1 wp-1217-96 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1217 OF 1996 Rajeshwar Narayan Dikle Since deceased through his Lrs. (a) Laxmibai Narayan Dikle (b) Sanjay Narayan Dikle (c) Vijay Narayan Dikle All R/o At and Post Hadolti, Taluka – Ahmedpur. Dist. Latur. .. Petitioners Vs. 1. The Registrar Yeshwantrao Chavan Maharashtra Open University, Dnyangangotri, Near Gangapur Dam, Nashik 422 005. 2. Dr. Surya Gunjal Project Director, Krishi Vigyan Kendra Yeshwantrao Chavan Maharashtra Open University, Dnyangangotri, Near Gangapur Dam, Nashik 422 005. 3. The Kul Sachiv, Krishi Vigyan Kendra Yeshwantrao Chavan, Maharashtra Open University, Dnyangangotri, Near Gangapur Dam, Nashik 422 005. .. Respondents Mr. P. N. Joshi for petitioner. None for the respondents. 2 wp-1217-96 CORAM: B. H. MARLAPALLE & A. A. SAYED, JJ. August 23, 2010. ORAL JUDGMENT: (Per B. H. Marlapalle,J.) 1. By an order dated 4/9/1995, respondent no.1 – University had appointed the petitioner as Junior Scientist (Agril. Extension) in the Krishi Vigyan Kendra in the pay-scale of Rs.2200-75-2800-EB-100-4000. In addition, he was entitled to other allowances as per the Rules and he was fixed on the basic salary of Rs.2200/-. The said appointment was on probation for a period of two years. The petitioner had acquired, before he was so appointed, the qualifications of Msc. (Agril.) Ph.D. He was served with the termination notice dated 1/2/1996 invoking clause 12 of the appointment order and informing him that his employment would come to an end on 29/2/1996. The said notice was challenged in this petition and on 1/3/1996, while admitting the petition, ad-interim relief in terms of prayer clause (b) was granted. Consequent to the ad-interim relief granted by this court, i.e. stay to the impugned notice of termination dated 1/2/1996, the petitioner was reinstated on 6/3/1996 and he continued to be in service till a 3 wp-1217-96 fresh order dated 30/8/1997 was passed relieving him from the employment of the University on completion of two years probationary period under clause 12 of the appointment order dated 4/9/1995. The petitioner, therefore, filed Civil Application No. 6340 of 1997 and prayed for amendment of the petition as well as stay to the fresh order dated 30/8/1997. A Division Bench of this court allowed the said application partly in as much as the prayer for amendment was allowed, but the prayer for stay to the order dated 30/8/1997 was refused. On 25/11/2003 this petition came to be allowed by setting aside the order dated 30/8/1997. However, the respondent – University filed Review Petition No. 7 of 2004 which was allowed on 10/2/2004 and the petition was restored. 2. As per the petitioner, the impugned order is punitive in nature and he could not have been discontinued or removed from service unless a departmental enquiry based on the charge-sheet issued to him was conducted. He further alleges that his performance was satisfactory and memos right from 15/12/1995 were frequently issued against him only to build a record so as to support the contentions of the respondents that his service record was unsatisfactory. Mr. Joshi, the learned counsel for the petitioner has relied upon the following judgments of the Supreme Court: 4 wp-1217-96 (a) Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and ors. [(1999) 3 SCC 60]. (b) V.P. Ahuja vs. State of Punjab and ors. [(2000) 3 SCC 239]. (c) Chandra Prakash Shahi vs. State of U.P. And ors. [(2000) 5 SCC 152]. 3. On behalf of the respondents, first affidavit-in-reply was filed by Dr. Suryakant S. Gunjal opposing the petition on 30/5/2003 and the second affidavit is filed by Dr. N. R. Kapadnis, the Registrar of the respondent – University on 6/7/2004. In the affidavit filed by the Registrar, it has been pointed out that the post of Agricultural Extension remained vacant from 30/8/1997 to 4/7/2000 and was subsequently filled in on 4/7/2000 when a candidate with the requisite qualifications was available. It has been further pointed out that the new incumbent has been confirmed in service and he was paid his salary by the Indian Council of Agricultural Research, New Delhi and the respondent no.1 – University had only an administrative control of the Krishi Vigyan Kendra. The said project was 5 wp-1217-96 appraised every five years by the Indian Council of Agricultural Research which was the sole authority to decide the number of people to be employed based on the requirements and the salaries were paid by the said Council. It has been further submitted by the respondents that after the petitioner was reinstated consequent to the order dated 1/3/1997 passed by this court, his performance was found to be unsatisfactory during the probationary period and despite several opportunities given to him, he failed to improve and, therefore, the University decided to discontinue the petitioner’s services towards the end of his probationary period. It has pointed out that the order dated 4/9/1995 indicated a probationary period of two years and, therefore, the order dated 30/8/1997 was passed invoking clause 12 of the appointment order. 4. As per clause 1 of the appointment order, the petitioner was to be on probation for a period of two years and it further stated that during this period of two years, his work, performance and conduct would be periodically assessed. He was required to join the duties on 15/9/1995, but joined on 25/9/1995. As per clause 12 of the appointment order, his appointment was liable for termination at any time during the period of probation by giving one month’s notice or by payment of one month’s 6 wp-1217-96 salary from either side. As per clause 3, he was appointed exclusively for the Krishi Vigyan Kendra Project and for the duration of the project only. 5. After the petitioner was reinstated on 6/3/1997 pursuant to the order passed by this court on 1/3/1996, the petitioner did not show any sign of improvement. On 19/3/1996 a memo was issued to the petitioner by the Project Director, whereby the petitioner’s attention was invited to the notice dated 16/2/1996 and his failure to complete the work as well as to inform the status in response to the office note dated 18/3/1996, but he refused to accept the said memo. On 12/4/1996 the Project Director called upon the petitioner to complete the socio economic survey of Girnare village and he was reminded that he was required to submit the said report by 30/6/1996 and the survey was to start from 1/2/1996. It was further informed to him that the Deputy Director General of the Indian Council for Agricultural Research was to conduct an annual workshop of all Krishi Vigyan Kendra of Maharashtra from 17/4/1996 to 19/4/1996 and, therefore, he was instructed to submit the socio economic report so that the need based training could be conducted for the Nashik District. In a meeting held on 10/4/1996, the petitioner had requested for an extension of time and it was agreed subject to the condition that the report would be 7 wp-1217-96 submitted by 30/4/1996. The petitioner did not submit such a report and again on 27/6/1996 a memo was issued to him by the Project Director regarding non completion of the socio economic survey of village Girnare. It was also pointed out that due to non submission of the said report, the Krishi Vigyan Kendra was unable to communicate the training schedule to the Indian Council of Agricultural Research, New Delhi and thereby all the major training programmes had suffered a set back. It was also pointed out that in view of his qualifications, such a survey ought to have been completed within two months. He was given the last opportunity to submit the final report within a period of three days, failing which the matter would be referred to the Deputy Director General, Indian Council of Agricultural Research, New Delhi. On 31/7/1996, a notice was issued to the petitioner on the basis of the letter received from the Krishi Vidyalaya, Tirthapuri dated 8/7/1996. The said letter revealed that the petitioner had submitted a false and fabricated salary certificate to claim a better pay- scale under the respondent no.1 – University when he was appointed to the post of junior scientist. He was again issued a notice on 7/8/1997 regarding his tampering with the attendance register. These memos/notices have been replied by the petitioner and he failed to furnish any satisfactory explanation in regard to the letter dated 8/7/1996 received from the Krishi 8 wp-1217-96 Vidyalaya, Tirthapuri. So far as the socio economic survey is concerned, the petitioner’s reply was that he ought to be guided on the strategies to complete such a survey. 6. In the case of Chandra Prakash Shahi (Supra), the Supreme Court held, inter alia, that a probationer has no right to post in which he was appointed and his service can be terminated during or at the end of the probation on account of his unsuitability. The court observed in para 12 and 20 as under:- “12. Now, it is well settled that the temporary government servant or probationers are as much entitled to the protection of Article 311(2) of the Constitution as the permanent employees despite the fact that temporary government servants have no right to hold the post and their services are liable to be terminated at any time by giving them a month’s notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service. The courts can, therefore, left the veil of an innocuously-worded order to 9 wp-1217-96 look at the real face of the order and to find out whether it is as innocent as worded. (See: Parshotam Lal Dhingra v. Union of India). It was explained in this decision that inefficiency, negligence or misconduct may have been the factors for inducing the Government to terminate the services of a temporary employee under the terms of the contract or under the statutory Service Rules regulating the terms and conditions of service which, to put it differently, may have been the motive for terminating the services but the motive by itself does not make the order punitive unless the order was “founded” on those factors or other disqualifications. 20. Termination simpliciter of a temporary government servant on the ground of unsuitability does not attract the provisions of Article 16, nor is the protection under Article 311(2) of the Constitution available to a temporary government servant unless the termination involved “stigma”, was the dictum laid down by this Court in Commodore Commanding, Southern Naval Area vs. V. N. Rajan.” 10 wp-1217-96 7. In the instant case, clause 12 of the appointment order clearly states that the probationer’s service could be terminated at any time by giving one month’s notice or salary in lieu thereof. At the same time, there are no Rules which have been relied upon by the petitioner and which mandate a particular other procedure to be followed while not continuing him beyond the probationary period. The impugned order dated 30/8/1997 does not appear to be a stigmatic order and it has been merely stated that his services were not required on completion of probationary period of two years and he would stand relieved from duties from 30/8/1997. We are, therefore, satisfied that it was not necessary for the respondent – University to issue a charge-sheet and conduct a departmental enquiry before the impugned order dated 30/8/1997 was issued. Nevertheless, by way of abundant precaution, the petitioner was issued memos, his reply was called for and the same was found to be unsatisfactory. We agree with the conclusions so arrived at by the University regarding the unsatisfactory performance of the petitioner and his resultant unsuitability to continue as a junior scientist, having regard to his academic qualifications. He was provided with maximum opportunity to show improveness so as to point out that he was fit for the job but he failed and, therefore, he cannot blame the University. Academic matters are required to be left to the decision of 11 wp-1217-96 the experts in that field. In the case of Maharashtra State Board of Secondary and Higher Secondary Education and anr. vs. Paritosh Bhupeshkumar Sheth and ors. [(1984) 4 SCC 27], the Supreme Court, inter alia, stated, “... As has been repeatedly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them......” 9. During the pendency of this petition, the petitioner died on 4/10/2004 and by allowing Civil Application No. 895 of 2007, his LRs have been brought on record. The petition, as of now, survived only for payment of back-wages/compensation. The post the petitioner occupied was filled in and for a period of six years there was no stay to the impugned order. If the impugned order does not call for interference, the question of payment of back wages or compensation does not arise. 12 wp-1217-96 10. In the premises, this petition fails and the same is hereby dismissed. Rule is discharged with no order as to costs. (A. A. SAYED,J.) (B. H. MARLAPALLE, J.)