R.K. Gupta, J.

Petitioner by way of filing this petition has challenged the order Annexure P-1 to the petition dated 22-10-2005/24-10-2005. By this order the appointment of the Petitioner on probation has been cancelled.

The facts leading to the present case are that the Petitioner initially was appointed and was working on daily rate basis since 1990. Subsequently, the Respondents passed an order, which is Annexure P-2 to the petition dated 30th December, 1996. By this order, the Petitioner was appointed in the pay scale of Rs. 750-945 as a Peon on probation for a period of two years. The Petitioner continued to work on the said post. Thereafter, an order has been passed by the Respondents, which is Annexure P-3 to the petition dated 11th March, 1999 whereby it is directed that the Petitioner has successfully completed the probation period and if there would have been any vacancy for a permanent post, then he would have been confirmed on the post of Peon but in the absence of any vacancy, the Petitioner cannot be confirmed.

The Petitioner was issued a show cause notice, which is Annexure P-4 to the petition dated 26-9-2005 by which he was called upon to show cause as to why earlier order passed on 13-12-1996 (Annexure P-2 in the present petition) be not cancelled.

Petitioner, thereafter, preferred a petition before this Court which was registered as W.P. No. 12736/2005 (S), Anoop Singh vs. State of Madhya Pradesh and others. This petition was disposed of by this Court by an order dated 21-10-2005 by which the Petitioner was directed to file reply to the show cause notice which was required to be considered by the Respondents. Thereafter, the Respondents have passed the impugned order, which is Annexure P-1 to the petition.

Learned Counsel for the Petitioner submitted that though initially he was appointed on daily rate basis as a Chowkidar but by an order Annexure P-2 dated 13th December, 1996 he was appointed as a regular employee. It is also submitted by him that since the Petitioners probation period has already expired and a certificate was issued by the competent authority in this regard but for want of vacancy as such Petitioner could not be conferred the status of permanent employee, therefore, Petitioner shall be deemed to have been treated as a permanent employee. Counsel for the Petitioner relied upon M.P. Civil Services (General Conditions of Service) Rules, 1961. The counsel as such relied upon Sub-rule (6) and (7) of Rule 8.

It may be seen that Rule 8(6) only requires that on successful completion of probation and passing of the prescribed departmental examination, if any, the probationer shall, if there is a permanent post available, be confirmed in the service or post to which he has been appointed, either a certificate shall be issued in his favour by the appointing authority to the effect that the probationer would have been confirmed but for the non-availability of the permanent post and that he will be confirmed as soon as a permanent post becomes available. Sub-rule (7) of Rule 8 further prescribes that in case where the certificate is not issued and the probationer has not been confirmed, then he shall be deemed to be appointed as a temporary government servant with effect from the date of expiry of probation and his conditions of service shall be governed by the Madhya Pradesh Government Servants (Temporary and Quasi - Permanent Service) Rules, 1960. On the basis of the same, Learned Counsel for the Petitioner submitted that on completion of successful probation, Petitioner has acquired a status of permanent employee particularly when the certificate in favour of the Petitioner has already been issued, which is Annexure P-3 to the petition.

The aforesaid submission of the Learned Counsel for the Petitioner cannot be accepted. Sub-rule (6) of Rule 8 itself prescribes that on availability of the vacancy of a permanent post, the employee as such shall be confirmed. This clause applies in favour of an employee who has successfully completed his probation period. Sub-rule (7) of Rule 8 prescribes that where the certificate is not issued and the probationer is not confirmed, then he shall be deemed to be a quasi permanent employee in terms to Madhya Pradesh Government Servants (Temporary and Quasi - Permanent Service) Rules, 1960. Thus, keeping in view the aforesaid Rules, there is no provision as such with regard to the deeming provision conferring status in favour of probationer as a confirmed employee either on the issuance of certificate as such or on completion of probation period.

In this reference, it would be profitable to mention the judgment of the Apex Court reported in : AIR 1991 SC 1402 , Municipal Corporation, Raipur vs. Ashok Kumar Misra wherein it is held that probationer has no right to be confirmed automatically even though the probation period has expired. This was the case where the Apex Court has interpreted the same Rules of 1961 as relied upon by the counsel for the Petitioner and para-4 of the said judgment is relevant, which is quoted as under:

Thus, it is clear from Rule 8 of the Rules that the procedure to place a direct recruit on probation for a prescribed period was provided. The appointing authority would be entitled to place a direct recruit on probation for a specified period and for sufficient reasons may extend the period of probation to a further period not exceeding one year. Under the note to Sub-rule (2) if the probationer is neither confirmed nor discharged from service at the end of the period of probation, he shall be deemed to have been continued in service as probationer subject to the condition of his service being terminated on the expiry of a notice of one calendar month given in writing by either side. As per Sub-rule (6) on passing the prescribed departmental examination and on successful completion of the period of probation, the probationer shall be confirmed in the service or post to which he has been appointed. Then he becomes an approved probationer. Therefore, after the expiry of the period of probation and before its confirmation, he would be deemed to have been continued in service as probationer. Confirmation of probation would be subject to satisfactory completion of the probation and to pass in the prescribed examinations. Expiry of the period of probation, therefore, does not entitle him with a right to a deemed confirmation. The rule contemplates to pass an express order of confirmation in that regard. By issue of notice of one calendar month in writing by either side, the tenure could be put to an end, which was done in this case.

If the ratio of the said case is applied in the present case, then merely because certificate in favour of Petitioner is issued or the Petitioner has already completed his probation period, he will not be deemed to have been confirmed into the services or on the post on which he was initially appointed on probation. His status continues to be there as a quasi-permanent employee and shall be governed by Madhya Pradesh Government Servants (Temporary and Quasi -Permanent Service) Rules, 1960.

It may be seen in the present case that when the show cause notice was issued, the same itself indicates that the Petitioner since is an appointee on daily rate basis after 31st December, 1988 as he was appointed on daily rate basis in the year 1990, the question is whether he shall have any right to be regularized as claimed by the Petitioner.

The Respondents while issuing the show cause notice to the Petitioner (Annexure P-4 dated 26-9-2005) have specifically stated that the Petitioner was not entitled to be appointed as a regular employee from daily rate employee, as he was appointed after 31st December, 1988 on daily rate basis. It was found that the so-called regular appointment given to the Petitioner was contrary to the circular of the State Government dated 9-1-1990.

The Division Bench of this Court has also considered the question with regard to the right of regularization of daily rated employees appointed before 31st December, 1988 or after 31st December, 1988 in the judgments reported in : 2006 (2) M.P.L.J. 397, State of M.P. and others vs. Padam Chand and others and 1993 (1) M.P.J.R. 147, Suresh Chandra vs. State of M.P. this Court has specifically stated relying upon the judgments passed by the Apex Court that a daily rated employee has no right for his regularization even though he is appointed prior to 31st December, 1988 or after 31st December, 1988. The circulars issued for the regularization are also held to be non-est. On the basis of the same it is, thus, clear that Petitioner initially was appointed on daily rate basis in the year 1990 but on the basis of the divisional selection committee he was given appointment on temporary basis for a period of two years on probation.

On the basis of the aforesaid submissions, it is apparent that the Petitioner himself was appointed for a period of two years on probation on temporary basis and after completion of the said probation period there was no permanent vacancy so that he could have been confirmed. It is also not a case of the Petitioner that after completion of the probation period, any vacancy has arisen and yet the Petitioner has not been confirmed. No material has been placed on record with regard to availability of the vacancy to the post of Peon so that any claim in favour of the Petitioner with regard to his confirmation on a certificate issued by the Respondents, which is Annexure P-3 to the petition, is made out. Even the Apex Court in : AIR 1991 SC 1402 (supra) has already held that the probationer whose probation period has expired does not have a right to be regularized automatically.

In view of the aforesaid, no case for interference is made and accordingly this petition stands dismissed.