Judgment

BHAGWATI, J: - The appellant is a law graduate having obtained LL.B.Degree from the University of Bombay in October, 1949. He started practice as pleader at Jamkhandi in Bijapur District and after practicing for over nine years he applied for the post of Civil Judge Junior Division) and Judicial Magistrate in the Bombay Judicial Service, Class II. He was interviewed by the Bombay Public Service Commission and on being selected on the basis of merit, he was appointed as Civil Judge Junior Division) and Judicial Magistrate by an order of the Government of Maharashtra dated 31-10-60. The appointment was initially on probation for a period of two years and it was provided that after the period of probation was over, his service would be liable to be terminated on one month s notice so long as his appointment was temporary. Pursuant to the order of appointment, the appellant worked as Civil Judge (Junior Division) and Judicial Magistrate and after watching his performance during the period of probation the Govt. of Maharashtra by a Resolution dt. 19th April, 1963 directed that he should be treated as having satisfactorily completed his probationary period from 6th December, 1962 afternoon and thereafter he should continue on an officiating basis as Civil Judge (Junior Division) and Judicial Magistrate. The appellant accordingly continued to officiate as Civil Judge Junior Division) and Judicial Magistrate. It appears that a substantive vacancy in a permanent post of Civil Judge Junior Division) and Judicial Magistrate arose sometime in 1968 in which the appellant could have been confirmed but the Government of Maharashtra, instead of confirming him in that post, passed an order dated 15th December, 1971, terminating his service with effect from 1st February 1972. The first respondent, who is Secretary to the Government of Maharashtra, Law and Judiciary Department, by a letter of the same date intimated to the appellant that his appointment being still temporary, his service was liable to be terminated on one month s notice and the Government had accordingly decided to terminate his service with effect from 1st February, 1972 and enclosed a copy of the order of termination. The appellant thereupon filed a petition in the High Court of Bombay under Article 226 of the Constitution challenging the validity of the order of termination.

2. There were three grounds on which the order of termination was assailed as invalid in the petition. The first ground rested on Rule 4 (2) (iv) of the Bombay Judicial Service Recruitment Rules, 1956. That rule provided that unless otherwise expressly directed, every person appointed as Civil Judge Junior Division) and Judicial Magistrate shall be on probation for a period of two years and on the expiration of such period, he may be confirmed, if (a) there is a vacancy and (b) his work is found satisfactory. The argument of the appellant was that on a proper construction of this rule every Civil Judge (Junior Division) and Judicial Magistrate, appointed on probation, for a period of two years, was entitled to be confirmed if on the expiration of such period of probation his work was found satisfactory and there was a vacancy in which he could be confirmed. Here in the present case, said the appellant, the Government Resolution dated 19th April, 1963 showed that on the expiration of the period of probation, his work was found satisfactory and sometime in 1968 a vacancy did arise in which he could be confirmed and, therefore, under this Rule, he was entitled to be confirmed in such vacancy and he had a right to the post of Civil Judge Junior Division) and Judicial Magistrate. The Government could not take away this right to the post by terminating the service of the appellant in the manner it did. The termination of the service of the appellant was in the circumstances tantamount to dismissal and since the procedural requirement of Article 311 (2) was admittedly not complied with by the Government b