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Judgment
Ramesh Ranganathan, CJ
Heard Sri Kishan Kumar Verma, learned Counsel for the petitioner, Sri Naresh Pant, learned Counsel for the first respondent, Sri B.M. Pingal, learned Counsel for respondent no. 2, and Sri B.D. Upadhyaya, learned Senior Counsel for the third respondent; and, with their consent, the Writ Petition is disposed of.
The petitioner was initially appointed to the post of Head of Department (Education) in the respondent institution vide letter of offer dated 15.9.2015, and the appointment order dated 1.10.2015. The letter of appointment stipulated that the period of probation shall be for one year; and the petitioner would retire on his attaining the age of superannuation of 65 years. The services of the petitioner were continued for three years till the order dated 12.10.2018 was passed informing him that the University had given approval for appointment of the petitioner for the Session 2017-18, which period had expired; and in the meeting, of the Committee of Management of the College, it had been decided not to continue the petitioner's services. The first respondent, thereafter, issued proceedings dated 29.10.2018 informing the petitioner that, after completion of the period of one month, his services would be terminated, and he would not be paid his salary. The petitioner invoked the jurisdiction of this Court by way of the present Writ Petition seeking a writ of certiorari to quash the orders dated 12.10.2018 and 29.10.2018; and a writ of mandamus commanding and directing the respondents to pay him salary for the months of September and October, 2018.
The RLS Memorial Degree College is, admittedly, a private unaided college affiliated to the third respondent University. While it is not an instrumentality of the State under Article 12 of the Constitution of India, it would nonetheless be subject to the writ jurisdiction of this Court if any statutory right of the petitioner has been violated by the respondents or they had failed to discharge the statutory obligation cast on them by law.
Sri Kishan Kumar Verma, learned Counsel for the petitioner, would contend that the petitioner's appointment was on a regular basis, as is evident from the appointment letter dated 1.10.2015; in terms of Section 31(2) of the U.P. State Universities Act, 1973 (for short the "1973 Act"), which has been adopted by the State of Uttarakhand, the probation of a teacher is initially for a period of one year, which may be extended for a period not exceeding one year i.e. for a total period of two years; even during probation, or on its expiry, the conditions stipulated in Section 31 (2) and Section 35 necessitated adherence; the basis, for termination of the services of the petitioner, is that his services were not extended after expiry of the contractual period of one year i.e. 2017-18; the very premise, on which the petitioner's services has been terminated, is flawed; the respondents proceeded on the premise that the petitioner's services were contractual in nature though, in fact, it was a regular appointment; and the impugned order of termination must, therefore, be set aside.
While Sri B.D. Upadhyaya, learned Senior Counsel appearing for the University, would fairly state that the subject college is affiliated to the Kumaon University and is, therefore, governed by the provisions of the 1973 Act, both Sri Naresh Pant and Sri B.M. Pingal, learned Counsel appearing on behalf of respondents 1 and 2, would submit that the petitioner's appointment was itself contractual; and it is open to the respondent-college not to extend his services after expiry of the contractual period of one year i.e. 2017-18.
A bare perusal of the appointment letter dated 1.10.2015 would belie this contention, urged on behalf of the respondents 1 and 2. The appointment letter dated 1.10.2015, issued by the college to the petitioner, records that, subsequent to his interview and the letter of offer, the college was pleased to appoint him, in the said college, as the Head of Education Department with effect from 1.10.2015; and during his period of employment, he would be governed by the terms and conditions specified therein, as amended from time to time. These conditions include probation and confirmation. The petitioner was informed thereby that he would be on probation for a period of one year, his performance would be reviewed during this period, and, if found satisfactory, he would be confirmed; during the probation period, his services may be terminated after giving one month's notice on either side; he would continue to be on probation until and unless specifically communicated to him in writing as per approval by the University; and, after confirmation, the notice period liability, from either side, would be one month or one month's salary in lieu thereof.
While it is no doubt true that the letter of appointment indicates that the petitioner would continue on probation till an order of confirmation was passed with the approval of the University, and it is not in dispute that neither was any order of confirmation passed by respondents 1 and 2 nor was approval granted by the University, the question which necessitates examination is whether the respondents, by their act of not extending the services of the petitioner by the impugned proceedings, have acted contrary to the provisions of the 1973 Act; and whether the conditions relating to probation, as specified in the appointment letter dated 1.10.2015, falls foul of the provisions of the 1973 Act.
Chapter VI of the 1973 Act relates to appointment and conditions of service of teachers and officers. Section 31, thereunder, relates to appointment of teachers. Sub-section (1) thereof stipulates that, subject to the provisions of the 1973 Act, the teachers of an affiliated college shall be appointed by the management of the affiliated college on the recommendation of a Selection Committee. Sub-section (2) stipulates that appointment of every such teacher, not being an appointment under sub-section (3), shall, in the first instance, be on probation for one year, which may be extended for a period not exceeding one year. Clause (c), of the first proviso thereunder, stipulates that no order of termination of service, during or on the expiry of the period of probation, shall be passed, in the case of any teacher of an affiliated college, except by order of the Management made after considering the report of the Principal. Under the second proviso thereto, no such order of termination shall be passed except after notice to the teacher concerned, giving him an opportunity of explanation in respect of the grounds on which his services are proposed to be terminated. Under the third proviso, if a notice is given before the expiry of the period of probation or during the extended period of probation, as the case may be, the period of probation shall stand extended until the final order of the Executive Council under clause (a) of the first proviso or, as the case may be, until the approval of the Vice-Chancellor under Section 35 is communicated to the teacher concerned.
Section 35 relates to the conditions of service of teachers of affiliated colleges. Under sub-section (1) thereof, every teacher, in an affiliated college, shall be appointed under a written contract, which shall contain such terms and conditions as may be prescribed. Sub-section (2) stipulates that every decision of the Management of such college, to dismiss or remove a teacher or to reduce him in rank or to punish him in any other manner, shall, before it is communicated to him, be reported to the Vice-Chancellor; and shall not take effect unless it has been approved by the Vice-Chancellor. Section 35(3) stipulates that the provisions of sub-section (2) shall also apply to any decision to terminate the services of a teacher, whether by way of punishment or otherwise, but shall not apply to any termination of service on the expiry of the period for which the teacher was appointed.
In terms of Section 31(2) of the 1973 Act, the period of probation of a teacher is to be initially for a period of one year, which may be extended for a period not exceeding one year i.e. for a total duration of two years. Under clause (c) of the first proviso thereunder, no order of termination of service, during or on the expiry of the period of probation, can be passed except by an order of the Management made after considering the report of the Principal. The requirement of clause (c) of the first proviso to Section 31(2) has not been complied with in as much as no report of the Principal was obtained before terminating the services of the petitioner. Further, in terms of the second proviso to Section 31(2), no notice was issued to the petitioner nor was he given an opportunity to submit his explanation in respect of the grounds on which he was sought to be terminated from service. The requirement, of the third proviso, of approval of the Vice-Chancellor has also not been complied with.
While Section 31(2) stipulates that the probation shall be only for a period of two years, and the said period of two years, with respect to the petitioner, expired on 1.10.2017, the petitioner's services were continued thereafter. The condition stipulated in the appointment order, that the period of probation would continue till an order of confirmation is passed, does fall foul of Section 31(2) of 1973 Act, for the said section stipulates that no probation can go beyond a period of two years.
As none of the requirements of Section 31(2), or its provisos, have been complied with; and respondents 1 and 2 appear to have terminated the services of the petitioner on the premise that his appointment was a contractual appointment for a period of one year, though it is evident from a bare reading of the order of appointment dated 1.10.2015 that it was a regular appointment, the impugned proceedings, whereby the petitioner's services were terminated is set aside. The petitioner shall forthwith be reinstated into service and shall be extended all such benefits which he would have been entitled to, had he continued in service from 29.10.2018.
Sri B.M. Pingal, learned Counsel appearing on behalf of the respondent college, would submit that there are allegations against the petitioner for which the respondents intend taking action; and, after termination of the petitioner's services, they had sent a proposal to the Vice-Chancellor for appointment of another candidate.
While no appointment could have been made in the post which is occupied by the petitioner, suffice it to make it clear that the order now passed by us shall not disable the respondents, if they so choose, from taking disciplinary action against the petitioner strictly in accordance with law. Writ Petition stands disposed of. However, in the circumstances, without costs.