Calcutta High Court (Appellete Side)
Kaushal Kishore Prasad vs Union Of India & Ors on 31 January, 2014
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
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31.01.14
1/akd
W.P.C.T. 294 of 2013
Kaushal Kishore Prasad
-Vs-
Union of India & Ors.
........................................................................
Mr. Sanjib Mal, Mr. Soumen Bhattacharjee, Mr. N. P. Biswas ... ... for the petitioner Mr. Asim Kumar Dutta ... ... for the respondents Mr. Kalyan Pathak ... Ld. Addl. Solicitor General (Amicus Curaie) It is a most unfortunate case where the concerned authority even refused to pay any heed to the advice of the learned Additional Solicitor General of India in order to redress the grievances of the petitioner herein.
The petitioner herein was appointed as a teacher in the Primary Section of Rifle Factory High School, Ishapore in the district of North 24-Parganas. The petitioner passed B.Com Examination from Calcutta University in the year 1991 and also passed School Teachers' Training Course (Diploma) from Sister Nibedita College, Calcutta.
The said petitioner submitted an application in response to an advertisement published in the Employment News dated 29th July, 1995 for the post of 2 Primary Teacher in the Primary Section of Rifle Factory High School, Ishapore. After submission of the application by the petitioner herein, concerned authority of the school called the said petitioner to appear at the written test and subsequently, at the interview. The petitioner was thereafter, found suitable for the post of Primary Teacher and after due verification of the certificates and other testimonials, appointment letter was issued to the said petitioner for joining the aforesaid post of Primary Teacher.
The services of the petitioner herein was, however, terminated by the respondent No. 4 w.e.f. 20th November, 1997 during the period of probation.
The petitioner thereafter, filed an application before the Central Administrative Tribunal, Calcutta Bench being O.A. 1376 of 1997 and the said learned Tribunal by the order dated 3rd November, 1998 disposed of the said original application by directing the said petitioner to file an appeal before the Appellate Authority. The said Appellate Authority was also directed by the learned Tribunal to dispose of the appeal of the petitioner herein within a period of eight weeks after giving an opportunity of hearing to the said petitioner.
The Appellate Authority by the order dated 28th December, 1998 disposed of the said appeal upon observing that the teaching experience certificate 3 submitted by the petitioner herein cannot be accepted since the same has not been recognised by NCTE. The said Appellate Authority, however, advised the petitioner herein to acquire and produce a valid Teachers' Training Certificate and further held that as soon as the said petitioner produced a valid certificate, he will be reinstated or the post will be restored to him and the intervening period will be treated as die's-non. The relevant extracts from the order passed by the Appellate Authority are set out hereunder:
"5............................................................... As he has a B.Com degree and experience in teaching as stated by him, it should be possible for him to acquire and get a valid certificate in respect of teacher training. There are many Institutions in the country duly recognised by NCTE who are offering such courses and certificates after duly examining the candidates. The applicant wanted some time to get such qualification and certificate. Member/Per agreed to the same and wanted how much time he would need. He said he would need two to three years. Member/Per ruled that 2 years time could be given to him during which he should produce such a valid certificate for Teacher training. As soon as he produces a valid certificate, he will be reinstated or the post will be restored to him. The intervening period from 20-11-97, when his service stands terminated will be treated as die's-non."
The petitioner, however, could not produce the Teachers' Training Certificate within the aforesaid time limit of two years granted by the Appellate Authority for the reasons beyond the control of the said petitioner. As a matter of fact, the petitioner herein completed B.Ed. course from Md. Hasan Degree College, Jounpur under Uttaranchal University but the result of the said petitioner was withheld along with other 37 students.
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The petitioner thereafter, submitted representation before the respondent authorities and again took admission to a training college recognised by the West Bengal Board of Primary Education in the year 2003. The said petitioner passed the Primary Teachers' Training Examination in the year 2004 and was placed in 1st class. The petitioner herein submitted a representation before the authorities concerned furnishing a copy of the aforesaid Teachers' Training certificate and requested the said authorities to reinstate him in service in compliance with the earlier assurances and directions of the Appellate Authority. The aforesaid representation was, however, not considered and the petitioner was not allowed to join his duties.
The petitioner again filed an application before the Central Administrative Tribunal, Calcutta Bench being O.A. 211 of 2008 which was disposed of by the said learned Tribunal on 15th May, 2009 by directing the respondent authorities to consider the representation of the said petitioner dated 26th December, 2007.
The Joint General Manager/Per by the order dated 6th October, 2009 considered the aforesaid representation of the petitioner and rejected the same.
The petitioner thereafter, filed another application before the Central Administrative 5 Tribunal, Calcutta Bench being O.A. 759 of 2010 and the same was ultimately, dismissed by the said learned Tribunal by the impugned judgment and order dated 21st March, 2013.
Challenging the aforesaid judgment and order passed by the Central Administrative Tribunal, Calcutta Bench in O.A. 759 of 2010, present writ petition has been filed.
The learned Advocate representing the petitioner submits that the respondent authorities terminated the services of the said petitioner during the probationary period on 20th November, 1997 without assigning any reason but subsequently, disclosed that the order of termination was issued by the authorities concerned for not possessing the qualification and experience in accordance with the Recruitment Rules prevailing at the relevant time. The learned Advocate of the petitioner further submits that the respondent authorities upon considering the qualifications and other eligibility criteria of the said petitioner found him eligible for the post of Primary Teacher and selected him to the said post. The learned Advocate of the petitioner also submits that the respondent authorities upon scrutinising the testimonials submitted by the said petitioner in support of his academic qualifications decided to select the petitioner herein to the post in question and at no point of time, the concerned 6 authorities informed the said petitioner about the lack of any requisite qualification and experience.
It has been submitted by the learned Advocate of the petitioner that the Appellate Authority while deciding the appeal of the said petitioner, by the reasoned order dated 28th December, 1998, agreed to reinstate the said petitioner in service immediately after submission of a valid Teachers' Training Certificate and also granted two years time for submission of the said certificate which was subsequently, extended for a further period of six months. The learned Advocate of the petitioner referring to the aforesaid order of the Appellate Authority submits that the order of termination therefore, could not be said to be final in the facts of the present case since the said Appellate Authority decided to reinstate the petitioner herein after production of the Teachers' Training Certificate within the subsequent period of 2 1/ 2 years.
The aforesaid facts are not at all disputed. The petitioner herein submitted the Teachers' Training Certificate before the concerned authority in addition to the certificate submitted earlier by the said petitioner after the time limit granted by the Appellate Authority.
The prayer for reinstatement of the petitioner in service was not considered by the respondent 7 authorities only on the ground of delay in submitting the Teachers' Training Certificate.
Upon hearing the submissions of the learned Counsel representing the petitioner and scrutinising the available records we also find that the said petitioner could not submit the requisite Teachers' Training Certificate within the time fixed by the said Appellate Authority on account of the reasons beyond the control of the petitioner herein. However, it is not in dispute that the petitioner herein is not only over qualified but also subsequently, passed the Teachers' Training course from a recognised institute as desired by the respondent authorities.
Unfortunately, the respondent authorities are unusually adamant to consider the request of the petitioner herein for reinstatement in service even after submission of the said Teachers' Training Certificate since the petitioner could not submit the said certificate within the time period granted by the Appellate Authority.
At this juncture, this Court requested the learned Additional Solicitor General of India to intervene into the matter.
The learned Additional Solicitor General upon considering the relevant facts and circumstances of this case advised the respondent authorities to take a lenient view in this matter by condoning the delay of the petitioner in submitting the Teachers' 8 Training Certificate and reinstate the said petitioner in service. Today also, the learned Additional Solicitor General appears before this court and specifically submits that the petitioner herein fulfils the minimum qualification criteria.
As regards the experience certificate, learned Additional Solicitor General submits that the petitioner herein had already served the school for a period of 11/2 years. The learned Additional Solicitor General also submits that the requirement of submission of Teachers' Training Certificate by the petitioner herein was not a mandatory requirement otherwise the authorities concerned could not have appointed the said petitioner in service. The aforesaid requirement, according to the learned Additional Solicitor General, is a flexible requirement specially when the authorities concerned extended the time period for submission of the said certificate from time to time. Therefore, the rigid stand subsequently taken by the respondent authorities was not at all appreciated by the learned Additional Solicitor General.
The learned Advocate representing the respondent authorities relying on a written instruction of the authorities concerned submits that the services of the petitioner herein were terminated during the period of probation since the said petitioner did not possess the required qualification. The relevant 9 paragraphs from the aforesaid written instruction of the respondent authorities are quoted hereunder:
"Services of Shri Kaushal Kishore Prosad, Ex- Teacher (Primary) the petitioner herein, was terminated w.e.f. 20.11.1997 during the period of his probation for not possessing the qualification and experience in accordance with the provisions as contained in the Statutory Recruitment Rules prevailing at that point of time.
At that point of time, the applicants were scrutinised in terms of the provisions of the SRO and the applications not having the required qualification and not having required experience as per the SRO had been rejected as non-eligible."
It is most unfortunate that the respondent authorities did not show the human face while considering the appeal of the petitioner herein and most unfortunately, the advice of the learned Additional Solicitor General in this matter was also not accepted by the respondent authorities.
We take serious exception to the aforesaid conduct of the respondent authorities and direct the Secretary, Ministry of Defence, Department of Defence Production to examine the conduct of the authorities concerned in this regard as we are of the opinion that the said respondents had no authority to defy the advice of the learned Additional Solicitor General of India under any circumstances.
In any event, we accept the submissions of the learned Additional Solicitor General that the petitioner herein duly fulfilled the requisite qualification and experience at the time of initial engagement and the authorities concerned were also satisfied about the same while appointing the said 10 petitioner in service. At this stage, therefore, the respondent authorities cannot refuse to reinstate the petitioner in service specially when the said petitioner even in absence of any mandatory requirement undergone the Teachers' Training course and submitted the requisite certificate as desired by the Appellate Authority.
From the materials subsequently disclosed by the respondent authorities before this court we find that the respondent authorities did not terminate the services of the petitioner herein during probation on the basis of proper assessment of the performance of the said petitioner during probation and therefore, we are unable to approve the decision of the respondent authorities in this regard.
When a person is placed on probation, it means that the employment of the said person is on trial. As soon as a person is placed on probation, what is on trial is his performance during the probation period. Such period of probation presupposes that the person is otherwise entitled to be appointed but his performance is watched during the period of probation.
In the instant case after the appointment was made by the authorities on being satisfied about the qualification of the petitioner, his services cannot be terminated on the ground of lack of qualification 11 when his performance is not found unsatisfactory in any respect.
In the aforesaid circumstances, the order of termination dated 20th November, 1997 cannot be sustained in the eye of law and the same, therefore, stands quashed.
The subsequent decision of the respondent authorities dated 6th October, 2009 rejecting the prayer of the petitioner also cannot be approved by us and the same is accordingly quashed.
For the identical reasons, the impugned judgment and order passed by the learned Central Administrative Tribunal, Calcutta Bench cannot be sustained in the eye of law and the said is set aside.
The respondent authorities namely, the respondent Nos. 2 to 5 are directed to reinstate the petitioner in service pursuant to the order passed by the Appellate Authority without any further delay but positively within a period of seven days from the date of communication of this order upon relaxing the time limit granted by the said Appellate Authority for submission of the Teachers' Training Certificate by condoning the delay in submitting the said Training Certificate in view of the fact that the petitioner was not at all responsible for the delay in the submission of the Teachers' Training Certificate as the situation was beyond his control. 12
The respondent authorities are further directed to treat the intervening period from 20th November, 1997, when the services of the petitioner was illegally terminated, till the date of reinstatement of the said petitioner in service in terms of this order as die's-non as directed by the Appellate Authority.
This writ petition thus stands allowed. There will be, however, no order as to costs. We acknowledge the assistance received from the learned Additional Solicitor General who appeared all through before this court as Amicus Curaie pursuant to our request with Mr. Somnath Bose, learned Advocate and sincerely appreciate the services rendered by the said Amicus Curaie.
The Registrar (Administration) is directed to forward a copy of this judgment to the Secretary, Ministry of Defence, Department of Defence Production, Government of India for taking appropriate decision upon considering the conduct of the respondents in the matter.
Let a xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Advocates of both the parties on usual undertaking.
(Pranab Kumar Chattopadhyay, J.) (Samapti Chatterjee, J.) 13