AI Structured Summary
Not yet generated for this judgment
Judgment
R. R. K. Trivedi, J.—Aforesaid two Special Appeals are directed against the same judgment. The questions of fact and law involved are also identical, hence both the appeals can be conveniently decided by a common judgment. Special Appeal No. 445 of 1996 shall be the leading case.
Facts, in short, necessary for appreciating the controversy in these appeals are that Madarsa Hanfia Able Sunnat BaharUl Uloom (hereinafter referred to as the Institution) is an Arabian Madarsa imparting religious education and also Arabic and Percian languages n various disciplines. The examinations of this Institution are held by Registrar of Arabic Madarsas, U.P., at Allahabad. The Institution is in grantinaid list of the State Government and gets maintenance grant. Mohammad Zahoor (petitioner of Writ Petition No. 39602 of 1993) and Mukhtar Ahmad (petitioner of Writ Petition No. 39424 of 1993 were appointed as assistant teachers in Alia Section of the Institution where teaching is imparted from Class I to V. Both were appointed under separate orders of appointment dated 2221989 with effect from 131989 on probation. The orders of appointment in favour of aforesaid two appellants have been filed as Annexure 1 to the counter affidavit filed in the writ petition. The aforesaid period of probation was extended by order dated 2031991 for another period of one year. The period of probation was further extended in case of both the appellants by order dated 1041992 for a period of one year. On 1321993, however, both the appellants were served with a notice that by extending the period of probation, opportunity was provided to them for improvement but on account of iheir lethargy and inefficiency, the standard of education has gone down which has affected the reputation of the Institution and the students have started deserting it. The Committee of Management is of the view that they may not be continued on the post, hence notice is given that if they have nothing to say in their defence, they may submit their explanation within 22 days. Thereafter, by order dated 341993. (Annexure ''7 to Writ Petition No. 39502 of 1993) appellant Mohd. Zahoor was discharged from service and by order dated 241993 (Annexure ''?'' to Writ Petition No. 39424 of 1993) appellant Mukhtar Ahmad was discharged from service. Challenging the orders terminating them from service, both the appellants have filed separate writ petitions as mentioned above, which have been decided by a common judgment dated 1541996. Aggrieved by the aforesaid judgment, both have preferred separate special appeals.
We have heard Shri R. G. Padia, learned counsel for appellants and Shri M. A. Qadeer, learned counsel appearing for the Management and the learned standing counsel.
Shri R. G. Padia has submitted that under the Rules applicable to the appellants, the initial period of probation contemplated is one year which could be further extended for another period of one year. In the present case, however, appellants were appointed on 131989. The maximum period of probation contemplated in the Rules expired on 131991 and both the appellants ought to have been treated confirmed after expiry of the period of probation. However, the Management acting against the provisions contained in the Rules, exended the period of probation on 2031991 and on 1041992 for period of one year on each occasion and thus appellants were illegally continued on probation and they have been illegally terminated from service. It has also been submitted that as clear from the order terminating the appellants from service, it is based on specific charges and it is not an order of discharge of a probationer simpliciter. As the order terminating the appellants from service contained allegations and it cast stigma, there ought to have been an inquiry providing an opportunity of hearing to the appellants. It has also been submitted that under the Government Orders, the order of termination could not have effect without approval of the Inspector Arabic & Percian Madarsas, U.P., Allahabad. As there was no approval, the order of termination is void ab initio and the appellants are entitled for relief claimed in the writ petition from this Court. The learned Single Judge, however, failed to appreciate properly the aforesaid legal questions involved and has illegally dismissed the writ petition.
Shri M. A. Qadeer, on the other hand, submitted that the appointment of the appellants was beyond the sanctioned post and was itself illegal, hence they are not entitled for any relief. It has been further submitted that the Rules are not statutory and no approval was legally required in the facts and circumstances of the case. It has been further submitted that appellants were continuing on probation which was extended from time to time on their own request. The Committee of Management on assurance of appellants acted in bona fide belief that they will show improvement in their work and conduct though it was not satisfied with the performance of the appellants. Appellants cannot now question the validity of the extension of the period of probation as it was extended at their instance. Both the appellants have been discharged from service during the period of probation which is in conformity with the terms and conditions in the order of appointment and it is a legal and valid order in view of the provisions contained in Rule 26. The appellants could not be treated as confirmed employees as the order of confirmation was not passed by the Committee of Management at any point of time. No inquiry or opportunity of hearing to the appellants was legally necessary. The order of discharge is a termination simpliciter and the facts narrated therein indicate only motive of the employer and they are not basis of the order passed against the appellants.
We have thoroughly considered the submissions made by learned counsel for the parties. There is no doubt about the legal position that the object of probation is to test the suitability of the person appointed. If the appointing authority finds that the. candidate is not suitable, the employer certainly has power to terminate the services of the employee. There is also no doubt about the legal position that there is nothing like automatic confirmation/absorption of a candidate in service on expiry of the period of probation unless specifically provided so in the Rules applicable to the service. In the circumstances, it is necessary to examinations the contention of the parties in context with the Rules governing the employment of the appellants. The Governor of Uttar Pradesh no 2381987 approved nonstatutory Rules for regulating recognition of Arabic and Percian Madarsas which are known as Uttar Pradesh Ashaskiya Arabi Tatha Farsi Madarson Ki Manyata Niyamawali. A copy of the Rules has been filed as Annexure 2 to the writ petition Rule 26 of these Rules contains provision with regard to probation. Rule 26 as provided under the Rules (in Hindi) and its English translation is being given herein again as, in our opinion, the translation of Rule 26 as provided in the judgment of the learned single Judge is not correct.
"(Appointments on clear vacancies shall be on probation. The period of probation shall be for one year. The period of probation may be extended for one year. The Management shall have right to terminate before expiry of the period of probation.)"
From perusal of Rule 26, it is clear that it only fixes the outer limit of the period of probation but the Rules no where contain any prohibition that the period of probation could not be for a longer period than provided in Rule 26. In absence of any prohibition, in our opinion, it was open for the Management to continue the probation for a reasonable period for testing the suitability of the candidate. Learned counsel for the appellants strongly contended that the period of probation could not be extended beyond the period of two years. However, this contention loses its force as the period probation was extended on the request of the appellants as clear from Annexures 1, 2 and 3 filed along with the counter affidavit.
The last extension of probation was on 1041992 for a period of one year in respect of both the appellants. Thus, the period of probation was to continue up to 941993. Both the appellants were given notice on 1321993 that their probation was extended from time to time with the hope that they shall show improvement in their work and conduct but they failed to do so. They were also asked to give explanation in their defence, if any and thereafter the orders terminating appellants from service were passed on 241993 and 341993 which was well within the period of probation. Thus, in view of the language used in Rule 26 which is applicable to the appellants, it is difficult to accept the submission of the learned counsel for the appellants that there was anything like automatic confirmation or that the period of probation could not be extended beyond the outer limit of two years provided in Rule 26. In our opinion, the Management could have exercised their power to discharge the appellants from service but it extended the period of probation on the request of the appellants themselves. Thus, the view taken by the learned single Judge on this question is perfectly justified and calls for no interference.
Learned counsel for the appellants relied on certain authorities which are being mentioned here:
Om Prakash Maurya v. U. P. Cooperative Sugar Factories Federation, Lucknow and others, AIR 1986 SC 1844;
Lakshman Ram Kushwaha v. Committee of Management and others, (1986) UPLBEC 1390 (DB);
Mool Chand v. U.P Financial Corporation and another, 1991 FLR 258;
Sri Chandra v. U.P Financial Corporation (1994 LIC 859);
M. K. Agarwal v. Gur Gaon Gramin Bank and others, AIR 1988 SC 286; and
State of Punjab v. Dharam Singh, AIR 1968 SC 1210.
We have examined the aforesaid cases. However, the views expressed in the aforesaid cases are in different set of facts and in context with the Rules containing different phraseology than contained in Rule 26 which applies to the appellants. The ratio of the aforesaid case thus cannot be applied in the present appeals. In case of Dhoonji Bhai Ramji Bhai v. State of Gujrat, AIR 1985 SC 603, a Bench consisting of three Hon''ble Judges of the Supreme Court while dealing with the period of probation expressed the legal position in the following manner:
"The second contention on behalf of the appellant is that the appellant must be deemed to have been confirmed inasmuch as he was allowed to continue in service even after the expiry of the period of probation of two years specified in the order of appointment. We are of opinion that when the order of appointment recited that the petitioner would be on probation for a period of two years, it conformed to Rule 5 of the Recruitment Rules which prescribes such period of probation. The Rule states further that the period of probation may be extended in accordance with the rules. The period of two years specified in the Rule is merely the initial period for which an officer may be appointed on probation. As the terms of the same Rule indicate, the period of probation may be extended. The period of two years does not represent the maximum period of probation."
"It is next urged that as no rules have been framed indicating the manner for extending the period of probation, there is no power to extend the period of probation, the argument suffers from a fallacy. The power to extend the period of probation must not be confused with the manner in which the extension may be effected. The one relates to power, the other to mere procedure. Merely because procedural rules have not been framed does not imply a negation of the power. In the absence of such rules, it is sufficient that the power is exercised fairly and reasonably, having regard to the context in which the power has been granted."
If the aforesaid view of the Apex Court is applied in the facts of the present case, there remains no doubt that the power of extension of the period of probation has been exercised fairly and reasonably. On each occasion it has been extended on the application given by the appellants that they will show improvement. Thus, they were a consenting party for extension of the period of probation and they cannot question the validity of the same once they have availed benefit of the same. Viewed from any angle, we do not find any substance in the submissions made by the learned counsel for the appellants.
The second submission of learned counsel for the appellants was that the order of termination contains allegations causing stigma against the appellants which formed basis for passing the order and the order thus was illegal and arbitrary and cannot be sustained. In this connection it has also been submitted that if the respondent No. 1 wanted to terminate appellants from service on these allegations, there ought to have been a fullfledged inquiry as provided in Rule 34 of the Rules. It has also been submitted that after such inquiry the approval of the Inspector of Arabic and Persian Madarsas of U.P., was also necessary.
We have considered this aspect of the matter also. However, as we have already found above that the termination has taken place before expiry of the period of probation, the orders passed against appellants do not suffer from any illegality as under Rule 26 as well as in the terms and conditions provided in the order of appointment, the Management had right to terminate the appellants from service during probation if it was not satisfied with their performance. We have examined the order of termination filed as Annexure ''7'' to the writ petition and, in our opinion, the facts stated therein are only motive for passing the order and they are not basis for the order. The appellants were being reminded of their inefficiency and bad performance from the very beginning. However, they persuaded the management to continue with them on assurance that they will show improvement. However, the appellants failed to carry out their assurance. Thus, the basis for passing the orders of termination against appellants was dissatisfaction regarding their performance. Few instances mentioned in the order are only motives. Submission of learned counsel for appellants hence cannot be accepted.
For the reasons stated above, both these appeals are devoid of merit and are accordingly dismissed. There will be no order as to costs.