Sh. Sushil Rana vs New Delhi Tuberculosis Centre and Others

Valmiki J Mehta, J.—No one has appeared on behalf of the petitioner although it is 5 minutes past 1 PM. This case was earlier dismissed for default on 29.7.2008 and thereafter was subsequently restored on 3.11.2009. I have therefore perused the records and am proceeding to dispose of the petition.

The writ petition as originally filed, sought implementation of the order dated 9.4.1996 issued by the Director General Health Services (T.B Division), Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi and by which order, it was directed that the petitioner may be reinstated and the intervening period from the date of termination of his service and reinstatement may be treated as leave due and admissible to him. The order dated 9.4.1996 was passed by the parent ministry of the employer/respondent No. 1. The respondent No. 1/employer is M/s New Delhi Tuberculosis Centre and which is a society, registered under the Society Registration Act.

The facts of the case are that the petitioner was appointed on probation by the respondent No. 1 for the post of Lower Division Clerk (LDC) on 17.1.1994. During the period of his probation, a complaint was lodged by one Ms. Meenu Mendiratta, a trainee, of misbehavior of the petitioner causing sexual harassment to the said Ms. Meenu Mendiratta. During the enquiry conducted, the petitioner appears to have apologized and Ms. Meenu Mendiratta, the complainant did not seek to pursue the complaint.

The petitioner thereafter by a non-stigmatic order was relieved from duty by not confirming him to his post at the fag end of the probation period by the letter dated 16.12.1995 which reads as under:

Annexure-F

NEW DELHI TUBERCULOSIS CENTRE

TELEPHONES:

ENQUIRY: 3314270 JAWAHAR LAL NEHRU MARG OFFICE:3319056 NEW DELHI-110002. DATED: 16.12.1995

Ref. No. EST/TB/18/9

OFFICE ORDER

Shri Sushil Rana was appointed as LDC in New Delhi Tuberculosis Centre in terms of Memorandum No. EST/TB/2188 dated 7th Jan 1994 on a probation for a period of two years w.e.f. 17th Jan. 1994.

Now, with the approval of the Chairman of New Delhi Tuberculosis Centre, it has been decided not to continue further the probation of Shri Sushil Rana, which will be ending on 16th Jan. 1996 and, as such, his services are dispensed with forthwith. He will be paid immediately all his dues upto date as well as salary and allowances for the further remaining period from 17th Dec. 1995 till 16th Jan. 1996.

He is hereby relieved from the present post w.e.f. 16th Dec.1995 noon.

Cheque No. 694468 dated 16.12.95 amounting to Rs. 4223/- is enclosed.

Sd/- Dr. S.P. Khanna

Director, New Delhi Tuberculosis

Centre

Shri Sushil Rana

Sector VI/702, R.K. Puram,

New Delhi-110022

It is quite clear that the aforesaid order dispensing with the services of the petitioner is a non-stigmatic order. It is settled law that a probationer has no right to get confirmed in his post and it is open to an employer to decide whether the probationer should be confirmed or not. A probationer is entitled to be heard only if the relieving order casts a stigma upon him and which is not so in the present case.

The writ petition was originally allowed vide order dated 19.3.1998 on the basis of the order dated 9.4.1996 of the Director General Health Services, however, an LPA was filed by the respondent No. 1 herein, and which LPA was allowed on 30.4.1998 and the matter was remanded back because the respondent No. 1 urged that the order of 9.4.1996 was subsequently withdrawn by the Director General Health Services on complete facts being brought to the notice of the Director General of Health Services. The writ petition was thereafter amended and an amended petition was filed. The amendment was allowed vide order dated 18.3.2002. In view of the amended petition, challenge was laid to the order of the Director General of Health Services whereby it revoked its earlier order dated 9.4.1996. The challenge was that the action of the respondent No. 6 in confirming the minutes dated 21.6.1996 is illegal, bad in law and liable to be quashed as the same was without application of mind and without sufficient material for changing the decision dated 9.4.1996. Relief was therefore prayed for quashing of the decision of the respondent No. 6 dated 21.12.1996 wherein it has approved the decision dated 21.6.1996 confirming the termination of services of the petitioner. The challenge therefore is basically the decision of the parent ministry in revoking the order dated 9.4.1996 by which the petitioner was directed to be reinstated.

In the opinion of this Court, one need not at all go to the validity of the order of the respondent No. 6 revoking its earlier order dated 9.4.1996. This is because it is the respondent No. 1 who is the employer. The respondent No. 1 employer was fully justified in not confirming the petitioner who was a probationer. The relieving order has already been reproduced above and which is a non-stigmatic. The fact of the matter is that once the order by which the petitioner is relieved is non-stigmatic, there is no right for the petitioner to seek confirmation because the employer is fully justified in deciding the suitability of a probationer. The right of a probationer only come into effect if he was terminated by a stigmatic order and which is not so in the facts of the present case. In the opinion of this Court, the decision of the parent ministry also cannot be subject to challenge because there is no right of a probationer to get confirmation to the post. It is only the employer who decides on the suitability and the employer has decided against the suitability/confirmation of the petitioner-probationer. Merely because the mantra of the violation of Articles 14 and 16 is averred would not mean that any legal cause of action would arise in favour of a probationer, who has not been confirmed to the post.

In view of the above, I do not find any force in the petition and which is therefore dismissed leaving the parties to bear their own costs.