O. H. MOOTHAM, CJ.

( 1 ) THIS is an appeal from an order of Mr. Justice Mehrotra dated the 20th October, 1955, which gives rise to a question of some interest.

( 2 ) THE relevant facts are these: The respondent, who had obtained the degree of M. B. B. S. from the King Edward Medical College, Lahore, in 1939, migrated to India from Pakistan in 1947. He applied for appointment in the Public Health Service of this State, and on the 20th June, 1949, he was appointed temporarily in that Service for a period of six months in the Dehra Dun district. By a subsequent order dated the 24th June, 1950, he was appointed as Medical Officer in the service on two years probation from the date on which he had originally joined, namely the 20th june, 1949. On the 16th October, 1950, he was informed by the Director of Medical and Health Services, U. P. , that the post to which he had been appointed was permanent and pensionable and that He would be confirmed in it in due course provided his work was satisfactory. The period of probation expired on the 19th June, 1951. No formal order was made confirming the respondents appointment but he continued in the service of the State, and on the 2nd September, 1952, he was posted to Saharanpur as Malaria Survey Officer --a post which it appears he held until some date in August, 1954, when he was discharged from Government service.

( 3 ) IN April, 1950, during the period of probation, the respondent had appeared before and had been found fit by a State Medical Board. It seems that he suffered from a stammer, and on the 3rd July, 1954, he again appeared before the State Medical Board at Lucknow and that the Board on this occasion considered the respondent "to be completely and permanently incapacitated for further service on any account in consequence of impediment of speech and to have lost all earning capacity.

"it was in consequence of this report that the State Government by an order dated the 5th August, 1954, directed that the respondent "be invalided out of Government service and discharged with! effect from the date of relief". The appellant protested both to the Director of Medical and Health services, U. P. , and to the Governor against his discharge, but without avail. The respondent then filed a petition in this Court in which he challenged on various grounds the validity of the order discharging him from service. Mehrotra, J. , was of opinion that although the respondent had not been formally confirmed in his appointment he was in the permanent employment of the state and could not be discharged save in accordance with the provisions of R, 55 of the Civil services (Classification, Control and Appeal) Rules, as they then stood. As it was not in dispute that that rule had not been complied with the learned Judge allowed the petition, quashed the order of discharge and directed that the respondent be reinstated. The State Government now appeals.

( 4 ) THE first problem which arises is to determine the nature of the respondents engagement with the State at the time his services were dispensed with. For this purpose it is necessary to refer to the United Provinces Public Health Service Rules of which rules 18 (excluding Sub-rule (ii)which is not relevant), 19 and 20 read as follows :-

" (i ). Recruits directly appointed shall be on probation for two years and will draw a pay of Rs. 200 per mensem during the first year and Rs. 215 per mensem on completion of the first year of service. On comfirmation they shall be placed at the Rs. 230 stage of the time-scale of pay for future entrants laid down in Rule 21 (a ). Temporary or officiating service shall count towards probation.

(ii ). . . . . . . . . . . . . . . . . . "19. The services of a probationer may be dispensed with by the Government at any time during the period of probation or at its end. The Government may also extend the period of probation in the case of any particular member for any further period up to one year.

20. A probationer shall b

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