered as to whether a probationer stood confirmed after the expiry of the period of probation in paragraph 5 of the said judgment. This Court held in paragraph 5 as follows: The Respondent was posted as a Tehsildar and placed on probation for two years. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expiry of the said period without any specific order of confirmation he continues as a probationer only and acquires No. substantive right to hold the post. If the order of appointment itself states that at the end of the period of probation the appointee will stand confirmed in the absence of any order to the contrary, the appointee will acquire a substantive right to the post even without an order of confirmation. In all other cases, in the absence of such an order or in the absence of such a service rule, an express order of confirmation is necessary to give him such a right. Where after the period of probation an appointee is allowed to continue in the post without an order of confirmation, the only possible view to take is that by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to give him an opportunity to improve his performance. However, despite the said opportunity granted and also extension, his performance and service were not improved and, therefore, the service was terminated under the aforesaid letter dated 3.4.1993. 16. In the case of Kedar Nath Bahl v. The State of Punjab and Ors. 1974 (3) SCC 21, this Court clearly laid down the proposition of law that where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if No. order is passed on that behalf. It was also held in that decision that unless the terms of appointment clearly indicate that co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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