Madras High Court
Albert B.Jerald vs The Board Of Directors on 23 January, 2009
Author: M.Jaichandren
Bench: M.Jaichandren
In the High Court of Judicature at Madras Dated: 23-01-2009 Coram: The Honourable Mr.Justice M.JAICHANDREN W.P.No.1182 of 2003 Albert B.Jerald .. Petitioner. Versus 1.The Board of Directors, The Lawrence School, Lovedale, The Nilgiris. -- 2.The Headmaster, The Lawrence School, Lovedale, Nilgiris. 3.Central Board of Secondary Education, Southern Region, 1030-A.J.Block, Anna Nagar, Chennai-40. .. Respondents. Prayer: Petition filed seeking for a writ of Certiorari, to call for the records pertaining to the order of termination in ACS/270, dated 12.9.2000, passed by the 2nd respondent and quash the same. For Petitioner : Mr.S.James For Respondents : Mr.T.Poornam (R2) Mr.G.Nagarajan (R3) O R D E R
Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.
2. This writ petition has been filed praying for a writ of certiorari, to call for the records pertaining to the order of termination, passed by the second respondent in C/4101, dated 14.12.2002, and quash the same.
3. It has been stated that the petitioner, having passed S.S.L.C, had joined the Indian Navy as N.M.E.R/Musician in the year 1981. He had taken voluntary retirement, on 31.8.2000. At the time of his retirement he was serving as Chief Petty Officer/Band Master. On 11.9.2000 the petitioner was appointed as a Band Master in the Lawrence School, Lovedale, Nilgiris, in a permanent vacancy. He was enjoying all the benefits of a permanent employee, including provident fund, gratuity and other benefits. He was residing with his family in the school campus and his only son is studying in the Lawrence School.
4. It has been further stated that as per the appointment order the petitioner was to be on probation for a period of two years, which was completed on 11.9.2002. Thereafter, he is deemed to have been made permanent, as per the School Rules. While so, on 28.12.2002, the petitioner was served with an order of termination, dated 14.12.2002, even though there was no complaint with regard to any deficiency in his service. The termination order did not disclose any valid reason for terminating the services of the petitioner. No prior notice had been issued to the petitioner regarding his termination. Even though the Lawrence school is not an aided school, it cannot act in an arbitrary manner, as it is affiliated to the Central Board of Secondary Education, coming under the control of the Government of India. In such circumstances, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India.
5. In the counter affidavit filed on behalf of the second respondent the averments made on behalf of the petitioner have been denied. It has been stated that the writ petition is not maintainable against the first and the second respondents as they do not come under the definition of `State" within the meaning of Article 12 of the Constitution of India. Further, there is no specific relief claimed against the third respondent in the present writ petition.
6. It has been further stated that the petitioner was appointed as a Band Master, by an order, dated 12.9.2000. In the said appointment order it was clearly provided that the petitioner would be on probation for a period of two years and that during the said period the services of the petitioner may be terminated on giving one month's notice in writing or on payment of an amount equal to one month's salary. Subsequently, in view of the fact that the services of the petitioner were not required, due to the exigencies of the management, the services of the petitioner was not extended or confirmed and by a letter, dated 14.12.2002, the probationary services of the petitioner was terminated, with effect from 14.12.2002, on payment of a sum of Rs.7,920/-, being one month's notice pay.
7. It has been further stated that even though the petitioner was appointed, on 12.9.2000, his claim that he was enjoying all the benefits of a permanent employee is denied. The petitioner was only entitled to benefits and allowances mentioned in the order of appointment, dated 12.9.2000. The fact that the petitioner might have been enjoying payment of Provident Fund Benefits etc., would not confer any permanent status to his employment. The petitioner's son was permitted to study in the school in terms of the order of appointment, dated 12.9.2000. However, he is not studying in the school at present.
8. It has been further stated that the claim of the petitioner that if the period of probation is not extended within a week from the date of its expiry, the petitioner would be deemed to be a permanent employee, as per the School Rules, is denied. There is no such rule providing for deemed confirmation, as alleged by the petitioner. The probationary services of the petitioner was not extended or confirmed due to the exigencies of the school. It is not correct to state that no reasons had not been stated in the order of termination, dated 14.12.2002. The reasons for not extending or confirming the probationary services of the petitioner has been set out in the letter, dated 14.12.2002. As a probationer, the petitioner does not have any right to insist on reasons being given for his termination. The petitioner was paid one month's salary, as notice pay, in accordance with the Staff Rules of the School. Since the petitioner was not a permanent employee and as he was only on probationer no enquiry was held before the order of termination, dated 14.12.2002, had been issued. As such the said order is in accordance with law and the Rules applicable to the staff of the Lawrence School, Lovedale. Hence, the writ petition is liable to be dismissed, as devoid of merits.
9. The learned counsel appearing for the petitioner had submitted that since the Lawrence School is a public school, affiliated to the Central Board of Secondary Education, it is required to follow all the regulations, as laid down by the Central Board of Secondary Education. As such, the said school is amenable to the writ jurisdiction of this Court, under Article 226 of the Constitution of India. The learned counsel had also submitted that, on 11.9.2002, the petitioner had become a permanent employee of the school, as a Band Master, after completion of two years of probationary period and therefore, his services cannot be terminated without holding an enquiry. As the Board of Directors of the school is the competent authority regarding appointments, the termination order passed by the Headmaster of the School, the second respondent herein, is without jurisdiction. Further, the termination order is contrary to the policy of the Government of India to provide employment for Ex-servicemen, both in private, as well as in Government institutions. Even though the petitioner has been working as a Band Master in the school with devotion and sincerity, the impugned order of termination had been passed, terminating the services of the petitioner, arbitrarily, and without any valid reason. Since no notice had been given and no enquiry had been conducted, the order of termination passed against the petitioner, is contrary to the principles of natural justice.
10. Per contra the learned counsel appearing on behalf of the first and the second respondents had submitted that the appointment of the petitioner was based purely on a private contract between the petitioner and the Lawrence School, Lovedale. It was not in accordance with the Central Board of Secondary Education Affiliation Bye-laws. There has been no letter of confirmation issued in favour of the petitioner, confirming his services as a regular employee of the school. The petitioner had continued to be under probation even after the expiry of two years since his appointment. Since the services of the petitioner had not been confirmed and regularised, in accordance with the Rules of the school, there was no need to conduct an enquiry before his services were terminated, based on the exigencies of the school.
11. The learned counsel for the respondents 1 and 2 had relied on Clause 4.9 (a) of the Rules relating to the general conditions of the staff, which reads as follows:
"All appointments to the staff shall ordinarily be made on probation for a period of two years which may at the discretion of the Headmaster or the Chairman in the case of members of the staff appointed by the Board be extended by another year. The appointee, if confirmed, shall continue to hold office till the age of 55 years, except as otherwise provided in these Rules. Every appointment shall be subject to the conditions that the appointee is certified as medically fit for service by a medical Officer nominated by the Board or by the Resident Medical Officer of the School."
Accordingly, the petitioner was on probation for a period of two years and he had continued as such even thereafter. Since the petitioner had not been confirmed in service, he had continued as a probationer. Even if the petitioner had been in service, as a probationer, for the initial period of two years and continued as such beyond the said period, for one more year, he would not attain the status of a permanent employee of the school at the end of the probationary period of three years, unless there is a specific order issued by the management of the school confirming his services. In fact there is no provision prohibiting the extension of an employee's probationary period beyond the period of three years. Clause 4.9 (a) of the Staff Rules states that the appointee, if confirmed, shall continue to hold office till the age of 55 years, making it clear that there is no automatic confirmation of an employee in service without a specific order of confirmation. Since the probationer has no right to the post which he has acquired, the petitioner cannot challenge the termination order, dated 14.12.2002, issued by the school, terminating his services.
12. The learned counsel appearing on behalf of the petitioner had relied on the judgment, reported in T.M.A.Pai Foundation and others Vs. State of Karnataka and others 2002(8) SCC 481 and A.P.John Paulraj Vs. Central Board of Secondary Education (1999 WLR 23), with regard to the maintainability of the writ petition. The learned counsel had also relied on the decision of the Supreme Court, reported in The State of Punjab Vs. Dharam Singh (AIR 1968 SC 1210) to state that there would be a deemed confirmation of service on the expiry of the probationary period. Paragraph 3 of the said order reads as follows:
"3. On the completion of the period of probation the authority competent to make appointment may confirm the member in his appointment or if his work or conduct during the period of probation has been in his opinion unsatisfactory he may dispense with his services or may extend his period of probation by such period as he may deem fit or revert him to his former post if he was promoted from some lower post:
Provided that the total period of probation including extensions, if any, shall not exceed three years."
13. The learned counsel had also relied on a decision of the Supreme Court, in Punjab National Bank by Chairman & Another Vs. Astamija Dash (2008(5) CTC 554), wherein it was held that the competent authority is to form the opinion that the officer concerned is not fit for confirmation, within the specified period of probation, including the period of its extension and not thereafter, if the services of the probationer were to be terminated. It was also held that the question as to whether the doctrine of implied confirmation would be applicable, in cases where probation is not expressly confirmed, would depend upon the statutory rules.
14. Per contra, the learned counsel appearing on behalf of the first and second respondents had relied on the following decisions in support of his contentions.
14.1. In Kedar Nath Bahl V. The State of Punjab (AIR 1972 SC 873), the Supreme Court, in Paragraph 9, has held as follows:
"9......... The law on the point is now well settled. Where a person is appointed as a probationer in any post and a period of probation is specified it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed in that behalf. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period, or there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. At the end of the period of probation an order confirming the officer is required to be passed and if no such order is passed and he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer......."
14.2. In Director (Production), Heavy Engineering Corporation and Ors. And Jagannath Prasad (1994(II) LLJ 694), the Supreme Court had held as follows:-
"7...........We are unable to agree. Although Rule 1.8.1.2 postulates the passing of an order extending the period of probation, the failure to pass such an order before the expiry of the period of probation does not mean that the employee should be deemed to have been confirmed on the expiry of the period of probation initially fixed. This is so because Rule 1.8.1.2 requires that a decision on successful completion of period of probation should be taken in time and orders issued. This means that an express order about successful completion of probation is required and till such an order is issued the employee cannot be said to have been confirmed on the post on which he was promoted on probation."
14.3. In State of Punjab and others Vs. Sukhwinder Singh (2005(5) SCC 569), the Supreme Court, in Paragraph-19, has held as follows:
"It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any rhyme or reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not makes inquiries for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. If in every case where some kind of fact-finding inquiry is made, wherein the employee is either given an opportunity to explain or the inquiry is held behind his back, it is held that the order of discharge or termination from service is punitive in nature, even a bonafide attempt by the superior officer to decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The decision to discharge a probationer during the period of probation or the order to terminate the service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry "for the purpose of imposing punishment" and an order of discharge or termination service as a result thereof "punitive in character", the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong."
15. In view of the above decisions, the learned counsel had contended that a probationer has no right to the post and therefore, the petitioner cannot be deemed to have been confirmed as a regular employee, after the expiry of the initial period of two years as a probationer. Since there was a provision in the Rules of the school, in Clause 4.9(a), that all appointments to the staff shall, ordinarily, be made on probation for a period of two years, which may, at the discretion of the Headmaster or the Chairman in the case of members of the staff appointed by the Board, be extended by another year, the probationary period of the petitioner had been extended beyond the initial period of two years, by implication. Since a specific order is required for confirming the services of the petitioner, after the successful completion of his probationary period and since no such order had been passed by the management of the school confirming the services of the petitioner, he cannot claim any right to the post, as though he was a confirmed employee of the school.
16. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the first and the second respondents and in view of the decisions placed before this Court and on a perusal of the records available, it is clear that the petitioner has not shown sufficient cause or reason for this Court to set aside the impugned order of the second respondent, dated 14.12.2002, as prayed for by the petitioner in the present writ petition.
17. According to the Service Rules of the school applicable to the petitioner, the petitioner had continued as a probationer even after the completion of the initial period of two years of probationary period. There has been no confirmation of the services of the petitioner, as required under the said Rule. Thus, it is clear that the petitioner does not have any right to the post in which he had been initially appointed as a probationer. Unless, it is shown that there was a specific order issued by the management of the school, confirming the services of the petitioner, such a status cannot be claimed by the petitioner based on a presumption of deemed confirmation. Only if there are Service Rules providing for such a contingency, it could be held that there would be an automatic confirmation of the services of an employee at the end of the period of probation. Since no such Rules or Regulations exist, conferring deemed confirmation on the employee, in respect of the Lawrence School, Lovedale, the claims made by the petitioner cannot be sustained. As such, even if the petitioner had been terminated without having been issued a notice and without conducting an enquiry, it cannot be said that the impugned order of termination passed by the second respondent is arbitrary or illegal. In such view of the matter, the present writ petition is liable to be dismissed. Hence, it is dismissed. No costs.
Internet:Yes/No 23-01-2009 Index:Yes/No csh M.JAICHANDREN J., csh Pre-Delivery Order in W.P.No.1182 of 2003 23-01-2009