Ranjit Singh vs The Presiding Officer, College Tribunal, Punjab Chandigarh and others

A.L. Bahri, J.—Ranjit Singh Petitioner, who was employed as Librarian in the Guru Nanak Khalsa College, Daroli Kalan (hereinafter called the College), challenges the order of the Presiding Officer, College Tribunal, Punjab, dated February 20, 1986, copy Annexure P.12, whereby an appeal filed by the Managing Council of the College u/s 4(4) of the Punjab Affiliated Colleges (Security of Service of Employees) Act, 1974 was accepted and order dated July 29, 1985 passed by the Director of Public Instructions (Colleges), Punjab, was set aside. The Director had accepted the appeal of Ranjt Singh filed against the order of the Managing Council of the College terminating his services.

The facts of the case relevant for determining the points urged are briefly as under:

There is one regular post of Librarian in the College. The incumbent went on deputation causing a temporary vacancy Ranjit Singh Petitioner was appointed Librarian when the aforesaid temporary vacancy occurred on November 24, 1980. On October 14/15, 1982, the lien on the post of the Librarian of the previous incumbent ceased. A fresh order was issued in the name of Ranjit Singh Petitioner that he was being posted against the permanent vacancy and would be on probation for one year. Subsequently, the period of probation was extended by another year. It was on February 29, 1984 that during the period of the probation, the services of Ranjit Singh were terminated. Copy of the order is Annexure P7 It was this order which was challenged by Ranjit Singh under the provisions of the Act beore the Director who vide order dated July 29, 1985, copy Annexure P.9. accepted the appeal and Ranjit Singh was held entitled to all service benefits. This order was set aside by the Presiding Officer, College Tribunal, vide Annexure P.12 as noticed above.

The stand of the Petitioner in nut shall is that under the rules, the maximum period of, probation was provided as two years including the extended period. The period of service on the temporary post is to be included in the period of probation and after the expiry of the period of two years, Petitioner would be deemed to have been confirmed, That being the position, his services could not be terminated by passing a simple order as Annexure P 7 giving one month''s notice. On the other hand, the stand of the College is that initially the Petitioner was not appointed against a permanent vacancy. It was only in October, 1982 when Amarjit Kaur was absorbed while on deputation that her lien on the post of Librarian ceased and the Petitioner was appointed against a permanent post of Librarian and period of probation is to start therefrom It was during the extended period of probation that services of Ranjit Singh were terminated on February 29, 1984 by giving one month''s notice in accordance with the conditions of appointment letter. No reasons were required to be given for terminating the services of a probationer in such circumstances

At the time of arguments, writ en statement on behalf of the Respondents was taken on record along with the rejoinder thereto filed on behalf of the Petitioner. Thus, no specific orders in this respect were passed.

The contention of learned Counsel for the Petitioner is based upon the provisions of the Act as well as regulations framed by Guru Nank Dev University as contained in the University Calendar, Volume II, 1981. Section 2-A of the Act reads as under:

An employee appointed against a vacancy likely to exist for more than one year shall remain on probation for a period of one year which may be extended from time to time. Provided that the total period of probation including extension, if any, shall not exceed two years.

Extracts of Rules 3 and 7 from the Uaiversity Calender aforesaid read as under:

The employee will ordinarily be appointed on one year''s probation after which he will normally be confirmed if his work is found Satisfactory. It would be obligatory on the part of a Managing Body to notify to the teacher in writing before the expiry of one year''s probationary period, whether be had been confirmed or his period of probation had been extended and in the absence of such a notice the teacher would be deemed to have been confirmed.

The probationary period in no case, shall be, extended beyond two years from the date of appointment.

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An employee whether permanent or on probation, or appointed temporarily shall be entitled to summer; vacation salary as under:

(a) (i) those who complete nine months service... Full salary

(ii) those who complete service for three months on more but less, than nine months.... Proportionate salary on the basis of full salary for nine months.

Provided that no employee who has served for less than three months will be entitled to any summer vacation salary.

(b) If a temporary or on probation appointment of teacher is made against a substantive post, it shall be on whole time basis and if the same teacher is appointed in the following year also, he shall be entitled to full salary for the summer vacation, irrespective of the period of his service up to the date of commencement of the summer vacation and the period of temporary service of the person so appointed shall count towards his confirmation.

Provided that no one shall draw salary for the period of summer vacation from two sources. Provided further that if an employee leaves service of his own accord, he shall not be entitled to summer vacation salary or any portion thereof.

The contention of the counsel for the Petitioner is that since the Petitioner was appointed against a vacancy which was likely to exist for more than a year, he would be deemed to have been appointed on probation as provided u/s 2-A of the Act. This contention cannot be accepted Firstly, Section 2-A was introduced in the Act in January, 1983 whereas Ranjt Singh Petitioner was initially appointed as Librarian on temporary basis on December 23, 1980 vide order, copy Annexure P.3. This order does not show that the vacancy was likely to/continue for a period more than one year. Secondly, there is no question of appointment of the Petitioner on probation at the stage against a post temporarily falling vacant. Appointment on probation has to be against a permanent post. There is no question of confirmation after expiry of the period of one year or more against a temporary vacancy of a post on which another person had a lien. Confirmation has to be against a permanent post. Section 2-A of the Act is to be so interpreted to mean that it applies to Vacancies which are to exist for more than one year which would be permanent in nature. Section 3 of the Act provides that no employee shall be dismissed or removed or reduced in rank except after an inquiry in which he is to be informed of the charges and given reasonable opportunity of being heard. As per Section 6 of the Act, the provisions of Section 3 are not to be attracted in the case of termination of services of an employee who is appointed temporarily for a short period only and termination of services of an employee appointed on probation, during the period of probation, on account of his work or conduct being unsatisfactory. Thus, reading Sections 2-A, 3 and 6 of the Act leaves no manner of doubt that a person, either appointed temporarily whose services are terminated or a person appointed on probation, whose service''s are terminated during the period of probation on account of unsatisfactory work, can claim protection of Section 3 of the Act that before terminating his services, inquiry should have been held.

Posts are permanent and temporary. There may be permanent vacancies of permanent posts occurring on account of death, resignation, dismissal or by absorption of a permanent employee on an another post on his termination of lien on the permanent post. As and when there is recruitment against permanent posts of permanent vacancies as aforesaid, the employees would be appointed on probation and if maximum period of probation as provided under the rules expires, there would be automatic confirmation. This proposition is well settled by the Supreme Court in The State of Punjab v. Dhararm Singh 1968 S.L.R. 247, State of Haryana v. Rajindra Sareen 1972 S.L.R. 112 Paramjit Singh and Others Vs. Ram Rakha and Others, and State of Gujarat Vs. Akhilesh C. Bhargav and Others,

There may be short term vacancies of permanent post such as incumbents going on leave or deputation. During their short absence, they retain lien on the posts. If during this period, some persons are temporarily appointed against short term vacancies, they would, not be on probation. Even if such short term vacancies exist for a period more than one year, as is in the present case, such employees recruited would not be on probation and cannot be regularised or confirmed. So long a permanent employee retains his lien on the permanent post, there wilt be no question of confirmation, even if maximum period of probation as provided under the Rules has expired. This position has been in detail explained by the Supreme Court in para 57 in State of Haryana and Others v. Rajindra Sareen 1972 S.L.R. 112, In the aforesaid case, Rajindra Respondent had a lien on the post of Deputy Director (Press) and it. was held that he could not be considered to have been appointed against a permanent vacancy in order to attract the provisions of Rule 10 of the Gazetted Service Rules (relating to probation). It was observed that the fact that in 19(Sic)4 the post of Deputy Director (Publicity Material) was made permanent will not, entitle the Respondent (Rajindra Sareen) to invoke the provisions of the aforesaid rule. The Rajasthan High Court in Sayed Shamin Ahmed v. The State 1981 (1) S.L.R. 100, hold that appointment on probation would only be against permanent post. The ratio of the decision of the Supreme Court in Dharam Singh''s a case (supra) was relied upon by this Court in The Senior Regional Manager, Punjab Region, Food Corporation of India and another v. Labh Singh 1986 (3) S.L.R. 275. Food Corporation of India (Staff). Regulations provided a maximum, period of probation and it was held ''that after the expiry of the same, there will be automatic confirmation.

The question for determination is as to whether on being appointed against a, permanent post, on termination of the lien of the previous incumbent, the period of service on temporary basis be ''included in the probationary period. Rule 7(b) as reproduced above, contemplates for counting such period towards confirmation.

The moment permanent vacancy became available on October 14, 1982, a specific order was passed appointing Ranjit Singh Petitioner, on probation on regular basis. Copy of the order dated October 15, 1982, is Annexure R-3. It was mentioned in this order that Ranjit Singh was being adjusted against the vacancy created by Mrs. Amarjit Kaur with effect from October 15, 1982. The post was permanent in the College and Ranjit Singh was put on probation for one year which could be extended by another year. A serious dispute was raised regarding the authenticity, of this (Sic)ter. It was alleged on behalf of the Petitioner that it was into dated and delivered to the Petitioner along, with the letter extending his probationary copy Annexure R-4, which is dated October 12, 1983. The position was negatived by the College Tribunal in the Impugned order and this being a disputed question of fact is not allowed to be urged in this writ petition, more so when there is no material on the record of this writ petition to come to a different conclusion. The argument addressed was on the basis of Clause (ii) of letter, Annexure R-3, that the period probation was simultaneously extended in this order. The said clause

reads as under:

You will be on probation for a period of one year extended by one year more. Your services can be terminated without notice and without assigning any reason during probation/extended probation period.

I am afraid, the contention of the counsel for the Petitioner in this respect cannot be accepted. No doubt, the word ''extended'' has been used instead the word ''extendable'' but that per se is no ground to hold that this letter was subsequently prepared in October, 1973 Annexure R-3 shows that it was received by Ranjit Singh Petitioner on October 14, 1982.

When the order of terminating services of an employee is passed during the period of probotion in accordance with the conditions laid down in the appointment letter on serving one month''s notice, the same cannot be challenged for not holding any inquiry against the employee. No previous approval of the Director would be necessary in such circumstances under the Act. In this context, reference may be made to the decision of this Court in The Patel Memorial Management Society (Registered) Rajpura v. The Director of Public Instructions 1980 (2) S.L.R. 569. This was a case under the Punjab Affiliated Colleges (Security of Service of Teachers) Act, 1974. The services of a teacher were terminated in accordance with the terms of appointment letter. It was held that approval of the Director was not required as the provisions of Section 4 of the Act were not attracted. Rules 3 and 7 of the Punjab University which are similar to the regulations framed by Guru Nanak Dev University were also under consideration. While making reference to Rule 7(b) which provided that temporary service of a teacher is to be counted towards his probationary period, the benefit under the said rule will accrue to a teacher when he is appointed on probation.

The object of putting an employee on probation is to judge his capability and suitability for the post. In case his work and conduct during the period of probation is treated as unsatisfactory, his services can be terminated in a simple manner. Such an order terminating the service would not be by way of punishment, requiring no enquiry. In the present case the Petitioner was already in service with the College on a temporary post and on occurring of vacancy in the permanent post was appointed against such post. His work and conduct throughout was being judged and finding, him fit for appointment, was so appointed against permanent post. There is no reason as to why he could not be appointed permanently if he had been found to be fit for confirmation, keeping in view the period spent on temporary post. Such a question was under Consideration of this Court in The Patel Memorial Management Society''s case (supra), wherein it was held as under:

The contention of the learned Counsel for the teachers is that they had ceased to be temporary employees under Rule 7(b) reproduced above I see no force in this contention. Rule 7 is to be read conjunctively with Rule 3. Rule 3 has no application in the case of temporary appointment. Under Rule 7(b) the temporary service of a teacher is to count towards his probationary period. It is evident that the benefit under Rule 7(b) will accrue to a teacher when be is appointed on probation.

It has been argued on behalf of the College that the Petitioner having accepted the order appointing him on probation as well as the order by which period of probation was extended, he is now estopped by his conduct from challenging the same having derived benefit under those orders.'' In support of this contention reliance has been placed on a decision of Calcutta High Court in Arti Kumar Saha and Ors. v. Central Bank of India 1983 (1) S.L.R. 8 and of this Court in Karam Chand v. The Haryana State Electricity Board 1984 (1) S.L.R. 442. In the latter case, it was observed that an employee could not possibly accept that part of the order which suited him and ignore or leave out the rest which operates adversely to him. Otherwise, on facts, the case is entirely distinguishable. In the present case, there is no question of estoppel. There can be no estoppel against law as held by the Calcutta High Court in the case noticed above.

Keeping in view the facts and circumstances of the present case that the Petitioner was already in service of the College on a temporary post when appointed on probation on occurring of a permanent vacancy would be entitled to count the period spent on the temporary post towards probation in view of Regulation 7 reproduced above. After expiry of the maximum period of probation, the Petitioner would be deemed to be confirmed though he could be confirmed if on completion of one year''s service and availability of permanent post.

For the reasons recorded above, this writ petition is allowed. Order dated February 29, 198(Sic) Annexure P.12, passed by Respondent No. 1 is quashed Further direction is given to Respondents Nos. 3 and 4 to reinstate the Petitioner with continuity of service with full back wages. No order as to costs.