Punjab-Haryana High Court
S.M.D.R.S.D. College Society vs State Of Punjab And Others on 21 October, 2008
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No. 15563 of 2008
DATE OF DECISION: October 21, 2008
S.M.D.R.S.D. College Society, Pathankot and another
...Petitioners
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. R.S. Manhas, Advocate,
for the petitioners.
Mr. Suvir Sehgal, Addl. AG, Punjab,
for respondent Nos. 1 and 2.
Mr. Balwinder Singh, Advocate,
for respondent No. 4.
1. Whether Reporters of local papers may be Yes
allowed to see the judgment?
2. To be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in Yes
the Digest?
M.M. KUMAR, J.
1. Once again the question of automatic confirmation of a probationer before completion of maximum period of probation has been raised on the basis of the peculiar rule applicable to the case, which required passing of specific order of extension of period of C.W.P. No. 15563 of 2008 2 probation. The Management of the S.M.D.R.S.D. College Society, Pathankot (for brevity, 'the petitioner-Management') has approached this Court with a prayer for quashing order dated 12.2.2008 (P-4) passed by the Director, Public Instruction (Colleges), Punjab- respondent No. 2 (for brevity, 'the Director'). It has been held by the Director that Shri Ravinder Kumar-respondent No. 4 (for brevity, 'the teacher-respondent No. 4) is deemed to be confirmed with effect from 6.1.2005 on completion of one year period of probation. The teacher- respondent No. 4 had challenged order dated 19.4.2005, passed by the petitioner-Management terminating his services purportedly during the period of probation in an appeal filed under Section 4(3) of the Punjab Affiliated Colleges (Security of Service of Employees) Act, 1974 (for brevity, 'the Act').
2. At the outset it needs to be mentioned that against impugned order dated 12.2.2008 (P-4), passed by the Director, a further appeal has been provided under Section 4(4) of the Act. However, on account of non-functioning of the College Tribunal, Punjab (for brevity, 'the Tribunal') we have entertained the petition. It is appropriate to mention that when the matter came up for consideration before this Court on 3.9.2008, while issuing notice of motion a specific direction was issued to the learned State counsel to find out as to whether the Tribunal was functioning or not. On 11.9.2008, Mr. Suvir Sehgal, learned State counsel, could only make one statement that the file had been sent to the competent authority for nomination of the Member of the Tribunal, which was likely to be C.W.P. No. 15563 of 2008 3 notified. On our query learned State counsel was not able to specify as to how much time would be taken by the State Government to nominate the Member of the Tribunal. Accordingly, we entertained the petition and have proceeded to hear the arguments.
3. Firstly, brief facts of the case would be necessary for disposal of the controversy raised by the parties. On 27.12.2003, the teacher-respondent No. 4 was appointed as a Lecturer of Mathematics against an un-aided post on probation by the petitioner-Management. The petitioner-Management has categorically asserted that it is not receiving any grant-in-aid for the advertised post on which the teacher-respondent No. 4 was appointed. He joined the College run by the petitioner-Management. The claim of the petitioner- Management is that his first year of probation was not found satisfactory and the authorities of the Guru Nanak Dev University, Amritsar (for brevity, 'the University') pointed out negligence on his part when he was discharging duty during examinations. Accordingly, the petitioner-Management resolved by a resolution to extend his period of probation. A letter dated 3.1.2005 was accordingly sent to the teacher-respondent No. 4 under Registered A.D. cover. The aforementioned letter as well as the postal receipt of sending the same on 3.1.2005 is available in the original record. The petitioner-Management has also produced on record a copy of the communication received from the post office showing that the letter was delivered to the teacher-respondent No. 4. The aforementioned letter is also available on the record which has been sent by the C.W.P. No. 15563 of 2008 4 Department of Posts, Government of India, Office of Post Master, Pathankot, M.D.G., District Gurdaspur-145 001. It has been specifically communicated to the Principal of the College that the registered letter A-122 has been delivered to the addressee i.e. the teacher-respondent No. 4 on 4.1.2005. The work and conduct of the teacher-respondent No. 4 was not found satisfactory even during the extended period of probation. The petitioner-Management found that the approach adopted by him was casual and does not show any sign of improvement despite clear instructions. Accordingly, the petitioner-Management resolved to relieve him from service on paying one month's pay in lieu of one month's prior notice and order dated 19.4.2005 terminating his services was issued.
4. The teacher-respondent No. 4 filed C.W.P. No. 672 of 2006, which was ordered to be withdrawn with liberty to approach the DPI (Colleges). Thereafter, the teacher-respondent No. 4 challenged his order of termination by filing an appeal, bearing Appeal No. 5 of 2006, under Section 4(3) of the Act before the Director. The Director allowed the appeal filed by the teacher-respondent No. 4, vide order dated 30.4.2007.
5. Feeling aggrieved, the petitioner-Management also preferred further appeal before the Tribunal, which was in existence at that time, bearing Appeal No. 5 of 2007, under Section 4(4) of the Act challenging order dated 30.4.2007 passed by the Director. The Tribunal set aside order dated 30.4.2007 and remanded the matter back to the Director vide order dated 10.8.2007 with a direction to C.W.P. No. 15563 of 2008 5 pass a speaking order after hearing the parties. Accordingly, the Director has now passed order dated 12.2.2008 (P-4), setting aside the termination order dated 19.4.2005 and has ordered reinstatement of the teacher-respondent No. 4. The view of the Director would emerge from the following part of para 10 of the impugned order:-
"10. ......It has been mentioned in the advertisement itself that the appellant was required to teach mathematics to the Post-graduate classes. The publication, which has been brought out by the respondent themselves lauds the achievements by the M.Sc.II class which was taught by the appellant, is sufficient evidence by itself of the work of the appellant. The appellant has a legitimate expectation to receive the salary as per the norms according to which he is required to possess the qualification. There is no provision for paying the fixed salary as has been done by the respondents. The counsel for the respondents has not been able to point out if there was complaint regarding the conduct of the appellant by the students, their parents or the colleagues of the appellant. The counsel could also not place on record anything to prove that the appellant has received the letter dated 03.01.2005 or a copy of any resolution passed by the respondent regarding the work and conduct of the appellant necessitating extension in the period of probation of the C.W.P. No. 15563 of 2008 6 appellant beyond one year before the expiry of one year period as mentioned in the letter of appointment. In my considered view, in the prevalent circumstances, the appellant is deemed to have been confirmed w.e.f.
06.01.2005 on completion of one year period of Probation. Accordingly, the appellant shall be entitled to receive the grade applicable to his post as per UGC/GNDU, Amritsar and DPI (C), Punjab norms with admissible allowance from the dated (date?) of his appointment. Since the service of the appellant has been illegally terminated without assigning any reasons, I hereby quash and set aside the order dated 30.4.200 (19.4.2005?). The appellant shall be deemed to be in service continuously and shall be entitled to all the benefits which would include salary, all admissible allowances and the arrears thereof."
6. The case of the teacher-respondent No. 4 is that he had passed his Master of Science (Mathematics) from the University in the Ist Division in April 1987 and then joined S.M.S.D. Rajput College, Sujanpur as a Lecturer. He has further asserted that he had taught the senior secondary classes from 1.8.1989 to 31.3.1993 and he was regarded as a competent and hard working teacher. He has also pointed out that he worked as Lecturer in Mathematics with the petitioner's college from 1.8.1995 to 28.2.1996, 1.8.1996 to 31.10.1996 and 1.9.1999 to 29.2.2000. He had appeared for the Joint C.W.P. No. 15563 of 2008 7 CSIR-UGC National Eligibility Test (NET), held by the University Grants Commission, for becoming eligible to be appointed as a lecturer and was declared successful in 2002. The petitioner- Management issued an advertisement in the year 2003 in the English Daily 'The Tribune', inviting applications for the post of Lecturer in Mathematics and he applied on 6.10.2003. He claimed that the post was a regular sanctioned post. He was called for interview on 4.12.2003 and he was found suitable for the post. Accordingly, he was issued an appointment letter dated 27.12.2003, which stipulated that he would be on probation as per the University's rules and initial period of probation was one year. The teacher-respondent No. 4 has claimed that his work and conduct remained satisfactory and he discharged his duties with utmost dedication and devotion and that he was being paid fixed salary of Rs. 8,000/- per month. He has, thus, claimed that relieving is not because of lack of qualification or any defect in his work and conduct, which, in fact, is actuated by mala fide as he has not been paid the allowances.
7. Mr. R.S. Minhas, learned counsel for the petitioner- Management has argued that duration of period of probation has been provided by Section 2 of the Act and Regulation 3.1 of the Guru Nanak Dev University Calendar Volume II (for brevity, 'the Calendar'). According to the learned counsel the maximum period of probation provided by both the provisions of the Act as well as Calendar is two years. He has maintained that once the service of the teacher-respondent No. 4 has been terminated before the expiry of C.W.P. No. 15563 of 2008 8 period of two years, he cannot claim to be confirmed. He has further submitted that his work and conduct was found to be unsatisfactory and a resolution was passed on 31.12.2004 (at page No. 54 of the Register). A copy of the resolution has been produced on the original record. According to the learned counsel, the petitioner-Management has taken specific notice of the fact that the work of the teacher- respondent No. 4 is not satisfactory as he was found deficient in performance of his duties by the Principal who in turn had received unsatisfactory report about his performance in the classes also. It has further been pointed out that during April 2004 he was deputed for examination duty by the University where he was found negligent. Learned counsel has further pointed out that the fact of extending his probationary period was communicated to him on 3.1.2005 under Registered A.D. cover and a telegram to that effect was also sent at his address given to the petitioner-Management. The Post Office has duly authenticated the factum of delivery of the registered letter on 4.1.2005. In support of his submission, he has submitted that the teacher-respondent No. 4 cannot be deemed to be confirmed as the requirement of Regulation 3.1 of the Calendar have been religiously complied with and a letter was sent to him before expiry of period of one year. In any case, he has submitted that the maximum period of probation provided by Section 2 of the Act as well as Regulation 3.1 of the Calendar is two years. In the absence of successful completion of period of probation of two years, the teacher-respondent No. 4 cannot claim to be confirmed. In support of his submission, learned C.W.P. No. 15563 of 2008 9 counsel has placed reliance on a judgment of Hon'ble the Supreme Court in the case of Karnataka State Road Transport Corporation v. S. Manjunath, 2000 (2) SCT 810 and argued that mere non- extension of period of probation where it could be extended would not imply automatic confirmation.
8. Mr. Balwinder Singh, learned counsel for the teacher- respondent No. 4 has argued that the provisions of Regulation 3.1 of the Calendar are mandatory which provided that on completion of one year probation ordinarily an employee would be deemed to be confirmed. In case of any extension in the period of probation, the petitioner-Management was required to notify to the teacher- respondent No. 4 in writing about extension of probationary period before the expiry of period of one year. Learned counsel has further submitted that in the absence of such a notice, the teacher-respondent No. 4 is deemed to be confirmed and that the period of probation cannot be extended beyond two years in any case. He has further argued that the letter dated 3.1.2005, which is claimed to have been sent by the petitioner-Management is a fabricated document and has never been sent to the teacher-respondent No. 4 and, therefore, by virtue of Regulation 3.1 of the Calendar, the teacher-respondent No. 4 has become a confirmed lecturer on the expiry of period of one year.
9. Another argument raised by Mr. Balwinder Singh is that the teacher-respondent No. 4 has been victimized, inasmuch as, there was no complaint with regard to his work and conduct. The C.W.P. No. 15563 of 2008 10 petitioner-Management has acted arbitrarily in terminating his services.
10. Having heard learned counsel for the parties at length and perusing the original record produced before us, we are of the considered view that this petition deserves to succeed and the impugned order dated 12.2.2008 (P-4) passed by the Director is liable to be set aside. It is undisputed that the teacher-respondent No. 4 was appointed as Lecturer in Mathematics by the petitioner-Management on 27.12.2003. A copy of his appointment letter has been placed on record (P-1). It clearly stipulates that the teacher-respondent No. 4 has to work as per the rules framed by the University and the UGC. The teacher-respondent No. 4 has joined his duty on 6.1.2004. His period of probation of one year was to expire on 5.1.2005 whereas before expiry of the period of one year, the petitioner-Management sent a letter on 3.1.2005 to him extending his period of probation for another year (P-2). On account of dispute about this letter, we had summoned the original record and have examined the same. A perusal of the original record shows that the petitioner-Management had sent a registered letter to the teacher-respondent No. 4 on 3.1.2005, which reveal that during the period of his service from 6.1.2004 his work and conduct was not found satisfactory. The Principal who sent the letter has expressed the opinion in the following words:-
" Reference letter no. 2003/sdp/244 dated
27.12.2003, you were appointed as Lecturer in
C.W.P. No. 15563 of 2008 11
Mathematics w.e.f. 06.01.2004 on uncovered/
unsanctioned post. During this period your work was not found satisfactory. For instance your negligence of duty was pointed out by the member of the flying squad during April 2004 Guru Nanak Dev University, Amritsar examinations and you too had been defiant for performing the duties/house examination duties assigned to you by the undersigned and the undersigned has not found satisfactory reports about your performances in the classes assigned to you also. Hence the managing Society of SMDRSD College, Pathankot has decided to extend your probationary period w.e.f. from 06.01.2005 with the instructions that you should try to improve your work. Otherwise, you can be relieved from service at any time during the extended period."
11. In order to verify that the letter was actually sent, the Dispatch Register has also been produced before us. We have found that there is a receipt issued by the Post Office at Pathankot authenticating that a registered letter was sent by the petitioner- Management to the teacher-respondent No. 4. On account of the fact that the letter was disputed by the teacher-respondent No. 4, the Principal of the College addressed a letter to the concerned post office. A specific reply has been sent by the Department of Posts, Government of India, Office of Post Master, Pathankot, M.D.G., District Gurdaspur-145 001, intimating the petitioner-Management C.W.P. No. 15563 of 2008 12 that registered letter was delivered to the addressee i.e. the teacher- respondent No. 4 on 4.1.2005. The record further reveals that even a telegram was sent to him intimating that his period of probation was extended and a letter is on the way. Therefore, we are satisfied that intimation regarding extending the period of probation was sent to the petitioner before the expiry of period of one year and it has been duly received by the teacher-respondent No. 4. The teacher-respondent No. 4 was thereafter relieved from his duties on 19.4.2005 (P-3) when his services were terminated.
12. The question arises as to whether the petitioner- Management has acted in accordance with Section 2 of the Act and Regulation 3.1 of the Calendar. It would be necessary to notice Section 2 of the Act as well as Regulation 3.1 of the Calendar, which reads thus:-
"Section 2(a) Period of Probation Any employee appointed against the vacancy likely to exceed for more than one year shall remain on probation for a period of one year which may be extended from time to time;
Provided that the total period of probation including extension, if any, shall not exceed two years."
Regulation 3.1 "3.1. The employee will ordinarily be appointed on one year's probation after which he will normally be C.W.P. No. 15563 of 2008 13 confirmed if his work is found satisfactorily (satisfactory?). It would be obligatory on the part of the managing body to notify to the teacher in writing before the expiry of one year probationary period, whether he had been confirmed or his period of probation has been extended and in the absence of such a notice he would be deemed to have been confirmed. The probation period in no case shall be extended beyond two years from the date of appointment."
13. A perusal of Section 2(a) of the Act would reveal that any employee appointed against a post which is to continue for more than one year is required to remain on probation for a period of one year which may be extended from time to time and the total period of probation including extension is not to exceed two years. Regulation 3.1 of the Calendar postulates that an employee would ordinarily be appointed on probation for a period of one year and he is to be confirmed if his work is found satisfactory. Regulation 3.1 of the Calendar requires the management to notify extension in the period of probation before the expiry of probationary period of one year. This regulation seemingly suggests automatic confirmation in case intimation before expiry of probationary period of one year is not sent. Despite the aforementioned stipulation the maximum period of probation along with extension provided by the regulation is two years.
C.W.P. No. 15563 of 2008 14
14. When we examined the facts of the present case in the light of the Regulation 3.1 of the Calendar it becomes evident that the petitioner-Management has religiously complied with the requirement of Regulation 3.1 of the Calendar. The teacher-respondent No. 4 has joined the service as lecturer on 6.1.2004. His probationary period of one year was to expire on 5.1.2005. A registered letter was sent to him on 3.1.2005 intimating that his period of probation has been extended as his work and conduct was not found satisfactory. The factum of intimation has been authenticated by the postal authorities by sending letter to the petitioner-Management that the registered letter was delivered to the teacher-respondent No. 4 on 4.1.2005. On facts the provisions of Regulation 3.1 of the Calendar stand complied with.
15. However, for the sake of argument if it is assumed that the petitioner-Management without intimating the teacher-respondent No. 4 has terminated his services on 19.4.2005, the legal effect would continue to be the same. A similar regulation which exists in the Punjabi University Calendar was considered by a Division Bench of this Court in the case of Kartar Singh v. Director, Public Instruction, Punjab, 1980 (2) SLR 843. It would be apposite to extract Regulation 3 which existed in the Punjabi University Calendar Volume I and the same reads thus:-
"3. Unless appointed temporarily, the employee appointed on one year's probation would be confirmed if his work is found satisfactory. The C.W.P. No. 15563 of 2008 15 employer shall notify to the teacher in writing before the expiry of one year's probationary period, if his period of probation is to be extended and in the absence of such a notice the teacher would be deemed to have been confirmed. The probationary period shall in no case be extended beyond two years from the date of appointment. In case a person appointed temporarily is reappointed on probation, the period of his service in temporary capacity shall be counted towards his probationary period."
16. The aforementioned regulation has been interpreted by the Division Bench and it has been observed that the sum and substance of the regulation is the satisfactory completion of work by the probationer. He could be confirmed if his work and conduct measure up to the satisfaction of the management and not merely by afflux of time because the basic emphasis is on the quality of the work during the prescribed period of probation. On the language of the regulation in question we cannot conclude that either expressly or by necessary intendment the procedural part of the time within which the notice is to be given could be held to be mandatory. It has to be construed as directory in nature because the procedural part of the aforesaid provision would not override the substance of the matter i.e. the satisfaction in respect of the entire work and conduct of the probationer before confirmation.
C.W.P. No. 15563 of 2008 16
17. A similar question has arisen before a Full Bench of this Court in the case of Guru Nanak University v. Dr. (Mrs.) Iqbal Kaur Sandhu, AIR 1976 P. & H. 69. Keeping in view the dominant object of the statute of Guru Nanak University, the Full Bench in para 31 has held as under:-
"31. Now the dominant object and purpose of Statute 31 patently is to provide a procedure for a sound assessment of the work and conduct of a probationer in order to enable the appointing authority to either confirm him therein or in the alternative to extend the period of probation or to dispense with his services. To effectuate that purpose sub-clause (2) with which we are primarily concerned prescribes the normal mode and manner of assessing and appreciating the work of the probationer through the instrumentality of his Head of Department or the Controlling Officer. The twin provision in this context is the sending of a report by the latter with a recommendation for confirmation or otherwise with a further prescription that the same should at least be done three months before the date of the expiry of probation."
18. It is appropriate to mention that the Statute 31(2) of the Guru Nanak University as it existed at that time was under
consideration, which provided that three months from the date of expiry of the probation period, a report about the work and conduct of the employee appointed on probation with definite recommendation C.W.P. No. 15563 of 2008 17 for his confirmation was needed to be sent by the Head of the Department or by the controlling authority. However, the Full Bench considered that the regulation merely postulate procedural formality which cannot be elevated to the pedestal of mandatory rule. The Full Bench placed reliance on a judgment of Hon'ble the Supreme Court in the case of Hari Singh Mann v. State of Punjab, (1974) 2 SLR 696, which reiterated the right of the employer to judge about the suitability of the employee for the post and his right to judge cannot be defeated and, therefore, construction of such a regulation which tends to advance the object has to be adopted rather than giving significance to the procedural part.
19. The principle of automatic confirmation laid down by Hon'ble the Supreme Court in Dayaram Dayal v. State of M.P., (1997) 7 SCC 443 were not approved by the later judgments rendered in the cases of Karnataka State Road Transport Corporation (supra) and High Court of M.P. v. Satya Narayan Jhavar, (2001) 7 SCC 161. The view taken in Dayaram Dayal's case (supra) was overruled. Hon'ble the Supreme Court has emphasised that merely because the maximum period of probation has expired, would not result into deemed confirmation of an employee. In other words, the employer cannot be deprived of his right to adjudge the suitability of an employee for the post on which he is to be confirmed. Hon'ble the Supreme Court also placed reliance on a Constitution Bench decision rendered in the case of State of Punjab v. Dharam Singh, AIR 1968 SC 1210, and held that mere continuance of probationer after C.W.P. No. 15563 of 2008 18 considering his case for confirmation and finding him unsuitable for the same could not be construed to be confirmation by implication by any stretch of imagination and such an intention cannot be imputed to the rule making authority. Similar views were expressed by Hon'ble the Supreme Court in the case of Rajinder Singh Chauhan v. State of Haryana, (2005) 13 SCC 179 and reliance was placed on Satya Narayan Jhavar's case (supra).
20. On principle as well as on precedent it has become evident that there cannot be any automatic confirmation. If no order extending the period of probation before the expiry of one year was passed, there could be no scope for the teacher-respondent No. 4 to assume that he is deemed to be confirmed. The concept of deemed confirmation could be applied only to cases where the employer by his act and conduct has made it absolutely clear after the completion of maximum period of probation that he has considered the employee to be confirmed. Therefore, the writ petition is liable to succeed, especially when the maximum period of probation provided under the Act and the Calendar is two years and the teacher-respondent No. 4 had not completed the same when the order of termination was passed by the petitioner-Management on 19.4.2005 (P-3).
21. As a sequel to the above discussion this petition succeeds. The impugned order dated 12.2.2008 (P-4), passed by the Director is set aside and order dated 19.4.2005 (P-3), terminating the services of the teacher-respondent No. 4 is upheld. C.W.P. No. 15563 of 2008 19
22. Before parting we express our disapproval about the conduct adopted by the State of Punjab-respondent No. 1, inasmuch as, no Member has been nominated to man the Tribunal by issuing appropriate notification for hearing of appeals under Section 4(4) of the Act. Accordingly, we issue direction to respondent No. 1 to notify the Member of the Tribunal within a period of six weeks from the date of receipt of a certified copy of this order and the notification shall be placed before this Court on or before 22.12.2008.
23. The writ petition stands disposed of in the above terms.
(M.M. KUMAR)
JUDGE
(JORA SINGH)
October 21, 2008 JUDGE
Pkapoor