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Judgment
Dipankar Datta, J.
This intra-court appeal registers a challenge to the judgment and order dated December 1, 2015 passed by a learned Judge of this Court allowing
WP 12574 (W) of 2009 presented by the respondent no.1 (hereafter the writ petitioner). Letter dated June 15, 2009 terminating the service of the writ
petitioner was set aside and quashed and the writ petitioner was directed to be reinstated in service forthwith. The writ petitioner was granted liberty
to apply for back-wages which the appellant was required to deal with in accordance with law.
CAN 2555 of 2016 is an application for stay of operation of the order under challenge. While hearing the said application, we heard the parties on
the merits of the appeal with their consent. Since we propose to dispose of the appeal finally by this judgment and order, the said application is not
dealt with separately except to the extent required for an effective and proper decision on the appeal.
The writ petitioner responded to an advertisement published in the issue datedOctober 22, 2006 of “The Sunday Statesman†inviting
applications for appointment on the post of Lady Principal in a fast developing English-Medium Co-Educational School, affiliated to the Council for the
Indian School Certificate Examinations, New Delhi (hereafter the Council, for short). The advertisement, it later transpired, was inserted in such
newspaper at the instance of Maharishi Vidya Mandir, 344/1, Netaji Subhas Chandra Bose Road, Kolkata 700047 (hereafter the institution). The writ
petitioner was interviewed, whereafter she was offered appointment on the post of Principal by letter dated November 27, 2006 containing, inter alia,
the following terms and conditions:
“1. You will be on probation for a period of one year in the first instance, from the date of your joining duty i.e. 1st January, 2007. This period of
probation is liable to be extended by another period of one year at the sole discretion of the school. Unless an order in writing confirming your
appointment is issued by the school, you will not be deemed to have been confirmed in service but you shall continue as a probationer. During the
period of probation or any extension thereof, your employment will be subject to termination by one month notice or payment of one month salary in
lieu thereof, without assigning any reasons. Similarly you many resign from the services after giving one month’s notice or salary in lieu thereof.
During your probation period or any extension thereof, your monthlyconsolidated salary will be Rs.13,700 (Rupees Thirteen thousand seven hundred
only) per month.
On confirmation of your services by the school you will be entitled to thebenefits as available to confirmed teacher according to the rules.
After confirmation of your services, your employment will be subject totermination without assigning any reason upon one month’s written
notice on either side or payment of one month’s salary in lieu thereof.
You will initially be posted at Kolkata. However, your services are subjectto transfer to any place in India where the society/school has its branches
or where the school may establish branches after your appointment.
You will inform the school management of your current residentialaddress and also inform the change in address as and when you shift your
residence. Any communication sent on the address given by you shall be deemed to have been duly served on you.
You shall be governed by the service rules and code of conduct of theschool which are in force from time to time also through office circulars
issued in this behalf. You will also be required to sign a service agreement with the school. You may go through the copy of the service rules, code of
conduct and service agreement before signing the duplicate copy of this appointment letter, in token of your acceptance of the terms thereof.â€
While accepting the offer of appointment, the writ petitioner signed the followingdeclaration:
“I have read and fully understood the terms & conditions as contained in my letter of appointment. I agree to abide by them and in acceptance of
the terms and conditions, I sign the duplicate copy of this appointment letter.â€
The writ petitioner joined on January 1, 2007 as Principal and continued todischarge the duties attached to such post. There is no document annexed
to the writ petition evincing that upon completion of the period of probation for a year, such period was extended by a further period of one year. It is,
however, not in dispute that the writ petitioner was allowed to continue in service not only beyond the first-year of probation but also beyond the
second-year. It is equally not in dispute that the institution did not confirm the writ petitioner in service at the end of the second-year of her
probationary period. Ultimately, by a letter dated June 15, 2009, the administrator of the school informed the writ petitioner as follows:
“We regret to inform you that the Governing Council of Maharishi Vidya Mandir is not satisfied with the performance of your day to day activities
and as a result Maharishi Vidya Mandir hereby terminates your employment as principal on probation with immediate effect. You are hereby
requested to make over the charge to Mrs. Rama Chakraborty and deliver her all related papers and documents kept under your custody. On
compliance of the formalities you will be paid one month’s salary in terms of your letter of appointment no. MVM-19/06-07 dated 27.11.2006.â€
Aggrieved by termination of service brought about by letter dated June 15, 2009, the writ petitioner invoked the writ jurisdiction of this Court by
presenting the aforesaid writ petition on July 21, 2009 wherein she prayed for appropriate writ for quashing the letter dated June 15, 2009 as well as
for her reinstatement in service.
The writ petition was contested by the appellant by filing a counter affidavit. As noticed above, the learned Judge granted the prayers of the writ
petitioner. The learned Judge was impressed with the submission advanced by Mr. Neogi, learned advocate for the writ petitioner that in terms of
clause (a) read with clause (e) of regulation 21 of the Code of Regulations for Anglo-Indian and other Listed Schools, 1993 (hereafter the Code), the
institution not having extended the writ petitioner’s probationary period beyond two years and having allowed the writ petitioner to discharge her
duties as Principal for over two years two months, there occasioned a deemed confirmation of her service; and once there was deemed confirmation,
the institution could not have terminated the writ petitioner’s service in the manner it did treating her to be a probationer. If at all the institution
wished to dispense with the writ petitioner’s service, it was required to proceed in terms of regulation 23 for termination of appointment of
confirmed staff.
We place on record that in course of initial hearing of the stay application, the parties were requested to explore the possibility of an amicable
settlement. Considering that the writ petitioner was out of employment during the periods July 2009 to January 2010, then from July 2013 to February
2014, and lastly from February 2015 to May 2015 and bearing in mind the salary last drawn by the writ petitioner from the institution, that is, Rs.
14,000/-, the institution calculated that had the writ petitioner been in service as its Principal, she would have been entitled to Rs. 2,66,000/- plus
interest @ 6.25% from the date of the judgment and order under challenge till such calculation was worked out. Such interest was quantified at
Rs.37,406/- and the institution had, accordingly, offered Rs. 3,03,406/- to the writ petitioner as damages. Distressed by the quantum of damages that
the institution offered, the writ petitioner did not agree to it. According to her, nothing less than Rs. 63,69,000/- would be acceptable. She worked out
such sum, inter alia, by assuming whatever is payable to her upon the Revision of Pay and Allowances, Rules, 2009 becoming effective and whatever
would be payable to her assuming she continues in service as the Principal of the institution till the age of her superannuation. Such quantification,
however, did not include whatever the writ petitioner received as salary from the post-termination assignments taken up by her, gratuity and the
employer’s share of provident fund.
We requested the parties to sit across the table once again so that the dispute could be resolved out of Court once and for all. The institution agreed
to an enhancement and offered Rs. 5,00,000/- as full and final settlement of her dues but obviously the writ petitioner did not agree. In view thereof,
we had no other option but to abort the process of settlement and proceeded to hear the parties on the merits of their respective claims.
Mr. Dhar, learned senior advocate appearing for the appellant, first contended that the writ petitioner having accepted the terms and conditions
spelt out in the offer of appointment dated November 27, 2006 unconditionally, she could not have after her service was terminated taken a stand on a
complete volte-face relying on regulation 21 of the Code and contending that her service stood automatically confirmed upon completion of the
probationary period of two years. It was his submission that there is no law precluding the institution from imposing a condition of the nature as in
paragraph 1 of the offer letter and, therefore, without a written confirmation, the writ petitioner could not have claimed the status of a confirmed
teaching staff.
Mr. Dhar further contended that the provisions of the Code not having statutory force, the writ petition itself was not maintainable and the remedy
of the writ petitioner lay in approaching the civil court for recovering damages if at all she felt aggrieved by termination of her service. In support of
such contention, the decision of a coordinate Bench of this Court reported in (2010) 1 CHN 760 : Shukla Ghosal v. Principal Park English School &
anr., was cited by Mr. Dhar. In Shukla Ghosal (supra), the writ court found the concerned school, which was also a “Listed School†within the
meaning of the Code, to have not adhered to the provisions of the Code while terminating the service of the petitioning teacher and had held the
termination to be bad; but it was also held that having regard to the nature of the employment, which was a personal one, she could not be
“protected by passing an order of reinstatementâ€. The learned Judge of the writ court having found that three months’ notice was not given,
directed the concerned school to make payment of the adequate amount, in lieu of three months’ salary, in addition to what had been paid at the
time of termination, along with interest. The decision of the learned Judge was carried in appeal and upon hearing the learned advocates for the
parties, the Division Bench, inter alia, held as follows:
“20. Considering all the aspects of the matter, we declare and hold that the order of termination was not lawful, as rightly held by the learned Trial
Judge. But terms of employment of this nature does not afford any right of reinstatement, as it is available in case of civil servant and even stretching
the said provisions of Regulation 23. Hence the appellant/petitioner cannot get back the employment. At the highest she is entitled to get damages.
Writ Court at this stage is unable to quantify the damages, for all these years, the appellant/petitioner might have earned some amount and what
amount has been earned, is not before us. We do not have the scientific mechanism to adjudicate or quantify this amount.â€
He, thus, contended that the learned Judge was in error in granting the writ petitioner relief, as claimed, instead of relegating her to a suit for damages.
It was also submitted by Mr. Dhar that the writ petitioner did not disclose beforethe learned Judge the assignments she took up post termination of
service. By filing a supplementary affidavit, the appellant brought on record the facts of the writ petitioner discharging the duty of Principal, St.
Xabier’s School, Amtala from February 10 to June 13, being employed in Jyotirmay Public School from March 14 to January 15, and then again
working as the Principal of LJD Public school, Falta from June 2015 onwards. Mr. Dhar urged that upon the writ petitioner’s service being
terminated, a new incumbent had joined as the Principal of the institution and that she had been discharging her duties to the entire satisfaction of the
management; hence, it would be inequitable and amount to gross injustice if at this distance of time such incumbent was forced to make way for the
writ petitioner as the Principal of the institution.
Accordingly, Mr. Dhar prayed that the judgment and order under challenge may be set aside.
Appearing on behalf of the writ petitioner, Me. Neogi reiterated his submissions before the learned Judge.
In addition thereto, Mr. Neogi contended that the terms and conditions of the letter dated November 27, 2006 offering appointment to the writ
petitioner would necessarily have to yield to the provisions of the Code. According to him, the institution is precluded from sending students for taking
the school final examination conducted by the Council without recognition having been accorded by the State Government, and such recognition being
a pre-condition set by the Council for affiliation, the State Government has the power to regulate the schools covered by the Code. The appellant not
having disputed that the institution is a “Listed School†as defined in regulation 5(10) of the Code, the conclusion is inescapable that the institution
has to adhere to the Code in letter and spirit.
Reliance was placed by Mr. Neogi on the decision of a learned Judge of this Court reported in 2004 LAB IC 1523 : Mrs. Saleha Bano v. State of
West Bengal to draw sustenance that the remedy by way of approaching the writ court is an available option apart from a civil suit. In similar
circumstances as the present one, the letter terminating the service of the petitioning teacher was set aside on the ground of it having fouled regulation
21(e) of the Code and the concerned teacher directed to be reinstated in service together with 50% of her back-wages plus full dearness allowance
and notional benefit of continuity in service.
Mr. Neogi submitted that since the relevant provision of the Code contains a deeming clause of automatic confirmation of service after completion
of the probationary period, the writ petitioner in the absence of extension of the probationary period was entitled to rely on such provision and lay a
claim of deemed confirmation in service.
It was further submitted that since the writ petitioner was not at fault for the delay in conclusion of the proceedings before this Court, which had
been approached immediately after termination of service was effected, there is no reason as to why she should not be entitled to full benefits as if
she had continued in service right from the date of termination till this date and also entitled to get back the post which she had to vacate perforce.
Mr. Neogi also submitted that the writ petitioner for her own survival had takenup the assignments after the school had terminated her service and
omission to disclose the same cannot be fatal for the maintainability of the writ petition. Such assignments were taken up after the writ petition was
presented and, therefore, question of suppression of material facts does not and cannot arise.
It was, accordingly, prayed that the judgment and order under challenge besustained and the appeal dismissed.
The parties have been heard at length and the materials on record perused.
Before proceeding a step ahead, it would be worthwhile to consider two decisionsof the Supreme Court. The first is reported in (1983) 2 SCC 217
: Ajit Singh v. State of Punjab and the other in (2001) 7 SCC 161 : High Court of Madhya Pradesh v. Satya Narayan Jhavar.
Ajit Singh (supra) is a decision that examined the genesis why a period ofprobation is prescribed and how the period of probation has been
understood in service jurisprudence. We can do no better than reproduce paragraph 7 of the decision, reading as follows:
“7. When the master-servant relation was governed by the archaic law of hire and fire, the concept of probation in service jurisprudence was
practically absent. With the advent of security in public service when termination or removal became more and more difficult and order of termination
or removal from service became a subject-matter of judicial review, the concept of probation came to acquire a certain connotation. If a servant could
not be removed by way of punishment from service unless he is given an opportunity to meet the allegations if any against him which necessitates his
removal from service, rules of natural justice postulate an enquiry into the allegations and proof thereof. This developing masterservant relationship put
the master on guard. In order that an incompetent or inefficient servant is not foisted upon him because the charge of incompetence or inefficiency is
easy to make but difficult to prove, concept of probation was devised. To guard against errors of human judgment in selecting suitable personnel for
service, the new recruit was put on test for a period before he is absorbed in service or gets a right to the post. Period of probation gave a sort of
locus pententiae to the employer to observe the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the
post, the master reserved a right to dispense with his service without anything more during or at the end of the prescribed period which is styled as
period of probation. Viewed from this aspect, the courts held that termination of service of a probationer during or at the end of a period of probation
will not ordinarily and by itself be a punishment because the servant so appointed has no right to continue to hold such a post any more than a servant
employed on probation by a private employer is entitled to (see Parshotam Lal Dhingra v. Union of India : AIR 1958 SC 36). The period of probation
therefore furnishes a valuable opportunity to the master to closely observe the work of the probationer and by the time the period of probation expires
to make up his mind whether to retain the servant by absorbing him in regular service or dispense with his service. Period of probation may vary from
post to post or master to master. And it is not obligatory on the master to prescribe a period of probation. It is always open to the employer to employ
a person without putting him on probation. Power to put the employee on probation for watching his performance and the period during which the
performance is to be observed is the prerogative of the employer.â€
In Satya Narayan Jhavar (supra), the Supreme Court while examining thequestion of deemed confirmation in service jurisprudence categorised
three classes of cases on the point. Paragraph 11 of the decision is relevant and, thus, quoted below:
“11. The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been
the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One
line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also
conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended
period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of
probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for
such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is
deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been
passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the
part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum
period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he
cannot be deemed to have been confirmed merely because the said period has expired.â€
Having read and understood why the necessity to place an incumbent onprobation arises and what are the three classes of cases on the point of
deemed confirmation categorised by the Supreme Court, we venture into the field of adjudicating the claims of the respective parties.
In paragraph 1 of the application for stay, the appellant pleaded that theinstitution is “purely unaided schoolâ€. The writ petitioner in her
affidavit-inopposition did not deal with paragraph 1 of the said application. It follows that she did not dispute whatever the pleaded case of the
appellant was in paragraph 1 of the said application. The aspect of the institution not receiving any aid from the Government and being a private
school, would definitely weigh in our thought process.
Here we are not faced with a single service condition [regulation 21(a) and (e) ofthe Code] but the condition stipulated in paragraph 1 of the offer
of appointment would also assume significance bearing in mind that the institution does not draw any aid from the Government. Much would,
therefore, depend on our reading of the Code and in particular regulation 21(a) and (e) thereof.
Mr. Dhar is right in contending that the writ petitioner unconditionally acceptedthe terms and conditions stipulated in the letter offering appointment
to her and in terms thereof, her service had to be confirmed in writing. In fact, paragraph 1 of the letter dated November 27, 2006 clearly recorded
that without a confirmation in writing the writ petitioner shall not be deemed to have been confirmed and would continue as a probationer. There is,
however, no dispute that paragraph 1 is not in conformity with clause (e) of regulation 21 of the Code, which stipulates that unless a letter extending
the period of probation is served one month before the end of the probationary period, the teacher will be deemed to be confirmed in that appointment.
Having regard to the above, the question that arises is, whether paragraph 1 of the offer of appointment would yield to regulation 21(e) of the Code
and, if so, whether the direction for reinstatement given by the learned Judge is justified?
The Code is contained in a notification bearing no. 877-Edn.(S) dated December 24, 1993, which was published in the Calcutta Gazette dated
January 21, 1994. The preamble reveals that the Governor considered it “expedient to provide for the regulation of Anglo-Indian and other Listed
Schools in West Bengal†and, therefore, was pleased to make the regulation called “Code of Regulation for Anglo-Indian and other Listed
Schools, 1993â€. The institution being affiliated to the Council and the medium of instruction being English, there is no dispute that it is a “Listed
School†as defined in regulation 5(10) of the Code.
However, importantly, it does not appear from a reading of the Code that thesource of power for framing it is either a constitutional provision or a
statutory provision. The Code, it seems to us, is a mere compilation of guidelines requiring the Anglo-Indian schools and Listed Schools [as defined in
clauses (2) and (10) respectively of regulation 5], which are covered by the Code to be guided thereby for receiving grant, obtaining recognition,
matters relating to management and administration, terms and conditions of service of staff including superannuation, benefits of provident fund and
gratuity, grant of leave, etc. Here, we are not concerned with the constitutional validity of the Code; however, having regard to the contention of Mr.
Dhar, we are required to consider whether a writ petition would be maintainable at the instance of a teacher who is aggrieved by the action of an
unaided “Listed School†not to scrupulously abide by and/or follow the provisions of the Code.
For answering the issue of maintainability, it would be proper to consider whetherthe Code is “law†as defined in Article 13(3)(a) of the
Constitution. Article 13(3)(a) reads as follows:
“(3) In this Article, unless the context otherwise requires, -
(a) ‘law’ includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usages having in the territory of India the force of law;
***â€
A statute has the force of law. A fortiori, an order or a notification issued under a statute is “law†within the meaning of Article 13(3)(a) of
the Constitution. However, an order or a notification not having the force of law cannot be comprehended within the meaning of “law†as defined
in Article 13(3)(a). No doubt, the Code has been published in the Calcutta Gazette under a notification but unless the source of such notification can
be traced to a statute or to the Constitution, can such notification be exalted to the status of a “law†as defined in Article 13(3)(a)? To answer this
question, we may usefully refer to the decision of the Supreme Court reported in (2011) 15 SCC 398 : Syndicate Bank v. Ramachandran Pillai. Such
decision also throws light on the question of enforceability of guidelines issued by the Government for compliance by certain persons/authorities
governed thereby, at the instance of a party aggrieved by any non-compliance of the guidelines. Paragraph 6 is relevant in the context and is,
accordingly, set out below:
“6. If any executive instructions are to have the force of statutory rules, it must be shown that they were issued either under the authority
conferred on the Central Government or a State Government or other authority by some statute or the Constitution. Guidelines or executive
instructions which are not statutory in character, are not “lawsâ€, and compliance therewith cannot be enforced through courts. Even if there has
been any violation or breach of such non-statutory guidelines, it will not confer any right on any member of the public, to seek a direction in a court of
law, for compliance with such guidelines. An order validly made in accordance with a statute (as in this case the Public Premises Act), cannot be
interfered with, even if there has been any transgression of any guidelines, except where it is arbitrary or mala fide or in violation of any statutory
provision. These are well-settled principles. ***.â€
The Supreme Court while holding so relied on its previous decisions reported in (1993) 4 SCC 357 : Union of India v. S.L. Abbas, (2004) 11 SCC
402 : State of U. P. v. Gobardhan Lal, and (2007) 8 SCC 212 : South Central Railway v. G. Ratnam.
In G. Ratnam (supra), it was held that any subordinate authority for whose guidance the non-statutory guidelines have been framed is found to act
in breach of the guidelines, it would expose him to disciplinary or other action but such breach would not give rise to any legal right in favour of an
aggrieved party for being enforced in Court.
We may also note another decision of the Supreme Court of fairly recent origin in Gulf Goans Hotels Co. Ltd. v. Union of India : (2014) 10 SCC
673, where it was observed thus:
“15. The question ‘what is “law�’ has perplexed many a jurisprude; yet, the search for the elusive definition continues. It may be
unwise to posit an answer to the question; rather, one may proceed by examining the points of consensus in jurisprudential theories. What appears to
be common to all these theories is the notion that law must possess a certain form; contain a clear mandate/explicit command which may be
prescriptive, permissive or penal and the law must also seek to achieve a clearly identifiable purpose. While the form itself or absence thereof will not
be determinative and its impact has to be considered as a lending or supporting force, the disclosure of a clear mandate and purpose is
indispensable.â€
Bearing in mind the aforesaid decisions, what we can comprehend of the Code at its highest is that it is the product of exercise of executive power
of the State under Article 162 of the Constitution. However, no executive action can interfere with the rights of a citizen unless backed by an existing
statutory provision. If any authority on the point is required, reference may usefully be made to the decision in Bishambhar Dayal Chandra Mohan v.
State of Uttar Pradesh : (1982) 1 SCC 39. Since the Government has not been represented before us, we consider it improper to conclusively opine as
to whether the Code is “law†within the meaning of Article 13(3)(a) of the Constitution or not. For the purposes of deciding this appeal, our
understanding is, however, clear that if any “Listed School†does not follow the provisions of the Code to the detriment of the students studying in
such a school as well as the teaching/non-teaching staff employed therein, it is open to the Government to take such action against such school which
it considers appropriate on facts and in the circumstances. But guided by the principle laid down in the aforesaid decisions as well as the decisions in
Krishan Lal v. State of J & K : (1994) 4 SCC 422 and State Bank of Patiala v. S. K. Sharma : (1996) 3 SCC 364 that a person can waive a right
which is for his individual benefit, the position also seems to us to be clear that for any perceived breach of the provisions of the Code by an unaided
“Listed Schoolâ€, to which a teacher/non-teaching staff has acquiesced and which amounts to a waiver of any right for his individual benefit, the
staff aggrieved by such breach cannot approach the writ court and seek enforcement of the relevant provision which has not been adhered to and/or
followed by his/her employer, unless it can be shown that the action impugned is mala fide or is so arbitrary that it offends Articles 14 and 16 of the
Constitution, or is in clear violation of a statutory provision or law laid down by a competent court of law.
Although paragraph 1 of the offer of appointment prescribed a condition that confirmation of service has to be preceded by an order in writing and
we have found that it is not in sync with regulation 21(e) of the Code [which conceives of a deemed confirmation in the absence of a prior one month
notice of extension of the probationary period], by no stretch of imagination could such condition in paragraph 1 be termed as an unconscionable term
in an employment contract amounting to arbitrariness or impregnated with mala fide motive or in violation of a statutory provision or contrary to any
judicial decision. If the writ petitioner thought so, she should have at the time of considering the offer declined to submit to such condition. Having
agreed to the terms and conditions of the contract of employment with her eyes open, thereby suggesting that there was a free meeting of minds
between the contracting parties, it was too late in the day for her to renege on the terms of the contract and contend before the Court that in view of
regulation 21(e) of the Code, her service was deemed to be confirmed with effect from the day following her completion of the probationary period.
We hold that by stipulating a condition of the nature as in paragraph 1 of the offer of appointment, the Governing Council of the institution tried to
weed out automatic confirmation under any circumstances and insisted upon a written order being issued confirming the writ petitioner in service after
reaching a satisfaction that the incumbent is one, who by dint of her performance during the probationary period, had shown exemplary skills towards
management and administration of the institution and, therefore, deserved confirmation as the Principal of the institution. We see no wrong in the
action of the Governing Council of the institution in such insistence.
Having said so, we consider it proper at this stage to look into the decisions reported in (i) 1990 (Supp) SCC 287 : K.A. Barot v. State of Gujarat,
(ii) (2003) 2 SCC 408 : Commissioner of Police, Hubli v. R.S. More, and (iii) (2013) 10 SCC 324 : Deepali Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyalaya, to which our attention was drawn by the parties.
The Supreme Court in K.A. Barot (supra) was urged to consider whether termination of service of the appellant was justified or not. The
stipulation in the appointment order, relevant for a decision on the contention raised was noticed in paragraph 2 and it was held that “(i)n the event
of notice falling short of a month as stipulated, at the most the appellant would have become entitled to a month’s salary in lieu of noticeâ€. The
Supreme Court also noticed its settled view that “in the absence of a rule to the contrary, … probation does not transform itself into confirmation
unless there is a specific orderâ€.
In R.S. More (supra), the question arising for consideration before the Supreme Court was “whether the continuance of the respondent on the
post beyond the probation period or extended period, as the case may be, entitled him to have claimed deemed confirmation, in the absence of a
specific order passed by the competent authority to that effectâ€. After surveying the relevant rules, the Court observed that:
“8. *** In service jurisprudence, confirmation of service on a particular post is preceded by satisfactory performance of the incumbent unless
service rules otherwise prescribe. In the instant case, sub-rule (2) of Rule 5 of the Rules provides that unless there is a specific order that the
probationer has satisfactorily completed the period of probation, he shall not be entitled to be deemed to have satisfactorily completed the probation by
reason of his being continued in service beyond the extended period of probation. The High Court has failed to consider this important aspect of the
matter, resulting in miscarriage of justice.***â€
We are of the opinion that this decision is an authority for the proposition that rules laying down conditions of service may require a written order
confirming service after successful completion of probationary period. The condition in paragraph 1 of the offer of appointment was not, therefore, an
unusual condition which would attract the frown of the Court.
In Deepali Gundu Surwase (supra), the Court proceeded to lay down propositions which could be culled out from previous decisions on the issue
of back wages and, inter alia, observed that in case of wrongful termination of service, reinstatement with continuity of service and back wages is the
normal rule. However, since the case did not involve a probationer and having regard to the conclusion that we have reached, based on our
understanding of the Code that there has been no wrongful termination of the service of the writ petitioner, the normal rule of reinstatement, continuity
of service and back wages would not apply here.
While rendering the decision in Mrs. Saliha Bano (supra), the learned Judge may not have had the benefit of the erudite arguments advanced
before us from the bar. That apart, the point of non-enforceability of the Code by an aggrieved teacher of a school which does not receive any aid
from the State Government was not debated before His Lordship. The respondent school was in receipt of Dearness Allowance from the Government
and hence, whatever has been observed in Mrs. Saliha Bano (supra) would not apply here. We hold the decision in Mrs. Saliha Bano (supra) to be
clearly distinguishable.
We need not, however, on the facts of the present case, enter into the arena of discussion as to whether a contract of personal service can be
specifically enforced.
Be that as it may, in the final analysis, we hold that paragraph 1 of the offer of appointment having been accepted by the writ petitioner without
demur, she waived the right that regulation 21(e) of the Code conferred on her and breach of such regulation by the institution did not clothe her with
any legal right to move the writ court for its enforcement. The writ petition was not maintainable, and for reasons discussed above we dismiss the
same. The judgment and order under challenge, accordingly, stands set aside.
The appeal, therefore, succeeds. There shall no order as to costs.