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Judgment
In the instant petition, petitioner has questioned the validity of the
order dated 21.03.2017(Annexure P1) by which respondent No.1''s appeal
was allowed while setting aside the order of discharge of the respondent
No.1 and further directed the petitioner to follow the procedure mentioned
under Rule 8, sub Rule (2) proviso (ii) of Haryana Affiliated College
(Security of Service) Rules, 2006 (For short ''Security of Service Rules,
2006).
Respondent No.1 was appointed as a Principal in the petitioner''s
institutions on 23.10.2015. Ist respondent joined the petitioner''s institution
on 26.10.2015. As per the order of appointment the Ist respondent was on
probation for a period of 2 years. Before completion of 2 years of probation
she has been discharged from service on 14.02.2017.
Respondent No.1 feeling aggrieved by the order of discharge
preferred appeal/application before the jurisdictional District Court,
Bhiwani. The Education Tribunal/District and Sessions Judge, Bhiwani
while examining the order of appointment, order of discharge read with
Security of Service Rules, the Education Tribunal noticed that respondent
No.1''s services have been dispensed/discharged without their being
compliance to sub Rule 2 and proviso (ii) of Rule 8 of Security of Service
Rules. Thus, it is held that the petitioner is required to comply the aforesaid
provision before passing order of discharge.
Learned counsel for the petitioner submitted that respondent No.1
has been discharged from service with reference to the conditions imposed
in the order of appointment. In this regard learned counsel for the petitioner
relied on conditions stipulated in the order of appointment. Extract of the
relevant condition are as under:-
"Terms and conditions:
(i)His/Her appointment is to a purely temporary post which is liable to be abolished at any time and carries no promise of subsequent permanent employment. No offer of permanent vacancy can be made to him/her at present. (ii) He/She shall be on probation for a period of ..... year which can be extended for such further period as the competent authority under the rules may determine. 2. In case of resignation or discharge on grounds other than abolition of the post (except as
a result of disciplinary action), one month''s notice or one month''s pay and allowance in lieu thereof will be required to be paid on either side."
It was further submitted that question of invoking Rule 8(2)(b) in
the present case do not arise for the reasons that respondent No.1 has not
completed two years of probation period as on the date of passing of the
order of discharge. She has completed only one year and few months.
Thus, the Tribunal has erred in holding that respondent No.1''s order of
discharge would fall within the purview of Rule 8(2)(b) so as to direct the
petitioner to comply the provision of Rule 8 (2) (b) is illegal and contrary to
the Rule 8(2) which stipulates that on the completion of the probation
period of a person, the appointing authority may take the following steps
under Rule 8(2)(b). Therefore, the order of Education Tribunal is liable to
be set aside and the order of discharge is to be upheld.
Learned counsel for the respondent submitted that the Education
Tribunal has not committed any error for the reasons that respondent No.1
was on probation for a period of 2 years. There is requirement of certain
statutory duties on the appointing authority to comply Rule 8(2)(b).
Undisputedly, the petitioner has not complied provisions of Rule 8(2)(b)
proviso. Therefore, no interference is called for in respect of Education
Tribunal''s order dated 21.03.2017.
Heard learned counsel for the parties.
Respondent No.1 was appointed on 26.10.2015 and her services
have been dispensed/discharged on 14.02.2017. Undisputedly, her services
has been discharged before completion of 2 years. Perusal of Security of
Service Rules, 2006 there is no provision of discharging an employee when
he/she was on probation i.e. prior to completion of 2 years. Only provision
provides for either to confirm or to dispense the services of the employee
after completion of 2 years. In this regard, Rule 8 is relevant which reads as
under:-
(1) The persons appointed to any post in the Service shall remain on probation for a period of two years in the first instance, if appointed by direct recruitment and one year if appointed otherwise. (2) On the completion of the period of probation of a person the appointing authority may-
(a) if his work or conduct has, in its opinion, been satisfactory, confirm such person from the date of completion of his probation period or if a permanent post is not available, declare that he has completed his probation satisfactorily; or
(b) if the work or conduct of a person in its opinion has not been satisfactory-
(i) dispense with his services, if appointed by direct recruitment, or revert him to his former post if appointed otherwise or deal with him in such other manner as the terms and conditions of his previous appointment permit;
(ii) extend his period of probation and thereafter pass such orders as it could have passed on the expiry of the first period of probation;
Provided that the total period of probation, including extension, if any, shall not exceed three
years :
Provided further that if it is proposed to take action under sub-clause (i) or (ii) then the case of the official shall be referred to a committee consisting of the following members:-
(1)President or his nominee;
(2)Dean of Colleges of the University or his nominees;
(3)Nominee of Government in the Managing Committee;
(4)Principal of the College concerned;
(5)Principal of another college not under the same Managing Committee. The Managing Committee shall take a final decision in the matter in accordance with the recommendation of this committee;
(iii) if the Managing Committee does not agree with the report of the committee constituted under rule 8(2) (b) (ii) or the committee is unable to come to a decision by the majority then the matter will be referred to by the Principal to the Director whose decision shall be final. However, an employee against whom an order of termination of services has been passed without complying with the provision of these rules, may, within a period of thirty days of the date of communication of orders make an application to the Director whose decision shall be final in the matter."
Learned counsel for the petitioner contended that petitioner can
dispense or discharge an employee''s services before completion of 2 years
with reference to terms and conditions imposed in the order of appointment. Therefore, the petitioner is empowered to discharge an employee prior to
completion of 2 years without their being any approval of the committee or
Director as provided for the purpose of discharging an employee who has
completed 2 years of service under Rule 8(2)(b). The said contention of the
petitioner is not in terms of the rule. It is to be noted that terms and
conditions of appointment in particularly (1) and (2) which is specific that
he/she shall be on probation for a period of 2 years which can be extended
for such further period as the competent authority under the rules may
determine. Having regard to factual aspects it is evident that respondent
No.1 is on probation under the Rules. Therefore, in the case of discharging
respondent No.1''s under Security of Service Rules, 2006 is required to be
invoked. Security Service Rules, 2006 is silent about discharge of an
employee before completion of 2 years of service. Therefore, the
petitioner''s contention that with reference to order of appointment and terms
and conditions petitioner proceeded to discharge respondent No.1 before
completion of 2 years is not acceptable in the absence of specific provision.
One must go by statutory rules. In the present case, Security of Service
Rules, 2006 is governed for the purpose of condition and service of an
employee who has been appointed in the petitioner No.1''s institution. Since
the Security of Service Rules, 2006 is silent about discharging an employee
before completion of 2 years question of invoking terms and conditions
imposed in the order of appointment by the petitioner is highly arbitrary and
illegal.
The Education Tribunal proceeded to hold that the order of
discharge is liable to be set aside for non-compliance of Rule 8(2)(b) and its
proviso and further directing the petitioner to complete the procedure laid
down in Rule 8 (2) (b) is incorrect for the reasons that Rule 8(2)(b) is
applicable only in respect of an employee who has completed 2 years of
service. Since Rule 8(2) is applicable on the completion of the period of
probation of a person the appointing authority may-. The petitioner is very
specific that Rule 8(2) can be invoked only wherein employee has
completed 2 years of service. Therefore, the Tribunal has erred in holding
that Rule 8(2)(b) is to be read even to an employee who has been
discharged prior to completion of 2 years of service and further direction to
the petitioners to comply the provisions under Rule 8(2)(b) is an error and it
is set aside. Insofar as order of discharge of the Ist respondent is concerned,
it is without authority of law by the appointing authority for the reasons that
respondent no. 1 has been appointed under the Security of Service Rules,
2006 on probation of 2 years and the said Security of Service Rules, 2006 is
silent about discharging an employee who has not completed 2 years of
service. Therefore, order of discharge is liable to be set aide on the ground
that in the absence of provision of law the petitioner cannot refer to the
condition imposed in the order of appointment of respondent No.1 when the
order of appointment is with reference to Security of Service Rules, 2006
itself the petitioner cannot go beyond the Security of Service Rules 2006 to
discharge the respondent No.1 from service unless and until Rules, 2006 is
amended appropriately. Thus, order of the Education Tribunal is modified
to the extent directing the petitioner to comply the provisions of 8(2)(b) is
set aside. Insofar as setting aside the order of discharge by the Education
Tribunal is to be read on the ground that in the absence of any provision of
law to discharge an employee before completion of 2 years. The petitioner
is directed to take back respondent No.1 to duty forth with and respondent
is entitled to all service benefits during the intervening period. The same
shall be extended within a period of 3 months.
With the above observation, petition stands disposed of.