IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:19.01.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.15568 of 2008 & M.P.No.1/2010 S.Neelavathi ... Petitioner -vs- 1.Pondicherry Institute of Post-Matric Technical Education (PIPMATE), Lawspet, Puducherry – 605 008, Represented by its Chairman. 2.The Principal Womens' Polytechnic College, Lawspet, Puducherry. ... Respondents Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the records relating to order No.B/1/2/PIPMATE/2008/A1/438 dated 30.05.2008 passed by the first respondent quash the same and direct the respondents to reinstate the petitioner in service in the post of Lecturer (Computer Engineering) with all consequential benefits. For Petitioner :M/s.P.V.S.Giridhar and Sai Associates For Respondents :Mr.T.P.Manohar for RR1-2 ORDER By consent the main Writ Petition itself is taken up for disposal. The prayer in the Writ Petition is to quash an order passed by the 1st Respondent dated 30.05.2008 and to direct the Respondents to reinstate the Petitioner in service in the post of Lecturer (Computer Engineer) with all consequential benefits. Though the Petitioner has filed a Petition to amend the prayer in M.P.No.1 of 2010, the same would be dealt with in the later part of this order. 2. The Petitioner who completed her B.E. in Computer Science and Engineering during the year 2001 was appointed as Lecturer by the 1st Respondent by an order of appointment dated 14.12.2001 and she was initially posted at Dr.B.R.Ambedkar Polytechnic, Yanam. According to the Petitioner she had satisfactory completed her probation and by https://hcservices.ecourts.gov.in/hcservices/ order dated 17.05.2006 her probation was declared. The Petitioner applied for M.Tech. Computer Science and Engineering Course at Pondicherry University and her application was forwarded by the 2nd Respondent by letter dated 15.05.2007. The Petitioner applied for study leave for 24 months which was declined by the Member Secretary of the 1st Respondent by letter dated 17.07.2007, therefore she submitted a representation dated 9.8.2007 stating that she would be put to grave loss if she is not able to pursue her higher studies. By memo dated 12.09.2007 the 2nd Respondent stated that there is no possibility for grant of study leave and that disciplinary action would be taken if the petitioner fails to join duty. Subsequently the Petitioner is stated to have submitted representations on 4.10.2007 and 21.01.2008. However by an order dated 30.05.2008 the 1st Respondent terminated the petitioner services with effect from the date expiry of the period of one month by invoking Rule 5 of the Central Civil Services (Temporary Service) Rule 1965, hereinafter referred as Temporary Service Rules. This order dated 30.05.2006 is impugned in this Writ Petition. 3. The correctness of the impugned order is assailed on the ground that the Temporary Service Rules have no application to the 1st Respondent society and even assuming the said Rule applies, the Petitioner having been confirmed after satisfactory completing her probation, the temporary service rules cannot be made applicable and therefore the impugned order is without jurisdiction. The Petitioner by placing heavy reliance on the order dated 17.05.2006, by which her probation was declared, stated that she can no longer be treated as a temporary employee. It is further submitted that the Petitioner is the 2nd Senior most Lecturer in her Department and has been in service for 7 years and cannot be treated as temporary employee. Even assuming without admitting that the Petitioner is a temporary employee the principle of "last come first go" has to be followed before termination. It is further submitted that the impugned order is punitive and hence without issuing showcase notice or hearing, the impugned order is violative of the principles of natural justice. The Petitioner further submitted that the impugned order is discriminatory since no action was taken against several Lecturers in Computer Engineering who have joined courses without prior study leave or study permission. Mr.P.V.S. Giridhar, Learned Counsel appearing the Petitioner would submit that Rule 1 (3) (i) of the Temporary Service Rules deals with the persons to whom the Rules shall apply. That looking into Rule 1 (3) (i), it is clear that such Rule shall apply to a person holding a Civil post under the Government India and who are under the Rule making control of the President, but who do not hold a lien or a suspended lien on any post under the Government of India or any State Government. Further Rule 1 (3) (ii) states that the Temporary Service Rules shall apply to persons who are employed temporarily in work – charged establishment and who have opted for pensionary benefits. It is submitted that the 1st Respondent is a Registered Society fully financed, controlled and https://hcservices.ecourts.gov.in/hcservices/ sponsored by the Government of Puducherry and therefore the post held by the Petitioner is not a civil post nor she was employed temporarily in work - charged establishment, therefore the Temporary Service Rule have no application to the Petitioner. The Learned Counsel would further submit that Section 2(d) defines temporary service to mean the service of a temporary Government Servant in a temporary post or officiating service in a permanent post, under the Government of India, as the Petitioner was not employed in a temporary post but was appointed in a permanent post, her service would not fall within Section 2 (d). Therefore the Learned Counsel would submit that the impugned order is outcome of non application of mind and the authority was guided by irrelevant consideration and since there is a stigma caused on the Petitioner, her services cannot be terminated without issuing a showcase notice and without conducting an enquiry. The Learned Counsel would further submit that the Petitioner has completed the M.Tech. Course and if she is allowed to serve the Institution, it would be beneficial for the students. 4. Per contra Mr.T.P.Manoharan Learned Counsel appearing for the Respondents would submit that the first objection raise by the Petitioner that the temporary service rules is not applicable if factually incorrect since the 1st Respondent in its 21st Governing Body Meeting held on 3.7.2002 has resolved that all its employees would be governed by the service rules applicable to the similar category of employees of Government of Puducherry in toto except on pension and general provident fund matters. Therefore the Learned Counsel for the Respondent would submit that the temporary service rules are applicable. It is further submitted that the Petitioner is not a confirmed employee of the 1st Respondent and mere declaration of her promotion does not automatically mean that the Petitioner is a confirmed Lecturer. As per the procedure the Departmental Promotion Committee(DPC), would meet and consider the merit and performance of the temporary Lecturers and recommend their names for confirmation and till date the D.P.C. has recommended the names of those temporary Lecturers appointed upto the year 1998 for confirmation and the Petitioner having been appointed as Temporary Lecturer only on 28.12.2001, her candidature has not been considered by the DPC and she is not a confirmed in the post of Lecturer and continued only as a Temporary Lecturer. Therefore the Learned Counsel would submit that in the absence of a positive order of confirmation the Petitioner is only a temporary Lecturer. The Learned Counsel for the Respondents would further submit that the impugned order is an order of termination simplicitor and the same is an accordance with Form I issued under Rule 5 (1) of the Rules and that there is no stigma attached to such termination and therefore the impugned order does not suffer from any infirmity. It is further submitted by the Respondents that the Petitioner had directly sent her original application to the Pondicherry University for admission to the M.Tech course and she submitted only a copy to the 1st Respondent which was forwarded to the Pondicherry University. The Petitioner was informed https://hcservices.ecourts.gov.in/hcservices/ in the letter dated 15.05.2007 that forwarding the application does not entitle her to claim grant of study leave and she has to apply for permission separately. Therefore it is submitted that the Petitioner without obtaining prior permission applied to the Pondicherry Engineering College and Anna University and secured admission and only thereafter she made a request on 9.8.2007 stating that she has been selected for admission to M.Tech. Course and requested for grant of EOL for 24 months from 22.8.2007. Since there was no specific recommendation from the 2nd Respondent on the basis of actual requirement of staff, the Petitioners representation was returned. Thereafter the Petitioner by letter dated 3.9.2007 informed the 1st Respondent that she is attending classes in M.Tech course as a full time student from 22.8.2007 and this fact would establish that she joined the course without prior permission and sanction of leave by the 1st Respondent. By memo dated 12.09.2007 the 2nd Respondent directed the Petitioner to report for duty due to the Diploma Board Examination which was not complied with by the Petitioner and in that process she absented herself from 22.08.2007 and she also was blocking the post. Therefore the Learned Counsel would submit that there is no error in the impugned order. The Learned Counsel for the Respondents placed reliance upon the following Judgments in support of his contention. (1) State of Uttar Pradesh Vs. Bhoop Singh Verma [AIR 1979 SC 684], (2) Commodore Commanding, Southern Naval Area, Cochin Vs. N.Rajan [AIR 1981 SC 965], (3) State of U.P. And others Vs. Rajendra Kumar Singh and another (1997) 10 SCC 682 (4) P.U.Joshi and others Vs. Accountant General, Ahmedabad and others with Union of India and others Vs. Basudeba Dora and others [(2003) 2 SCC 632] 5. I have considered the submissions made on either side and perused the materials on record. The impugned order is an order of termination passed invoking Rule 5 (1) of the Temporary Service Rules. Interms of the said Rule the services of the Temporary Government Servant shall be liable to termination at any time by a notice in writing given by the Government Servant to the appointing authority or by the appointing authority to the Government Servant. Interms of Rule 5 (1) (b) the period of such notice shall be one month. Form I prescribes the format of notice of termination issued under Rule 5 (1) of the Temporary Service Rules. A perusal of the impugned order shows that the format prescribed under the rules has been adopted verbatim. It is the contention of the Learned Counsel for the Petitioner that the temporary service rules is not applicable to the 1st Respondent. This objection was contraverted by the Learned Counsel for Respondent by stating that the 1st Respondent society in is 21st Governing Body Meeting held on 3.7.2002 resolved that its employees would be governed by the service rules applicable to similar category of employees of the Government of Puducherry except on pension and general provident fund matters. Therefore the preliminary objection raised by the Learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ Petitioner appears to be incorrect. However the Learned Counsel placed an alternate submission by stating that the Petitioner was appointed on 14.12.2001 as Temporary Lecturer and the service rules having been adopted only on 3.7.2002 and the same cannot be made applicable to the Petitioner's service. This submission has been rightly resisted by the Learned Counsel for the Respondents by relying upon the decision of the Hon'ble Supreme Court in P.U. Joshi vs. Accountant General, (2003) 2 SCC 632 wherein the Hon'ble Supreme Court held that there is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when they entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service. 6. Therefore the supplementary argument of the Learned Counsel for the Petitioner cannot be sustained in view of the law laid down by the Hon'ble Supreme Court in as much as there is no right in the Petitioner to claim that the rules governing conditions of her service should for ever remain the same as the one when she enter service. 7. Thus having held that the temporary service rules would be applicable to the 1st Respondent, the next question to be considered is as to whether the said rules could be made applicable to the Petitioner and whether the impugned order is legally sustainable. The Learned Counsel of the Petitioner placed reliance on the order dated 17.5.2006, by which the petitioner's probation was declared and in the said order it has been stated that the Petitioner and the other Lecturers who had been placed on probation for a period of 2 years have satisfactorily completed the period of probation in their respective post and in Column No.4 of the tabulated statement it has been stated that the date of "regular" appointment of the Petitioner is 28.12.2001. Further the Learned Counsel submits that the proceedings dated 21.3.2007 tentative seniority list was prepared in which the Petitioners name is in serial No.2 in the Computer Technology Department and therefore a combined reading of all these proceedings would go to show that the Petitioner is not a temporary employee. This factual aspect has been denied by the Respondents in their counter affidavit and a specific averment has been made stating that unless the DPC recommends the name of the candidate, the question of confirmation does not arise and that the temporary Lecturers appointed upto the year 1998 have been issued orders of confirmation and that the Petitioner having been appointed only on 28.12.2001, her case has not been considered by the DPC and she continued only as a temporarily Lecturer and her appointment was in accordance with condition 2(c) of the offer of appointment dated 14.12.2001 which clearly states that the appointment may be https://hcservices.ecourts.gov.in/hcservices/ terminated at any time by giving one month notice on either side without assigning any reasons thereof and the appointing authority is also entitled to terminate the services before the expiry of the one month notice period by making payment of a sum equivalent to the pay and allowance for the period of notice. In the absence of any record submitted by the Petitioner disputing the averment made in the counter affidavit, it has to be taken to be true and if that be the case the Petitioner is only a temporary employee as her candidature did not come up for consideration before the DPC. It is noteworthy to mention at this juncture the law as declared by the Hon'ble Supreme Court in the case of State of UP vs. Rajendra Kumar Singh [(1997) 10 SCC 682], wherein the Hon'ble Supreme Court held that unless a positive decision by the Appointing Authority for confirming the temporary employee, such employee cannot claiming to be permanent merely because of completion of the period of probation. Having held that the Petitioner is a temporary employee, her service are liable for termination in accordance with the condition the offer appointment dated 14.12.2001, and having perused the impugned order, it is clear that the order is an order of termination simplicitor and it is also in consonance with the prescribed statutory format. Therefore no error could be attributed to the order impugned namely that the Respondent were justified in invoking the power under Rule 5 (1) of the temporary service rules. 8. The next submission which has to be considered at this point is whether the impugned order casts a stigma on the Petitioner, since it is stated by the Petitioner that her services came to be terminated on account of her request for grant of study leave. To consider this submission it is necessary to look into certain factual details. It is the case of Petitioner that she applied for under going M.Tech course at Pondicherry University and that her application was forwarded by the 2nd Respondent by letter dated 15.5.2007, it is thereafter she made a request for grant of EOL for the period of her study which came to be rejected. It has been stated by the Respondent that the Petitioner did not apply through the Respondents but had directly sent her original application to the Pondicherry University and Anna University and only a copy was given to the Respondents and even while forwarding the same to the Pondicherry University the Petitioner was informed through the 2nd Respondent that the forwarding of the application does not entitle the Petitioner to claim grant of study leave in case of her selection and she should apply for permission for sponsorship / NOC separately. Therefore the Respondents have kept the Petitioner informed that the grant of permission to pursue higher studies has to be separately obtained. Hence in my view that merely because the Petitioner has given a copy of the application to the Respondents which came to be forwarded to the Pondicherry University would not by itself be considered as grant of permission to pursue the course in the event of she securing admission. The petitioner having been appointed to the services of the Respondents has accepted her offer appointment https://hcservices.ecourts.gov.in/hcservices/ and abide by the service rules and regulations of the 1st Respondent inforce from time to time. While appreciating the Petitioner's zeal to acquire higher qualification, the procedure adopted by the Petitioner appears to be not in consonance with the rules and regulations of the 1st Respondent society. Though the Petitioner has pointed out certain instances where the Respondents have permitted certain other candidates to pursue the course without prior permission, cannot be a ground to justify the approach of the Petitioner. If candidates were permitted to pursue higher studies without permission at earlier point of time, the same cannot be cited as a precedent since it is the contention of the Respondents that prior permission is required. Therefore even assuming there were certain earlier instances it has to be held to be not in consonance with the rules and such departure from the rules cannot be cited as a precedent. However in paragraphy 7 (A) of the counter affidavit the Respondents have stated about the permissions granted to the Lecturers in the computer technology department and therefore the factual aspects pleaded by the Petitioner alleging discrimination appears to be incorrect. On the aspects as to whether a stigma has been caused to the Petitioner on account of the impugned order, it would be relevant to note the law as declared by the Hon'ble Supreme Court, referred to by the Learned Counsel for the Petitioner. In the case of state of UP vs. Bhoop Singh, [AIR 1979 SC 684], the Hon'ble Supreme Court was dealing with a discharge order passed against a temporary Sub Inspector of Police, wherein the Hon'ble Supreme Court while considering as to whether the order of termination was by way of punishment or termination simplicitor, held as follows. "6. Assuming, however, that the impugned order was made in the background of the allegations against the respondent concerning his behaviour with Smt.Phoolmati, we see no reason in law why a departmental enquiry should be necessary before the respondent's services could be terminated. It appears from the material before us that it was merely a preliminary enquiry which was made by the Superintendent of Police into the allegations made against the Respondent's conduct concerning the woman. No departmental enquiry by way of disciplinary proceedings was instituted, no charge was framed, and the formal procedure characterizing a disciplinary proceeding was never adopted. " 7 .......... There was nothing to prevent the Deputy Inspector General from deciding that instead of instituting disciplinary proceedings against the government servant he should consider whether the government servant was suitable for retention in service..... ....That it was not intended to take punitive action against the Respondent for his misbehaviour with Smt.Phoolmati is evident from the circumstance that thereafter the https://hcservices.ecourts.gov.in/hcservices/ respondent was allowed an increment to his salary and was regarded as in service for all purposes. The High Court, it seems to us, did not have regard to all the facts and circumstances of the case, and appears to have assumed that the respondent's services were terminated as a measure of punishment...." 8. Further the Hon'ble Supreme Court in the case of Commodore Commanding, Southern Naval Area vs. V.N.Rajan, [AIR 1981 SC 965] held that where the decision to terminate the services of the servant had been taken at the highest level on the ground of unsuitability of the servant in relation to the post held by him and it was not by way of any punishment and no stigma was attached to him by reason of the termination of his services, termination could not be said to be vitiated for non observance of Art 311 (2). In the decision of State of UP vs. Rajendra Kumar Singh, referred supra the Hon'ble Supreme Court further held ...... ...It appears that the records of service of the respondent are not good and if on consideration of such adverse records, a decision to terminate the temporary service of the respondent was taken and the order was passed without attaching any stigma, we do not think that such order would be held as illegal and a punishment in disguise.... In such view of the matter, it cannot be stated that there is any stigma attached to the Petitioner under the impugned order as the order is an order of termination simplicitor. 9. For the above reasons, I find that there are no good grounds to interfere with the impugned order and therefore the writ petition fails and is accordingly dismissed. No costs. M.P.No.1 of 2010 in W.P.No.15568 of 2008 This Petition has been filed to amend the prayer in the Writ Petition. The Petitioner initially had challenged the order of termination dated 30.5.2008. By this Petition the Petitioner seeks to amend the prayer to quash the orders dated 17.7.2007 and 12.09.2007 along with the order of termination dated 30.5.2008. The orders dated 17.7.2007 and 12.09.2007 are orders by which the Petitioners request for grant of study leave was rejected / returned. The Learned Counsel for the Respondents would vehemently oppose the application for amendment primarily on the ground of laches. It is to be noted that the request for study leave came to be rejected as early as on 17.7.2007 giving certain reasons and subsequently by memorandum dated 12.09.2007 the Petitioner was directed to report for duty. The Petitioner however did not choose to challenge these orders during the relevant time but joined the M.Tech Course and kept pursuing her studies and was infact unauthorizedly absent from 22.8.2007 and https://hcservices.ecourts.gov.in/hcservices/ during the relevant point of time she was pursuing her studies. Hence at this point of time I find no justification for the Petitioner to question such orders since by a subsequent order dated 30.05.2008 her services itself came to be terminated. Further having held that the order of termination dated 30.05.2008 is valid, there is no ground to permit the Petitioner to amend the prayer in the Writ Petition at this stage . Hence M.P.No.1 of 2010 is dismissed. Pbn Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Pondicherry Institute of Post-Matric Technical Education (PIPMATE), Lawspet, Puducherry – 605 008, Represented by its Chairman. 2.The Principal Womens' Polytechnic College, Lawspet, Puducherry. + 1 cc to Mr. T.P. Manoharan, Advocate SR No.3391 + 1 cc to Mr. P.V.S. Giridhar & Sai, Advocate SR No.3208 NSM(CO) SR/27.1.2010 Order in W.P.No.15568 of 2008 https://hcservices.ecourts.gov.in/hcservices/