Sh. Sushil Rana vs New Delhi Tuberculosis Centre & ...
2010 Latest Caselaw 4898 Del

 *         IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                     W.P.(C) No. 4410/1996

 %                                       25th October, 2010

 SH. SUSHIL RANA                                   .... Petitioner


                             Through:    None.

                       VERSUS

 NEW DELHI TUBERCULOSIS CENTRE & ORS
                                                   ....Respondent

                             Through:    None.


 CORAM:
 HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

 2.   To be referred to the Reporter or not? Yes


 3.   Whether the judgment should be reported in the Digest? Yes

VALMIKI J. MEHTA, J (Oral)


1.    No one has appeared on behalf of the petitioner although it

is 5 minutes past 1 PM.     This case was earlier dismissed for

default on 29.7.2008 and thereafter was subsequently restored

on 3.11.2009.    I have therefore perused the records and am

proceeding to dispose of the petition.




WPC-4410/1996                                             Page 1 of 6
 2.   The writ petition as originally filed, sought implementation

of the order dated 9.4.1996 issued by the Director General Health

Services (T.B Division ) , Ministry of Health and Family Welfare,

Nirman Bhawan, New Delhi and by which order, it was directed

that the petitioner may be reinstated and the intervening period

from the date of termination of his service and reinstatement

may be treated as leave due and admissible to him. The order

dated 9.4.1996 was passed by the parent ministry of the

employer/respondent no.1. The respondent no.1/employer is M/s

New Delhi Tuberculosis Centre and which is a society, registered

under the Society Registration Act.

3.   The facts of the case are that the petitioner was appointed

on probation by the respondent no.1 for the post of Lower

Division Clerk (LDC) on 17.1.1994.     During the period of his

probation, a complaint was lodged by one Ms. Meenu Mendiratta,

a trainee, of misbehavior of the petitioner causing sexual

harassment to the said Ms. Meenu Mendiratta.         During the

enquiry conducted, the petitioner appears to have apologized and

Ms. Meenu Mendiratta, the complainant did not seek to pursue

the complaint.

4.   The petitioner thereafter by a non-stigmatic order was

relieved from duty by not confirming him to his post at the fag



WPC-4410/1996                                            Page 2 of 6
 end of the probation period by the letter dated 16.12.1995 which

reads as under:-

     "            Annexure-F
     NEW DELHI TUBERCULOSIS CENTRE
     TELEPHONES:
     ENQUIRY: 3314270            JAWAHAR LAL NEHRU MARG
     OFFICE:3319056                  NEW DELHI-110002.
                                     DATED: 16.12.1995
     Ref. No. EST/TB/18/9
                       OFFICE ORDER

      Shri Sushil Rana was appointed as LDC in New Delhi
     Tuberculosis Centre in terms of Memorandum
     No.EST/TB/2188 dated 7th Jan 1994 on a probation for a
     period of two years w.e.f. 17th Jan. 1994.

       Now, with the approval of the Chairman of New Delhi
     Tuberculosis Centre, it has been decided not to continue
     further the probation of Shri Sushil Rana, which will be
     ending on 16th Jan. 1996 and, as such, his services are
     dispensed with forthwith. He will be paid immediately all
     his dues upto date as well as salary and allowances for
     the further remaining period from 17th Dec. 1995 till 16th
     Jan. 1996.

      He is hereby relieved from the present post w.e.f. 16th
     Dec.1995 noon.

      Cheque No.694468 dated 16.12.95 amounting to
     Rs.4223/- is enclosed.

                                   Sd/- Dr.S.P. Khanna
                             Director, New Delhi Tuberculosis
     Shri Sushil Rana                    Centre
     Sector VI/702, R.K. Puram,
     New Delhi-110022"


5.       It is quite clear that the aforesaid order dispensing with the

services of the petitioner is a non-stigmatic order. It is settled law


WPC-4410/1996                                                 Page 3 of 6
 that a probationer has no right to get confirmed in his post and it

is open to an employer to decide whether the probationer should

be confirmed or not. A probationer is entitled to be heard only if

the relieving order casts a stigma upon him and which is not so in

the present case.

6.   The writ petition was originally allowed vide order dated

19.3.1998 on the basis of the order dated 9.4.1996 of the

Director General Health Services, however, an LPA was filed by

the respondent no.1 herein, and which LPA was allowed on

30.4.1998 and the matter was remanded back because the

respondent      no.1   urged   that   the   order   of    9.4.1996   was

subsequently withdrawn by the Director General Health Services

on complete facts being brought to the notice of the Director

General of Health Services.       The writ petition was thereafter

amended and an amended petition was filed.               The amendment

was allowed vide order dated 18.3.2002. In view of the amended

petition, challenge was laid to the order of the Director General of

Health Services whereby it revoked its earlier order dated

9.4.1996. The challenge was that the action of the respondent

no. 6 in confirming the minutes dated 21.6.1996 is illegal, bad in

law and liable to be quashed as the same was without application

of mind and without sufficient material for changing the decision

dated 9.4.1996. Relief was therefore prayed for quashing of the

WPC-4410/1996                                                   Page 4 of 6
 decision of the respondent no.6 dated 21.12.1996 wherein it has

approved      the   decision   dated   21.6.1996   confirming    the

termination of services of the petitioner. The challenge therefore

is basically the decision of the parent ministry in revoking the

order dated 9.4.1996 by which the petitioner was directed to be

reinstated.

7.   In the opinion of this court, one need not at all go to the

validity of the order of the respondent no.6 revoking its earlier

order dated 9.4.1996. This is because it is the respondent no.1

who is the employer.      The respondent no.1 employer was fully

justified in not confirming the petitioner who was a probationer.

The relieving order has already been reproduced above and

which is a non-stigmatic. The fact of the matter is that once the

order by which the petitioner is relieved is non-stigmatic, there is

no right for the petitioner to seek confirmation because the

employer is fully justified in deciding the suitability of a

probationer. The right of a probationer only come into effect if he

was terminated by a stigmatic order and which is not so in the

facts of the present case.       In the opinion of this court, the

decision of the parent ministry also cannot be subject to

challenge because there is no right of a probationer to get

confirmation to the post. It is only the employer who decides on

the suitability and the employer has decided against the

WPC-4410/1996                                              Page 5 of 6
 suitability/confirmation   of   the   petitioner-probationer.    Merely

because the mantra of the violation of Articles 14 and 16 is

averred would not mean that any legal cause of action would

arise in favour of a probationer, who has not been confirmed to

the post.

8.   In view of the above, I do not find any force in the petition

and which is therefore dismissed leaving the parties to bear their

own costs.




OCTOBER 25, 2010                               VALMIKI J. MEHTA, J.

ib