IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRTIETH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION Nos.7018, 7804, 7828, 7847, 7884 and 7895 of 2010 W.P.No.7018 of 2010: Between: Employees Provident Fund Commissioner (Ministry of Labour), Government of India, rep. by the Commissioner, New Delhi and others ..... PETITIONER(S) AND K. Swathi and another .....RESPONDENT(S) THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION Nos.7018, 7804, 7828, 7847, 7884 and 7895 of 2010 COMMON ORDER: (per HON'BLE SRI JUSTICE GHULAM MOHAMMED) Since the point that arises for determination in all these writ petitions is the same, they are taken up together for disposal. 2. The petitioners in all these writ petitions is the Employees’ Provident Fund Organisation (hereinafter referred to as ‘Organisation’), which is arrayed as respondents before the Central Administrative Tribunal, Hyderabad (Tribunal), filed these writ petitions questioning the legality and validity of the orders passed by the Tribunal in O.A.Nos.133, 135, 134, 137, 132 and 136 of 2010 dated 01.03.2010 whereby and whereunder the orders of removal of the applicants therein (first respondents in these writ petitions who hereinafter referred to as – ‘the applicants’) from the service of the Organisation have been set aside. 3. The point arises in the following circumstances. The Organisation issued a notification in Employment News for the week dated 8th to 14th April 2006 inviting applications from the eligible candidates for filling up the vacancies in different cadres i.e. Manager, Assistant Manager, Manager cum Salesman, Counter Clerk, Coupon/Reserve Clerk, etc., in its Departmental Staff Canteen of Hyderabad and Guntur regions in Andhra Pradesh State. The applicant in O.A.No.133 of 2010 (first respondent in W.P.No.7018 of 2010) who has passed Intermediate has applied for the post of Manager cum Salesman. The applicant in O.A.No.135 of 2010 (first respondent in W.P.No.7804 of 2010) who passed B.A. and possessed P.G. Diploma has applied for the post of Manager cum Salesman. The applicant in O.A.No.134 of 2010 (first respondent in W.P.No.7828 of 2010) who is a Graduate in Commerce has applied for the post of Assistant Manager. The applicant in O.A.No.137 of 2010 (first respondent in W.P.No.7847 of 2010) who passed B.Sc. (Comp.) has applied for the post of Manager cum salesman. The applicant in O.A.No.132 of 2010 (first respondent in W.P.No.7884 of 2010) who is a Graduate in Commerce has applied for the post of Manager. The applicant in O.A.No.136 of 2010 (first respondent in W.P.No.7895 of 2010) who passed Intermediate has applied for the post of Manager cum Salesman. After due selection, they all were appointed in the respective posts for which they have applied and they all joined in service on 13.04.2007, 12.02.2007, 01.03.2007, 01.03.2007, 01.03.2007, 01.03.2007 and 05.02.1007, respectively, and underwent two years of probation and their probation was neither extended nor declared. While so, the Organisation passed orders dated 03.02.2010, 21.01.2010, 21.01.2010, 21.01.2010, 21.01.2010 and 22.01.2010, respectively, removing them from service in pursuance of the proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 read with sub para (b) of sub-rule (1) of Rule 5 ibid, which are mutatis mutandis made applicable to the employees of the Organisation by virtue of Regulation 18 of the EPF (Officers and Employees Conditions of service) Regulations, 2008. 4. It is pertinent to mention here that the essential qualification required for the posts of Manager, Assistant Manager and Manager cum Salesman is that a pass in Matriculation with one year diploma in Book/Store keeping with three years experience. After the recruitment process is over, on the basis of the complaints received from one Sri T.Ramulu alleging corruption in the recruitment of canteen staff of Andhra Pradesh in which the applicants were selected and appointed, the Zonal Vigilance Directorate conducted an enquiry. In its final investigation report, the Zonal Vigilance Directorate observed that whereas the educational qualification required is Matriculation with one-year diploma in Book/Store keeping, none of the persons applied for the said posts is having the qualification of one-year diploma in Book/Store keeping. The Directorate further observed that though the notification shows that the Organisation reserves the right to shortlist the applications received from the candidates with regard to qualifications and experience and though as per Rule 30 of the Departmental Canteen Employees (Recruitment and Conditions of Service) Rules, 1980, where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recoded in writing, relax any of the provisions of these rules with respect to any class or category of persons, such exercise does not seem to have undertaken and in that view of the matter opined that till the relaxation is not issued the recruitment process cannot be held appropriate and ineligible candidates cannot be allowed to continue in service and recommended that the candidates seven in number (applicants in all the above O.As and another) who do not possess essential qualification may be put under suspension and the matter may be brought to the notice of the Legal Department for seeking opinion on relaxation or issue of termination orders. On 06.07.2009, the said final investigation report of the Zonal Vigilance Directorate was forwarded to the Chief Vigilance Officer of the Organisation for approval and further necessary action. Thereafter, the impugned orders of removal of the applicants from service have been issued as stated supra. 5. Before the Tribunal, the contention of the applicants is that no procedure prescribed for taking disciplinary action has been followed and that not even a notice was issued before passing the impugned orders of removal and that the orders of their removal from service have been issued under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, which is not applicable to the facts of the case as, in view of the fact that their probation has not been extended and they have completed the period of probation of two years, they are deemed to have become permanent employees of the Organisation and so the orders of their removal from service are in gross violation of the principles of natural justice. Per contra, the learned Standing Counsel appearing for the Organisation before the Tribunal contended that under Rule 5 (1) of the Central Civil Services (Temporary Service) Rules, 1965, there is no need for issuance of a show cause notice. The Tribunal observing that there is no misrepresentation on the part of the applicants in view the fact that their probation has not been extended and they have served for about more than two and half years and that the law is well settled that if the probation period is not extended it must be deemed that the employee has completed the probation period and became permanent though no specific order is passed declaring the probation and therefore whenever the employer wants to remove such an employee the procedure prescribed under CCS (CCA) Rules is required to be followed and that the Rule 5 (1) of the Central Civil Services (Temporary Service) Rules, 1965, can be pressed into service only when the employer found that the service of the employee during the period of probation is unsatisfactory and that it is not even the case of the Organisation that the service of the applicants is found unsatisfactory during the period of probation and inasmuch as the Organisation did not raise any objection that the applicants are not possessing the essential qualification required for the said posts as per the notification, allowed the said O.As. setting aside the orders of removal of the applicants from service and directed the Organisation to reinstate them into service within one month from the date of receipt of that order, however, giving liberty to initiate appropriate proceedings against them as per the Rules, if they so desire. Aggrieved by the same, the Organisation filed these writ petitions. 6. This Court, while admitting these writ petitions, granted interim suspension of the orders passed by the Tribunal in the O.As. Thereafter, the applicants filed vacate petitions along with counters seeking to vacate the orders of interim suspension. 7. In the counters filed by the applicants, in addition to the grounds raised before the Tribunal, it is contended that the one- year diploma in Book/Store keeping course is not being conducted by any of the Government/private educational institutions in Andhra Pradesh State and the same is supported by the letter dated 12.05.2010 issued by the State Board of Technical Education, Andhra Pradesh, Hyderabad, in response to the application filed under the Right to Information Act. It is also contended that inasmuch as the Organisation reserves the right to shortlist the candidates with regard to qualification and experience and only after due selections they were appointed in the said posts, it shall be deemed that they have relaxed the qualification prescribed in the notification for the said posts and that a perusal of the final investigation report reveals that no candidate possessing the essential educational qualification i.e. one-year diploma in Book/Store keeping has applied in response to the notification and that even if it is to be taken that one has to possess the essential qualification in terms of the notification, the Government or the authority concerned has under Rule 30 of the Departmental Canteen Employees (Recruitment and Conditions of Service) Rules, 1980, the power to grant relaxation or exempt them from possessing such qualification keeping in view the fact that they have gained adequate practical experience during the past three years of service. 8. Heard Sri B.Narasimha Sarma, learned Standing Counsel for the Organisation who advanced arguments in support of the Organisation on the above lines. He placed reliance on the judgment of the Supreme Court given in ALIGARH MUSLIM UNIVERSITY vs. MANSOOR ALI KHAN[1] in support of the contention that no notice is required to be served before removing the applicants from service as in this case the doctrine of “useless formality” is applicable. He also placed reliance on the judgment of the Supreme Court given in H.F.SANGATI vs. REGISTRAR GENERAL, HIGH COURT OF KARNATAKA[2] in support of his contention that discharge of a probationer during probation period for unsuitability to hold a post was neither stigmatic nor punitive and hence, affording opportunity or holding of departmental enquiry before passing that order was not necessary and in cases of termination during probation period for unsuitability, the principles of natural justice have no application. He also placed reliance on the judgment of the Supreme Court given in C.V.SATHEESHCHANDRAN vs. UCO BANK[3] wherein it is held that expiry of the probation period does not necessarily mean confirmation and at the end/expiry of the period of probation, normally an order confirming the officer is required to be passed and if no such order is passed, he shall be deemed to have continued on probation unless the terms of appointment or the relevant rules governing the service conditions provide otherwise, in support of his contention that since the period of probation of the applicants has not been declared they are still on probation and so Rule 5 (1) of the Central Civil Services (Temporary Service) Rules, 1965, applies to them. 9. Per contra, Smt A. Deepthi, learned counsel appearing for two applicants, while reiterating the contentions raised before the Tribunal and the stand taken in the counters, placed reliance on the judgment of a Division Bench of this Court given in BESANT THEOSOPHICAL COLLEGE vs. J.JAHANARA BEGUM[4] and contended that when once the selection was made before a properly constituted selection committee in accordance with the Rules such selection is to be treated as a regular selection and it is not on temporary basis and so an employee who was selected by such selection committee cannot be terminated without notice and departmental enquiry. She also placed reliance on a judgment given in GUJARAT AGRICULTURAL UNIVERSITY vs. RATHOD LABHU BECHAR[5] wherein it is held that though there is an eligibility clause in a scheme that a worker should possess prescribed qualifications of a post at the time of the appointment, the worker who does not possess such qualification working in such a post for long number of years without any complaint by itself is a sufficient qualification and that long experience is equitable with such qualification and that the eligibility clause need to be modified and eligibility condition should be relaxed in favour of such worker and contended that in the case on hand also the applicants have completed about more than 2½ years of service without any complaint and so their cases can be considered by relaxing the eligibility qualification especially in a situation where such a course is not offered by either Government or Private educational institutions. She also relied upon the decision given in V.SREENIVASA REDDY vs. GOVT. OF A.P.[6] which dealt with the seniority between the direct recruits and temporary appointees and this case in our opinion has no application to the facts of the present case. She further contended that the Tribunal has not committed any jurisdictional error in holding that the applicants probation has not been extended and that the applicants have served for more than 2½ years after they joined in service and so it must be deemed that the employee has completed the probation period and became permanent though no specific order is passed declaring the probation. Sri D.Raghava Reddy, learned counsel appearing for four applicants, while adopting the arguments advanced by Smt A.Deepthi, added that some of them are commerce graduates and post-graduates. 10. The point to be decided is whether the Tribunal has committed any jurisdictional error. We have gone through the order passed by the Tribunal and also the Notification, which in its terms is clear and categorical. The essential qualification mentioned in the Notification is a pass in Matriculation with one- year diploma in Book keeping / Store keeping for the posts of Manager, Assistant Manager and Manager cum Salesman with three years experience. As per the final investigation report submitted by the Zonal Vigilance Directorate it is clear that no one possessing the qualification of one-year diploma in Book/Store keeping has applied for the said posts. It is also stated therein that as per Rule 30 of the Departmental Canteen Employees (Recruitment and Conditions of Service) Rules, 1980, where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recoded in writing, relax any of the provisions of these rules with respect to any class or category of persons, such exercise does not seem to have undertaken and in that view of the matter opined that till the relaxation is not issued the recruitment process cannot be held appropriate and ineligible candidates cannot be allowed to continue in service and recommended that the candidates seven in number (applicants in all the above O.As and another) who do not possess essential qualification may be put under suspension and the matter may be brought to the notice of the Legal Department for seeking opinion on relaxation or issue of termination orders. Subsequently, the orders of termination of the unofficial respondents from service of the Organisation have been issued which were impugned before the Tribunal. It may be true that the course of one-year diploma in Book/Store keeping is not being conducted by any of the Government/private educational institutions in Andhra Pradesh State. In such case, it is for the employees to seek relaxation of the same when the service rules provides for such relaxation. In this case, none of the unofficial respondents have applied for the said relaxation of the condition that one must possession the aforesaid qualification. 11. We have gone through the decision referred to by the learned counsel for the unofficial respondents given in BESANT THEOSOPHICAL COLLEGE case (4 supra) and GUJARAT AGRICULTURAL UNIVERSITY case (5 supra) and they have no application to the facts of the case. When an employee is taken into service, he/she shall be put on probation and the question of deemed confirmation does not arise. Rule 5 of the Central Civil Services (Temporary Services) Rules, 1965 which deals with the termination of temporary service reads as follows: “(1)(a) The services of a temporary Government Servant shall be liable to termination at any time by a notice in writing given either by the Government Servant to the appointing authority or by the appointing authority to the Government Servant; (b) the period of such notice shall be one month : Provided that the services of any such Government Servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or, as the case may be, for the period by which such notice falls short of one month.” 12. In the judgment of the Supreme Court given in C.V.SATHEESHCHANDRAN vs. UCO BANK[7] it is held that expiry of the probation period does not necessarily mean confirmation and at the end/expiry of the period of probation, normally an order confirming the officer is required to be passed and if no such order is passed, he shall be deemed to have continued on probation unless the terms of appointment or the relevant rules governing the service conditions provide otherwise. The unofficial respondents have failed to bring to the notice of this Court any terms of appointment or the relevant rules governing their service conditions which provide for automatic confirmation of the probationer after expiry of the period of probation. Therefore, the finding of the Tribunal in this regard that the law is well-settled that when the probation period is not extended, it must be deemed that the employee has completed the probation period and become permanent though no specific order is passed declaring probation goes contra to the judgment of Supreme Court and therefore it follows that the orders of the Tribunal impugned in these writ petitions are liable to be set aside. 13. However, in view of the peculiar facts of the case and the service of the unofficial respondents, the unofficial respondents are at liberty to make an application to the Organisation for their reinstatement into service by relaxing the prescribed qualification under Rule 30 of the Departmental Canteen Employees (Recruitment and Conditions of Service) Rules, 1980 keeping in view the service rendered by them and the experience gained all these days. The unofficial respondents may make such representations, if they so desire, within a period of two weeks from the date of receipt of a copy of this order and on receipt of such representation(s), the Organisation shall pass appropriate orders thereon in accordance with the relevant rules within a period of four weeks from the date of receipt of such representation(s). 14. Accordingly, these writ petitions are allowed setting aside the respective impugned orders of the Tribunal. No costs. ___________________________ GHULAM MOHAMMED, J. _______________________ N. RAVI SHANKAR, J. 30th November 2010 CVRK [1] (2000) 7 SCC 529 [2] (2001) 3 SCC 117 [3] (2008) 1 SCC (L&S) 529 [4] 1999 (1) AN.W.R.99 [5] 2001 AIR SCW 351 [6] AIR 1995 SC 586 [7] (2008) 1 SCC (L&S) 529