HONOURABLE SRI JUSTICE E.V.VENUGOPAL
WRIT PETITION No.45609 of 2018
ORDER:
1 Heard Sri Nandigam Krishna Rao, learned senior counsel for the petitioner and the learned Government Pleader for Higher Education appearing for respondent Nos.1 and 2 and Sri Sricharan Telaprolu, learned counsel for the third respondent. 2 Petitioner is a post-graduate in Mechanical Engineering from Jawaharlal Nehru Technical University. Pursuant to the notification issued by the third respondent to fill up the post of Assistant Professor in Mechanical Department, the petitioner applied for the same and was selected by duly constituted selection committee and he was appointed vide proceedings dated 26.11.2015. In terms of Clause (4) of the appointment order the appointing authority based on unsatisfactory performance of the employee may terminate his services of a permanent employee by giving three months' notice in writing and for employee on probation or on extended probation, the notice period is one month instead of three months. The petitioner was appointed on permanent basis as a regular employee. The period of probation was two years and he also completed the probationary period by 25.11.2017 itself. The name of the petitioner was reflected in the Portal of All India Council for Technical Education for the academic year 2017-18 as regular employee.
23 It is the further case of the petitioner that all of a sudden, by invoking Clause (4) of the appointment order dated 26.11.2015, by proceedings dated 07.12.2017 the third respondent has removed the petitioner from service by depositing three months salary mentioning unsatisfactory services. The third respondent has not issued any notice to the petitioner nor conducted any enquiry. It is mandatory on the part of the respondents to follow the procedure laid down under Section 79 of the Education Act, which deals with dismissal, removal or reduction in rank or suspension etc, of employees of private institutions.
4 Petitioner further submits that he made representation to the second respondent through Appeal dated 08.12.2017 and 19.12.2017 and since the second respondent has not disposed of his representations, the petitioner filed W.P.No.27340 of 2018. Subsequent to that the second respondent has passed the impugned order confirming the order passed by the third respondent granting post facto permission for termination of his services, he has withdrawn the said writ petition. 5 The learned counsel for the petitioner submits that the consequential order passed by the second respondent granting post facto permission for his termination from service is illegal and arbitrary and against to the mandatory provision of Section 79 of the Education Act. It is the further submitted that the respondents have obtained the post facto approval from the 3 competent authority, who is the appellate authority in terms of Section 80 of the Act; therefore, appealing to the appellate authority in terms of Section 80 of the Act will not fructify and will become a futile exercise. Hence he has filed the present writ petition seeking this Court's indulgence.
6 On the other hand, Sri Sricharan Telaprolu, learned counsel for the third respondent, by relying on the counter affidavit, submitted that firstly the writ petition is not maintainable since as against the impugned order, the petitioner has an alternative remedy of appeal before the Government under Section 81 (2) of the Education Act. It is further submitted that as per the appointment order of the writ petitioner, after the completion of the probation period, his services were not renewed as there are several complaints from the student community regarding poor faculty skills of the petitioner. On such feedback from the students, the services of the petitioner were not regularised. As per the terms of the appointment order, under Clause (4), a faculty who is on probation relieving from service is entitled for a month salary, however, in respect of the petitioner's case, three months salary was paid to him in order to facilitate him and the same was accepted and received by the petitioner. Hence prayed to dismiss the writ petition.
7 The learned counsel for the third respondent also relied on the principle laid down in C.S.H.N.Murthy vs. Government of 4 Andhra Pradesh1 and Keshav Memorial Educational Society, Hyderabad vs. Government of Andhra Pradesh, Education Department, Hyderabad2 in support of his contentions. 8 As the petitioner is appointed on probation, the termination of the petitioner does not cast a stigma and even if the termination is held to be not legal, the petitioner would be entitled to only one month salary and cannot claim to be continued as permanent employee. The order of termination of probationer does not amount to dismissal and being a simple order of discharge of the employee on probation, the question of issuing notice and conducting enquiry does not arise.
9 It is an undisputed fact that the petitioner has an alternative remedy of appeal before the Government under Section 80 of the Education Act and without approaching the appropriate appellate authority under the said proviso, assuming that since post facto approval is accorded by the very same appellate authority the attempt would not fructify and yield no result is incorrect for the reason that post facto approval was accorded on the application made by the respondent institution which does not mean that the right of the writ petitioner is taken away or heard, therefore, appropriate appellate provision could have been availed of by the writ petitioner and if aggrieved would have agitated under Section 1 (2000) 1 ALD 434 2 (1999) 4 ALD 338 5 81 (2) of the Education Act for review or revision and the contention of the learned counsel for the petitioner cannot be countenanced for the reason that the post facto approval has been accorded by the appellate authority and in the said post facto approval itself it is clearly stated that hereinafter without obtaining prior approval the respondent institution cannot resort to any such action in taking disciplinary action. The writ petitioner on assumptions and presumptions and without exhausting such effective alternative remedy provided under Section 81 (2) of the Act, has resorted to filing of this writ petition straight away. 10 Further, the respondents took the contention of unsatisfactory performance of the petitioner to terminate his services basing on the feedback from the students. The contention of the respondents is that the probation period of the petitioner was not extended after reviewing his performance in the last two years of his service by invoking Clause No.4 of the appointment order.
11 In C.S.H.N.Murthy vs. Government of Andhra Pradesh (1 supra) relied upon by the learned counsel for the third respondent, the erstwhile Andhra Pradesh High Court held as follows:
"Dealing with cases where discharge of probationers challenged the action before the Courts, it has been repeatedly held that discharge of a probationer simplicitor does not amount to dismissal/removal and, therefore, no enquiry is necessary. Some of these cases may be referred to In Ranendra Chandra Banerjee 's case (supra), the appellant was given a show-cause notice during the extended period of probation and after considering the explanation given by him, his services were terminated. The order of termination was challenged before the High 6 Court on the ground that he was entitled to the protection of Article 311 of the Constitution of India and as the same was denied to him, the termination order was illegal. The High Court held that the appellant was not entitled to the protection under Article 311(2) of the Constitution and also the service rules. On the certificate granted by the High Court, a Constitution Bench of the Supreme Court decided the appeal. By unanimous judgment, the Apex Court held as follows:
"..... Further it is equally settled that a Government servant who is on probation can be discharged and such discharge would not amount to dismissal or removal within the meaning of Article 311(2) and would not attract the protection of that Article where the services of a probationer are terminated in accordance with the rules and not by way of punishment. A probationer has no right to the post held by him and under the terms of his appointment he is liable to be discharged at any time during the period of his probation subject to the rules governing such cases; (See: State of Orissa v. Ram Narayan Das, MANU/SC/0311/1960: (1961) I LLJ 552 SC). The appellant in the present case was undoubtedly a probationer. There is also no doubt that the termination of his service was not by way of punishment and cannot therefore amount to dismissal or removal within the meaning of Article 311......"
12 The facts and circumstances of the case on hand are identical to the facts and circumstances of the above case. 13 Having regard to the facts and circumstances of the case and having regard to the principle enunciated in the case cited supra, this Court is of the considered view that this writ petition is liable to be dismissed 14 Accordingly, this writ petition is dismissed giving liberty to the petitioner to approach the appropriate authority as provided under Sections 80 and 81 (2) of the Act and pursue his grievance. No order as to costs. Miscellaneous petitions if any pending in this writ petition shall also stand dismissed.
------------------------------
E.V.VENUGOPAL, J.
Date:23.03.2023 Kvsn