Dr. Mohd. Haroon vs Jamia Hamdard University & Ors.
2015 Latest Caselaw 2376 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No. 6076/2011
%                                                    20th March, 2015

DR. MOHD. HAROON                                           ..... Petitioner

                            Through:     Mr. Rana Ranjit Singh, Adv.

                   versus

JAMIA HAMDARD UNIVERSITY & ORS.                            ..... Respondents

                            Through:     Mr. Saket Sikri, Advocate.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition filed under Article 226 of the Constitution

of India, petitioner, who was appointed as a Deputy Medical Superintendant

with the respondent no.3/Majeedia Hospital/Hah Centenary Hospital vide

appointment letter dated 6.1.2009, seeks the relief that it should be held that

petitioner's services continue with respondent no.3 and that petitioner should

not be held to have been taken appointment and employment with

respondent no.1/Jamia Hamdard University in terms of the office order of

respondent no.1 dated 7.6.2011.

2. The facts of the case are that admittedly the petitioner was

appointed on probation with the respondent no.3 by the letter dated 6.1.2009

and this letter of appointment alongwith the relevant terms and conditions of

appointment reads as under:-

"D.No. Estab/ED/03 Dated: 06.01.2009 Dr. Mohammad Haroon P.O.Box-9585, Salmiya-22096 KUWAIT SUBJECT: OFFER OF APPOINTMENT AS DEPUTY MEDICAL SUPERINTENDANT OF MAJEEDIA HOSPITAL On the recommendations of the Selection Committee held on 31.12.2008 for appointment of Medical Superintendent, you are being considered for the position of Deputy Medical Superintendent of Majeedia Hospital in the Readers' Scale of Rs. 12000-420-18300 with four advance increments, on probation for a period of two years.

You are required to submit a medical fitness certificate after a medical check-up in the Majeedia Hospital. For medical examination you may please contact the Medical Superintendent Majeedia Hospital of this University.

Your formal appointment letter will be issued at the time of your joining. In the meantime we request your confirmation of acceptance of this offer by returning us a signed copy of this letter as a token of acceptance. The detailed terms and conditions of offer of appointment is attached with the letter.

Please bring the following documents at the time of joining duty:

1.An affidavit in regard to vigilance clearance. (Performa Enclosed)

2. Relieving order from your present employer. (If applicable) You are advised to complete the above formalities within a week from the date of receipt of this letter.

Sd/-

(Prof. Ehsan A. Khan) Officiating Register xxxxxxxx

JAMIA HAMDARD HAMDARD NAGAR, NEW DELHI-62 TERMS AND CONDITIONS FOR APPOINTMENT OF DR.MOHAMMAD HAROON AS DEPUTY MEDICAL SUPERINTENDENT IN THE READERS' SCALE.

1. The basic pay will be fixed as per rule in the pay scale of Rs.12000-420-18300.

2. Dearness Allowance and other Allowances as admissible from time to time will be fixed on the basic pay.

3. The employee shall be governed under the scheme of Contributory Provident Fund.

4. The university provides medical cover and Leave Travel Concession for the employee, spouse and dependent children.

5. Casual Leave, Earned Leave and Half Pay Leave as admissible in Jamia Hamdard will be applicable.

6. Three month's notice from either side will be required to terminate the employment or payment of an amount equivalent to three month's salary in lieu of notice period. However, in case of unauthorized absence, the

university may terminate the appointment without any notice or paying an amount in lieu of notice period.

7. The appointee will be required to be present in the Hospital/university throughout the working hours of the university and may be asked to perform duties beyond office hours and on holidays without any extra remuneration.

8. The conduct and activities of the employee should be in a manner that promotes the aims and objectives of Jamia Hamdard, as set out in the Memorandum of Association and Rules and Regulations of Jamia Hamdard.

9. All matters pertaining to service conditions and matters arising out of this appointment shall be settled at the University level or any grievance by a duly constituted grievance committee and in case of dispute, only civil courts in Delhi will have the necessary jurisdiction.

10. If the particulars furnished by the appointee to this post are false and deficient, the management shall be well within its rights, to terminate the services straightaway, apart from any other legal action deemed necessary as per law of the land.

11. The above terms and conditions are only illustrative and not exhaustive. The University may vary them as per exigencies of work.

Sd/-

REGISTRAR"

(underlining added)

3. The appointment of the petitioner with respondent no.1 was

brought about by the office order dated 7.6.2011 and this office order reads

as under:-

"D.No.Estab/LD/62 Dated: 07.06.2011 OFFICE ORDER

In continuation of Office order No. Estab/LD/61 dated 21.02.2011, it is notified that Dr. Mohammad Haroon resumed his duties as Assistant Professor (ENT) in Hamdard Institute of Medical Sciences & Research (HIMSR) on probation of two years with effect from 20.05.2011. Dr. Mohammad Haroon will report to the Dean/HIMSR for establishing the ENT Department."

4. Petitioner by this writ petition, pleads that he was forced and

pressurized to join the respondent no.1 in terms of the office order dated

7.6.2011, and which becomes clear from the fact that respondent no.3 had

for the month of June, 2011 issued pay-slip to the petitioner as a Deputy

Medical Superintendent of the respondent no.3 viz not as an employee of the

respondent no.1.

5. In sum and substance, therefore this Court has to examine as to

whether the petitioner is to be held as continuing his appointment with the

respondent no.3 in terms of the appointment letter of the respondent no.3

dated 6.1.2009, and, that the petitioner only because of pressure had

accepted his new assignment with the respondent no.1 in terms of the

respondent no.1's office order dated 7.6.2011. It is pleaded and contended

that the sequitur of non-employment of petitioner with respondent no.1 is

that once the employment letter dated 7.6.2011 goes, petitioner is therefore

deemed to continue his employment with respondent no.3 in terms of the

appointment letter dated 6.1.2009.

6. The arguments of the petitioner have no strength as a reading of

the letter dated 6.1.2009 of the respondent no.3, including terms and

conditions 6 and 11, makes it clear that petitioner's appointment was

admittedly only on probation of two years. There is no clause in this letter

of appointment dated 6.1.2009 or in the terms and conditions attached

therewith that the petitioner will be deemed to be confirmed in the

employment of respondent no.3 on completion of the probation period of

two years. Not only there is no clause of automatic completion of probation

and hence automatic confirmation in the post of the petitioner, even in the

writ petition there is no pleading as to how the petitioner will stand

confirmed to the post of Deputy Medical Superintendent with the respondent

no.3 merely on completion of two years. There is no law that on completion

of probation an employee is automatically confirmed and automatic

confirmation is only in an extremely rare case where the terms of

appointment or rules of service categorically and specifically give a

maximum probation period with the aspect that terms/rules do not require an

order of confirmation to be passed on completion of probation or there need

not be passed an order recording satisfaction of completion of probation

period by the employer. Therefore, once there is no pleading of any service

rule of automatic confirmation of probation either because that the two years

period was a maximum period of probation of the probationary employee

with the fact that there is no further requirement of passing an order of

confirmation or satisfaction of services of the probation by the employer or

the fact that the employment letter also does contain any clause of automatic

confirmation of probation, petitioner after the period of two years no longer

continued as an employee of the respondent no.3. Petitioner hence cannot

by this writ petition seek and claim continuation of his employment with the

respondent no.3.

7. The related issue urged on behalf of the petitioner is that the

petitioner was forced to join respondent no.1 in terms of the office order

dated 7.6.2011, and which as per the petitioner is clear because pay-slip for

the month of June, 2011 showed that the petitioner was a Deputy Medical

Superintendent with the respondent no.3 i.e not an employee of respondent

no.1. However, in their counter-affidavit respondents have specifically

stated that issuing of a pay-slip to the petitioner for the month of June, 2011

was because of an administrative error and which error was immediately

corrected for the next month of July, 2011 not showing the petitioner

continuing as a Deputy Medical Superintendent of the respondent no.3. This

correction was done by the respondents much before filing of the writ

petition. Therefore, this Court refuses to believe the contention of the

petitioner that he was forced to join the respondent no.1, inasmuch as,

possibly the petitioner joined the respondent no.1 because he would have

realized that his period of appointment in the respondent no.3 was coming to

an end and whereafter he would no longer be in employment and hence he

joined in employment with the respondent no.1, and thereafter only as an

afterthought he has filed this writ petition alleging force exerted upon the

petitioner to join the respondent no.1/Jamia Hamdard University.

8. In any case, it is well open to the petitioner to act upon the fact

that he does not want to continue his services with the respondent no.1

because he had not validly joined the respondent no.1, and in which

circumstances the only issue which would arise would be whether petitioner

continues his employment with the respondent no.1. I have already held

above that petitioner's employment with the respondent no.3 does not

continue once his period of appointment of probation of two years in terms

of the letter dated 6.1.2009 has /had come to an end and there is no order

passed by the respondent no.3 confirming the services of the petitioner with

the respondent no.3 or an extension of probationary period.

9. I may note that the respondent no.1 has filed an affidavit that

respondent no.1 is also not ready and willing to continue with the

employment of the petitioner because petitioner is an employee who has not

joined the services of the respondent no.1 now for many months and has

proceeded on leave without sanctioning of the leave, however, this aspect I

am not looking into inasmuch as, I am not requiring to look into the aspect

of termination of services of the petitioner with the respondent no.1

10. In view of the above, I do not find any merit in the petition, and

the same is therefore dismissed. No costs.

MARCH 20, 2015                         VALMIKI J. MEHTA, J.
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