S.M.D.R.S.D. College Society and Another vs State of Punjab and Others

M.M. Kumar, J.—Once again the question of automatic confirmation of a probationer before completion of maximum period of probation has been raised on the basis of the peculiar rule applicable to the case, which required passing of specific order of extension of period of probation. The Management of the S.M.D.R.S.D. College Society, Pathankot (for brevity, ''the Petitioner-Management'') has approached this Court with a prayer for quashing order dated 12th February, 2008 (P-4) passed by the Director, Public Instruction (Colleges), Punjab-Respondent No. 2 (for brevity, ''the Director''). It has been held by the Director that Shri Ravinder Kumar-Respondent No. 4 (for brevity, ''the teacher-Respondent No. 4) is deemed to be confirmed with effect from 6th January, 2005 on completion of one year period of probation. The teacher-Respondent No. 4 had challenged order dated 19th April, 2005, passed by the Petitioner-Management terminating his services purportedly during the period of probation in an appeal filed u/s 4(3) of the Punjab Affiliated Colleges (Security of Service of Employees) Act, 1974 (for brevity, ''the Act'').

At the outset it needs to be mentioned that against impugned order dated 12th February, 2008 (P-4), passed by the Director, a further appeal has been provided u/s 4(4) of the Act. However, on account of non-functioning of the College Tribunal, Punjab (for brevity, ''the Tribunal'') we have entertained the petition. It is appropriate to mention that when the matter come up for consideration before this Court on 3rd September, 2008, while issuing notice of motion a specific direction was issued to the learned State counsel to find out as to whether the Tribunal was functioning or not. On 11th September, 2008, Mr. Suvir Sehgal, learned State counsel, could only make one statement that the file had been sent to the competent authority for nomination of the Member of the Tribunal, which was likely to be notified. On our query learned State counsel was not able to specify as to how much time would be taken by the State Government to nominate the Member of the Tribunal. Accordingly, we entertained the petition and have proceeded to hear the arguments.

Firstly, brief facts of the case would be necessary for disposal of the controversy raised by the parties. On 27th December, 2003, the teacher-Respondent No. 4 was appointed as a Lecturer of Mathematics against an un-aided post on probation by the Petitioner-Management. The Petitioner-Management has categorically asserted that is is not receiving any grant-in-aid for the advertised post on which the teacher-Respondent No. 4 was appointed. He joined the College run by the Petitioner-Management. The claim of the Petitioner-Management is that his first year of probation was not found satisfactory and the authorities of the Guru Nanak Dev University, Amritsar (for brevity, ''the University'') pointed out negligence on his part when he was discharging duty during examinations. Accordingly, the Petitioner-Management resolved by a resolution to extend his period of probation. A letter dated 3rd January, 2005 was accordingly sent to the teacher-Respondent No. 4 under Registered A.D. cover. The aforementioned letter as well as the postal receipt of sending the same on 3rd January, 2005 is available in the original record. The Petitioner-Management has also produced on record a copy of the communication received from the post office showing that the letter was delivered to the teacher-Respondent No. 4. The aforementioned letter is also available on the record which has been sent by the Department of Posts, Government of India, Office of Post Master, Pathankot, M.D.G. District Gurdaspur-145 001. It has been specifically communicated to the Principal of the College that the registered letter A-122 has been delivered to the addressee i.e the teacher--Respondent No. 4 on 4th January, 2005. The work and conduct of the teacher-Respondent No. 4 was not found satisfactory even during the extended period of probation. The Petitioner-Management found that the approach adopted by him was casual and does not show any sign of improvement despite clear instructions. Accordingly, the Petitioner-Management resolved to relieve him from service on paying one month''s pay in lieu of one month''s prior notice and order, dated 19th April, 2005 terminating his services was issued.

The teacher-Respondent No. 4 filed C. W.P. No. 672 of 2006, which was ordered to be withdrawn with liberty to approach the DPI (Colleges). Thereafter, the teacher-Respondent No. 4 challenged his order of termination by filing an appeal, bearing Appeal No. 5 of 2006, u/s 4(3) of the Act before the Director. The Director allowed the appeal filed by the teacher-Respondent No. 4, vide order, dated 30th April, 2007.

Feeling aggrieved, the Petitioner-Management also preferred further appeal before the Tribunal, which was in existence at that time, bearing. Appeal No. 5 of 2007, u/s 4(4) of the Act challenging order, dated 30th April, 2007 passed by the Director. The Tribunal set aside order, dated 30th April, 2007 and remanded the matter back to the Director;--vide order, dated 10th August, 2007 with a direction to pass a speaking order after hearing the parties. Accordingly, the Director has now passed order, dated 12th February, 2008 (P-4), setting aside the termination order, dated 19th April, 2005 and has ordered reinstatement of the teacher-Respondent No. 4. The view of the Director would emerge from the following part of para 10 of the impugned order:

?It has been mentioned in the advertisement itself that the Appellant was required to teach mathematics to the Post-graduate classes. The publication, which has been brought out by the Respondent themselves lauds the achievements by the M.Sc. II class which was taught by the Appellant, is sufficient evidence by itself of the work of the Appellant. The Appellant has a legitimate expectation to receive the salary as per the norms according to which he is required to possess the qualification. There is no provision for paying the fixed salary as has been done by the Respondents. The counsel for the Respondents has not been able to point out if there was complaint regarding the conduct of the Appellant by the students, their parents or the colleagues of the Appellant. The counsel could also not place on record anything to prove that the Appellant has received the letter, dated 3rd January, 2005 or a copy of any resolution passed by the Respondent regarding the work and conduct of the Appellant necessitating extension in the period of probation of the Appellant beyond one year before the expiry of one year period as mentioned in the letter of appointment. In my considered view, in the prevalent circumstances, the Appellant is deemed to have been confirmed with effect from 6th January, 2005 on completion of one year period of Probation. Acordingly, the Appellant shall be entitled to receive the grade applicable to his post as per UGC/GNDU, Amritsar and,DPI (C), Punjab norms with admissible allowance from the dated (date ?) of his appointment. Since the service of the Appellant has been illegally terminated without assigning any reasons;, I hereby quash and set aside the order dated 30th April, 200 (19th April, 2005 ?). The Appellant shall be deemed to be in service continuously and shall be entitled to all the benefits which would include salary, all admissible allowances and the arrears thereof.

The case of the teacher-Respondent No. 4 is that he had passed his Master of Science (Mathematics) from the University in the 1st Division in April, 1987 and then joined S.M.S.D. Rajput College, Sujanpur as a Lecturer. He has further assereted that he had taught the senior secondary classes from 1st August, 1989 to 31st March, 1993 and he was regarded as a competent and hard working teacher. He has also pointed out that he worked as Lecturer in Mathematics with the Petitioner''s college from 1st August, 1995 to 28th February, 1996, 1st August, 1996 to 31st October, 1996 and 1st September, 1999 to 29th February, 2000. He had appeared for the Joint CSIR-UGC National Eligibility Test (NET), held by the University Grants Commission, for becoming eligible to be appointed as a lecturer and was declared successful in 2002. The Petitioner-Management issued an advertisement in the year 2003 in the English Daily ''The Tribune'', inviting applications for the post of Lecturer in Mathematics and he applied on 6th October, 2003. He claimed that the post was a regular sanctioned post. He was called for interview on 4th December, 2003 and he was found suitable for the post. Accordingly, he was issued an appointment letter, dated 27th December, 2003, which stipulated that he would be on probation as per the University''s rules and initial period of probation was one year. The teacher-Respondent No. 4 has claimed that his work and conduct remained satisfactory and he discharged his duties with utmost dedication and devotion and that he was being paid fixed salary of Rs. 8,000 per month. He has, thus, claimed that relieving is not because of lack of qualification or any defect in his work and conduct, which, in fact, is actuated by mala fide as he has not been paid the allowances.

Mr. R.S. Minhas, learned Counsel for the Petitioner-Management has argued that duration of period of probation has been provided by Section 2 of the Act and Regulation 3.1 of the Guru Nanak Dev University Calendar Volume II (for brevity, ''the Calendar''). According to the learned Counsel the maximum period of probation provided by both the provisions of the Act as well as Calendar is two years. He has maintained that once the service of the teacher-Respondent No. 4 has been terminated before the expiry of period of two years, he cannot claim to be confirmed. He has further submitted that his work and conduct was found to be unsatisfactory and a resolution was passed on 31st December, 2004 (at page No. 54 of the Register). A copy of the resolution has been produced on the original record. According to the learned Counsel, the Petitioner-Management has taken specific notice of the fact that the work of the teacher-Respondent No. 4 is not satisfactory as he was found deficient in performance of his duties by the Principal who in turn had received unsatisfactory report about his performance in the classes also. It has further been pointed out that during April 2004 he was deputed for examination duty by the University where he was found negligent. Learned Counsel has further pointed out that the fact of extending his probationary period was communicated to him on 3rd January, 2005 under Registered A.D. cover and a telegram to that effect was also sent at his address given to the Petitioner-Management. The Post Office has duly authenticated the factum of delivery of the registered letter on 4th January, 2005. In support of his submission, he has submitted that the teacher-Respondent No. 4 cannot be deemed to be confirmed as the requirement of Regulation 3.1 of the Calendar have been religiously complied with and a letter was sent to him before expiry of period of one year,. In any case, he has submitted that the maximum period of probation provided by Section 2 of the Act as well as Regulation 3.1 of the Calendar is two years. In the absence of successful completion of period of probation of two years, the teacher-Respondent No. 4 cannot claim to be confirmed. In support of his submission, learned Counsel has placed reliance on a judgment of Hon''ble the Supreme Court in the case of Karnataka State Road Transport Corporation v. S. Manjunath 2000 (2) SCT 810 and argued that mere non-extension of period of probation where it could be extended would not imply automatic confirmation.

Mr. Balwinder Singh, learned Counsel for the teacher-Respondent No. 4 has argued that the provisions of Regulation 3.1 of the Calendar are mandatory which provided that on completion of one year probation ordinarily an employee would be deemed to be confirmed. In case of any extension in the period of probation, the Petitioner-Management was required to notify to the teacher-Respondent No. 4 in writing about extension of probationary period before the expiry of period of one year. Learned Counsel has further submitted that in the absence of such a notice, the teacher-Respondent No. 4 is deemed to be confirmed and that the period of probation cannot be extended beyond two years in any case. He has further argued that the letter, dated 3rd January, 2005, which is claimed to have been sent by the Petitioner-Management is a fabricated document and has never been sent to the teacher-Respondent No. 4 and, therefore, by virtue of Regulation 3.1 of the Calendar, the teacher-Respondent No. 4 has become a confirmed lecturer on the expiry of period of one: year.

Another argument raised by Mr. Balwinder Singh is that the teacher-Respondent No. 4 has been victimized, inasmuch as, there was no complaint with regard to his work and conduct. The Petitioner-Management has acted arbitrarily in terminating his services.

Having heard learned Counsel for the parties at length and perusing the original record produced before us, we are of the considered view that this petition deserves to succeed and the impugned order dated 12th February, 2008 (P-4) passed by the Director is liable to be set aside. It is undisputed that the teacher-Respondent No. 4 was appointed as Lecturer in Mathematics by the Petitioner-Management on 27th December, 2003. A copy of his appointment letter has been placed on record (P-l). It clearly stipulates that the teacher-Respondent No. 4 has to work as per the rules framed by the University and the UGC. The teacher-Respondent No. 4 has joined his duty on 6th January, 2004. His period of probation of one year was to expire on 5th January, 2005 whereas before expiry of the period of one year, the Petitioner-Management sent a letter on 3rd January, 2005 to him extending his period of probation for another year (P-2). On account of dispute about this letter, we had summoned the original record and have examined the same. A perusal of the original record shows that the Petitioner-Management had sent a registered letter to the teacher-repondent No. 4 on 3rd January, 2005, which reveal that during the period of his service from 6th January, 2004 his work and conduct was not found satisfactory. The Principal who sent the letter has expressed the opinion in the following words:

Reference letter No. 2003/sdp/244, dated 27th December, 2003, you were appointed as Lecturer in Mathematics with effect from 6th January, 2004 on uncovered/unsanctioned post. During this period your work was not found satisfactory. For instnce your negligence of duty was pointed out by the member of the flying squad during April, 2004 Guru Nanak Dev University, Amritsar examinations and you too had been defiant for performing the duties/house examination duties assigned to you by the undersigned and the undersigned has not found satisfactory reports about your performances in the classes assigned to you also. Hence the managing Society of SMDRSD College, Pathankot has decided to extend your probationary period w.e.f. from 6th January, 2005 with the instructions that you should try to improve your work. Otherwise, you can be relieved from service at any time during the extended period.

In order to verify that the letter was actually sent, the Dispatch Register has also been produced before us. We have found that there is a receipt issued by the Post Office at Pathankot authenticating that a registered letter was sent by the Petitioner-Management to the teacher-Respondent No. 4. On account of the fact that the letter was disputed by the teacher-Respondent No. 4, the Principal of the College addressed a letter to the concerned post office. A specific reply has been sent by the Department of Posts, Government of India, Offics-if. Post Master, Pathankot, M.D.G, District Gurdaspur-145 -001, intimating the Petitioner-Management that registered letter was delivered to the addressee i.e. the teacher-Respondent No. 4 on 4th January, 2005. The record further reveals that even a telegram was sent to him intimating that his period of probation was extended and a letter is on the way. Therefore, we are satisfied that intimation regarding extending the period of probation was sent to the Petitioner before the expiry of period of one year and it has been duly received by the teacher-Respondent No. 4. The teacher-Respondent No. 4 was thereafter relieved from his duties on 19th April, 2005 (P-3) when his services were terminated.

The question arises as to whether the Petitioner-Management has acted in accordance with Section 2 of the Act and Regulation 3.1 of the Calendar. It would be necessary to notice Section 2 of the Act as well as Regulation 3.1 of the Calendar, which reads thus:

Section 2(a) Period of Probation Any employee appointed against the vacancy likely to exceed 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."

Regulation 3.1 "3.1. The employee will ordinarily be appointed on one year''s probation after which he will normally be confirmed if his work is found satisfactorily (satisfactory ?). It would be obligatory on the part of the managing body to notify to the teacher in writing before the expiry of one year probationary period, whether he had been confirmed or his period of probation has been extended and in the absence of such a notice he would be deemed to have been confirmed. The probation period in no case shall be extended beyond two years from the date of appointment.

A perusal of Section 2(a) of the Act would reveal that any employee appointed against a post which is to continue for more than one year is required to remain on probation for a period of one year which may be extended from time to time and the total period of probation including extension is not to exceed two years. Regulation 3.1 of the Calendar postulates that an employee would ordinarily be appointed on probation for a period of one year and he is to be confirmed if his work is found satisfactory. Regulation 3.1 of the Calendar requires the management to notify extension in the period of probation before the expiry of probationary period of one year. This regulation seemingly suggests automatic confirmation in case intimation before expiry of probationary period of one year is not sent. Despite the aforementioned stipulation the maximum period of probation along with extension provided by the regulation is two years.

When we examined the facts of the present case in the light of the Regulation 3.1 of the Calendar it becomes evident that the Petitioner-Management has religiously complied with the requirement of Regulation 3.1 of the Calendar. The teacher-Respondent No. 4 has joined the service as lecturer on 6th January, 2004. His probationary period of one year was to expire on 5th January 2005. A registered letter was sent to him on 3rd January, 2005 intimating that his period of probation has been extended as his work and conduct was not found satisfactory. The factum of intimation has been authenticated by the postal authorities by sending letter to the Petitioner-Managbement that the registered letter was deleiverd to the teacher-Respondent No. 4 on 4th January, 2005. On facts the provisions Regualtion 3.1 of the Calendar stand complied with.

However, for the sake of argument if it is assumed that the Petitioner-Management without intimating the teacher-Respondent No. 4 has terminated his services on 19th April, 2005, the legal effect would continue to be the same. A similar regulation which exists in the Punjabi University Calendar was considered by a Division Bench of this Court in the case of Kartar Singh v. Director, Public Instruction, Punjab 1980 (2) SLR 843. It would be apposite to extract Regulation 3 which existed in the Punjabi University Calendar Volume 1 and the same reads thus:

Unless appointed temporarily, the employee appointed on one year''s probation would be confirmed if his work is found satisfactory. The employer shall notify to the teacher in writing before the expiry of one year''s probationary period, if his period of probation is to be extended and in the absence of such a notice the teacher would be deemed to have been confirmed. The probationary period shall in no case be extended beyond two years from the date of appointment. In case a person appointed temporarily is reappointed on probation, the period of his service in temporary capacity shall be counted towards his probationary period.

The aforementioned regulation has been interpreted by the Division Bench and it has been observed that the sum and substance of the regulation is the satisfactory completion of work by the probationer. He could be confirmed if his work and conduct measure up to the satisfaction of the management and not merely by afflux of time because the basic emphasis is on the quality o