Allahabad High Court
Dr.Raghvendra Mishra vs Union Of India And 3 Others on 23 May, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Neutral Citation No. 2024:AHC:93295 Reserved :- 15.05.2024 Delivered :- 23.05.2024 Court No. - 65 Case :- WRIT - A No. - 17284 of 2023 Petitioner :- Dr.Raghvendra Mishra Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Sankalp Narain,Srivats Narain Counsel for Respondent :- A.S.G.I.,Diptiman Singh,Kunal Shah,Shashi Shankar Tripathi Hon'ble Saurabh Shyam Shamshery,J.
1. Undisputed Dates and Events -:
i. Petitioner belongs to 'Economically Weaker Sections' as well as he has 50% visual impairment i.e. a divyang; petitioner is an academic scholar having Bachelor's and Master's degree and has M.Phil. And Ph.D. from Jawahar Lal Nehru University; his various papers are published in UGC listed journals; he got various medals and has participated in various conference/ seminars/workshops, etc. ii. The petitioner has applied for post of 'Assistant Professor' in the Department of Sanskrit, Pali, Prakrit and Oriental Languages of University of Allahabad on 16.10.2021.
iii. In his form, a column against 'Do you have any ciriminal case pending against you in a Court of Law?', he mentioned 'Yes' and under column of details :- 'For Students' Political Issue' i.e. he has not disclosed crime number and details of offence.
iv. The petitioner appeared in various rounds of recruitment process and finally by unanimous decision of 68th Emergent Meeting of the Executive Council of University of Allahabad held on 21st May, 2022, he was selected on post of Assistant Professor (Department of Sanskrit) under PWBD-A (EWS) category.
v. University of Allahabad issued an appointment letter dated 21.05.2022 to the petitioner on following terms and conditions :-
"1. You will be on probation for a period of 1+1 year from the date of joining, which may be extended at the discretion of the competent authority. On satisfactory completion of probation period, you will be considered for confirmation against the said post.
2. On joining the post, you will be required to take an Oath of Allegiance to the Constitution of India or make a solemn affirmation to that effect.
3. If you claim to belong to a Scheduled Caste, Scheduled Tribe, Other Backward Classes, EWS & PWD, you have to produce a certificate issued in the prescribed form by any of the Judicial/Revenue Authorities mentioned therein. You should note that your appointment, will be provisional and is subject to verification of the Caste/Tribe/EWS/PWD Certificate and other relevant documents through proper channels and that if the claim to belong to SC/ST/OBC/EWS/PWD is found to be false, the services will be terminated forthwith without assigning any reason and without prejudice to such further action that may be taken under the Indian Penal Code for producing false certificate.
4. Other terms and conditions of your service shall be governed by the Act Statutes and Ordinance of the University of Allahabad as amended from time to time.
5. This offer of appointment is further subject to Police Verification of your antecedent and Character and production of a medical certificate of fitness by the Senior Medical Officer, University Health Centre, University of Allahabad, Prayagraj within three months of joining, if not done before.
6. If any declaration or information furnished by you is proved to be false or if you are found to have wilfully suppressed any information, you will be liable to dismissal from service and also subject to other legal action as University may deem necessary under rules applicable.
7. You are requested to report to office of the Registrar immediately.
8. In case you accept the aforementioned offer, kindly sign the acceptance letter (Annexure -'A') and a signed copy of completely filled Form of Agreement (Annexure- 'B') in all aspects must be send to the undersigned immediately to enable the University to take further appropriate action in this regard.
9. This offer shall stand withdrawn in case you prefer not to join within one month from the date of issue of this offer.
10. The joining will be subject to the following Terms & conditions and Production of documents:-
a) Please send your letter of acceptance via return email.
b) Degree and other essential educational qualification in original.
c) The certificate of date of birth in original.
d) The Certificate of fitness from the Senior Medical Officer of the University Health Centre before joining.
(e) Production of 'No Objection Certificate' in original, if already in service.
f) Production of reliving certificate from the previous employer, if in service.
g) Production of category certificate (SC/ST/OBC) in prescribed form.
h) Certificate of Disability, if any.
i) Details of family members and dependants.
j) NOC during the probation period will not be granted.
k) After successful completion of probation period the NOC will be granted only for applying on higher posts.
l) NOC will not be granted for applying in the same cadre."
vi. The petitioner joined on said post and started working on probation of 1 year and by notification dated 8.8.2023, probation period of all newly appointed teachers were extended for 1 year in terms of Resolution dated 20.06.2023 of Executive Council which is quoted below :-
"No. 05/R/1767/2023 Date: 08 August, 2023 NOTIFICATION This is with reference to the minutes of the Executive Council dated 20.06.2023 vide Resolution No. 11/75, probation period of the newly appointed teacher is extended by ane year from the date of Executive Council 20.06.2023. The newly appointed teachers would be entitled all benefits such as Pay Protection, Ph.D. increments or any other benefits as per UGC Regulation 2018 from the date of joining.
They will also be permitted to join refresher/orientation courses with the permission of the respected HoD. They will also be given Ph.D. candidates for supervision provided further that their seats have been announced in the Brochure of Admission.
This is issued with the approval of Hon'ble Vice Chancellor.
Registrar"
vii. The agenda of 78th Meeting of the Executive Council was circulated on 12.09.2023 but there was no agenda for consideration of petitioner's appointment on probation period, though, it was noted that 'any other item with permission of Chair' could be taken.
viii. The agenda was considered in 78th Meeting of Executive Council held on 15.09.2023 and under 'any other item with permission of Chair' Agenda No. 06/78 'to discuss the service matter of two faculty members who are currently under probation' was adopted up for consideration and Resolution No. 06/78 was taken in regard to service rendered by the petitioner and one Dr. Vidhu Khare Das. The Resolution states as follows -:
"Agenda No. 06/78 --- To discuss the service matter of two faculty members who are currently under probation.
Resolution No. 06/78 --- After due deliberation on the service rendered by Dr. Vidhu Khare Das, Associate Professor, Centre of Theatre and Films, University of Allahabad and Dr. Raghvendra Mishra, Assistant Professor, Department of Sanskrit, University of Allahabad, it was unanimously resolved by the Executive Council to not extend their services (currently under probation) and to terminate their contract of service under clause 5(a) of the Ordinance/XLI: Conditions of Service of teachers of the University. It has been decided to make a payment of a sum equivalent to one month's salary in lieu of a notice of termination. The services of Dr. Vidhu Khare Das and Dr. Raghvendra Mishra shall be considered to be dispensed with, with effect from the date of the meeting. Hon'ble members of the Executive Council unanimously approved the same.
Dr. Deepali Pant Joshi, nominee of the Hon'ble Chancellor in the Executive Council said that a teacher is a role model and it is good to nip any problem in the bud for smooth functioning and future of the institution."
ix. On same day i.e. 15.09.2023, petitioner was served with an order of termination and contents thereof are mentioned below :-
"To.
Dated: 15.09.2023 Raghavendra Mishra Vill- Jhadapi - Jhadapa (Gotibandh) Post-Nandana, Dist - Sonbhadra Robertsganj, Uttar Pradesh - 231213 Subject: Termination of services with effect from 15.09.2023 Sir, By the appointment letter no 05/R/1499/2022 dated 21.05.2022, you were appointed to the post of Assistant Professor (PWBD-A, EWS Category) in the Department of Sanskrit, University of Allahabad. Your probation period was 1+1 years as per the aforementioned appointment letter.
Vide Resolution No. 06/78 of Executive Council dated 15.09.2023, it has been resolved not to extend your service (currently under probation and to terminate your contract of service under clause 5(a) of the Ordinance XLI: conditions of service of teachers of the University.
It has been decided to make a payment of a sum equivalent to one month's salary in lieu of a notice of termination. Therefore, your services are being dispensed with, with effect from 15.09.2023.
Thanking you, (Prof. N. K. Shukla) Registrar"
x. In present writ petition, above referred Resolution and termination letter dated 15.09.2023 are impugned.
2. Relevant Provisions :-
(i) Relevant clause of Ordinance XLI are mentioned hereinafter :-
"Ordinance XLI : Conditions of service of Teachers of the University
1. xxx
2. (a) Every appointment, by direct recruitment, of a teacher on a permanent post, shall in the first instance be on probation for a period of one year, which may be extended for a period not exceeding one year.
EXPLANATION: For the purposes of this sub-clause, the term "one year" shall mean 365 days of service, except where the month of February has an additional day on account of a Leap year, in which case it shall mean 366 days of service, and in the computation thereof any period during which the teacher on probation has availed of leave of any description without pay, or has been absent without leave, shall not be included.
(b) Where the work and conduct of a teacher appointed on probation is considered satisfactory, the Executive Council may, at the end of the period, including extended period, of probation, confirm the teacher.
(c) No order of confirmation of a teacher shall be made by the Executive Council-
(1) in the case of a Principal of a University College maintained by the University, or a Director of a University Institute, or the Head of an independent Centre or a Department under a Faculty not constituted by a University College, of a teacher who has not been placed under any officer or functionary In accordance with the arrangements referred to in the proviso to sub-clause (d) of clause 2 of Ordinance XL, except after considering the report of the Vice-Chancellor; and
(ii) in the case of any other teacher-
(1) not being a teacher of a University College maintained by the University, except after considering the report of the concerned Head of the Department, Director of the University Institute or Head of the independent Centre or, where the post is not assigned to a specific Department, University Institute of independent Centre, of the officer or functionary under whom the teacher has been placed in accordance with the said arrangements; or (2) being a teacher of a University College maintained by the University, except after considering the report of the Principal, who shall, In making such report in the case of a teacher other than the Head of a Department, take due account of the report of the Head of the Department or of the functionary under which the teacher has been placed in accordance with the sald arrangements.
(d) Where the post, to which a teacher has been appointed on probation, is abolished or deployed elsewhere, or the services of the teacher are no longer required for such post, the Executive Council may dispense with his services during the period, including extended period, of probation.
(e) Where the work or conduct, or both, of a teacher appointed on probation is, or are, not considered satisfactory, the Executive Council may, during or on the expiry of the period, including extended period, of probation, after considering a report of the same officer or functionary responsible for making the report under sub-clause (c) in respect of the confirmation of such teacher, or any other report of a competent officer or functionary endorsed by the Vice-Chancellor, in respect of the work or conduct of such teacher, terminate his services.
(f) An order of termination of services, under sub-clause (e), shall not be made by the Executive Council, except after notice to the concerned teacher giving him an opportunity of explanation in respect of the grounds on which his services are proposed to be terminated: Provided that if such notice is given before, or on, the date of the expiry of the period, including extended period, of probation, the period shall stand extended up to the date on which the order of termination is communicated to the teacher concerned.
3. xxxx
4. xxxx
5. (a) Except in the case of a teacher referred to in sub-clause (e) of clause 2, the contract of service, and the engagement thereunder, of a teacher appointed on probation, or in temporary capacity, may be terminated by one month's notice on either side, or by payment, by the party choosing to terminate the said engagement, of a sum equivalent to one month's salary in lieu of such notice:
Provided that where, in the case of a teacher appointed in temporary capacity
(i) such engagement is for a period of less than one month, or
(ii) the duration of such engagement has already been specified or notified to the teacher concerned in advance and the sald engagement is terminated in accordance with the term so specified or notified; or
(iii) such engagement has been determined by the Executive Council under the provisions of sub-clause (a), (d), (e) or (1) of clause 7, neither notice, nor payment of salary in lieu of notice, shall be necessary."
3. Submission on behalf of learned counsel for the petitioner :-
a. Sri G.K. Singh, learned Senior Advocate has submitted that Executive Council in its meeting dated 08.08.2023 has resolved to extend probation of the petitioner for further period of one year, therefore, it could not be reviewed before expiry of one year except on any fresh material since it was deemed that extension was on basis of satisfactory work of the petitioner. The Executive Council may take a fresh decision after extended period of probation is over on basis of over all performance of petitioner.
b. Learned Senior Advocate has placed reliance on a judgment of Supreme Court in Mathew P. Thomas vs. Kerala State Civil Supply Corpn. Ltd. and others, (2003) 3 SCC 263 that even in a case of termination simplicitor, the Court could lift veil to ascertain reality or reason for said decision :-
"An order of termination simplicitor passed during the period of probation has been generating undying debate. The recent two decisions of this Court in Deepti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others [(1999) 3 SCC 60] and Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences and another [(2002) 1 SCC 520], after survey of most of the earlier decisions touching the question observed as to when an order of termination can be treated as simplicitor and when it can be treated as punitive and when a stigma is said to be attached to an employee discharged during period of probation. The learned counsel on either side referred to and relied on these decisions either in support of their respective contentions or to distinguish them for the purpose of application of the principles stated therein to the facts of the present case. In the case of Deepti Prakash Banerjee (supra), after referring to various decisions indicated as to when a simple order of termination is to be treated as "founded" on the allegations of misconduct and when complaints could be only as motive for passing such a simple order of termination. In para 21 of the said judgment a distinction is explained, thus: -
"21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as "founded" on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."
From long line of decisions it appears to us whether an order of termination is simplicitor or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simplicitor falling in one or the other category, based on misconduct as foundation for passing the order of termination simplicitor or on motive on the ground of unsuitability to continue in service. If the form and language of the order of termination simplicitor of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simplicitor or punitive. In cases where the services of a probationer are terminated by an order of termination simplicitor and the language and form of it do not show that either it is punitive or stigmatic on the face of it but there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simplicitor but the real face behind it is to get rid of services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simplicitor to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct."
c. Learned Senior Advocate has also referred relevant clause of Ordinance that case of petitioner would fall under Ordinance XLI (clause 2(e) and (f)) which has already been quoted in earlier paragraph of the judgment and not under clause 5(a) as referred in impugned termination order. Clause 2(e) and (f) provides that in case of any complaint, etc., petitioner has to put on notice, however, said procedure was not adopted in present case.
d. Learned Senior Advocate has also referred last para of impugned resolution (extracted below) to submit that there was some adverse material against petitioner but was not disclosed and, therefore, this Court may left the veil :-
"Dr. Deepali Pant Joshi, nominee of the Hon'ble Chancellor in the Executive Council said that a teacher is a role model and it is good to nip any problem in the bud for smooth functioning and future of the institution."
4. Submission on behalf of respondent-University :-
a. Sri Kunal Shah, learned counsel appearing on behalf of respondent-University submitted that petitioner was appointed on probation as such he has no indeficiable right for confirmation. Appointment of the petitioner was subject to terms and conditions which have already been referred in paragraph 1(v) of this judgment. The order impugned is not stigmatic in nature as since no allegation has been made against petitioner and his services were terminated as it was unanimously resolved in the 78th meeting of Executive Council held on 15.09.2023, not to continue his services and in this regard, learned counsel referred paragraph 5(a) of Ordinance XLI, which has already been mentioned in paragraph No.2 of this judgment that a teacher appointed on probation or in temporary capacity may be terminated by one month's notice or by either side or by payment, by party choosing to terminate the said engagement.
b. Learned counsel vehemently opposed the submission of learned Senior Counsel for petitioner that termination was stigmatic in nature, therefore, procedure prescribed in clause 2 (e) and (f) of Ordinance XLI was not followed and in this regard he refers paragraph 15, 16, 25 and 26 of counter affidavit, which are mentioned hereinafter:-
"15. That at this juncture it is submitted that there were certain materials before the competent authority upon the basis of which decision to not continue the service of the Petitioner was taken. However, in the same breath it is submitted that no enquiry as regards the truthfulness of the contents of the allegations were ever undertaken by the Respondent University.
16. That so as to ensure that no stigma is casted upon the Petitioner, the Answering Respondent seeks the kind leave of this Hon'ble Court to exempt it from bringing on record the materials which were there before the competent authority on the basis of which the order of termination simpliciter was passed and to permit it to produce the same by way of a sealed cover, which upon the direction of this Hon'ble Court can be shown to the Petitioner.
25. That the Petitioner in the Writ Petition has also taken a stand that the order dismissing the Petitioner is stigmatic in as much as it casts aspersions on the working of the Petitioner. In connection of the said assertion the Petitioner relies upon the statement made by Dr. Deepali Panth Joshi, the nominee of the Hon'ble Chancellor, in the meeting of the Executive Council while considering the issue of further continuity of the services of the Petitioner and another probationer namely Dr. Vidu Khare Das, Associate Professor, Centre of Theatre and Films. The Petitioner alleges that the statement made by Dr. Deepali Panth Joshi, viz., "that a teacher is a role model and it is good to nip any problem in the bud for smooth functioning and future of the institution" casts aspersions on the working of the Petitioner and is thus stigmatic.
26. That it is submitted that the aforesaid contention of the Petitioner, that the afore-highlighted statement of Dr. Deepali Panth Joshi, the nominee of the Hon'ble Chancellor, tantamounted to casting aspersions on the working of the Petitioner is absolutely misconceived and deserves to be rejected."
5. Heard counsel for parties and perused the record.
Discussion and Conclusion :-
6. In the aforesaid facts and circumstances of case, undisputedly, the petitioner was appointed after crossing many stages of appointment and was duly appointed. There is no allegation that procedure prescribed is not followed. In the facts and circumstances of present case, it is also not under dispute that petitioner has completed his probation period of one year successfully and satisfactorily and, therefore, by a unanimous decision of Executive Council vide a Resolution dated 20.06.2023, probation period of petitioner and other appointees were extended further for one year by a Notification dated 8.8.2023. Copy of Resolution dated 20.6.2023 of Executive Council is not on record whereas copy of Notification dated 8.8.2023 is on record and contents thereof have already been mentioned in paragraph 1 (vi) of present judgment.
7. In normal circumstances, extension of probation period for one year by a Notification dated 8.8.2023 would mean that petitioner has a satisfactory service and, therefore, he was found fit to continue on probation for further one year and final decision would be taken on his confirmation only after one year or any time earlier (one year would come to end on 8.8.2024), though in terms of clause 5(a) of Ordinance XLI, the services of teacher appointed may be terminated even before it. At this stage, the Court takes note of clause 2 (a) and (b) of Ordinance XLI, where it is provided that every appointment shall in first instance be on probation for a period of one year which may be extended for a period not exceeding one year as well as that where the work and conduct of a teacher appointed on probation is considered satisfactory, the Executive Council may at the end of a period including extended period of probation confirmed the teacher.
8. According to normal and due procedure, evaluation of satisfactory work of an appointee teacher would be scrutinized after or around expiry of extended probation period which, in present case, would fall in August, 2025. Now the Court proceeds to consider that once after considering service of petitioner, the Executive Council adopted a resolution and extended the probation period of petitioner for one year which would come to end in August, 2025 (Date of resolution is 20.6.2023 and date of notification is 08.08.2023) under which circumstances matter of petitioner was taken up for consideration within a short period of three months.
9. The Executive Council in its 78th meeting, without being a part of the circulated agenda but with permission of the Chair, considered the agenda on the subject without any apparent reason. Therefore, procedure adopted appears to be suspicious and suffered with prejudice also. In this regard, stand of the University as specifically mentioned in their counter-affidavit and already mentioned in earlier part of this judgment become relevant that there were certain materials against petitioner before Council, which was considered also, however, a decision was taken not to hold any inquiry and passed the order not to extend the probation and to terminate the petitioner from service. In counter-affidavit, details of so-called materials were not disclosed and in this regard, the last paragraph of Resolution No. 06/78 adopted on 15.9.2023 become relevant and for reference, the same is again reproduced hereinafter.
"Dr. Deepali Pant Joshi, nominee of the Hon'ble Chancellor in the Executive Council said that a teacher is a role model and it is good to nip any problem in the bud for smooth functioning and future of the institution."
10. It was an argument of counsel for respondent- University that above referred part of resolution was not related to petitioner and it might be related to other person whose probation was also under consideration, however, the contents of above paragraph does not reflect any such identification or differentiation and since it was a stand of University that there were material against petitioner, therefore, the Court is of considered opinion that above referred contents were only in regard to the petitioner.
11. In the aforesaid circumstances, judgment passed in the case of Mathew P. Thomas (supra) relied upon by learned Senior Counsel for petitioner become relevant that in some cases, though the services of a probationer were terminated by an order of termination simplicitor, but the language of material to support it either show that it was punitive or stigmatic on face of it, the Court may leave the way to consider the attending circumstances for such order of termination.
12. The Court, during hearing, has opened a sealed envelope placed by Registrar of University of Allahabad. The documents therein contain a letter of Prof. Prayag Narayan Mishra dated 13.09.2023, Co-ordinator Sanskrit, Pali, Prakrit Evam Prachya Bhasha Vibhag, addressed to Vice-Chancellor, Allahabad University, Prayagraj, wherein the Co-ordinator has mentioned complaints in regard to behaviour of the petitioner and for reference said letter is scanned and pasted hereinafter in its entirety:-
13. The above document was never confronted to the petitioner, however, it appears that above referred complaint was taken note during meeting and reference in last paragraph of Resolution was only in regard to above complaint.
14. The other document is the copy of application form submitted by petitioner at the time of applying for the post. The Court perused the same and found that in the column Disclosure, do you have any criminal case pending against you in a court of law. The petitioner has declared, Yes, however, in the column of details, it was only mentioned that 'FOR STUDENTS' POLITICAL ISSUES'. The details of offence were not disclosed. In papers provided by Registrar, Allahabad University, there is a document which is a news published on a website, namely, Khabar, that petitioner was arrested in a case of a harassment of a girl in JNU Campus.
15. During hearing, petitioner was present in person. The Court has asked a query about nature of criminal case against him. He fairly submits that a case of outrage of modesty was lodged against him wherein after investigation charge-sheet has been filed and it is at the stage of trial and presently he is on bail. The Court also asked a query that why he has not disclosed the details of it in the form, however, he had no satisfactory answer to it. At this stage, it would be relevant to mention that the issue of pending criminal case was not considered to be adverse either at the stage of selection process or at the stage of extension of period of probation; though it might be considered against petitioner during the meeting of Executive Council held on 15.09.2023. It would be relevant to note that information in regard to a criminal case was available with the University since it was disclosed in application form though details were neither mentioned nor sought by the University.
16. The Supreme Court in the case of Rajasthan High Court Vs. Ved Priya and 2 others, (2021) 13 S.C.C. 151 has dealt the issue of termination during probation and if it was a stigmatic order effect thereof and for reference paragraph 16, 17 and 18 and 19 of it being relevant which are reproduced herein after.
"16. It is thus clear that the entire objective of probation is to provide the employer an opportunity to evaluate the probationer's performance and test his suitability for a particular post. Such an exercise is a necessary part of the process of recruitment, and must not be treated lightly. Written tests and interviews are only attempts to predict a candidate's possibility of success at a particular job. The true test of suitability is actual performance of duties which can only be applied after the candidate joins and starts working
17. Such an exercise undoubtedly is subjective, therefore, Respondent 1's contention that confirmation of probationers must be based only on objective material is far-fetched. Although quantitative parameters are ostensibly fair, but they by themselves are imperfect indicators of future performance. Qualitative assessment and a holistic analysis of non-quantifiable factors are indeed necessary. Merely because Respondent 1's ACRs were consistently marked "Good", it cannot be a ground to bestow him with a right to continue in service
18. Furthermore, there is a subtle, yet fundamental, difference between termination of a probationer and that of a confirmed employee. Although it is undisputed that the State cannot act arbitrarily in either case, yet there has to be a difference in judicial approach between the two. Whereas in the case of a confirmed employee the scope of judicial interference would be more expansive given the protection under Article 311 of the Constitution or the Service Rules but such may not be true in the case of probationers who are denuded of such protection(s) while working on trial basis
19. Probationers have no indefeasible right to continue in employment until confirmed, and they can be relieved by the competent authority if found unsuitable. It is only in a very limited category of cases that such probationers can seek protection under the principles of natural justice, say when they are "removed" in a manner which prejudices their future prospects in alternate fields or casts aspersions on their character or violates their constitutional rights. In such cases of "stigmatic" removal only that a reasonable opportunity of hearing is sine qua non. Way back in Parshotam Lal Dhingra v. Union of India [Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36] , a Constitution Bench opined that : (AIR p. 49, para 28) "28. ... In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with.""
17. The outcome of above factual and legal analysis is that the petitioner was appointed under a due process. He has completed satisfactory service on probation of one year and on basis of his satisfactory service, his probation was extended for a period of one year. On basis of material available which also includes the material provided by University in a sealed envelope that within a few months of passing an order of extension of probation period of one year, the Executive Council considered the case of petitioner even without being part of agenda with permission of Chair and terminated his services under clause 5(a) of the Ordinance XLI.
18. It is a definite stand of the University that there were some material before the Executive Council which were considered and as referred above, the material was a complaint of Co-ordinator, wherein there are allegations against petitioner as well as a news cutting that petitioner was involved in a criminal case. It is also stand of University that material was not considered to be such which requires an inquiry to consider its truthness but it was not conducted, therefore, from last paragraph of resolution which has already been reproduced earlier, it could be held that definitely the said materials were considered and found adverse to petitioner and for that the Court is of the considered opinion that order becomes stigmatic since all the resolutions are on the website of University and open for view of general public also and in case, petitioner applies in any other University, the said material will definitely become adverse to his future prospects.
19. The Court takes note that it is stand of University that truthfulness of allegations were not verified, therefore, petitioner was penalized only on basis of complaints whose contents were not verified and even before completing the extended period of probation of one year. Accordingly, the case of petitioner would fall under clause 2(e) and (f) as contended by the petitioner and not under clause 5(a) of Ordinance XLI as contended by the respondent-University and admittedly procedure prescribed under clause 5(a) was not followed, therefore, impugned Resolution and impugned termination order become illegal. The procedure adopted by University thus has legal flaws and was also against the legal principle discussed in Ved Priya (supra). The Court is of the considered opinion that Resolution dated 20.06.2023 qua to petitioner and order of termination dated 15.09.2023 are illegal, therefore, liable to be set aside and ordered accordingly.
20. It would also be relevant to observe that the effect of judgment of this Court would be only that petitioner will be remained in probation till one year from the date of his extension of probation and thereafter respondent University would be at liberty to take a decision in terms of relevant clauses of Ordinance XLI.
21. The petitioner was out of service from 15.9.2023 to till date of this judgment and same will be considered on principle of 'No Work No Pay' and his satisfactory service at the end of extended period of probation will be considered on basis of period he worked. The University is directed to allow petitioner to work on post concerned forthwith.
22. The petitioner is also put on caution that he will diligently discharge his duties of a teacher and he will not indulge in any activity which is adverse to his profession and will also remain polite with his co-employees and shall disclose complete details of criminal case and it would also be a factor for consideration for his confirmation.
23. Accordingly, writ petition is allowed with aforesaid observations and directions.
Order Date :- 23 May, 2024 Nirmal Sinha/Pushpendra [SAURABH SHYAM SHAMSHERY, J.]