* THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY + WRIT PETITION Nos.23139 and 24952 of 2008 % 26-03-2009 W.P.No.23139 of 2008: # A.Narayana Rao PETITIONER VS. $ 1.The Vice-Chancellor, University of Hyderabad, Central University Post, Gachibowli,Hyderabad & Ors. ..RESPONDENTS ! COUNSEL FOR PETITIONER: MR.P.VINOD KUMAR (in both W.Ps.) COUNSEL FOR RESPONDENT Nos.1&2: MR. V.R.N.PRASHNTH COUNSEL FOR RESPONDENT No.3: MR. M.RATNA REDDY (SC FOR AP OPEN UNIVERSITY) < Gist: > Head Note: ? CITATIONS: 1) AIR 2000 S.C. 1080 2) (2000) 5 SCC 152 3) jt 2007 (12) SC 240 = 2008(1) SLJ 333 (SC) 4) AIR 1958 SC 36 (1) 5) (1978) 1 SCC 202 6) (1999) 2 SCC 21 7) (2002) 1 SCC 520 8) (1980) 3 SCC 428 9) AIR 1968 SC 1210 10) (1979) 4 SCC 263 11) (1991) 3 SCC 325 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SIXTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NOS.: 23139 and 24952 of 2008 W.P.No.23139 of 2008: Between: A.Narayana Rao S/o.A.Suraiah (Late) University of Hyderabad, Central University Post, Gachibowli, Hyderabad - 500 046. ..... PETITIONER AND 1 The Vice Chancellor, University of Hyderabad, Central University Post, Gachibowli, Hyderabad. 2 The Registrar, University of Hyderabad, Central University Post, Gachibowli, Hyderabad. 3 The Registrar, Dr.B.R.Ambedkar Open University, Road No.46, Jubilee Hills, Hyderabad - 500 033 (EO - Nominee Party) .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue an appropriate writ or order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 1st and 2nd respondents in issuing the Memo vide Ref.No. UH/P.I/A4/2008/775, dated 29.09.2008 in not confirming the services of the petitioner and relieving his duties on 29.10.2008 as illegal, arbitrary, unjust, unconstitutional and set aside the same and consequently direct the 1st and 2nd respondents to declare the probation of the petitioner and pass such other order or orders. Counsel for the Petitioner: MR.P.VINOD KUMAR Counsel for the Respondent Nos.1&2: MR.V.R.N.PRASHANTH Counsel for the Respondent No.3: MR.M.RATNA REDDY(SC FOR AP OPEN VARSITY) *** WRIT PETITION NO : 24952 of 2008 Between: \Mr. A. Narayana Rao S/o. A. Suraiah, University of Hyderabad, Gachibowli, Hyderabad. ..... PETITIONER AND Dr. B.R. Ambedkar Open University Rep. by its Registrar Road No.46, Jubilee Hills, Hyderabad. .....RESPONDENT Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue an order direction or writ particularly one in the nature of writ of MANDAMUS or any other appropriate writ declaring the proceedings in Lr.No.721/Estt/Admn.V/07-PF/2008-09 dated 1-11-2008 as illegal and arbitrary and consequently direct the respondent to continue the lien of the petitioner in the post of Assistant Executive Engineer in the respondent university. Counsel for the Petitioner: MR.G.VIDYASAGAR Counsel for the Respondent: MR.M.RATNA REDDY(SC FOR AP OPEN VARSITY) The Court made the following : COMMON ORDER: The petitioner-A.Narayana Rao joined the service of Dr.B.R.Ambedkar Open University (for short ‘Open University’) as Assistant Engineer on 15.5.1986. He was promoted as Assistant Executive Engineer on 17.2.1992. While working as Assistant Executive Engineer in the Open University, he applied for the post of Executive Engineer in University of Hyderabad pursuant to employment notification dated 14.5.2005. He was selected and appointed as Executive Engineer in University of Hyderabad (for short UOH) on 14.6.2007. The Open University accorded lien to him for a period of two years five months w.e.f. 14.6.2006. He was on probation as Executive Engineer in UOH. The period of probation was two years. According to him, he completed two years of probation on 13.6.2008 and therefore, he made requests many a time to UOH to declare his probation. The Registrar, University of Hyderabad issued order on 29.7.2008 extending his probation upto 13.12.2008 on the ground that he has a lien in his parent department (lending department) upto 13.12.2008. The Registrar of UOH issued memo dated 29.9.2008 conveying him the Vice Chancellor’s order dated 29.9.2008 not to confirm his services as Executive engineer and he would be relieved of his duties on 29.10.2008 i.e. after expiry of one month notice. The memo dated 29.9.2008 reads as hereunder: “It was decided by the competent authority not to confirm the services of Sri A.Narayana Rao as Executive Engineer in this University. Sri A.Narayana Rao will be relieved of his duties on 29.10.2008 (AN) i.e, after expiry of one month notice from today. He is directed to submit ‘No Dues Certificate’ before expiry of notice period.” Assailing the said memo, he filed W.P.No.23139 of 2008 and also moved WPMP No.32562 of 2008 seeking interim suspension of the memo pending the writ petition. An order of interim suspension came to be granted on 23.10.2008. While so, the Open University directed the petitioner to report to duty by 14.11.2008. It was informed to him that failure of reporting to duty shall be deemed to have resigned from the Open University service w.e.f. the date of expiry of deputation of foreign service as per Service Rule 22(2)(e)(iii). The letter dated 1.11.2008 came to be issued by the Registrar of the Open University to the petitioner on the ground that the maximum period of deputation of foreign service of the petitioner expires by 13.11.2008. The text of the letter dated 1.11.2008 reads as under: “With reference to the subject cited, it is to inform that the maximum period of deputation of foreign service is nearing to complete by 13.11.2008. As per Service Rules of Dr.BRAOU-part III of 22 Foreign Service (2)(e)(i) “No employee shall remain on Foreign Service for a total period exceeding five years in the total service. In view of the above, your request for extension of term of lien for another seven months is not considered. Hence, you are further informed to report to duty in the University by 14.11.2008 forenoon, failing which rejoin the duty shall be treated to have resigned from the University Service with effect from the date of expiry of Deputation on Foreign Service as per Service Rules 22(2)(e)(iii).” The said proceedings are assailed by the petitioner in W.P.No.24952 of 2008. 2. Since the two writ petitions are interlinked, they were heard together and are being disposed of by this common order. 3. The UOH has filed counter affidavit in W.P.No.23139 of 2008 and whereas the Open University has filed counter-affidavit in W.P.No.24952 of 2008. Both the Universities have moved vacate petitions in the respective writ petitions with a prayer to vacate the interim orders passed therein. 4. When the vacate stay petitions came up for consideration, with the consent of the learned counsel appearing for the parties, the writ petitions are taken up for final disposal. 5. The counter affidavit of UOH, in brief, is: The petitioner joined the service of UOH on 14.6.2006. He entered into a memorandum of agreement dated 19.6.2006. The period of probation is 24 months. His probation period is liable to be extended and the same shall be informed in writing atleast 30 days before the expiry of that period. At the end of the two years period, his probation came to be extended upto 30.12.2008 till which date he holds lien over his post of Assistant Executive Engineer in the Open University. The petitioner’s lien was only till 13.11.2008 but due to inadvertent calculation error, it was mentioned as 13.12.2008. The petitioners performance was graded as average and below average for the years 2006-07 and 2007-08 and thus the annual confidential reports of him reflected his evaluation of performance as unsatisfactory. Sri Sai Constructions, a contractor, who executed certain works, lodged a written complaint on 18.7.2008 pointing out the pendency of his bill with Junior Engineer and thereupon the petitioner advised the contractor to settle the final bill by paying bribe to the Junior Engineer and the said Junior Engineer was caught red handed by CBI while accepting the bribe. The petitioner was called upon to explain through a letter dated 26.12.2008 the reason for delaying the disposal of final bill by the officers working under his control. The petitioner submitted explanation on 5.8.2008 disputing the allegations leveled against him. The U.O.H. Engineer in his assessment report dated 17.11.2008 opined that the petitioner has not involved himself at site during the execution of works and that he does not sign the order books kept at the site and that he does not carry out the measurements jointly with the Assistant Engineer/Junior Engineer. The petitioner requested UOH to forward a letter addressed to the Open University, inter alia, requesting for transfer of his services rendered in the said University to UOH. A committee comprising of pro-Vice Chancellor-I and Pro-Vice Chancellor-II was constituted to evaluate the performance of the petitioner. The committee considered the request of the petitioner with regard to absorption in the service of the U.O.H. The committee having gone through the entire material has taken the view that the petitioner is not suitable to be retained in the post of Executive Engineer. Accordingly, a memo dated 29.9.2008 was served on the petitioner giving one month’s time. The petitioner submitted a representation dated 6.10.2008 to review the decision and take steps to confirm his services. Through a memo dated 22.10.2008 the earlier decision dated 29.9.2008 has been upheld and thus his request has been rejected. Since the performance of the petitioner was not satisfactory, the competent authority – Vice Chancellor of UOH deemed it fit and proper not to confirm the service of the petitioner and decided to give him exit by way of impugned memo so as to enable him to join the substantive post at the Open University. The petitioner has no right to the post held by him under the terms of his appointment. He is liable to be discharged at any rate during the period of his probation. Therefore, the impugned memo is perfectly valid and legal. It is further stated in the counter-affidavit that as per G.I.Dept. of Per. & Trig., O.M.No.18011/2/98-Estt.[c], dated 28.8.98 the decision to confirm the probationer or to extend the period of probation as the case may be should be communicated to the petitioner within six or eight weeks. Further the confirmation of probation after completion of period of probation is not automatic and shall be followed by final orders. The extension was communicated to the petitioner within the stipulated time. As the evaluation of petitioner’s performance was pending, his probation was extended till 13.12.2008 and as such there was no illegality or irregularity in extending the probation. The petitioner’s performance was found to be unsatisfactory and therefore, his services were not confirmed and the order of termination simplicitor came to be passed by way of impugned memo. 6. The counter affidavit of Dr.B.R.Ambedkar Open University, in brief, is: The petitioner joined in the Open University service as Works Supervisor on 15.5.1986 and later the post of Works Inspector was upgraded as Assistant Executive Engineer on 17.2.92. The respondent- University on the request of the petitioner has sanctioned lien on the existing post from 14.6.2006 to 13.11.2008 as approved by the Executive Council at its 135th meeting held on 30.8.2006. Earlier on the request of the petitioner, he was deputed to National Academy of Construction, Hyderabad from 24.12.98 to 23.6.2000 vide resolution 7/98 of the Executive Council meeting held on 13.1.1999 and to Greater Visakhapatnam Municipal Corporation, Visakhapatnam from 13.5.2005 to 7.6.2006 as approved by 127th Executive Council meeting held on 31.5.2005 vide Resolution No.3 on usual terms and conditions. Maximum period of lien is five years. Since the petitioner’s total period of lien has been expired on 13.11.2008, he has been asked to report to duty in the parent department-Open University by letter dated 1.11.2008. 7. The parties hereinafter referred to as they are arrayed in W.P.No.23139 of 2008. 8. Heard learned counsel appearing for the parties. 9. Learned counsel appearing for the petitioner submits that the petitioner completed two years of probation period in UOH as Executive Engineer and therefore, his probation is deemed to have been declared and in which case memo dated 29.9.2008 relieving the petitioner from the duties is illegal and arbitrary and the same is liable to be set aside. He further submits that since the order of discharge is preceded by some written complaint dated 18.7.2008 as stated in para. 6 of the counter affidavit, there being no regular enquiry, the order of discharge is opposed to the principles of natural justice and fair play. In a way he submits that the order of discharge in the circumstances of the case amounts to penalty and as the same is not preceded by a regular departmental enquiry, it is liable to be set aside. In support of his submissions, reliance has been placed on the decisions of the Supreme Court in V.P.Ahuja v. State of Punjab & Ors.[1]; Chandra Prakash Shahi v. State of U.P.,[2]; and Jaswantsingh Pratapsingh Jadeja v. Rajkot Municipal Corporation and Anr.[3]. 10. I n V.P.Ahuja’s case (1 supra), the Supreme Court held that a probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice. The termination order in the cited case founded on the ground that the probationer had failed in the performance of duties, administratively and technically. In such circumstances, the Supreme Court held that the order of termination is ex facie stigmatic and it could not have been passed without holding a regular enquiry and giving an opportunity of hearing to the probationer. 11. In Chandra Prakash Shahi’s case (2 supra), the Supreme Court reiterated the legal position that the temporary government servant or a probationer are as much entitled to the protection of Article 311 (2) of the Constitution of India 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, lift the veil of an innocuously worded order to look at the real face of the order and to find out whether it is as innocent as worded. The observations made by the Supreme Court in Paras.12, 26 and 27 read as hereunder: 12. Now, it is well-settled that the temporary Government servants 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, lift the veil of an innocuously worded order to 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, AIR 1958 SC 36 : 1958 SCR 828). 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. 26. In Radhey Shyam Gupta v. U. P. State Agro Industries Corporation Ltd., (1998) 8 JT (SC) 585 : (1999) 2 SCC 21 : (1999 AIR SCW 207 : AIR 1999 SC 609 : 1999 All LJ 315), which related to a probationer, the whole legal position was reviewed by Brother M. Jagannadha Rao, J., in an illuminating and research-oriented judgment and after considering various decisions including the decision in Kaushal Kishore Shukla's case (1991 AIR SCW 793) (supra) and a still later decision in Commissioner of Food and Civil Supplies, Lucknow, U.P. v. Prakash Chandra Saxena, (1994) 5 SCC 177 : 1994 (3) Scale 12 : (1994 AIR SCW 2537), so as to trace the development of law relating to this aspect of service jurisprudence, laid down that there has not been any conflict of opinion inter se various judgments including those laying down the "Motive" and "Foundation" theory. It was held that the question whether the order by which the services were terminated was innocuous or punitive in nature had to be decided on the facts of each case after considering the relevant facts in the light of the surrounding circumstances. Benefit and protection of Article 211(2) of the Constitution is available not only to temporary servants but also to a probationer and the Court in an appropriate case would be justified in lifting the veil to find out the true nature of the order by which the services were terminated. 27. The whole case law is thus based on the peculiar facts of each individual case and it is wrong to say that decisions have been swinging like a pendulam right, the order is valid; left, the order is punitive. It was urged before this Court, more than once including in Ram Chandra Trivedi's case (AIR 1976 SC 2547 : 1976 Lab IC 1647) (supra) that there was a conflict of decisions on the question of order being a simple termination order or a punitive order, but every time the Court rejected the contention and held that the apparent conflict was on account of different facts of different cases requiring the principles already laid down by this Court in various decisions to be applied to a different situation. But the concept of "motive" and "foundation" was always kept in view.” 12. I n Jaswantsingh Pratapsingh Jadeja’s case (3 supra), the Supreme Court after referring V.P.Ahuja’s case (1 supra) apart from other judgments observed that if the termination of service is stigmatic in nature, it amounts to punitive. The facts in the cited case are:- The appellant therein was a Major in the Army. He joined the Respondent Municipal Corporation (the Corporation) as a Vigilance Officer on or about 21.12.1999. He was put on probation for a period of six months. The power to appoint on a temporary basis is conferred on the Municipal Commissioner under the 2nd proviso appended to Section 53(3) of the Bombay Provincial Municipal Corporation Act, 1949 (BMPC Act). The period of probation provided for therein is six months. Although there does not exist any statutory provision in this behalf, the probation period was extended from time to time. At the first instance, it was extended by an order dated 04.07.2000 upto 31.12.2000 and yet again upto 31.12.2001 by an order dated 07.01.2001. The period of probation was yet again extended till 31.12.2002 by an order dated 31.02.2002. No further extension of probation was passed. Appellant continued to function as a Vigilance Officer. He, however, allegedly informed his superior officer that he had been suffering from some illness. He applied for leave. He proceeded on leave on and from 03.02.2003. The period of leave, however, expired. He did not join as allegedly he continued to suffer from the ailments. He telephonically informed his officer for extension of leave. He was, however, served with a show cause notice on or about 22.03.2003 asking him to show cause as to why his services should not be terminated for alleged misconduct of remaining absent from duty without prior leave. He submitted explanation and the same was found to be unsatisfactory. No departmental enquiry was conducted. A finding of fact was arrived at to the effect that the enquiry proceedings which were pending against him were not brought to its logical end. His period of probation was extended upto 30.04.2003 without assigning any reason. There was no such power in the appointing authority. However, he was discharged from service after payment of one month’s notice pay. He filed writ petition, which was dismissed by the learned Single Judge of Gujarat High Court by order dated 09.12.2004. He preferred an intra-court appeal thereagainst. The said appeal also ended in dismissal. He carried the matter to the Supreme Court and the Supreme Court came to the conclusion that the order of termination is punitive and it is not a discharge simplicitor. Para.27 of the judgment reads as hereunder: “27. From the discussions made hereinbefore, it is evident that termination of services of the appellant purporting to discharge him simplicitor cannot be accepted, being stigmatic in nature. The form of the order terminating the services coupled with the background facts clearly leads to the conclusion that the order impugned in the writ petition by the appellant was punitive.” 13. Learned Standing Counsel appearing for the U.O.H. submits that the petitioner has been discharged from service during probation period because of his unsuitability to the post of Executive Engineer and therefore, it is not a stigma to his career nor the action of the UOH can be termed as punitive. He would also contend that the petitioner came to be discharged from service during the extended period of probation and therefore, the action of UOH is in accordance with the terms of contract of service. He refers Condition No.2(4) of the Memorandum of Agreement dated 19.06.2006, which reads as hereunder: “2(4). In case the University decides not to confirm the Employee whether at the end of the twenty four months period of his/her probation or at the end of the extended period of probation, as the case may be, the Employee shall be informed in writing, at least, thirty days before the expiration of that period that he/she would not be confirmed and would, consequently cease to be in the service of the University at the end of such period of his/her probation.” He would also contend that the performance of the petitioner as Executive Engineer was graded as average and below average in the years 2006-07 and 2007-08 and thus, he was found unsuitable to the post of the Executive Engineer and accordingly, order of discharge came to be passed within the extended period of probation and therefore, order impugned in the writ petition cannot be termed as punitive or it is stigmatic on his career. In support of his submissions, reliance has been placed on the following decisions of the Supreme Court: 1) Purshotam Lal Dhingra v. Union of India[4] 2) Bishan Lal Gupta v. The State of Haryana & Ors.[5] 3) Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. & Anr.[6] 4) Chandra Prakash Shahi v. State of U.P. & Ors. (2 supra) 5) Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences & Anr.[7] 6) Oil and Natural Gas Commission v. Md. S. Iskender Ali[8] 14. In Md. S. Iskender Ali’s case (8 supra), a three Judge Bench of the Supreme Court held that if the termination of temporary service of probationer does not involve any stigma, it cannot be said that the order of termination attracts provisions of Article 311 of the Constitution of India. It is further observed that the temporary employee is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory, so that he may be retained. In the case of the probationer or a temporary employee who has no right to the post, termination of his service, finding him unsuitable for the post is valid and does not attract Article 311 of the Constitution of