ORDER [ENTITY], J.
1. The Principal and Manager of S.N. College are at loggerheads for the last few years challenging the legality or otherwise of an order of termination. The issue came up for consideration before a Bench consisting of one of us, [ENTITY], J., in [CASE NUMBER] and connected cases wherein the Bench had elaborately considered the law and facts, therefore we need not reiterate the entire facts, but only the essential facts for disposal of these cases.
2. Dr. [ENTITY] was appointed as Principal by order of the management dated 5.10.1998. He was served with a show cause notice dated 17.1.2000 stating that his service as Principal during the period of probation was not satisfactory and was found not suitable for continuance as Principal and hence decided to terminate his probation and to revert him to the post of Selection Grade Lecturer in History. Management gave 15 days time to submit his objections, if any. Dr. [ENTITY] filed a detailed objection on 3.2.2000 on the various charges levelled against him. He submitted if those charges are allowed to stand the same would cast a stigma on him. Further he had also pointed out that under [SECTION] of the [ACT] he should be deemed to have been confirmed in the post of Principal on 5.10.1999. Show cause notice was challenged before the University Tribunal. Tribunal accepted the contention of the Principal and held that issuance of show cause notice was bad in law since he had already completed the period of probation. Further, Tribunal also took the view that after completion of probation the management cannot terminate the probation and revert the principal without initiating disciplinary action and conducting any enquiry. The order of the Tribunal was challenged before this Court. Management tried to sustain the show cause notice stating that the notice was issued during the period of probation and hence valid. The Principal took the view that since he had already completed the period of probation there is no question of terminating his probation and reverting him from the post of Principal. The Bench after considering the entire facts as well as examining the scope of [SECTION] of the [ACT] held as follows:
"We are of the view, deeming provision under [SECTION] would apply only on completion of maximum period prescribed under [SECTION]. In the instant case Dr. [ENTITY] was appointed as Principal on 5.10.1998. Mere fact that he had completed one year service on 5.10.1999 would not mean that he was deemed to be confirmed in the post of Principal. That reasoning of the Tribunal cannot be accepted. Management has got the maximum period of two years from the date of entry in service or a further extended period of one year, as the case may be, to declare his probation. In other words, deeming provision would apply only after the expiry of the maximum period of probation fixed by the statute. Therefore, the finding of the Tribunal that Dr. [ENTITY] was deemed to be confirmed in the post of Principal is set aside."
Bench however, noticed that the show cause notice issued by the management on 17.1.2000 was punitive in nature since it was not proceeded by any enquiry and held as follows:
"We are of the view, aforementioned allegations are of serious nature which has the effect of tarnishing the image of Principal of a College. It will cast a stigma on him in future selection to the post of Principal and other posts, which will lower his reputation in the eye of public and visit the Principal with penal consequences. We cannot brush aside those allegations as innocuously of a probationer. We are therefore of the view that the termination of the Principal from the post as well as reversion without conducting any enquiry is punitive in nature and has to be set aside. We therefore set aside the order of termination and reversion dated 12.7.2000."
Show cause noticed dated 17.1.2000 was accordingly set aside. Consequently the Bench held that the order dated 12.7.2000 terminating the probation and reverting the Principal as Selection Grade Lecturer was not proper. Direction was also issued by this Court to reinstate Dr. [ENTITY] as Principal forthwith. Later management passed order dated 22.10.2001 posting Dr. [ENTITY] as Principal on probation at S.N. College, Chengannur. Dr. [ENTITY] aggrieved by the judgment of this Court in [CASE NUMBER] filed Petition for [CASE NUMBER] before the Hon'ble Supreme Court of India. Supreme Court dismissed the SLP on 28.1.2002. However, the question of deemed confirmation was left open. The management then issue a memo dated 25.1.2002 proposing to terminate his service as Principal in exercise of the powers under [SECTION] of the [ACT]. Memo reads as follows:
"Dr. [ENTITY], Principal on probation, Sree Narayana College, Chengannur is informed as follows:-
Dr. [ENTITY]'s service as the Principal on probation of the Sree Narayana Guru College, Chelannur while he was in the service of that college, and his service as Principal (on probation) of the Sree Narayana College, Chengannur is found not satisfactory.
Hence it is proposed to terminate his service as Principal in exercise of the powers under [SECTION] of the [ACT].
He is requested to show cause in writing within three days on receipt of this letter why the proposed action should not be taken.
Sd/-Manager [ENTITY]"
The Principal then replied to the show cause notice vide his reply dated 29.1.2002. In the reply it was stated that he had joined duty as Principal on 6.10.1998 and had completed one year on 5.10.1999 and therefore there is a deemed declaration of probation on 5.11.1999 and therefore the notice dated 21.1.2002 issued to him under [SECTION] of the [ACT] was without jurisdiction. Further it is also stated that the show cause notice is punitive and the statement that his service was found unsatisfactory cannot be sustained in the facts and circumstances of the case.
3. Dr. [ENTITY] also filed [CASE NUMBER] before the Kerala University Appellate Tribunal for setting aside the show cause memo dated 25.1.2002 and also for a declaration that he had completed probation as Principal with effect from 5.11.1999 and also for a direction to the management to take steps to release his salary and for other consequential reliefs. Tribunal however, dismissed the appeal holding that the same was premature. Therefore the declaration sought for by him that he had completed probation was rejected. The order of the Tribunal was challenged by Dr. [ENTITY] before this Court in [CASE NUMBER]. This Court set aside the order of the Tribunal and directed the management to pass appropriate orders untrammelled by the findings and observations of the Tribunal. That order was appealed against by Dr. [ENTITY] before the Supreme Court by filing [CASE NUMBER]. The Special Leave Petition was dismissed by the Apex Court vide its order dated 8.1.2003.
4. The management later passed order No. B3249/02/3080 dated 24.12.2002 and a consequential relieving order No. G1/2(a)/615/02-03 dated 26.12.2002 relieving Dr. [ENTITY], Principal (on probation) and directed him to report for duty to the Principal, S.N. College, Kollam. That order was appealed against by Dr. [ENTITY] before the Appellate Tribunal under [SECTION] read with [SECTION] of the [ACT] vide [CASE NUMBER]. The following three issues were raised before the Tribunal:
1. Whether the appeal is barred by the principles of res judicata?
2. Whether the appellant's probation as Principal is deemed to have been confirmed under [SECTION] of the [ACT]?
3. Whether the impugned order No. B-3249/02/3080 dated 26.12.2002 issued by the respondent and the consequential relieving order No. G1(2)(2)/615/02-03 dated 26.12.2002 issued thereunder are liable to be set aside?
Tribunal held that the appeal is not barred by the principle of res judicata. Issues two and three were considered together. Tribunal held that the appellant is entitled to the benefit of deeming provision of confirmation of probation under [SECTION] of the [ACT] and stated as follows:
"The Hon'ble High Court set aside the termination of probation order and found that Ext.A3 show cause notice is premature in nature without conducting enquiry and also set aside the reversion order. But the Hon'ble High Court held that the deeming provision would apply only after expiry of the maximum period of probation fixed by the Statute. Ext. A7 is the copy of the judgment of the Hon'ble High Court in [CASE NUMBER]. Against that finding the respondent filed SLP before the Hon'ble Supreme Court. The Hon'ble Supreme Court dismissed the SLP but the question of deemed confirmation is left open. As Ext. A3 show cause notice dated 17.1.2000 and Ext.A5 order dated 12.7.2000 of the respondent terminating the probation and reverting the appellant as Selection Grade Lecturer were set aside by the Hon'ble High Court I am of the view that Ext. A3 show cause notice and Ext. A5 order are not in existence. Ext. A9 show cause notice dated 25.1.2002 and the Ext.B3 order No. B3239/02/3080 dated 26.12.2002 are after the expiry of the period of two years probation. Therefore I am of the view that the appellant is entitled to the benefit of deeming provision of confirmation of probation under [SECTION] of the [ACT]. Therefore the termination of the probation of the appellant as Principal and reversion as Selection Grade Lecturer is also liable to be set aside."
Tribunal therefore held that the appellant's probation as Principal was deemed to have been confirmed and the impugned orders dated 26.12.2002 were set aside. Aggrieved by the same management preferred [CASE NUMBER]. Since maintainability of said Writ Petition was questioned, management filed [CASE NUMBER] challenging the Tribunal's order. In [CASE NUMBER] and [CASE NUMBER] the challenge is against the same order passed by the Tribunal in [CASE NUMBER].
5. The Division Bench of this Court in its earlier judgment held that the order dated 12.7.2000 terminating probation of the Principal was punitive. That order has become final since the appeal filed against that finding was rejected by the Apex Court. We are therefore concerned only with the question as to whether the proceedings dated 26.12.2002 issued by the management terminating probation of the Principal would relate back the order dated 12.7.2000 and also the question as to whether the Principal is entitled to the benefit of deeming provision of confirmation of probation under [SECTION] of the [ACT]. Management had earlier issued an order dated 12.7.2000 terminating probation of the Principal. Several charges were levelled against him in the show cause notice dated 17.1.2000 proposing to terminate the probation of the Principal which led to the order dated 12.7.2000. This Court held the order dated 12.7.2000 was punitive in nature and consequently set aside the order. Since that order has already been set aside by this Court the same is no more in existence and therefore the contention of the management that the present order dated 26.12.2002 would not relate back to the order dated 12.7.2000 cannot stand. The management then issued the order dated 26.12.2002 terminating the service of the probationer without raising any charges, but decided to conduct an independent enquiry with regard to the various allegations raised against him, for which a retired District Judge has already been appointed.
6. We are in these proceedings mainly concerned with the question as to whether before issuing the order of termination dated 26.12.2002 the service of the petitioner stood statutorily confirmed in the post of Principal by the deeming provision under [SECTION] of the [ACT]. Counsel appearing for the management Sri. [ENTITY] submitted the satisfactory completion of probation as well as the confirmation by the educational agency on satisfactory completion of probation are pre-conditions to be satisfied by the teacher before he is confirmed in the post. Until an order of confirmation is passed the teacher continues to be on probation and therefore the question of deemed confirmation does not arise. Counsel appearing for the Principal Sri. [ENTITY] on the other hand, contended since this Court had already set aside the earlier show cause notice dated 17.1.2000 and the management was directed to proceed with the show cause notice after conducting an enquiry and having not done so the Principal is entitled to get the benefit of deeming provision of confirmation of probation under [SECTION] of the [ACT]. No order was passed by the management before the date of deemed confirmation, consequently counsel submitted order of the Tribunal is in order and legal.
7. Before we examine the rival contentions as well as the question of deemed confirmation under [SECTION] of the [ACT] we may refer to some of the judicial decisions on the point. The Constitutional Bench of Supreme Court in State of Punjab v. [ENTITY] (AIR 1968 SC 1210) has considered the scope of [SECTION], [SECTION] and the [ACT]. Proviso to [SECTION] prohibits extension of period of probation beyond three years. That was a case where the probationer was officiating in a permanent post. He was allowed to continue in that post after the expiry of three years without any express order of confirmation was passed. The court held as follows:
"Where, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication.
The above mentioned Constitutional Bench decision was followed by the Apex Court in [PRECEDENT] wherein the Apex Court examined the scope of [ACT]. The court noticed that the Regulations do not expressly lay down as to what would be the status of an employee on the expiry of maximum period of probation where no order of confirmation is issued and the employee is allowed to continue in service. The court also noticed since [SECTION] does not permit continuation of an employee on probation for a period of more than two years the necessary result would follow that after the expiry of two years' probationary period, the employee stands confirmed by implication. Apex Court in [ENTITY] v. State of M.P. and Anr. 1997) 7 SCC 443) has exhaustively surveyed the case laws on the point and dealt with various types of cases relating to the confirmation by implication, deemed confirmation etc. One line of cases dealt with by the Apex Court is that if in the rule or order of appointment a period of probation is specified and a power to extend probation is also specified and the officer is continued beyond the prescribed period of probation, he cannot be deemed to be confirmed, and there is no bar on the power of termination of the officer after the expiry of the initial period of probation. The other line of cases dealt with by the court are those where 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 court then held as follows:
"Thus, even though the maximum period for extension could lead to an indication that the officer is deemed to be confirmed, still special provisions in such rules could negative such an intention. It is, therefore, clear that the present case is one where the rule has prescribed an initial period of probation and then for the extension of probation subject to maximum, and therefore the case squarely falls within the second line of cases, namely, [ENTITY]'s case and the provision for a maximum is an indication of an intention not to treat the officer as being under probation after the expiry of the maximum period of probation. It is also significant that in the case before us the effect of the rule fixing a maximum period of probation is not whittled down by any other provision in the rules such as the one contained in [ENTITY] 's case or in [ENTITY]'s case. Though a plea was raised that termination of service could be effected by serving one month's notice or paying salary in lieu thereof, there is no such provision in the order of appointment nor was any rule relied upon for supporting such a contention."
[ENTITY]'s case was later followed by the Apex Court in Wasim Beg v. State of U.P. and Ors. 1998) 3 SCC 321 wherein the Apex Court examined the scope of [ACT] and held that whether an employee at the end of the probationary period automatically gets confirmation in the post or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary, will depend upon the provisions in the relevant service rules relating to probation and confirmation. Court also held that where the rules provide for a maximum period of probation beyond which probation cannot be extended, at the end of the maximum probationary period there will be a deemed confirmation of the employee unless the rules provide to the contrary. We may in this case also refer to another decision of the Apex Court in Chandra Prakash Shahi v. State of U.P. 2000) 5 SCC 152) wherein the Apex Court dealt with the scope of provisions of [SECTION] of [ACT]. Perusing the said regulation the Apex Court held that when the period of probation is two years and the Regulation is silent as to the maximum period beyond which the period of probation cannot be extended, even if the appellant completed two years of probationary period successfully and without any blemish, his period of probation shall be treated to have been extended and a "permanent" status can be acquired only by means of a specific order of confirmation. In the light of the above mentioned legal principles laid down by the Apex Court we may examine the scope of [SECTION]. We may extract the relevant provision for easy reference.
"59. Probation :-
(1) Teachers of private colleges shall be on probation for a period of one year within a period of two years:
Provided that in exceptional cases the period of probation may be extended by a period not exceeding one year, subject to the prior approval of the Syndicate.
Explanation:- Probation undergone by a teacher before the commencement of this Act shall be deemed to be probation for the purposes of this sub-section, provided such probation is within a period of two years immediately before such commencement.
(2) Notwithstanding anything contained in any contract or other document, any teacher working in a substantive vacancy at or after the commencement of this Act shall be deemed to be on probation for the purposes of Sub-section (1).
(3) The educational agency may, at any time before the prescribed period of probation, terminate the probation of the probationer for want of vacancy and discharge him from service if he was appointed by direct recruitment or revert him to his original appointment if the appointment to the new post was by transfer or promotion.
(4) Any probationer discharged or reverted under Sub-section (3) shall be given preference in the matter of future appointments to the same post.
(5) On satisfactory completion of probation, the educational agency, shall confirm the teacher in the post and if the vacancy is not a substantive vacancy, the teacher shall be allowed to continue in the post for the duration of the vacancy.
(6) If, on the expiry of the prescribed period of probation, the educational agency decides that the teacher is not suitable for continuance in the post in which he is appointed, it shall discharge him from service or revert him to his original appointment, as the case may be, after giving him a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
(7) Where the post held by the probationer is substantively vacant and before the expiry of one month from the prescribed period of probation he is not confirmed under Sub-section (5) or is not discharged or reverted under Sub-section (6), he shall be deemed to have been confirmed in that post."
[SECTION] provides that teachers of private colleges shall be on probation for a period of one year within a period of two years. Sub-section (5) states that on satisfactory completion of probation the educational agency shall confirm the teacher in the post and if the vacancy is not a substantive vacancy, the teacher shall be allowed to continue in the post for the duration of the vacancy. [SECTION] states that a teacher shall be confirmed in the post on satisfactory completion of probation. It is for the management to decide as to whether a teacher has satisfactorily completed the period of probation or not. Satisfactory completion of probation as well as confirmation by the educational agency on satisfactory completion of probation are pre-conditions for confirmation in the post occupied by a teacher. In other words, once the teacher has satisfactorily completed his period of probation the educational agency is legally obliged to confirm in the post if the vacancy is a substantive vacancy. [SECTION] says that if on the expiry of the prescribed period of probation the educational agency decides that the teacher is not suitable for continuance in the post in which he is appointed, it shall discharge him from service or revert him to his original appointment, as the case may be, after giving him a reasonable opportunity of showing cause against the action proposed to be taken in this regard. [SECTION] states that where the post held by the probationer is substantively vacant and before the expiry of one month from the prescribed period of probation he is not confirmed under Sub-section (5) or is not discharged or reverted under Sub-section (6), he shall be deemed to have been confirmed in that post, On reading [SECTION] along with [SECTION] there are two modes of confirmation one by the educational agency on satisfactory completion of probation and other by a legal fiction. The former by the application of mind by a human agency, and later by a legal fiction. The word "deemed" is used in a statute with the object of conferring a status attributable to a person. The question whether a teacher has satisfactorily completed the period of probation within a period of two years is for the educational agency to decide on facts. The proviso stipulates that in exceptional cases, the period of probation may be extended by a period not exceeding one year, subject to the prior approval of the Syndicate. The period of probation fixed by [SECTION] is therefore one year. The period of probation may be extended for a period not exceeding one year subject to approval of the Syndicate. [SECTION] read with the proviso would show that there is provision in the rule for initial probation and extension thereof a maximum period of probation is also provided that is, two years beyond which it is not possible to extend probation. When the rules provides for a maximum period of probation beyond which probation cannot be extended, at the end of the maximum period there will be a deemed confirmation unless the rules provide otherwise. If the rules are silent as to the maximum period of probation the period of probation shall be deemed to have been extended till probation is declared. [SECTION] stipulates that where the post held by the probationer is substantively vacant and before the expiry of one month from the prescribed period of probation he is not confirmed under Sub-section (5) or is not discharged or reverted under Sub-section (6) he shall be deemed to have been confirmed in that post. In view of the principle laid down in [ENTITY] 's case (supra) itis possible to draw an inference that the teacher allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication. Same is the view taken by the Apex Court in [ENTITY]'s case as well. We have already indicated the prescribed period of probation is only one year as per [SECTION] and in exceptional cases it could be extended by another year subject to the prior approval of the Syndicate. As far as this case is concerned the teacher was appointed on 5.10.1998 in the post of Principal. The period of one year as per [SECTION] expired on 5.11.1999 and could be extended under the proviso and in any view the maximum period of probation expired on 5.11.2000, Management failed to pass any order under [SECTION] confirming the teacher in the post or otherwise. Consequently on expiry of one month from 5.12.2000. i.e. on 5.1.2001 the deeming provision [SECTION] would apply. Consequently the teacher should be deemed to have been confirmed in the post. As far as this case is concerned though an order of termination was passed on 12.7.2001 the same was set aside by this Court, i.e. the order is not in existence. The present order was passed by the management terminating the service of the teacher only on 26.12.2002, not before 5.1.2001. Consequently, the teacher is deemed to have been confirmed in the post of Principal on the expiry of the period of probation. Therefore we are in agreement with the Tribunal that the order passed on 26.12.2002 is not legal. The order therefore would stand set aside. Resultantly Dr. [ENTITY] is deemed to have been confirmed in the post of Principal.
8. [CASE NUMBER] is a Writ Petition filed by the teacher seeking a writ of certiorari to quash Ext.P16 notice issued by the enquiry officer, a retired District Judge. Ext.P18 is the order passed by the Inquiring Authority on the preliminary objection raised by the Principal. The management has appointed a retired-District Judge as Inquiring Authority to go into the various allegations and charges levelled against the Principal Dr. [ENTITY], Inquiring Authority was appointed in exercise of the powers under [SECTION] of [ACT]. Before the officer contention was raised by the Principal that the enquiry cannot be proceeded with since no sanction has been obtained from Vice Chancellor for further continuance of the enquiry. Preliminary objection was overruled and the enquiry is in progress. At this juncture we find no reason to examine the validity or otherwise of the various notices issued by the Inquiring Authority and the decision taken on the preliminary point. Management also sought for time to reinstate the petitioner in service as Principal in compliance of the order passed by the Tribunal and also for other consequential reliefs. Since enquiry is being conducted by a retired District Judge and the enquiry is not over it is not proper to go into the various allegations raised by the writ petitioner. Writ Petition therefore would stand dismissed.
9. [CASE NUMBER] is filed by the management challenging Ext.P13 order passed by the Sub Court, Mavelikara contending that the same is without jurisdiction. A declaration was also sought for that [CASE NUMBER] in [CASE NUMBER] is not maintainable. We do not propose to examine those contentions in a Writ Petition filed under [SECTION] and [SECTION] of the [ACT]. It is open to the management to raise those contentions before that court, in the event of which those contentions would be considered by that court and pass appropriate orders.
10. The result is that [CASE NUMBER] and [CASE NUMBER] would stand dismissed. [CASE NUMBER] and [CASE NUMBER] are disposed of accordingly.