Madras High Court
R.Raja Jenish vs The Secretary on 24 January, 2013
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.01.2013
CORAM:
THE HONOURABLE MR. JUSTICE K.CHANDRU
W.P.No.23178 of 2012
and M.P.Nos.1 & 2 of 2012
R.Raja Jenish .. Petitioner
Vs.
1.The Secretary,
Sri Venkateswara College of
Engineering,
Post Bag No.3, Pennalur,
Sriperumbudur-602 105.
2.Secretary & Registrar,
Sri Venkateswara Educational and
Health Trust,
No.1/3A, River View Road,
Kotturpuram,
Chennai-600 085.
3.The Commissioner Technical Education,
Member (ex-officio),
Sri Venkateswara College of Engineering,
Sardar Patel Road,
Guindy, Chennai-600 025.
4.B.Jayalakshmi, M.E.,
Assistant Professor,
Sri Venkateswara College of Engineering,
Post Bag No.3, Pennalur,
Sriperumbudur-602105.
5.K.Janani, M.E.,
Assistant Professor,
Sri Venkateswara College of Engineering,
Post Bag No.3, Pennalur,
Sriperumbudur-602 105. .. Respondents
Prayer: Writ petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records pertaining to the orders of the first respondent in Nos.A1/3.1.1/2011-2012/94 dated 13.03.2012 and A1/3.1.1/2011-2012/103 dated 22.03.2012 relieving the petitioner from his duties on the afternoon of 10.05.2012 be quashed as illegal and arbitrary and consequently direct the first and second respondents to reinstate the petitioner in any one of the places of his juniors (the 4th and 5th respondents recruited after relieving the petitioner from my duties) with all the arrears of salary from the date of his relief on 10.05.2012.
For Petitioner : Mr.R.Rajendran
For Respondents : M/s.R.Natarajan for R1 and R2
O R D E R
The petitioner filed this writ petition challenging the order of the first respondent, namely, the Secretary, Sri Venkateswara College of Engineering, Sriperumbudur dated 13.03.2012.
2. By the aforesaid order, the petitioner, who was employed as Assistant Professor in the Department of Computer Science and Engineering, was informed that he will be relieved from his duties in the afternoon of 16.04.2012. Subsequent to the said communication, the petitioner sent a detailed letter dated 20.04.2012 stating that he shall not be relieved from service since he was having marriage engagement in the first week of May 2012 and he should be allowed to continue by reconsidering the order passed by them. In fact, even after the receipt of the order dated 13.03.2012, he wrote a letter to the respondents stating that they should consider his request on humanitarian ground by extending the time by one month as the engagement was fixed on 30.04.2012. In terms of the request made by him, the first respondent by a communication dated 22.03.2012 extended the period of relief up to 10.05.2012 instead of the earlier date granted. It was thereafter, the petitioner has filed the present writ petition challenging the order of relief granted.
3. When the matter came up on 28.08.2012, notice of motion was ordered. Pending the notice of motion, in the application for interim direction, no orders have been passed. On notice from this Court, on behalf of the respondents 1 and 2, a counter affidavit has been filed dated 08.01.2013.
4. Heard both sides.
5. The contention of the petitioner was that he was appointed against permanent post and joined duty on 05.08.2010 and the probation period was for a period of one year. Under Rule 21 of Service Rules, the requirement of one year probation is only for permanent post. He had completed his probation on 05.08.2011 and during the period of probation, his work was evaluated and the feedback obtained from the students was that consistently excellent or very good. Either during the period of probation or even after that period till 10.05.2012, no prior notice was given to him.
6. In response to the said averments, in the counter affidavit filed by the respondents, it was stated that under Rule 28, the College has got power at any time during the period of probation or at the end of such period, if the employee's work or conduct has not been found satisfactory, his services may be terminated without assigning any reason and by giving one month notice. On 07.07.2011, the probationary period of the petitioner was extended by 6 months with effect from 01.07.2011 as his academic performance in teaching needed an improvement. Even after extension of 6 months, it was found that the performance of the petitioner was not satisfactory and hence he was given relieving order dated 13.03.2012 in accordance with the Service rules. Further extension was granted on the basis of the request made by the petitioner, pointing out certain personal reasons. Subsequently, the petitioner has taken No Due Certificate and produced before the College and got the relieving order. After 10.05.2012, he was not assigned with any teaching work.
7. Mr.R.Rajendran, learned counsel appearing for the petitioner contended that during the period of probation he was not given any adverse notice and on the other hand, he had consistently shown excellent or very good report and there was no reason for terminating his service. Secondly, the learned counsel for the petitioner contended that the maximum period of probation is one year and therefore, the question of thereby terminating his service will not arise as he deemed to have been made permanent. It must be noted that the first respondent is running the College on self financing basis and it is a private college. On the question of maintainability of the writ petition, the learned counsel for the petitioner placed reliance on the decision of the Hon'ble Supreme Court in K.Krishnamacharyulu and Others v. Sri Venkateswara Hindu College of Engineering and Another reported in (1997) 3 SCC 571. Though the contents of the said judgment is on a slightly different context, this Court cannot go into the question of maintainability of the writ petition, as no such contention has been made in the counter affidavit. With reference to the second contention raised, the learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme Court in State of Punjab v. Dharam Singh reported in AIR 1968 SC 1210, by placing reliance upon the passage found in Para 5 which reads as follows:
"5..... Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication."
8. Per contra, Mr.R.Natarajan, learned counsel appearing for the respondents 1 and 2 contended that the said view of the Hon'ble Supreme Court in the decision cited supra cannot be relied, as subsequently the matter relating to probation has been considered by a Seven Bench Judgment and thereafter by a line of other judgments. He placed reliance upon the judgment of the Hon'ble Supreme Court in Head Master, Lawrence School, Lovedale v. Jayanthi Raghu and Another reported in (2012) 4 SCC 793. The Hon'ble Supreme Court, in the said judgment at Paras 27, 30 and 38, has held as follows:
"27. After referring to the decisions in Dharam Singh [AIR 1968 SC 1210], Sukhbans Singh [(1997) 7 SCC 443] and Samsher Singh [(1974) 2 SCC 831] and other authorities, the three-Judge Bench expressed thus: (Satya Narayan Jhavar case, (2001) 7 SCC 161, SCC p.169, para 11):
"11.The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the Rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by using an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."
...
30. On a perusal of Rule 4.9 of the Rules, it is absolutely plain that there is no prohibition as was the rule position in Dharam Singh [AIR 1968 SC 1210]. Similarly, in Om Parkash Maurya [1986 Supp SCC 95] there was a restriction under the Regulations to extend the period of probation. That apart, in the Rules under consideration, the said cases did not stipulate that something else was required to be done by the employer and, therefore, it was held that the concept of deemed confirmation got attracted.
....
38. Had the rule-making authority intended that there would be automatic confirmation, Rule 4.9 would have been couched in a different language. That being so, the wider interpretation cannot be placed on the Rule to infer that the probationer gets the status of a deemed confirmed employee after expiry of three years of probationary period as that would defeat the basic purpose and intent of the Rule which clearly postulates "if confirmed". A confirmation, as is demonstrable from the language employed in the Rule, does not occur with efflux of time. As it is hedged by a condition, an affirmative or positive act is the requisite by the employer. In our considered opinion, an order of confirmation is required to be passed."
In the present case, in Rule 22, it was clearly stated that on satisfactory completion of probation, the employee will be confirmed in service for the post he was relieved. Therefore, as rightly pointed out by the Hon'ble Supreme Court, in the present case, it requires confirmation from the employer. In the absence of the same, it cannot be presumed that the petitioner has already become permanent.
9. Mr.R.Natarajan, learned counsel for the respondents also placed reliance upon the judgment of the Hon'ble Supreme Court in Rajesh Kumar Srivastava v. State of Jharkhand and Others reported in (2011) 4 MLJ 894 (SC) and the Hon'ble Supreme Court in Paras 10 & 12 has held as follows:
"10.The records placed before us disclose that at the time when the impugned order was passed, the appellant was working as a Probationer Munsif. A person is placed on probation so as to enable the employer to adjudge his suitability for continuation in the service and also for confirmation in service. There are various criteria for adjudging suitability of a person to hold the post on permanent basis and by way of confirmation. At that stage and during the period of probation, the action and activities of the appellant are generally under scrutiny and on the basis of his overall performance, a decision is generally taken as to whether his services should be continued and that he should be confirmed, or he should be released from service. In the present case, in the course of adjudging such suitability, it was found by the respondents that the performance of the appellant was not satisfactory and therefore, he was not suitable for the job. The aforesaid decision to release him from service was taken by the respondents considering his overall performance, conduct and suitability, for the job. While taking a decision in this regard neither any notice is required to be given to the appellant nor he is required to be given any opportunity of hearing. Strictly speaking, it is not a case of removal as sought to be made out by the appellant, but was a case of simple discharge from service. It is, therefore, only a termination simpliciter and not removal from service on the grounds of indiscipline or misconduct. While adjudging his performance, conduct and overall suitability, his performance records as also the report from the higher authorities were called for and they were looked into before any decision was taken as to whether the officer concerned should be continued in service or not.
....
12. The order of termination passed in the present case is a fall out of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. Such decision cannot be said to be stigmatic or punitive. This is a case of termination of service simpliciter and not a case of stigmatic termination and therefore, there is no infirmity in the impugned judgment and order passed by the High Court."
Therefore, it is contended that since the order is non-stigmatic and the petitioner's request after his relief for extending the period to one month was also been granted on humanitarian grounds, there is no ground made out by the petitioner, who is only a probationer.
10. In the light of the stand taken by the respondents and in the light of the dictum laid down in the decisions cited supra, there is no case made out by the petitioner. Accordingly, this writ petition stands dismissed. No costs. Consequently, the connected miscellaneous petitions are closed.
jvm To
1.The Secretary, Sri Venkateswara College of Engineering, Post Bag No.3, Pennalur, Sriperumbudur-602 105.
2.Secretary & Registrar, Sri Venkateswara Educational and Health Trust, No.1/3A, River View Road, Kotturpuram, Chennai-600 085.
3.The Commissioner Technical Education, Member (ex-officio), Sri Venkateswara College of Engineering, Sardar Patel Road, Guindy, Chennai-600 025.
4.B.Jayalakshmi, M.E., Assistant Professor, Sri Venkateswara College of Engineering, Post Bag No.3, Pennalur, Sriperumbudur-602105.
5.K.Janani, M.E., Assistant Professor, Sri Venkateswara College of Engineering, Post Bag No.3, Pennalur, Sriperumbudur 602 105