Judgement

DUTT, J. :- The only question that arises for consideration in these appeals by special leave is whether R. 3-A, M. P. Government Service (Temporary and Quasi-Permanent Service) Rules, 1960, hereinafter referred to as the Rules, is applicable to the members of the Subordinate Judicial Service of the Madhya Pradesh Government.

2. In Civil Appeals Nos. 59 and 60 of 1982, both the appellants were appointed Civil Judges on temporary and officiating basis for a period of six months for training and thereafter for a period of two years on probation. It is not necessary to state in detail the facts, and suffice it to say that both the appellants were not ultimately confirmed by the High Court after the expiry of the period of probation or the extended period of probation. The High Court recommended the termination of services of the appellants to the State Government and pursuant to such recommendation, the State Government terminated the services of the appellants under R. 12 of the Rules. Being aggrieved by the orders of termination of their services, the appellants filed writ petitions before the Madhya Pradesh High Court. It was contended by them that in view of R. 3-A of the Rules, they should be deemed to be in quasi-permanent service. Rule 3-A provides as follows:-

"R. 3-A. Government servant in respect of whom a declaration under clause (ii) of Rule 3 has not been issued but has been in temporary service continuously for five years in a service or post in respect of which such declaration could be made shall be deemed to be in quasi-permanent service unless for reasons to be recorded in writing the appointing authority otherwise orders."

3. As a declaration under Cl. (ii) of R. 3 had not been issued and as the appellants were in temporary service continuously for five years in the post of Civil Judges in respect of which such declaration could be made, it was contended they should be deemed to be in quasi-permanent service, and that, accordingly, the orders of termination of their services were illegal and invalid.

4. It was, however, contended on behalf of the respondents that the question of confirmation came within the purview of Art. 235 of the Constitution vesting in the High Court control over subordinate courts and, consequently, the provision of R. 3-A had no application to the members of Subordinate Judicial Service. The Division Bench of the High Court took the view that if in R. 3-A in place of the words "appointing authority", the words "competent authority" be read, it would be consistent with Art. 235 of the Constitution. The Division Bench overruled the contention of the appellants that although the High Court considered them unfit for confirmation, yet R. 3-A would apply as it did not record any reason why they should not be deemed to be in quasi-permanent service, as provided in R. 3-A. The Division Bench observed as follows :-

"It was also argued by the learned counsel for the petitioners that the case of the petitioners was considered by the High Court only for their confirmation and not suitability for employment in a quasi-permanent capacity, when a resolution was passed declaring them to be unfit for confirmation. On this basis, it was argued that the High Courts resolution could not, therefore, be construed as otherwise order contemplated by the latter part of R. 3-A. There is no merit in this contention. The resolution passed in the Court meeting adjudging them not fit for confirmation satisfies the requirement, as continuance in quasi-permanent capacity is included within the ambit of confirmation against the post held by the petitioners."

5. Accordingly, the Division Bench dismissed the writ petitions filed by the appellants.

6. In Civil Appeal No. 2860 of 1985, the High Court of Madhya Pradesh has assailed the judgment and order of its Full Bench. The respondent, in that appeal also was appointed a Civil Judge on a temporary and, officiating basis for a period of six months for training and therea