Telangana High Court

Ch. Venkata Rajam vs The State Of Telangana, on 23 March, 2023

Bench: E.V. Venugopal

         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.

3 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

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

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

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

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.

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