Maharaja Agarsain Public School vs R.C.Jain & Anr.
2008 Latest Caselaw 964 Del

*                 IN THE HIGH COURT OF DELHI

+                      WP(C) No.3760/1992

        MAHARAJA AGARSAIN PUBLIC SCHOOL
        & ORS.                          ........ Petitioners
                through: Mr. S.P.Gautam, Advocate

                                 VERSUS

        R.C.JAIN & ANR.                         ........ Respondents
                   through:      Mr. Rahul Sharma, Advocate

                              RESERVED ON:
                                04.07.2008

                           DATE OF DECISION:
%                             07.07.2008

        CORAM:
        Hon'ble Mr.Justice Pradeep Nandrajog

1.      Whether reporters of local papers may be allowed
        to see the judgment?

2.      To be referred to the Reporter or not?

3.      Whether judgment should be reported in Digest?

:       PRADEEP NANDRAJOG, J.

1. Petitioner No.1, Maharaja Agrasen Public School has

been established by Aggarwal Welfare Society, petitioner No.3.

The school has been recognized by the competent authority

under the Delhi School Education Act 1973. Petitioner No.3

was functioning as the principal of the school at the relevant

time.

2. Petitioners are aggrieved by the order dated

25.8.1992 passed by the Delhi School Tribunal in Appeal

No.25/1988 filed by respondent No.2. Vide said order dated

25.8.1992, order dated 9.5.1988 passed by petitioner No.1

dispensing with the services of respondent No.2 has been

treated to be an order of termination. Holding that respondent

No.2 was deemed to be a confirmed employee of the school

and that the motive behind the order was to penalize

respondent No.2 for her misconduct and hence amounted to a

penalty, the order dated 9.5.1988 has been quashed.

Respondent No.2 has been directed to be reinstated in service.

3. Operation of the impugned order passed by the

Delhi School Tribunal was stayed by a Division Bench of this

Court on 23.10.1992 and since then has, due to the said order,

not been implemented.

4. It is not in dispute that second respondent was

appointed, on probation, as a teacher under the first petitioner

in the pay scale of Rs.1200-30-1560-EB-10-2040 and that her

services were dispensed with vide order dated 9.5.1988.

5. There is a dispute whether second respondent was

appointed against a permanent vacancy or against a casual

leave vacancy. The letter of appointment produced by the

petitioners before the Delhi School Tribunal records that

second respondent was temporarily appointed to the post of a

teacher against a casual leave vacancy and would be on

probation for a period of 12 months or till such time the

vacancy exists. The second respondent did not produce any

letter of appointment before the Delhi School Education

Tribunal and asserted that none was given to her. The office

copy of the letter of appointment produced by the petitioners

before the Delhi School Tribunal did not bear any

acknowledgment by the second respondent of having received

the same. No other proof was furnished by the petitioners

before the Tribunal that the letter of appointment produced by

them was ever sent to the second respondent. The Tribunal

has, therefore, not gone by the terms of the office copy of the

letter of appointment produced by the petitioners.

6. Since both parties i.e. the petitioners and second

respondent were not at variance that second respondent was

on probation for a period of 1 year and that she was appointed

with effect from 2.5.1987 and admittedly there being no order

extending the period of probation; the view taken by the

Tribunal is that on expiry of 1 year period of probation the

second respondent would be liable to be treated as a

permanent employee. In para 9 of the order dated 25.8.1992

it has been categorically held by the Tribunal that : "it cannot

be said that the appellant was a probationer at the time when

the impugned order dated 9.5.1988 was passed."

7. The Tribunal has further held that admittedly, when

she was serving under the first petitioner, respondent No.2 was

issued certain memos. Conclusion drawn is that the

management has proceeded to terminate the services of

respondent No.2 for the alleged misconduct and thus the

termination had to be preceded by an inquiry and since none

was held the termination is contrary to law.

8. Learned counsel for the parties did not dispute that

the Delhi School Education Act 1973 and the Delhi School

Education Rules 1973 would govern the appointment,

discharge or termination of the services of employees of

recognized schools and thus in the instant case the Act and the

Rules would be attracted for the reason first petitioner is a

school recognized by the competent authority under the Delhi

School Education Act 1973.

9. Rule 105 of the rules which was in existence at the

relevant time reads as under:-

"105 Probation - (1) Every employee shall, on initial appointment, be on probation for a period of one year which may be extended by the appointing authority by another year and the services of an employee may be terminated without notice during the period of probation if the work and conduct of the employee, during the said period, is not, in the opinion of the appointing authority, satisfactory :

Provided that no termination from the service of an employee on probation shall be made by an aided school except with the previous approval of the Director.

(2) If the work and conduct of an employee during the period of probation is found to be satisfactory, he shall be on the expiry of the period of probation or the extended period of probation as the case may be, confirmed with effect from the date of expiry of the said period.

(3) Nothing in this rule shall apply to an employee who has been appointed to fill a temporary vacancy for a limited period."

10. The first petitioner is not an aided school. Thus, no

prior approval of the Directorate of Education had to be

obtained for termination of services of an employee on

probation.

11. The Rule does not stipulate that on expiry of the

period of probation if probation period is not extended and the

employee continues to remain in service he would be

automatically confirmed. Thus, the view taken by the Tribunal

that on expiry of one year of probation second respondent

would be entitled to be treated as a permanent employee of

petitioner No.1 is incorrect. The settled legal position is that a

probationer cannot after the expiry of the probation period

automatically acquire the status of a permanent member of

the service, unless the rules expressly provide for such a

result. (See AIR 1966 SC 175 G.S.Ramaswamy Vs. I.G.Police).

12. Indeed, at the hearing, Sh. Rahul Sharma learned

counsel for respondent No.2 did not seriously dispute the

aforesaid legal position.

13. Thus, the decision rendered by the Tribunal on the

premise that the status of the second respondent has to be

treated as that of a permanent employee requires to be

corrected by setting aside the said finding.

14. It is true that a probationer would, under certain

circumstances be entitled to vindicate himself if his services

are dispensed with as a probationer. The said circumstance is

limited to the category of cases where the probationer is

stigmatized at the time of discharge. The reason is that an

order of discharge which casts a stigma affects the future

career prospects of the employee and therefore such an

employee would be entitled to claim that he should be given

an opportunity of coming clean.

15. The issue of termination of a probationer has

cropped up time and again and has received judicial attention

for nearly 5 decades. Tests have been evolved. Some of them

were found difficult in their application. These have been

reformulated and retested from time to time.

16. A person who undergoes selection and is found

more meritorious than others cannot contend that since his

employer has tested his suitability he is entitled to serve till he

attains the age of superannuation. The reason is that no test

has been devised till date where a person's capacity, integrity,

utility, suitability and capacity to work in harmony with the

others can be tested at one go.

17. Therefore, law vests a right in the employer to keep

under watch the service of his employee for a period of time.

This is to guard against errors of human judgment in selecting

a suitable candidate. The new recruit remains on test during

the period of probation. The employer gets the locus during

this period to watch the efficiency, ability, integrity, sincerity,

suitability, competence and the ability to act in comity of the

probationer. This is the period of reassurance for the employer

to re-assure himself that his initial judgment was correct.

Thus, every employer has a legal right to dispense with the

services of the employee without anything more, during or at

the end of the prescribed period of probation.

18. In the light of the aforenoted concept of probation

as understood under service jurisprudence, the termination of

the services of a probationer, during or at the end of the period

of probation, does not affect any of his right, as he has no right

to continue to hold the post, save and except after

confirmation. Indeed, in the decision reported as AIR 1962 SC

1711 S.Sukhwant Singh Vs. State of Punjab, the Hon'ble

Supreme Court observed:-

"12. ..........But the very fact that a person is a probationer implies that he has to prove his worth, his suitability for the higher post in which he is officiating if his work is not found to be satisfactory, he will be liable to be reverted to his original post even without assigning any reason, it would, therefore, not be correct to say that a probationer has any right to the higher post in which he is officiating or a right to be confirmed. A probationer being merely made eligible for being absorbed in a permanent post is in no better position."

19. However, as noticed above, where a probationer is

stigmatized, evil consequences flow. He has to live with the

stigma all his life, thereby hampering his future prospects of

getting suitable employment. Therefore, harmonizing the right

of the employer and that of the employee, service

jurisprudence has recognized that where the

termination/discharge of service of a probationer visits him

with a stigma or is penal or mala fide, the probationer would

have a right to justify that the cause which has resulted in his

being removed is other than related to his suitability.

20. In the celebrated decision reported as AIR 1958 SC

36 Purushottam Lal Dhingra Vs. UOI the Hon'ble Supreme

Court held that it is not the form of the termination order but

the substance thereof which would determine whether it is

penal. It was held that this would entitle the Court, in an

appropriate case, to tear the veil behind the termination order.

Where the probationer alleged that the termination was

actually the result of certain memos issued to him and inquiry

was dispensed with, the test evolved by the courts was

whether the alleged misdemeanour were the foundation or the

motive for the termination. It was held that where the order of

termination or discharge was founded on the allegations of

misconduct the same would fall foul with law but where the

allegations of misconduct were a motive and not the

foundation of the order of discharge/termination, the same

would be valid. (See 2003 (3) SCC 263 Mathew P.Thomas Vs.

Kerala State Civil Supply Corpn. Ltd.)

21. From a commonsense point of view it stands to

reason that no employer would dispense with the services of

an employee if the service rendered by him during the period

of probation is satisfactory. Similarly, the services of a

probationer would not be confirmed if found wanting either in

respect of integrity or suitability or utility or capacity to work in

harmony with the others. If extended to the extreme it could

always be urged that every discharge of a probationer does

affect his future career prospects because obviously, an

impression would be formed in society that this person has not

been found suitable for a particular job. But this is not the way

law requires issue of termination/discharge of a probationer to

be considered.

22. Thus, merely because when in service, the

probationer was served with certain memos to explain his

conduct would not mean that the order of termination is penal

i.e. by way of punishment for the misconduct alleged in the

memorandum.

23. Indeed, the Tribunal has not found any stigma in the

letter of discharge. It is a discharge simplicitor. In fact the

letter does not even state that the services of the second

respondent have been terminated. It simply records that the

services of second respondent are no longer required. It

records that the second respondent was appointed against a

temporary vacancy.

24. The memos issued to the second respondent related

to her unauthorized absence from duty without a sanctioned

leave. Indeed, the service record of the second respondent

shows that she availed unauthorized leave and was called

upon by the first petitioner to explain why she did so. But, this

does not lead to the conclusion that the order of discharge was

to punish the second respondent for her unauthorized leave.

Indeed, it is a relevant factor to be taken into account while

confirming or not confirming the services of a probationer

whether or not the employee was sincere in discharging

his/her duties and what was the propensity of the employee to

sit at home or report for duty.

25. It is unfortunate that the Tribunal has not

considered the law on the subject pertaining to

discharge/termination of the services of a probationer and has

treated as if the law is that wherever a probationer is served

with a memorandum during service the termination has to be

treated penal. As noted hereinabove the law is different. The

law requires it to be considered whether the alleged

misconduct was the motive or the foundation of the impugned

order. The Tribunal has not carried out the aforesaid exercise.

26. I am not remanding the matter for fresh

consideration by the Tribunal for the reason the events relate

to the year 1988. 20 years have gone by. I have myself

looked into the service record of the second respondent. I find

no linkage between the discharge and the memos. I hold that

the services of the second respondent have not been

terminated by way of penalty.

27. The order of discharge does not stigmatized the

second respondent.

28. The petition is allowed.

29. Impugned order dated 25.8.1992 passed by the first

respondent is quashed.

30. Appeal filed by the petitioner against the order of

discharge is dismissed.

31. No costs.

32. Record of the Delhi School Tribunal be returned

forthwith.

07 July, 2008                    (PRADEEP NANDRAJOG)
mm                                     JUDGE