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Judgment
Vinod K. Sharma, J.—The Petitioner by invoking the extraordinary writ jurisdiction of this Court prays for issuance of a writ in the nature of mandamus, directing the Respondents to grant reappointment to the Petitioner as Assistant Engineer, with continuity of service for the purpose of future benefits, and render justice.
The Petitioner passed B.E. (Electricals) in the First Class on 01.08.1982. In view of his registration with the Employment Exchange, he was directly recruited as Assistant Engineer with effect from 24.11.1987. The namer of the Petitioner, at the time of his appointment, was N. Ravindran. Subsequently, the Petitioner changed his name as N. Srinivasan, which was also notified in the Gazette dated 20.04.1989.
The Petitioner was placed on probation for two years. The appointment admittedly was subject to his passing the Electricity Department Account Test, within the period of probation.
In order to help the Petitioner, the time for passing the test was extended by another one year vide letter dated 05.12.1987 and thereafter, vide memorandum No. 62087/P1/88-3, dated 07.06.1989, the period was extended to five years.
The case of the Petitioner is that in spite of few attempts, he could not clear the test. The Petitioner claims that it was on account of medical problem, that he could not write the Department Test and therefore, had applied for extension of time along with medical certificate from the Competent Doctor. It is the case of the Petitioner that though his request for extension of time was initially accepted but on expiry of five years it was not accepted.
The services of the Petitioner therefore were ordered to be terminated vide order dated 1/03.07.1995. The case of the Petitioner is that before the order of termination, the Petitioner had applied for extension of time with medical certificate dated 12.09.1994. Thereafter, certificate of physical fitness was issued to the Petitioner only on 10.10.2000. The case of the Petitioner is, that he was unable to write the Electricity Department Account Test from 1992 to 2000 due to Tremors Upperlimbs (Writer''s Cramp) i.e., medical disability. The Petitioner, undertook the departmental test on 27.12.2000, in which, he was declared successful.
The pleaded case of the Petitioner is, that on being declared successful, he made a representation to the Chief Engineer on 09.04.2001 for revoking the order of termination. However, his request was declined on 06.07.2001 by stating that the revocation was "not feasible of compliance".
The Petitioner preferred an appeal against the order which was also rejected. The Petitioner challenge the orders refusing the reappointment by filing W.P. No. 1558 of 2002. The writ petition was admitted.
The case of the Petitioner is that he was orally informed by the second Respondent, that if the writ petition was withdrawn, he will be given reappointment, keeping in view the fact that he had passed the departmental examination. The writ petition was withdrawn by the Petitioner by making an endorsement that
as the Respondents have offered to appoint the Petitioner if he withdraws the writ petition, the Petitioner is withdrawing the writ petition.
The writ petition filed by the Petitioner was dismissed as withdrawn on 01.07.2002.
The case of the Petitioner is that after withdrawal of the writ petition, he made representation to the first Respondent, and other authorities, including the Hon''ble Chief Minister for enforcing the promise made by the second Respondent, but none of the authorities looked into his grievance. The Petitioner, therefore, approached this Court again for issuing necessary direction.
In support of the plea raised, the learned Counsel for the Petitioner contends that the only reason for termination of the services of the Petitioner was, the non passing of Electricity Department Account Test, therefore, once he cleared the test, the Respondents ought to have given reappointment to the Petitioner.
The learned Counsel for the Petitioner also contends that the action of the Respondents in not giving reappointment to the Petitioner is hit by principle of promissory estoppel, as it was on the assurance of the second Respondent, that he had withdrawn the writ petition filed in this Court earlier, therefore, now the Respondents cannot deny reappointment to the Petitioner.
It is also the contention of the learned Counsel of the Petitioner that the action of Respondents, on the face of it, is arbitrary thus hit by Article 14 of the Constitution of India, inasmuch as the reason for termination of the services is now nonexistent.
The writ petition is opposed by the learned Counsel for the Respondents. The learned Counsel for the Respondents placed reliance on Regulation 95 of Tamil Nadu Electricity Board Service Regulations, which reads as under:
"95. Probation (a) Every person appointed initially to the entry level post shall be on probation for a total period of six months on duty within a continuous period of nine months, except in respect of persons appointed to the following categories by direct recruitment in whose cases the period of probation shall be as follows:
(i) Assistant Executive Engineers
(ii) Assistant Engineers
(iii) Accounts officers Two years on duty within a continuous
(iv) Assistant Accounts officers period of 3 years
(v)Medical Officers
(vi) Officer Helper Six months on duty within a continuous period of one year.
Explanation:
In respect of persons recruited direct, the period of taking over charge on first appointment shall be treated as duty for the purpose of this Regulation.
Note 1: The probationer in a post of Assistant Engineer (Electrical) or Junior Engineer (Electrical) shall be eligible to count for probation any period of service rendered by him as an Assistant Engineer (Mechanical), Junior Engineer (Mechanical) or Junior Engineer (Civil) with reference to Regulation 105.
Note2: No probation shall be necessary in the case of appointment between the categories of Junior Assistants and Typists including Steno - typists.
Note 3: The period of joining time availed by a probationer on return from leave should be counted towards the prescribed period of probation if but for the lave, he would have continued to officiate in the post to which he was appointed. The absence on Gazetted holidays and on compensatory leave which are permitted to be affixed to earned leave cannot be counted as duty for purpose of probation.
(b) RIGHT OF PROBATIONERS AND APPROVED PROBATIONERS TO REAPPOINTMENT:
A vacancy in any class of service, category or grade not being a vacancy which should be filled by direct recruitment shall not be filled by the appointment of a person who has not yet commenced his probation in such class or service, category or grade when an approved probationer or a probationer therein is available for such appointment.
(c) DISCHARGE AND REAPPOINTMENT OF PROBATIONERS AND APPROVED PROBATIONERS:
(1) (i) Where the normal method of recruitment to any category is both by direct recruitment and by promotion, probationers and approved probationers, who were recruited direct, shall not be discharged for want of vacancies. Other probationers and approved probationers shall be discharged for want of vacancies in the order of juniority.
(ii) In other cases, the probationers and approved probationers shall be discharged for want of vacancies in the order of juniority.
(iii) The order of discharge laid down in Clauses (i) and (ii) may be departed from in cases where such order would involve excessive expenditure on travelling allowance or exceptional administrative inconvenience.
(2) Approved probationers and probationers who have been discharged for want of vacancies shall be re-appointed as vacancies (not being vacancies which should be filled by direct recruitment) arise, in the inverse of the order laid down in Clause (i) or (ii) of Sub-clause (i):
Provided that the said order may be departed from in cases where such order would involve excessive expenditure on travelling allowance or exceptional administrative inconvenience.
Note: The provisions of Clause (c) regarding discharge of employees from service for want of vacancies otherwise than in the order of juniority and re-appointment of the discharged employees otherwise than in the order of seniority shall NOT apply to the employees to whom the Industrial Disputes Act will apply, in whose case, discharge for want of vacancy should be strictly in accordance with juniority and re-appointment according to the seniority of the discharged persons, the senior-most being reappointed first.
(d) SUSPENSION TERMINATION OR EXTENSION OF PROBATION:
(1) Where the Regulations prescribe a period of probation for appointment as a full member of the class of service or where such period of probation has been extended under Sub-Regulation (g) below, the appointing authority may, at any time before the expiry of the prescribed period of probation or the extended period of probation, as the case may be:
(i) Suspend the probation of a probationer and discharge him from the class of service for want of a vacancy or (ii) At its discretion, by order, either extend the probation of a probationer in case the probation has not been extended under Sub-Regulation (g) below or terminate his probation and discharge him from service after giving him a reasonable opportunity of showing cause against the proposed termination of probation.
Explanation: -An opportunity to show cause may be given after the appointing authority arrives at a provisional conclusions on the suitability or otherwise of the probationer for full membership of the service, either by such authority himself or by a subordinate authority who is superior in rank to the probationer.
(2) (i) If within the period of probation, a probationer fails to acquire the special qualifications or to pass the special tests, if any, prescribed for the post or to acquire such other qualifications as may be declared by the Board or by the appointing authority with the approval of the Board to be equivalent to the said special qualifications or special tests, the appointing authority shall, by order, discharge him from the class of service unless the period of probation is extended under Sub-Regulation (g) below.
(ii) If, within the period of probation prescribed in Sub-Regulation (a) for the class of service or within the extended period of probation, as the case may be, a probationer has appeared for any such tests or for any examinations in connection with the acquisition of any such qualifications and the results of the tests or examinations for which he has so appeared are not known before the expiry of such period, he shall continue to be on probation until the publication of the results of the tests or examinations for which he has appeared or the first of them in which he fails to pass, as the case may be In case the probationer fails to pass any of the tests or examinations for which he has so appeared, the appointing authority shall, by order discharge him from the class of service.
(iii) Any delay in the issue of an order discharging a probationer under Clause (i) or Clause (ii) shall not entitle him to be deemed to have satisfactorily completed his probation.
(e) APPEAL AGAINST DISCHARGE:
(1) A probationer who is discharged under Clause (i) of Sub-Regulation (d) or under Clause (3) of Sub-Registration (f) below shall be entitled to appeal against the order of discharge passed by the competent authority to the authority to which and within the period of limitation within which an appeal would lie against an order of dismissal passed by the competent authority against a full member of the class of service, or category, as the case may be (2) the authority competent to entertain an appeal under Sub-Regulation (1) may, either of its own motion or otherwise, revise any order discharging a probationer under any of the provisions referred to in the said Sub-Regulations within one year of the date of such order (3) (i) When an order discharging a probationer is set aside on appeal under Sub-Regulation (1) or on revision under Sub-Regulation (2) and the probationer is restored to the service the period on and from the date of discharge to the date of such restoration may, with the previous sanction of the Board, be treated as on duty except for purpose of his probation. The period of probation undergone by such probationer at the time of his discharge shall, however, count towards the period of probation prescribed by the Regulations applicable to him.
(ii) Such probationer may, during the period on and from the date of his discharge to the date of his restoration, be paid such pay and allowances not exceeding the pay and allowances, to which he would have been entitled if he had not been discharged as the authority passing the order under Sub-Regulation (1) or (2) may with the previous sanction of the Board determine.
(f) PROBATIONER''S SUITABILITY FOR FULL MEMBERSHIP:
(1) At the end of the prescribed or extended period of probation as the case may be, the appointing, authority shall consider the probationer''s suitability for full membership of the class of service or category for which he was selected.
(2) If the appointing authority decides that probationer is suitable for such membership, it shall, as soon as possible issue an order declaring the probationer to have satisfactorily completed his probation. If no such order is issued within six months from the date on which he is eligible for such declaration, the probationer shall be deemed to have satisfactorily completed his probation on the date of the expiry of the prescribed or extended period of probation a formal order declaring the completion of probation shall, however, be issued by the competent authority. In all cases in which serious charges are pending and, therefore, probation cannot be declared, the final order on probation shall be passed as early as possible and in any case within one month after the disposal of the charges or six months after the due date of completion of probation which ever is later.
Explanation: -For the purpose of calculating the period of probation of a probationer, complete calendar months, irrespective of the number of days in each month, shall first be calculated and then the odd number of days calculated subsequently. Periods of Leave, if any taken during the period of probation shall be excluded while calculating the period of probation.
(3) If the appointing authority decides that the probationer is not suitable for such membership, it shall, unless the period of probation is extended under Sub-Regulation (g) below by order, discharge him from the service after giving him a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
Provided that where a probationer has been given a reasonable opportunity of showing cause against the imposition on him of ay of the penalties specified in Regulation 8 (b) of the Discipline and Appeal Regulations, the procedure laid down therein shall be followed (even though it is ultimately decided to discharge him from service):
Explanation 1:
The decision of the appointing authority that the probationer is not suitable for full membership may be based also on his work and conduct till the date of the decision, inclusive of the period subsequent to the prescribed or extended period of probation.
Explanation II:
An opportunity to show cause may be given after the appointing authority arrives at a provisional conclusion on the suitability or otherwise of the probationer for full membership of the class of service, either by such authority himself or by a subordinate authority who is superior in rank to the probationer.
Explanation III:
Where the competent authority proposes to terminate the probation of a member of a service for general unsatisfactory work or in capacity without the need for enquiry into specific charges, he shall do so under Regulation 95 (d) or 95 (f) as the case may be. In cases, where he proposes to terminate the probation of such a member for specific charges in addition to, or distinct from, general inefficiency or incapacity, he shall frame specific charges and follow the detailed procedure laid down in Regulation 8 (b) of the Tamil Nadu Electricity Board Employees'' Discipline and Appeal Regulations.
(g) EXTENSION OF PROBATION:
In the case of any probationer falling under Clause (2) of Sub -Regulation (d) above or Clause (3) of Sub -Regulation (f) above, the appointing authority may extend his probation to enable him to acquire the special qualifications or pass the prescribed tests, as the case may be, to enable the appointing authority to decide whether the probationer is suitable for full membership or not. The period of probation as extended under Clause (i) (ii) of Regulation 95 (d) or Clause (3) of Regulation 95 (f) or in a case where a probationer is reverted due to want of vacancy during the extended period shall terminate at the latest when the probationer has, after the date of expiry of the period of probation prescribed for the service, class or category in which he is on probation, completed one year of duty in such service, class or category. The period of probation as extended under Clause (2) of Regulation 95 (d) shall terminate at the latest when the probationer has, after the date of expiry of the period of probation prescribed for the service, class or category in which he is on probation, completed one year of duty in such service, class or category. In cases where the probation of a probationer is extended a condition shall unless there are special reasons to the contrary, be attached to the order of extension of probation that the probationer''s increment shall be stopped until he is declared to have satisfactorily completed his probation. Such stoppage of increment shall not be treated as a penalty, but only as a condition of extension of probation and shall not have the effect of postponing future increments after he has passed the prescribed tests or examinations or after he is declared to have satisfactorily completed his probation.
Explanation:
The maximum period upto which the probation of an employee of the Board shall be extended so as to enable him to acquire the test qualification, be fixed as five years. If he does not acquire the test qualification even within the maximum period of five years he shall be reverted and the qualified and eligible junior shall be considered for promotion. If such a person is appointed by direct recruitment and has not acquired the test qualification even within the maximum period of five years, his probation shall be terminated.
(h) PROBATIONERS DESIRING COURSES OF STUDY NOT CONNECTED WITH PROBATION:
(1) A Probationer who desires to undergo any course of study which though not essentially connected with his probation is likely to enhance his usefulness as a member of the service may on his application, be permitted by the competent authority to undergo the desired course of study. He shall in such case be granted the entire amount of leave, if any, admissible under the Regulations applicable to him if but for such leave he would have continued to be on duty.
(2) Notwithstanding anything contained in the Regulation relating to seniority, such probationer shall , on the completion of the course of study, be entitled to reappointment according to the rank and seniority held by him in his category before undergoing the said course of study. He shall also be entitled to count his continuous service immediately before his undergoing the said course of study for increments in the time-scale of pay applicable to him, if but for his absence from the service (whether on leave or otherwise) for undergoing the said course of study, he would have continued to be on duty.
(3) This Regulation shall not have the effect of excluding the period of absence in computing the continuous period within which the prescribed period of probation has to be served under Sub-Regulation (a) above;
(i) EXERCISE OF CERTAIN POWERS OF APPOINTING AUTHORITY BY HIGHER AUTHORITIES:
The powers conferred on the appointing authority other than the Board, may be exercised also be any higher authority to whom the appointing authority is administratively subordinate whether directly or indirectly, in the following cases:
(1) Termination of probation of a probationer under Clause (1) (ii) of Sub-Regulation (d).
(2) Discharge of a probationer under Clause (3) of Sub-Regulation (f).
(3) Extension of probation under Clause (1) (ii) of Sub-Regulation (d) or under Sub-Regulation (g).
The contention of the learned Counsel for the Respondents is that the discharge of Petitioner automatic, for non-clearance of test within the period of five years.
The power, to extend further time, was only with the higher authorities. However, in the absence of any order by the higher authorities, the Petitioner does not have any right to claim reappointment, nor there exists provision for re-appointment after discharge from service.
On consideration, I find no force in the contention raised by the learned Counsel for the Petitioner. The principle of promissory estoppel does not apply to the present case, as to attract the provisions of the principle of promissory estoppel, it is to be proved that a person has changed his position to his detriment on the assurance given by other party. In the present case, no assurance is shown to have been given by the Respondents, as the statement of the counsel was based on instruction from the Petitioner, furthermore nothing has been shown as to how his position changed to his detriment merely because of withdrawal of writ. The Petitioner can only maintain second writ petition, on same cause of action, and explain the delay in filing of second writ. The Petitioner cannot claim reappointment by invoking principle of promissory estoppel.
The contention of the learned Counsel for the Petitioner that the order of termination was bad in law and hit by Article 14 of the Constitution of India, being based on non-existing reasons cannot be sustained, as admittedly at the time of passing the order of termination the Petitioner had failed to qualify the test for a period of five years and the order of discharge was strictly in terms of the regulation, 95(d)(2)(ii) read with Regulation 95(g). Therefore, no fault can be found with the order of termination. Nothing could be pointed out by the learned Counsel for the Petitioner, as to under which regulations of the Tamil Nadu Electricity Board Service Regulations, the right of reappointment existto an employee to claim reappointment on qualifying the Electricity Department Account Test.
Consequently, finding no merit. The writ petition is ordered to be dismissed. No costs.