Kerala High Court
A.M. Prabhakaran Nair vs Union Of India (Uoi) And Ors. on 30 September, 1991
Equivalent citations: (1992)IILLJ732KER
ORDER P.K. Shamsuddin, J.
1. The petitioner is now working as Engineer in the Fluid Control Research Institute (hereinafter referred to as F.C.R.I. for short). The F.C.R.I. is an independent National Centre, set up by the Government of India under the Department of Heavy Industries with U.N.D.P. assistance for research and development, including technology development. It is registered under the Societies Registration Act. (Act XXI of 1869).
2. The petitioner has passed B.Tech. examination of the Calicut University and M.Tech. in Hydraulics and Water Resources of the Man-galore University. In response to advertisement No. FCRI/I/86, the petitioner applied for the post of Engineer. After the interview, petitioner was offered appointment on October 15, 1986 as Engineer Traniee.Ext. P3 is the communication sent to the petitioner in this regard. It is stipulated in paragraph 4 of the Ext. P3 order that on successful completion of the training, petitioner would be brought on to the regular cadre in the pay scale of Rs. 700-40-900-EB-40-1100-50- 1300 with one increment in the said scale of pay. The petitioner accepted the offer and the terms contained in Ext. P3. The petitioner was required to execute a service bond at the time of joining the training to serve the institute for a minimum period of four years on completion of the training period. Accordingly the petitioner executed Ext. P4 bond dt. October 29, 1986. Clauses 4 and 5 of the bond read as follows:
"that after successful completion of training to the full satisfaction of the Institute (which will be assessed by a Committee), the Engineer Trainee will be absorbed as Engineer in regular pay scale of Rs. 700- 40-900-EB-40-1100-50-1300 with one increment plus other allowances applicable to regular employees as per rules of the Institute.
That the absorption of the Engineer Trainee in the regular pay scale of the Institute will entirely depend upon the performance and satisfactory completion of training and successful passing of test, if any."
Towards the end of the training period, the petitioner was selected for training abroad with M/s. B.H.R.A., the Fluid Engineering Centre, England in the field of flow measurement for a period of two months. Petitioner was required to execute another bond and accordingly Ext. P5 bond was executed. Ext. P5 inter alia provided that after successful completion of the training to the satisfaction of the Company, the employee shall be allowed to resume forthwith after arriving in India, the post originally held by him on the existing terms and conditions. It was also provided therein that in case the company was not satisfied with the performance of the employee during the training period and thereafter, it may terminate the agreement at any time without any notice and without assigning any reason therefor.
3. The petitioner completed training abroad. Ext.P6 is the certificate issued by the Head of Department of Fluid Engineering and Instrumentation, Cranficld Institute of Technology, England regarding the training of the petitioner.
4. About 1 1/2 months after the above training, the petitioner was served with Ext. P7 order which stated that the training period of the petitioner was extended for a further period of six months with effect from November 5, 1987. The relevant portion of Ext. P7 is extracted below:
"It has been observed that your performance during the training period as also in the inter view held on January 18, 1988, to assess your suitability for bringing you on to the regular cadre, has not been satisfactory and that you need further training before your ease for absorption in regular post is considered."
5. The petitioner completed the extended period of training. However, the petitioner was served with an order Ext. P8 dated May 24, 1988 offering the post of Engineer with effect from May 5, 1988 on a starting basic pay of Rs. 2200. Ext. P8 stated that the petitioner completed his extended period of training and as per the assessment made by the selection committee in the interview held on May 9, 1988, the petitioner was offered the post of Engineer with effect from May 5, 1988 on a starting basic pay of Rs. 2200/-, that the petitioner will be on probation for a period of one year from the date of joining the post and that the period of probation was liable to be extended at the discretion of the Management. It is also stated that after successful completion of probation period, he would be brought on to the regular cadre of the institute. On the next day of receipt of Ext, P8, the petitioner received another order Ext. P9 which stated that the selection committee found that the petitioner had not acquired sufficient knowledge to be considered for absorption in the regular post and that it was considering other relevant factors and to give him an opportunity that the selection committee made a recommendation to appoint the petitioner as Engineer on probation. It also stated that the committee decided that the petitioner's performance during probation period should be closely observed and if no improvement was noticed his case should be appropriately dealt with during or at the end of the probation period.
6. After completion of probation, the petitioner wrote Ext.P10 letter to the General Manager stating that he completed his probation on May 5, 1989 bul he did not receive any confirmation order and requesting him to expedite the matter. However, the petitoner received an order Ext. P11 dt. September 22, 1989 from the third respondent informing him that from the performance report received at the end of the probation period it was seen that the petitioner had not shown any improvement, that he had not acquired sufficient knowledge to do research and development work commensurate with the petitioner's position as an Engineer in F.C.R.I. and that under those circumstances, it was decided to retain the petitioner in the service of the institute as Engineer in the scale of Rs. 2200-75-2800-EB-100-400 on a 'term basis' initially for a period of two years with effect from August 1, 1989. The petitioner requested the 3rd respondent as per Ext. P12 to confirm whether he could take for granted that his probation was declared as satisfactory, and that he became full member of the cadre of Engineers of the institute. He received a reply Ext. P13 dt. October 24, 1989 from the 3rd respondent stating that the order itself was self-explanatory and that they would like to inform the petitioner that on the basis of the recommendation of his Controlling Officer evaluting his performance, conduct etc, it was decided by the Competent Authority to retain the petitioner initially for a period of two years as mentioned in the order. It further stated that the position would be reviewed on completion of the then period of renten-tion and decision as deemed fit would be taken.
7. On receipt of this, the petitioner sent Ext. P14 communication stating that he took that probation was declared as satisfactory and that he was a full member of service to which Ext. P15 reply was sent by the Personnel Officer stating that petitioner's presumption was not correct. Thereupon, the petitioner sent Ext. P16 representation to 3rd respondent requesting to pass orders confirming that the petitioner was in regular cadre of Engineers of the institute.
8. The petitioner also sent Ext. P17 representation to the 3rd respondent requesting to pass orders on his representation Ext. P16 and also to sanction his second increment with effect from May 5, 1989. This was followed by another reminder dt. May 2, 1990. As the petitioner did not get any reply from the 3rd respondent, the petitioner sent another representation dt. June 27, 1990 to 2nd respondent for a declaration that the petitioner was in the regular cadre of Engineers of F.C.R.I. Thereafter, petitioner was served with a note Ext. P19 by Dr. V. Ramarajan, the 4th respondent, pointing out that in the meeting held on February 19, 1990, the need and importance of the project was indicated to the petitioner and he was asked to show progress at least in one of the sizes of the valves in a year's time and also progress made at intervals, and the progress was reviewed in the meetings held on June 1, 1980 and June 18, 1990, that the review indicated that the petitioner had hardly shown even a start towards the objectives of the project. In short, the tenor of the Note is that the petitioner's performance was not satisfactory. Ultimately, the petitioner was advised to concentrate on their project and show sufficient progress.
9. Immediately on receipt of Ext. P19, petitioner sent a detailed representation Ext. P20 addressed to the respondents 2 and 3. In Ext. P20, the petitioner pointed out that his letter dt. June 27, 1990 was received by Deputy Director, Dr. V. Ramarajan on June 28, 1990 and it was just noting its contents Ext. P19 was posted to him in haste on June 30, 1990 in order to harm him and prejudice his submissions to the National Project Director. He also alleged mala fides on the pat of Ramarajan and tried to impress that he was doing the work satisfactorily and was making progress. In this connection, the petitioner also has produced an experience certificate Ext. P22 issued by the 3rd respondent on November 23, 1989, In Ext. P22 it is stated that from the date of his joining petitioner has been attending the supervision of major Civil Construction of various laboratories, roads, water tank, overhead tank, drainage works, etc., that he has also been attending to certain Hydraulic Research Projects undertaken by the institute and that he had two months training at National Engineering Laboratory, United Kingdom.
10. The petitioner submitted that though about one year has elapsed after Ext. P16 representation and 6 months has elapsed after Ext. P1.8 representation the respondents have not passed any orders. According to the petitioner, this is a clear case of victimisation with the mala fide intention to pressurise the petitioner to resign his job before the bond period or to terminate the petitioner's service illegally without complying with any of the procedure established under law so that they can give some illegal benefits to two of the applicant's immediate juniors M.S. Mascomani and G. Sundra Vadivel in whom the 4th respondent is specifically interested.
11. In this original petition, the petitioner raised the following contentions: (1) Ext. P7 order extending the period of training, Ext. P8 order putting the petitioner on probation, Ext. P9 order stating that the petitioner's performance was not satisfactory, Ext. P11 order appointing the petitioner on 'term basis' and Exts.P13 and P15 clarifications are all illegal and are actuated by mala fides and are against the specific terms of Ext. P2 to P5. (2) The above orders are arbitrary and are violative of the fundamental rights guranteed under Article 14 of the Constitution of India. (3) While the petitioner was asked to undergo a period of training and probation, the Engineers who were recruited just 5 months after their appointment were directly appointed without training and were given confirmation order on completion of probation alone for a period of one year. This also violates the fundamental right under Article 14 of the Constitution of India. (4) As per Ext. P3 appointment order and Ext. P4 and P5 bonds the petitioner was to be absorbed in the regular cadre of Engineers on successful completion of training. The extension of period of training was with ulterior motive and is actuated by mala fides. (5) The very fact that the petitioner was sent for training abroad when one year training period was about to be over is a proof positive that the respondents were satisfied with his performance at the training. The observation that the petitioner's performance is not satisfactory has no factual basis and the same were made behind his back in total violation of the principles of natural justice. The petitioner was never informed of any adverse remarks against him. (6) The petitioner was entitled to get his second increment with effect from May 5, 1989 and not from August 1, 1989 as recommended by Ext. P23 order. Similarly he was entitled to get the 3rd increment with effect from June 5, 1990. (7) The respondents 2 and 3 have statutory obligation to dispose of representations received from the subordinate officers within a reasonable time. They have failed to discharge their obligation.
12. A detailed counter-affidavit has been filed on behalf of the respondents 2 to 4, controverting the allegations and contentions raised by the petitioner. It is contended therein that F.C.R.I. is not a State coming under Article 12 of the Constitution of India and therefore the original petition is not maintainable. It is alternatively contended that even assuming without admitting that the F.C.R.I. is a State coming under Article 12 of the Constitution of India, the above original petition is not maintainable because no fundamental rights of the petitioner guaranteed under Part III of the Constitution of India are violated by the respondents. It is alleged that the performance of the petitioner was not satisfactory and it was in those circumstances, the impugned orders were passed.
13. At the outset, I have to state that the petitioner having failed to challenge the extended period of training and his appointment under Ext.P8 as Engineer stipulating one year period of probation, it is not open to him at this stage to attack those orders as illegal. But the appointment of the petitoner on 'term basis' after the period of probation stands on a different footing. He has sought clarification whether his appointment was only on a regular basis and finding that the respondents did not agree with him he has challenged the said order.
14. I shall first deal with the preliminary objection raised by respondents that F.C.R.I. is not a State within the meaning of Article 12 of the Constitution and that therefore no writ will He. Memorandum of Association of the Society has been marked as Ext. R2(a) and the Rules and Regulations of the Institute has been marked as Ext. R2(b). Rule 29 in Ext. R2(b) shows that all the members except the ex-officio members shall be appointed by the Government of India. Rule 42 shows that the Governing Council shall have the management of all the affairs and funds of the Society and shall have authority to exercise all the powers of the Society subject to such limitations in respect of expenditure as the Government of India may from time to time impose. Rule 56 states that with the prior approval of the Government of India, the Society may alter or extend the objectives for which it is established in accordance with the provisions of the Societies Registration Act. XXI of 1860. Rule 52 agains lays down that the funds of the Society will consist of the following:(a) Grants made by the Government of India:(b) Contribution from other sources: (c) Income from investments: (d) consultancy charges and (e) Receipts of the Society from other sources. Memorandum of Association, Ext. R2(a) states that the institute can borrow and raise money in security of the immovable properties belonging to the Institute or in any manner whatsoever, but that can be done only with prior approval of Government of India. Ext. R2(a) further shows the society shall maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the auditors appointed by the Government of India. It can be seen that the Government of India has overall control over the society.
15. In P.K. Ramachandra Iyer v. Union of India(1984-I-LLJ-314) the Supreme Court held that a similar organisation by name Indian Council of Agricultural Research and its affiliate Indian Veterinary Research Institute are "other authorities" as would be comprehended in the expression 'other authority' in Article 12 of the Constitution. In Som Prakash Rekhi v. Union of India (1981-I-LLJ-79) also the Supreme Court made it clear that if a statutory corporation, body or other authority is an instrumentality or agency of the Government, it would be an "authority" and therefore "State" within the meaning of that expression in Article 12, and is subject to the same Constitutional limitations as Government.
16. Bearing in mind the principles enunciated in the above decisions, there is no difficulty to find that the Institute in quesion is a 'State' within the meaning of Article 12 of the Constitution of India and is amenable to the writ jurisdiction of this court.
17. However, the contention of learned counsel for the respondents that the institute would be 'State" only for the purpose of Parts III and IV of the Constitution and would not be so for the purpose of Part XIV or any other provisions of the Constitution has to be upheld in view of the observations of the Supreme Court in Ajay Hasia v. Khalid Mujib Sehravardi(1981-I-LLJ-103) and a Full Bench of this Court in Canara Bank v. Appellate Authority (1981-II-LLJ-189) and K.S. Sofhi v. Fertilisers & Chemicals, Travancore Ltd., 1984 Ker LT 32:
18. It follows that the petitioner is entitled to succeed, if only any of the rights of the petitioner falling under Part III or Part IV of the Constitution are violated.
19. When the petitioner was recruited, the Institute was only in its infant stage. It was inaugurated only in April, 1981. Ext. P26, dt. June 10, 1988 is the proceedings of the Joint Director of the Institute. The works assigned to the petitioner are supervision of construction of building, cement painting of walls, rectification of buildings, extension of pillars and erection of civil works, workshops, cable trenches in buildings, water supply to buildings, culvert at N.H, bell mouth, overhead tank, rectification of fencing and compund wall and levelling, drainage in front if administrative building. Learned counsel for petitioner submitted that but for the fact that the petitioner successfully underwent his training, petitioner would not have been sent abroad for training for a period of two months at a time when training was about to be over. The petitioner was appointed as an Engineering Trainee on October 15, 1986. Ext.P3 is the order of petitioner's appointment as an Engineering Trainee. It stipulated that he would be on training for a period of one year which may be extended beyond one year at the discretion of the Institute depending upon his performance, conduct and other factors. It was also provided that he will be required to execute abond. Ext.P5 dt. October 20, 1987 is the bond executed by the petitioner. There is some force in the contention of learned counsel for petitioner that if the respondents had found the petitioner's performance and conduct unsatisfactory, it was most unlikely that he should have been sent abroad incurring huge amount of expenditure for his training abroad. Petitioner reported for duty on November 5, 1986. There is nothing to indicate in Ext. P5 that petitioner's performance was found unsatisfictory. On the other hand, the very fact that petitioner was sent abroad at the fag end of his training period prima facie indicates that the respondent had no complaint about the performance of the petitioner till then. No material has been placed before me to show that there were any adverse remarks against the petitioner during the period of training. It is conceded by learned counsel for respondents that no adverse remarks have been communicated to the peti-toner. If there were any adverse remarks, there is no reason for not placing the materials before this court.
20. Ext. P6 dt. January 14, 1988 is the certificate issued by the Department of Fluid Engineering and Instrumentation showing that petitioner had undergone the training successfully. It is about 1 1/2 months after the training in England that he was served with Ext. P7 notice, extending the period of training for a further period of six months with effect from November 5, 1987. It is stated therein that there was an interview on January 28, 1988 to assess the petitioner's suitability for bringing him on to the regular cadre and it was found that his performance was not satisfactory and he required further training before his case for absorption in regular post was considered. It is petitioner's case that there was no such interview or test on January 28, 1988 or any other date to assess his suitability.
21. Pursuant to my direction to produce documents relating to the interview, learned counsel for respondents produced the papers before me. That shows that a committee was constituted to assess the performance of petitioner and that the committee interviewed the petitioner on January 28, 1988. It also states that considering the petitioner's performance as a trainee and in the interview and other relevant factors, the committee found that the petitioner needed further training before his case for absorption in regular post could be considered. The Committee appears to have recommended that the training period be extended for 6 months with effect from November 5, 1987. The proceedings do not disclose the nature of his deficiency or whether his confidential record would in any way disclose any deficiency or whether such deficiencies were brought to the notice of the petitioner and whether he was asked to improve. It is conceded that no such communication has been sent to the petitioner. There is another note on April 28, 1988 of the Personnel Officer of the Insitute requesting to constitute a committee to assess the performance of the petitioner, as his extended period of training was to expire on May 4, 1988. It states that the petitioner was interviewed on May 9, 1988 by the committee and the committee found that in spite of the extended period of training, he had not acquired sufficient knowledge, to be considered for absorption in the regular post and that considering other relevant factors and also for giving him an opportunity, the committee would recommend that he may be taken on probation as Engineer. It further states that the petitioner's performance during the period of probation will be closely observed and if he does not show improvement, his case may be appropriately dealt with during or at the end of the probation period.
22. Ext. P8 was issued on the basis of the proceedings of the Committee which is referred to above. Even here, I may state that there is no indication as to what is the deficiency of petitioner or whether there were any adverse remarks against the petitioner in his confidential records. Admittedly, no such adverse remarks were communicated to the petitioner. Ext. P8 offered him the post of Engineer on a starting basic scale of pay of Rs. 2,200/- per month, besides compensatory, dearness, house rent and other allowances according to the Rules of the Institute. He would be on probation for one year from the date of joining the post and the period may be extended at the discretion of the Management. After successful completion of probation period, he will be treated as in the regular cadre of the Institute. It is the petitioner's case that Ext. P8 order is clearly opposed to the terms and conditions envisaged in Exts. P4 and P5 as they contemplate only an appointment on regular basis after the period of training and not an imposition of a further period of probation. There is substance in the contention of learned counsel for petitioner especially in view of the fact that no adverse remarks or deficiency have been brought to the notice of the petitioner.
23. The petitioner alleges that subsequent to his appointment, appointments were made to the post of Engineers, but in all such cases no training was insisted. According to the petitioner, the above circumstances itself would show that the petitioner is singled out for hostile discrimination. Learned counsel also contends that Ext. P9 proceedings is issued on extraneous considerations and that it is also arbitraary and violative of the equality clause enshrined in Article 14 of the Constitution. It is not possible to attack the appointments of other Engineers as they were made on different terms. Such appointments also cannot be attacked as ones made on extraneous considerations. I am also not able to hold that the petitioner is singled out for a differential treatment on that score. However, it will be difficult to justify the action of respondents in passing orders contrary to Exts. P3 to P5. Even after completion of probation, there was no action taken by the respondents to regularise him. He sent Ext. P10 communication to the General Manager requesting for expeditious order, but 4th respondent did not forward that letter. It is thereafter that the petitioner received a communication Ext. P11 from 3rd respondent informing him that from the performance report, received at the end of his period, it is found that the petitioner has not acquired sufficient knowledge to do the research and development work commensurate with his position as Engineer of the Institute, and that it was decided to retain him in service as Engineer in the scale of Rs. 2200-75-2800-EB-100-4000 on a 'term basis' intially for a period of two years with effect from August 1, 1989. No material has been placed before me to show that there is any complaint against the petitioner during the period of probation. No adverse remarks also have been placed before me showing that the petitioner did not satisfactorily complete the probation. It is also not disclosed who gave the report and what was the deficiency found in him in the report.
24. Ext. P3 or the bond Ext. P4 executed by the petitioner did not contemplate a "term appointment" . There is nothing to show that during the extended period of probation any communication was sent to him informing him of his deficiency or any adverse remarks against him regarding his performance. At any rate, no such adverse remarks were communicated to him. By Ext. P12, petitioner enquired whether it could be taken that he satisfactorily completed the probation. He received Ext. P13 reply, stating that on the basis of the recommendation of the Control-ing Officer, evaluating his performance, conduct, etc. received at the end of his probation, it has been decided by the competent authority to retain him initially for a period of two years as mentioned in the Office order and it is further stated that the position will be reviewed on completion of the present period of retention and a decision as deemed fit will be taken. Again by Ext. P14, petitioner required the 3rd respondent to clarify whether he could take that his probation was satisfactorily completed and whether he was a full member of service in the regular cadre of the Institute as Engineer. He got Ext. P15 reply, stating that his conclusion was wrong.
25. There is substances in the contention of learned counsel for the petitioner that the petitioner was appointed as Engineer Trainee under Ext. P3 and his conditions of service are regulated by Exts. P3 to P5 and that Exts. P3 to P5 only contemplated absorption on satisfactory completion of training and do not contemplate appointment on a 'term basis' without bringing him into a regular cadre. In this connection, learned counsel invited my attention to a decision of the Supreme Court in H.L. Trehan v. Union of India (AIR) 1989 SC 568: In that case, the Supreme Court considered the scope of Section 11 of Caltex (Acquisition of Shares of Caltex Oil Refining (India) Ltd. and of the Undertakings in India of Caltex (India) Ltd., Act 17 of 1977. In the course of judgment, the Supreme Court observed as follows (Para 11):
"It is now a well established principle of law that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by a Government servant without complying with the rules of natural justice by giving the Government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a Government servant will offend against the provision of Article 14 of the Constitution. Admittedly, the employees of CORIL were not given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Director. The impugned circular cannot, therefore, be sustained as it offends against the rules of natural justice."
Dealing with the contention that after the impugned circular was issued, an opportunity of hearing was given to the employees with regard to the alterations made in the conditions of their service by the impugned circular, the Supreme Court made the following observations (Para 12):-
"In our opinion, the post-decisional opportunity of hearing does not subserve the rules of natural justice. The authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post-decisional opportunity."
Petitioner was not given an opportunity of being heard before the order giving a term of appointment was made. In this context, it would be profitable to refer to the ruling of the Supreme Court in Surya Narain Yadav v. Bihar State Electricity Board (AIR) 1985 SC 941. In that case, the Board represented to the trainee en-gineersTrom time to time that after their training was completed, they would be absorbed in regular employment of the Board. In the above circumstances, the Supreme Court held that the Board was bound to regularise the appointments of appellants therein who had been taken as trainee Engineers intially and had been continued since long to be in the employment of the Board. The Supreme Court quoted in this context the following observations contained in the decision in Union of India v. Indo Afghan Agencies(AlR) 1968 SC 718(at p.728):-
"Under our jurisprudence, the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the judge of its own obligation to the citizen or an ex parte appraisement of the circumstances in which the obligation has arisen."
Ultimately the court gave a direction to regularise the appointments of the trainee engineers in that case.
26. It is submitted by learned counsel for respondents that Ext. P9 would show that the concerned authority was not satisfied with the performance of the petitioner. It is a well settled principle that when the satisfaction of the concerned authority is questioned in a cout of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned Officer. (See Jaswant Singh v. State of Punjab (AIR) 1991 SC 385.) In this connection, it is pertinent to note that Ext. R2(b) was not communicated to the petitioner. Nor was the report on the basis of which, the alleged proceedings Ext. R2(b) is taken communicated to the petitioner.
27. In this context, the observations of the Supreme Court in K.I. Shephard v. Union of India (1988-I-LLJ-162) is also relevant. In para 14 of the judgment, the Supreme Court observed (p.172):
"Fair play is a part of the public policy and is a gurantee for justice to citizens. In our system of Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. The rules of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilisation and Rule of Law prevailing in the community. Man within the social frame has struggled for centuries to bring into the community the concept of fairness and it has taken scores of years for the rule of natural justice to conceptually enter into the field of social activities."
28. As pointed out by the Supreme Court in Dwarkadas Narfatia & Sons v. Board of Trustees of the Port of Bombay (AIR) 1989 SC 1642, where there is arbitrariness in State action, Article 14 springs in and judicial review strikes such an action down. Every action of the executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Article 14.
29. Necessity of communication in advance about the defects in the work and deficiency in performance of an employee has been highlighted by the Supreme Court in Dr. Mrs. Sumati P. Shree v. Union of India (1989-II-LLJ- 228). In that case, appellant was appointed as Assistant Surgeon Grade I in the Naval Headquarters on February 16, 1982 on ad hoc basis for a period of six months or till a regular candidate from U.P.S.C. is available whichever is earlier. Appellant was continued in service by giving her successive extensions from time to time, up to February 15, 1985. By a letter dated January 12, 1985, the Headquarters Office of the Western Naval Command informed her that her services would stand terminated with effect from Feb. 15, 1985. She moved the High Court of Bombay with a writ petition but upon the constitution of Central Administrative Tribunal, the said writ petition stood transferred to the Bombay Bench of that Tribunal. The Tribunal perused the confidential records relating to the appellant and it was found that the authorities had recorded that they were not satisfied with the performance of the appellant and so her appointment after the expiry of the term was not recommended. In view of this record, the Tribunal held that the removal was not by way of penalty and so it dismissed the application of the appellant. Allowing the appeal filed against the judgment of the Central Administrative Tribunal, the Supreme Court made the following observaations (p.229):
"We must emphasize that in the relationship of master and servant there is a moral obligation to act fairly. An informal, if not formal, give-and-take, on the assessment of work of the employee should be there, The employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiencies, indifference or indiscretion may be with the employee by inadvertence and not by incapacity to work. Timely communication of the assessment of work in such cases may put the employee on the right track. Without any such communication, in our opinion, it would be arbitrary to give a movement order to the employee on the ground of unsuitability."
30. Learned counsel for respondents submitted that a persual of the objects of the institute would show that the major objective of the Insitute was to make research and that therefore this court shoud be slow to interfere with the orders passed by the respondents for the reason that the petitioner did not make progress in his work. It may be true that the main object of the Institute is to make research work. However, on going through the objectives in Ext. R2(a), it is not possible to conclude that it is only concerned with research work. Many other objectives are mentioned in Ext. R2(a). In the circumstances, I am not able to sustain the action taken by the respondents for the reason that the main objective is to do research work and that the petitioner has not demonstrated any efficiency in the research work. It is seen from the work assignments, which I have already referred to, the primary function given to the petiitoner after appointment as Engineer Trainee, was supervision of construction and maintainance work. It is also not clearly shown that even in the matter of research work he was deficient. As indicated above no deficiency was communicated to him before the respondent declined to absorb him after the training. Learned counsel for respondent submitted that the petitoner has not challenged either the extension of the training period or the appointment on probation and therefore it was not open to him to challenge these orders at this belated stage in this original petition. There is some force in the contention of learned counsel, but I cannot completely shut my eyes to the fact that in a State where unemployment among the educated is the highest it would be unreasonable to expect the employees to start fighting with the employer at every stage. The petitioner would have thought that his appointment would be regularised after the probation period. In Ext. P28 there is reference to the selection of the petitoner. It states that for Post-Graduate Degree holders who are initially engaged in the regular scale as N.Ts. the period of training under I.L.N.T. Scheme is counted as regular service for the purpose of deciding seniority for promotion also. It is only when it was ultimately found that respondents were not prepared to treat the appointment under Ext. P8 as an appointment in the regular cadre, the petitioner made representations and finding that it did not produce any result, filed this Original Petition challenging the orders.
31. Learned counsel for respondents invited my attention to a decision of the Supreme Court in State of Maharashtra v. Veerappa R. Saboji (1979) 4 SCC 466: In that case, the Supreme Court held that ordinary and normal rule that without an express order of confirmation, the Government servant will not be taken to have been confirmed in the post to which he was appointed temporarily and/or on probation and confirmation can be delayed at a time for administrative reasons or for watching the work and suitability of the Government servant for a further period and such power to dealy the confirmation is not violativc of Articles 14 and 16.
32. Learned counsel also placed great reliance on the following observation of the Supreme Court in Dhanjuhbai Ramjibhai v. State of Gujarat (1985-II-LLJ-521 at 523):
"It is then submitted that the appellant enjoyed a legitimate expectation of being confirmed on the expiry of two years of probation and on successfully completing the qualifying tests and training undergone by him. We are not impressed by that contention. It was open to the State Government to consider the entire record of service rendered by the appellant and to determine whether he was suitable for cofirmantion or his services should be terminated. There was no right in the appellant to be confirmed merely because he had completed the period of probation of two years and had passed the requisite tests and completed prescribed training. The function of confirmation implies the exercise of judgment by the confirming authority on the overall suitability of the employee for permanent absorption in service."
33. Learned counsel for respondents also pressed into service the decision of the Supreme Court in Swami Saran Saksena v. State of Uttar Pradesh (1980-I-LLJ-103). In that case, the Supreme Court held that whether the appellant should be confirmed is a matter to which the authority has yet to apply its mind and in the circumstances, it is not proper that the court should pre-empt its judgment.
34. It is true that it is open to the employer to delay confirmation, in the case of an appointment on ad hoc basis or on probation but in this case, we are concerned with the arbitrary alterations of conditions of service and not with the question whether the employer has a right to extend the period of probation. The period of probation was not extended in the instant case. But the appointment was made on ad hoac basis for which there is no warrant in view of the terms and conditions on which the petitioner was appointed.
35. Learned counsel for respondent invited my attention to Ext. P19. That communication was long after Ext. P11. There it has been stated that in the meeting held on February 19, 1990, the need and importance of the optimisation of valve body project was indicated to the petitioner and that he was asked to show progress atleast in one of the sizes of the valves in a year's time and also progress made at intervals. It was also stated that petitioner was working in 4" test rig for more than 2 months for initial test rig performance as desired for commencing the above project and that he had not been even able to measure the velocity profile in a pipe without valve. It also states that his progress was reviewed and the review showed that he had hardly shown even a start towards the objectives of the project and that was mainly observed due to the fact that he was not able to understand the basic aspects of the simple experimentation and the fluid mechanics of flow, which a person of his qualification and specialised training abroad should know in the normal course. It can be seen that Ext. P19 came into existence long after Ext.P11 and therefore the counsel cannot press Ext. P19 into service in order to justify Ext. P11.
36. Learned counsel for petitioner would submit that Ext. P19 was later got into existence in order to support the action in the face of absence of any material to indicate that petitioner was lagging behind and that he did not make any progress. He also invited my attention to Ext. P20, which is a letter sent by petitioner to the National Project Director and Additional Director of the Institure, where petitioner elaborately and effectively dealt with the alleged deficiencies pointed out in Ext. P19.
37. Learned counsel for respondents further submitted that this Institute being mainly a research institute, the opinion expressed by the respondents, who are experts must be given due weight and that the court will not be justified in interfering with the decision taken by such decision making authority. He also brought to my notice the decision of the Supreme Court in Km. Neelima Misra v. Dr. Harinder Kaur Paintal (AIR) 1990 SC 1402, where the Supreme Court observed that due regard should be given to the opinion expressed by the selection committee and that court will not interfere in the absence of proof of mala fides or contravention of statutory rules or ordinances. No doubt assessment relating to appointments in academic field is the realm of experts and the courts should be slow to interfere with the opinion of experts in the filed.
38. But there must be an objectivity in the decision making and the court must be satisfied that the decision making authority has acted fairly and justly and in conformity with the Rules of natural justice. As indicated, no material has been placed before me with reference to confidential records or other records to show that petitioner was in any way deficient in his work or that he did not make any progress until Ext. P11 order was passed.
39. Uncertainty in employment will lead to frustration and that itself is likely to affect the performance in duties assigned to an employee. When Damocle's sword of termination of service hangs over his head, no employee would be able to discharge his duties efficiently. Delay in regularisation indefinitely will affect his future career also. Difficulty may also arise to get appointment elsewhere by reason of age bar. These are relevant considerations which would weigh with the decision making authority in delaying regularisation. They are expected to act in fairness. Arbitrariness in the decision making process will lead to violation of the fundamental right of equality enshrined in Article 14. Of course in appropriate cases, the decision making authority can extend period of probation if the authority is satisfied that in the interest of efficiency and excellance of administration such a course is necessary.
40. In this context, learned counsel for petitioner brought to my notice Ext. P31, which is a certificate issued by Dr. V.B. Panicker, who was the Chairman of the Committee, which recommended the petitioner to be taken on probation. The certificate was issued, of course, after his retirement as Joint Director of the Institute. It is stated therein that he found the petitioner hard working and sincere, that he has acquired advanced knowledge in the field of civil and hydraulics Engineering and he considered him suitable for appointment in any responsible position, and that his conduct and character have been exemplary. No doubt, a certificate issued by an authority after his term of office cannot prevail over a decision making, but I cannot totally shut out my eyes to the fact that if petitioner is such an unsuitable person, a certificate in the nature of Ext. P32 would not have been issued.
41. Foregoing discussion would show that Ext. P11 suffers from arbitrariness and is passed in violation of the principles of natural justice and fair play. The action of 1st respondent in not regularising the service of the petitioner smacks of arbitrariness and violation of equality clause enshrined in Article 14 of the Constitution of India.
42. In the circumstances, I quash Ext. P11 and direct the respondents to regularise the service of petitioner and bring him into the regular cadre.
43. Another short point which remains to be settled is the failure to sanction the second and third increments to the petitioner with effect from June 5, 1989 and June 5, 1990 respectively. Learned counsel for respondent submitted that between May 5, 1989 and August 5, 1989, petitioner has not worked and that is the reason for not granting the increment. It has come out in evidence that in the course of petitioner's employment, he had a fall from a building and he was hospitalised and therefore he was on leave during that period. There is no reason for not treating this period as in service. I direct the respondents to treat the above period as in service and sanction the increments on that basis,
44. Lastly, it was contended by counsel for respondents that the petitioner has not impleaded the institute as a party. As the Officers who passed the impugned orders are in the party array, I do not consider this as a serious defect.
45. Original petition is allowed to the above extent.