Patna High Court
Case Details
Patna High Court CWJC No.23161 of 2012 (10) dt.20-08-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.23161 of 2012 ====================================================== 1. Harihar Nath Pandey Son Of Shri Bishnudeo Pandey Resident Of Village & P.O.- Khangaon, P.S.- Chandi, District- Bhojpur (Bihar) .... .... Petitioner/s Versus 1. The Union Of India Through The Secretary, Ministry Of Human Resources Development Department, Shastri Bhawan, New Delhi 2. The Commissioner, Navodaya Vidyalaya Samiti, A 28 Kailash Colony New Delhi Now At B-15, Institutional Area, Sector- 62, Noida- 201203 3. The Deputy Commissioner, Navoday Vidyalaya Samiti, Regional Office, Boring Road, Patna 4. The Assistant Commissioner, Navodaya Vidyalaya Samiti, Regional Office, Boring Road, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. M.P. Dixit, Adv. Mr. Sanjay Kumar Choubey, Adv. For the Respondent/s : Mr. J.B. Karn, Sr. Advocate. Mr. Siddarth Prasad, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE VIKASH JAIN ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 9 20-08-2013 The petitioner is aggrieved by order dated 24.04.2012 passed by the Central Administrative Tribunal, Patna Bench dismissing O.A. No. 422 of 2009. The Tribunal declined to interfere with order dated 14.07.2009 discharging the petitioner from the post of Principal on probation for ‘unsuitability’. The Tribunal held that two successive Departmental Promotion Committees (hereinafter called the ‘DPC’) had found the petitioner unsuitable to hold the post. The
Legal Reasoning
Patna High Court CWJC No.23161 of 2012 (10) dt.20-08-2013 terminology ‘unsuitable’ was not stigmatic and he could not claim the right to a show cause notice before discharge. Confirmation of a probationer was the subjective satisfaction of the employee with which the Tribunal could not interfere. The petitioner joined as Principal of Navodaya Vidyalaya Samiti on 10.5.2006 after an Advertisement and selection process. He was to be on probation for two years. The DPC, on 26.8.2008 did not recommend his confirmation. The probation was extended by one year. The fresh DPC on 26.6.2009 also did not recommend him for confirmation leading to discharge on 14.7.2009 for unsuitability.
Legal Reasoning
Learned counsel for the petitioner submitted that the DPC on 26.08.2008 considered his ACR for 2006-07, 2007- 08 and the SPC (Special Performance Report) for 11 months and 22 months. The subsequent DPC on 26.06.2009 made a cumulative assessment. If the consideration and conclusion by the DPC on 26.8.2008 was inappropriate and stood vitiated for improper application of mind, the taint shall attach to the consideration of the same materials also by the DPC on 26.6.2009. The DPC on 26.8.2008 classified him as a person with average SPR/ACR. This was contrary to the entries Patna High Court CWJC No.23161 of 2012 (10) dt.20-08-2013 contained in the same. In the ACR for 2007-08, the petitioner in over all assessment at part-IV item-4 was rated as ‘Good’ by the reporting officer. The Deputy Commissioner, Navodaya Vidayalaya Samiti agreed with the same. The Reviewing Officer did not record any dissent or disagreement. Notwithstanding all of the above, the proceedings of the DPC dated 26.8.2008 classified him as ‘average’. Likewise, the SPR for the first 11 months dated 23.04.2007 in general appraisal classified him as ‘a sincere and devoted worker, dependable and integrity, a positive contributor, fit for retention and continuation’. The SPR for 22 months dated 25.01.2008 in general appraisal qualified him as ‘confident and sure about himself’. He was also declared fit for grant of increment. The observation that he should listen more than he speaks cannot be considered as adverse. It was only a personality trait. He was not identified in any of the specified parameters from I to IV with sub parameters in each as not meeting the requirements of the job or meeting it partly. Conversely, counsel for the respondent submitted that in the DPC on 26.08.2008, the petitioner was qualified as a person with average ACR and SPR. The DPC on 22.06.2009 found him to have average grading in ACR/SPR during 33 months and that is performance had remained unsatisfactory Patna High Court CWJC No.23161 of 2012 (10) dt.20-08-2013 holding him to be unsuitable. Confirmation or discharge were executive matters which had to be left to the subjective satisfaction of the respondents. The Court may not substitute its views. We have considered the submissions. The confirmation or discharge of a probationer is the domain of the employer. The latter is the best judge with regard to suitability or unsuitability of the probationer. The Court cannot substitute its views over that of the employer. The jurisdiction of judicial review has to be confined to errors in the decision making process and not the merits of the decision itself. If the Court finds error in the decision making process, the only appropriate order to be passed is to set aside the decision and remand it to the authorities for taking a fresh decision in accordance with law. Errors in the decision making process would include the taking into consideration of irrelevant materials, excluding relevant materials, or the conclusions apparently erroneous on the face of the materials. These are not conclusive but only indicative of some of the grounds for judicial review. Unless the Rules otherwise provide reasons need not be recorded for confirmation or non confirmation. We have already noticed that in his SPR for 11 Patna High Court CWJC No.23161 of 2012 (10) dt.20-08-2013 months and 22 months the petitioner was not qualified as ‘average or unfit for retention’. Similarly, the ACR for the year 2007-08 qualifies him as ‘good’ contrary to the materials placed before the DPC on 26.08.2008 qualifying him as ‘average’, a fact which undoubtedly must have weighed with the subsequent DPC on 22.06.2009. The Deputy Commissioner had endorsed his rating as ‘Good’. The Reviewing Authority did not dissent. In the facts and circumstances of the case in its entirety, we are satisfied to hold from the above discussion that the application of mind by the respondents to the issue for confirmation of the petitioner does not appear to have been appropriately done. We therefore set aside the order for discharge dated 14.07.2009 and remand the matter to the authorities for reconsideration. This shall not result in the immediate reinstatement of the petitioner. We may not be understood in any manner to have expressed any opinion with regard to the suitability or unsuitability of the petitioner for confirmation or discharge. At the risk of repetition, we clarify that the subjective authority and jurisdiction of the respondents remains unfettered, but in accordance with law. Patna High Court CWJC No.23161 of 2012 (10) dt.20-08-2013 The writ application is allowed. (Navin Sinha, J) Md. Ibrarul/- (Vikash Jain, J)