Civil Writ Petition No.2708 of 1988 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: November 11, 2009 Ajit Singh Kahlon .....Petitioner VERSUS The State of Haryana & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.Balram Gupta, Senior Advocate with Ms.Anamika Negi, Advocate, for the petitioner. Mr.Harish Rathee, Sr.DAG, Haryana, for respondent Nos.1 to 3. None for respondent Nos.4 & 5. Mr.A.M.Punchhi, Advocate, for respondent No.6. **** RANJIT SINGH, J. The petitioner, who was working as Librarian with the respondent-College, had approached this court for quashing the order of his termination, which was passed on 30.8.1986 and so also the order dated 5.2.1988, whereby appeal filed by the petitioner was dismissed. Civil Writ Petition No.2708 of 1988 : 2 : Earlier one Ms.Balwinder Kaur was working as Librarian with the respondent-College having been appointed on 1.8.1981. Respondent No.6 was appointed on probation for one year which was further extended for a period of one year. Her services were terminated on 30.5.1983. The salary of respondent No.6 was not paid by the College as the post was not a sanctioned one. The College otherwise is affiliated with Kurukshetra University and is receiving 95% aid. Accordingly, the appointment of the post is required to be made by Governing Body subject to the approval by the University. It is averred in the petition that appointment of Balwinder Kaur was not approved by the University. On 6.4.1984, Director Higher Education, Haryana sanctioned the post of Librarian in the respondent-College. As per the petitioner, this post was then advertised and he thereafter applied and was appointed on probation for a period of one year on 1.9.1984. The petitioner successfully completed the period of probation on 31.8.1985. The probation was never extended. It is accordingly pleaded that as per Rule 4 of Calendar of the Kurukshetra University regarding services and conduct for Employees in the non-Govt. Recognised Colleges, the petitioner shall be deemed to have been confirmed. Rule 4 referred to above reads as under:- “An employee appointed against a regular/permanent post may be kept on one year's probation after which period he will automatically be confirmed if his work and conduct are found satisfactory. It shall be obligatory on the part of a Governing Body to notify to the employee in Civil Writ Petition No.2708 of 1988 : 3 : writing before the expiry of one year's probationary period, whether he had been confirmed or his period of probation had been extended and in absence of such a notice the employee would be deemed to have been confirmed. The probationary period shall in no case be extended beyond two years from the date of appointment. Provided further that probation period shall not be extended more than once.” Since no intimation was given to the petitioner if he was confirmed or this probation was extended, the petitioner would plead that he would be deemed to be confirmed on completion of one year service on 31.8.1985. Balwinder Kaur (respondent No.6) had in the meantime filed an appeal before Director Higher Education against the order of her termination. This appeal was dismissed. Thereupon she filed a civil suit on 27.8.1983. Because of pendency of this suit, Kurukshetra University informed the Principal of the College through its letter dated 16.8.1985 that the appointment of the petitioner was approved on purely temporary basis till the case of Balwinder Kaur (respondent No.6) was decided by the court. The petitioner was thereafter informed that his appointment stood modified and that he was to work as Librarian purely on temporary basis. Copy of this letter dated 31.10.1985 is at Annexure P-3. The petitioner ofcourse would contest this action of the respondents by pleading that he by then would be deemed to have been confirmed on this post . The civil suit filed by Balwinder Kaur was dismissed on Civil Writ Petition No.2708 of 1988 : 4 : 15.11.1985. Thereafter the College wrote a letter to the University for granting approval of the appointment of the petitioner on regular basis. The Governing Body of the College also withdrew the earlier letter dated 31.10.1985 (Annexure P-3) issued to the petitioner. The petitioner, thus, would reiterate that all this would lead to deemed confirmation of the petitioner on the post. Balwinder Kaur then appealed against the order dismissing her civil suit. She statedly joined as Librarian in Kanya Mahavidalaya. During the pendency of the appeal, the case was compromised between the College and said Balwinder Kaur. She accordingly withdrew this appeal. As per this compromise the college management had agreed to reinstate Balwinder Kaur on the post of Librarian where she had been working till 30.5.1983. The petitioner, however, would question this move on the part of the College to compromise the issue with Balwinder Kaur. The petitioner would first say that on completion of one year, he stood confirmed in terms of the Rule and even if his appointment was to legally commence from 16.8.1985, he would still stand confirmed w.e.f.15.8.1986, specially so when no letter of confirmation or extending the period of probation was ever issued by the Governing Body. Here the petitioner is ignoring a letter dated 19.8.1985 (Annexure R-6/10) extending the probation. Still, the petitioner would contend that his services could not have been terminated in view of the provisions of Haryana Affiliated Colleges (Security of Service) Act, 1979. The petitioner would also refer to Section 8 of the Act which bars the jurisdiction of a civil court to submit that even the suit filed by Balwinder Kaur was not maintainable. The petitioner would also refer to the rules framed Civil Writ Petition No.2708 of 1988 : 5 : under the Act, which would regulate the procedure for imposing major penalties or dismissal and removal and accordingly would question his dismissal being in violation of these rules and would say that it was done simply to accommodate Balwinder Kaur. As per the petitioner, Balwinder Kaur had won over the Principal and since there was only one sanctioned post in the College, in order to accommodate Balwinder Kaur, the Principal went out of his way to dismiss the petitioner. When the petitioner realised this, he filed a civil suit and obtained a stay of his termination from the court of Sub Judge on 6.9.1986. In order to circumvent the stay order, the Principal of the College managed antedated letter from the President of the Governing Body for reinstating Balwinder Kaur on the basis of a compromise. Even a letter was also obtained for reinstating Balwinder Kaur pending withdrawal of the cases filed by her against the College. Thus, Balwinder Kaur was even reinstated before the services of the petitioner were terminated. The petitioner would, thus, urge that these letters had been written by antedating to circumvent the letter dated 3.9.1986 written by the Principal. The letter terminating the services of the petitioner dated 30.8.1986 even was not supplied to the petitioner which he demanded on learning about it from a telegram received by him on 15.9.1986. Petitioner then filed an appeal against the order of his termination, which was dismissed on 5.2.1988. The petitioner was not granted relief mainly because of the compromise reached between the College and Balwinder Kaur, which, as per the appellate authority could not be ignored to grant relief to the petitioner. The petitioner thereafter challenged the order passed by Civil Writ Petition No.2708 of 1988 : 6 : the Director dismissing his appeal on various grounds. As per the petitioner, he stood confirmed against the sanctioned post and so his services could have been terminated by following of procedure as given in Section 7 of the Act and Rule 4. The petitioner would also urge that no enquiry was held and no charge was given to him while terminating his services. He would also question the jurisdiction of the civil court to entertain this suit and would also challenge the sanctity of the compromise reached between the parties before the court. The respondent-College as well as private respondent No.6 would seriously join issues with the petitioner not only in facts but also in law. It is stated that respondent No.6 was selected by a duly constituted selection committee and her appointment was made by the Governing Body whereby she was placed on probation for one year on December 29, 1981. Respondent No.6 would question the action of General Secretary of the Governing Body to extend her probation vide order dated 31.7.1982. Accordingly, she would plead that her services could not be terminated on 27.5.1983 she being a confirmed employee. She accordingly filed a civil suit as already pointed out which was dismissed. She had then moved an application for additional evidence to establish that General Secretary had no authority to extend her period of probation and this could only be done by the Governing Body. This plea had not been taken by respondent No.6 earlier in the suit. In this background, the Governing Body realised that it would be difficult to defend the order of termination. The President of the Governing Body was, thus, authorised to take final decision in the matter. The respondent- Civil Writ Petition No.2708 of 1988 : 7 : college then compromised with respondent No.6, which was ultimately produced before the Appellate Court, i.e., Addl.District Judge, Karnal. The College, thus, agreed to reinstate respondent No.6 with the condition that she will not claim any arrears of salary. The appeal was accordingly got dismissed as withdrawn by respondent No.6. Respondent No.6 would point out that the College had made a futile attempt to frustrate her claim by appointing the petitioner by giving him a back door appointment. To substantiate this, respondent No.6 would urge that while appointing the petitioner, neither the post was advertised nor any selection committee constituted to make selection. In fact, the advertisement for the post of Librarian appeared in the Newspapers on 16.9.1984 whereas interview letters were issued on 5.12.1984. The petitioner had even not applied for the post of Librarian nor was he called for interview, but had been appointed w.e.f. 1.9.1984, whereas the selection process was going on even during December, 1984. In this regard, the College has also come forward to support the stand of respondent No.6. In the written statement, it is pointed out that the petitioner was not legally appointed and his appointment was made by Vice-President of the College, which never came up for consideration before the Governing Body. The appointment letter (Annexure P-1) would also support this stand. Even in the writ petition, the petitioner has remained silent about the date when the advertisement for the post was issued and would simply aver that the post was advertised without giving date and that he was selected and appointed on 1.9.1984. The allegation that this appointment was Civil Writ Petition No.2708 of 1988 : 8 : back door, thus, is not without substance. The appointment of the petitioner also seems to have been approved by the University purely on temporary basis and was subject to the outcome of the case filed by respondent No.6. The petitioner, thus, was aware of the pending civil suit and also about the compromise that was reached between the College and respondent No.6. He took no action to become party to this suit and even has not challenged the said order through this writ petition or otherwise. The respondent would further point out that the petitioner, though a back door entry, his probation was extended on 19.8.1985 and within this extended period, the services were terminated on 30.8.1986. The copy of this order extending the period of probation is annexed with the reply as Annexure R-6/10. The petitioner has not made any reference to this communication in his writ petition but has relied upon communications Annexures P-5 and P-6, which would run contrary to the position as is reflected in Annexure R-6/10. The facts in this case, thus, would reveal that when the services of the petitioner were dispensed with, he filed a civil suit challenging his termination and so also an appeal before Director Public Instructions, Colleges. He obtained an injunction order against his termination. On account of this stay order, respondent No.6 could not rejoin the services in the College. Ultimately, the petitioner withdrew his civil suit on 15.9.1987 as he had filed appeal before the Director Public Instructions. The injunction granted in favour of the petitioner, thus, stood vacated. Respondent No.6 then immediately joined the College on 14.9.1987 and since then is working in the said College and, thus, had put in more than 22 years in service. Civil Writ Petition No.2708 of 1988 : 9 : The whole case set up by the petitioner, thus, is that he being a confirmed employee could not have been terminated without following the procedure prescribed in the Act and the Rules. There is otherwise not much dispute in facts. Respondent No.6 was earlier working on this post and her services were terminated on 30.5.1983. The appointment of respondent No.6 had been approved by the University. The facts as disclosed by the College would also show that the petitioner originally was appointed on this post in July, 1973 and worked till August, 1978 when he voluntarily resigned from the job. The reply by the College would also show that appointment of respondent No.6 was approved and on account of the objection raised by the audit cell of the Director, the post was regularised w.e.f.6.8.1984 instead of 1.8.1981 which was the date of appointment of respondent No.6. It is, thus, seen that the petitioner had tried to withhold information and has not disclosed full details in the writ petition filed by him. In fact, the probation period of the petitioner had been extended on 19.8.1985 and letter to this effect was sent to him under postal cover when he refused to receive the same otherwise. In this background, it cannot be taken that the petitioner was deemed to have been confirmed on this post. In fact, the very appointment of the petitioner apparently is not legal. The counsel for the petitioner could not show any advertisement in response to which he had applied for this post. He also could not show anything if he was selected by the selection committee. Annexure P-1 is an appointment letter issued to him by Vice-Principal of the College. If indeed this was the appointment validly made, then there was no reason for the managing committee to advertise this Civil Writ Petition No.2708 of 1988 : 10 : post on 16.9.1984, which appeared in the Newspaper “Tribune” (Annexure R-6/8). The interview letters were issued on 5.12.1984. The petitioner cannot show any application through which he had applied for the post or that he had appeared for the interview. His appointment which was done on 1.9.1984, thus, apparently was without any selection process and was made by the Vice-President alone, who would not have any authority to give any valid appointment to the petitioner. Here only the difference between the appointment either being on a temporary or a regular basis and it being on probation has also to be understood. Even if the appointment of the petitioner was made regular, yet he would continue to be on probation in view of communication Annexure R-6/10. The petitioner would have number of other hurdles to cross to get relief in this case. He has not challenged the appointment of respondent No.6 in the present writ petition. He has also not taken any action to challenge the compromise reached between the College and respondent No.6. Perhaps it may not be open for him to impugn this decree of civil court through the present writ petition. In the absence of such a challenge, it may not be open for the petitioner to seek setting aside of the appointment of respondent No.6. The petitioner even has not placed on record his termination order setting aside of which he has prayed in the writ petition. In view of this and the fact that respondent No.6 now has continued to work for over two and half decades, it would not be fair to interfere in her appointment. Her appointment is even on account of a decree passed by the court. The petitioner has also not made Civil Writ Petition No.2708 of 1988 : 11 : any case on law or otherwise, which would call for interference. The writ petition is, therefore, without any merit and is, thus, dismissed. November 11, 2009 ( RANJIT SINGH ) ramesh JUDGE