Albert B.Jerald v. The Board of Directors, The Lawrence School, Lovedale, The Nilgiris & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 23-01-2009Coram:The Honourable Mr.Justice M.JAICHANDRENW.P.No.1182 of 2003Albert B.Jerald.. Petitioner.Versus1.The Board of Directors,The Lawrence School,Lovedale, The Nilgiris.2.The Headmaster,The Lawrence School,Lovedale, Nilgiris.3.Central Board of SecondaryEducation, Southern Region,1030-A.J.Block,Anna Nagar, Chennai-40... Respondents. Prayer: Petition filed under Article 226 of the Constitution of Indiaseeking for a writ of Certiorari, to call for the records pertainingto the order of termination in ACS/270, dated 12.9.2000, passed by the2nd respondent and quash the same. For Petitioner : Mr.S.James For Respondents : Mr.T.Poornam (R2) Mr.G.Nagarajan (R3)O R D E RHeard the learned counsel appearing for the petitioner and thelearned counsel appearing for the respondents. 2. This writ petition has been filed praying for a writ ofcertiorari, to call for the records pertaining to the order oftermination, passed by the second respondent in C/4101, dated14.12.2002, and quash the same. https://hcservices.ecourts.gov.in/hcservices/

3. It has been stated that the petitioner, having passed S.S.L.C,had joined the Indian Navy as N.M.E.R/Musician in the year 1981. Hehad taken voluntary retirement, on 31.8.2000. At the time of hisretirement he was serving as Chief Petty Officer/Band Master. On11.9.2000 the petitioner was appointed as a Band Master in theLawrence School, Lovedale, Nilgiris, in a permanent vacancy. He wasenjoying all the benefits of a permanent employee, including providentfund, gratuity and other benefits. He was residing with his family inthe school campus and his only son is studying in the Lawrence School.4. It has been further stated that as per the appointment orderthe petitioner was to be on probation for a period of two years, whichwas completed on 11.9.2002. Thereafter, he is deemed to have been madepermanent, as per the School Rules. While so, on 28.12.2002, thepetitioner was served with an order of termination, dated 14.12.2002,even though there was no complaint with regard to any deficiency inhis service. The termination order did not disclose any valid reasonfor terminating the services of the petitioner. No prior notice hadbeen issued to the petitioner regarding his termination. Even thoughthe Lawrence school is not an aided school, it cannot act in anarbitrary manner, as it is affiliated to the Central Board ofSecondary Education, coming under the control of the Government ofIndia. In such circumstances, the petitioner has preferred the presentwrit petition before this Court, under Article 226 of the Constitutionof India.5. In the counter affidavit filed on behalf of the secondrespondent the averments made on behalf of the petitioner have beendenied. It has been stated that the writ petition is not maintainableagainst the first and the second respondents as they do not come underthe definition of `State" within the meaning of Article 12 of theConstitution of India. Further, there is no specific relief claimedagainst the third respondent in the present writ petition. 6. It has been further stated that the petitioner was appointedas a Band Master, by an order, dated 12.9.2000. In the saidappointment order it was clearly provided that the petitioner would beon probation for a period of two years and that during the said periodthe services of the petitioner may be terminated on giving one month'snotice in writing or on payment of an amount equal to one month'ssalary. Subsequently, in view of the fact that the services of thepetitioner were not required, due to the exigencies of the management,the services of the petitioner was not extended or confirmed and by aletter, dated 14.12.2002, the probationary services of the petitionerwas terminated, with effect from 14.12.2002, on payment of a sum ofRs.7,920/-, being one month's notice pay. 7. It has been further stated that even though the petitioner wasappointed, on 12.9.2000, his claim that he was enjoying all the https://hcservices.ecourts.gov.in/hcservices/ benefits of a permanent employee is denied. The petitioner was onlyentitled to benefits and allowances mentioned in the order ofappointment, dated 12.9.2000. The fact that the petitioner might havebeen enjoying payment of Provident Fund Benefits etc., would notconfer any permanent status to his employment. The petitioner's sonwas permitted to study in the school in terms of the order ofappointment, dated 12.9.2000. However, he is not studying in theschool at present. 8. It has been further stated that the claim of the petitionerthat if the period of probation is not extended within a week from thedate of its expiry, the petitioner would be deemed to be a permanentemployee, as per the School Rules, is denied. There is no such ruleproviding for deemed confirmation, as alleged by the petitioner. Theprobationary services of the petitioner was not extended or confirmeddue to the exigencies of the school. It is not correct to state thatno reasons had not been stated in the order of termination, dated14.12.2002. The reasons for not extending or confirming theprobationary services of the petitioner has been set out in theletter, dated 14.12.2002. As a probationer, the petitioner does nothave any right to insist on reasons being given for his termination.The petitioner was paid one month's salary, as notice pay, inaccordance with the Staff Rules of the School. Since the petitionerwas not a permanent employee and as he was only on probationer noenquiry was held before the order of termination, dated 14.12.2002,had been issued. As such the said order is in accordance with law andthe Rules applicable to the staff of the Lawrence School, Lovedale.Hence, the writ petition is liable to be dismissed, as devoid ofmerits. 9. The learned counsel appearing for the petitioner had submittedthat since the Lawrence School is a public school, affiliated to theCentral Board of Secondary Education, it is required to follow all theregulations, as laid down by the Central Board of Secondary Education.As such, the said school is amenable to the writ jurisdiction of thisCourt, under Article 226 of the Constitution of India. The learnedcounsel had also submitted that, on 11.9.2002, the petitioner hadbecome a permanent employee of the school, as a Band Master, aftercompletion of two years of probationary period and therefore, hisservices cannot be terminated without holding an enquiry. As the Boardof Directors of the school is the competent authority regardingappointments, the termination order passed by the Headmaster of theSchool, the second respondent herein, is without jurisdiction.Further, the termination order is contrary to the policy of theGovernment of India to provide employment for Ex-servicemen, both inprivate, as well as in Government institutions. Even though thepetitioner has been working as a Band Master in the school withdevotion and sincerity, the impugned order of termination had beenpassed, terminating the services of the petitioner, arbitrarily, andwithout any valid reason. Since no notice had been given and no https://hcservices.ecourts.gov.in/hcservices/ enquiry had been conducted, the order of termination passed againstthe petitioner, is contrary to the principles of natural justice. 10. Per contra the learned counsel appearing on behalf of thefirst and the second respondents had submitted that the appointment ofthe petitioner was based purely on a private contract between thepetitioner and the Lawrence School, Lovedale. It was not in accordancewith the Central Board of Secondary Education Affiliation Bye-laws.There has been no letter of confirmation issued in favour of thepetitioner, confirming his services as a regular employee of theschool. The petitioner had continued to be under probation even afterthe expiry of two years since his appointment. Since the services ofthe petitioner had not been confirmed and regularised, in accordancewith the Rules of the school, there was no need to conduct an enquirybefore his services were terminated, based on the exigencies of theschool. 11. The learned counsel for the respondents 1 and 2 had relied onClause 4.9 (a) of the Rules relating to the general conditions of thestaff, which reads as follows:"All appointments to the staff shall ordinarily be made onprobation for a period of two years which may at the discretion of theHeadmaster or the Chairman in the case of members of the staffappointed by the Board be extended by another year. The appointee, ifconfirmed, shall continue to hold office till the age of 55 years,except as otherwise provided in these Rules. Every appointment shallbe subject to the conditions that the appointee is certified asmedically fit for service by a medical Officer nominated by the Boardor by the Resident Medical Officer of the School."Accordingly, the petitioner was on probation for a period of twoyears and he had continued as such even thereafter. Since thepetitioner had not been confirmed in service, he had continued as aprobationer. Even if the petitioner had been in service, as aprobationer, for the initial period of two years and continued as suchbeyond the said period, for one more year, he would not attain thestatus of a permanent employee of the school at the end of theprobationary period of three years, unless there is a specific orderissued by the management of the school confirming his services. Infact there is no provision prohibiting the extension of an employee'sprobationary period beyond the period of three years. Clause 4.9 (a)of the Staff Rules states that the appointee, if confirmed, shallcontinue to hold office till the age of 55 years, making it clear thatthere is no automatic confirmation of an employee in service without aspecific order of confirmation. Since the probationer has no right tothe post which he has acquired, the petitioner cannot challenge thetermination order, dated 14.12.2002, issued by the school, terminatinghis services. https://hcservices.ecourts.gov.in/hcservices/

12. The learned counsel appearing on behalf of the petitioner hadrelied on the judgment, reported in T.M.A.Pai Foundation and othersVs. State of Karnataka and others 2002(8) SCC 481 and A.P.John PaulrajVs. Central Board of Secondary Education (1999 WLR 23), with regard tothe maintainability of the writ petition. The learned counsel had alsorelied on the decision of the Supreme Court, reported in The State ofPunjab Vs. Dharam Singh (AIR 1968 SC 1210) to state that there wouldbe a deemed confirmation of service on the expiry of the probationaryperiod. Paragraph 3 of the said order reads as follows:"3. On the completion of the period of probation the authoritycompetent to make appointment may confirm the member in hisappointment or if his work or conduct during the period of probationhas been in his opinion unsatisfactory he may dispense with hisservices or may extend his period of probation by such period as hemay deem fit or revert him to his former post if he was promoted fromsome lower post:Provided that the total period of probation including extensions,if any, shall not exceed three years."13. The learned counsel had also relied on a decision of theSupreme Court, in Punjab National Bank by Chairman & Another Vs.Astamija Dash (2008(5) CTC 554), wherein it was held that thecompetent authority is to form the opinion that the officer concernedis not fit for confirmation, within the specified period of probation,including the period of its extension and not thereafter, if theservices of the probationer were to be terminated. It was also heldthat the question as to whether the doctrine of implied confirmationwould be applicable, in cases where probation is not expresslyconfirmed, would depend upon the statutory rules. 14. Per contra, the learned counsel appearing on behalf of thefirst and second respondents had relied on the following decisions insupport of his contentions. 14.1. In Kedar Nath Bahl V. The State of Punjab (AIR 1972 SC873), the Supreme Court, in Paragraph 9, has held as follows:"9......... The law on the point is now well settled. Where aperson is appointed as a probationer in any post and a period ofprobation is specified it does not follow that at the end of the saidspecified period of probation he obtains confirmation automaticallyeven if no order is passed in that behalf. Unless the terms ofappointment clearly indicate that confirmation would automaticallyfollow at the end of the specified period, or there is a specificservice rule to that effect, the expiration of the probationary perioddoes not necessarily lead to confirmation. At the end of the period ofprobation an order confirming the officer is required to be passed and https://hcservices.ecourts.gov.in/hcservices/ if no such order is passed and he is not reverted to his substantivepost, the result merely is that he continues in his post as aprobationer......."14.2. In Director (Production), Heavy Engineering Corporation andOrs. And Jagannath Prasad (1994(II) LLJ 694), the Supreme Court hadheld as follows:- "7...........We are unable to agree. Although Rule 1.8.1.2postulates the passing of an order extending the period of probation,the failure to pass such an order before the expiry of the period ofprobation does not mean that the employee should be deemed to havebeen confirmed on the expiry of the period of probation initiallyfixed. This is so because Rule 1.8.1.2 requires that a decision onsuccessful completion of period of probation should be taken in timeand orders issued. This means that an express order about successfulcompletion of probation is required and till such an order is issuedthe employee cannot be said to have been confirmed on the post onwhich he was promoted on probation."14.3. In State of Punjab and others Vs. Sukhwinder Singh (2005(5)SCC 569), the Supreme Court, in Paragraph-19, has held as follows:"It must be borne in mind that no employee whether a probationeror temporary will be discharged or reverted, arbitrarily, without anyrhyme or reason. Where a superior officer, in order to satisfy himselfwhether the employee concerned should be continued in service or notmakes inquiries for this purpose, it would be wrong to hold that theinquiry which was held, was really intended for the purpose ofimposing punishment. If in every case where some kind of fact-findinginquiry is made, wherein the employee is either given an opportunityto explain or the inquiry is held behind his back, it is held that theorder of discharge or termination from service is punitive in nature,even a bonafide attempt by the superior officer to decide whether theemployee concerned should be retained in service or not would run therisk of being dubbed as an order of punishment. The decision todischarge a probationer during the period of probation or the order toterminate the service of a temporary employee is taken by theappointing authority or administrative heads of various departments,who are not judicially trained people. The superior authorities of thedepartments have to take work from an employee and they are the bestpeople to judge whether an employee should be continued in service andmade a permanent employee or not having regard to his performance,conduct and overall suitability for the job. As mentioned earlier aprobationer is on test and a temporary employee has no right to thepost. If mere holding of an inquiry to ascertain the relevant factsfor arriving at a decision on objective considerations whether tocontinue the employee in service or to make him permanent is treatedas an inquiry "for the purpose of imposing punishment" and an order ofdischarge or termination service as a result thereof "punitive in https://hcservices.ecourts.gov.in/hcservices/ character", the fundamental difference between a probationer or atemporary employee and a permanent employee would be completelyobliterated, which would be wholly wrong."15. In view of the above decisions, the learned counsel hadcontended that a probationer has no right to the post and therefore,the petitioner cannot be deemed to have been confirmed as a regularemployee, after the expiry of the initial period of two years as aprobationer. Since there was a provision in the Rules of the school,in Clause 4.9(a), that all appointments to the staff shall,ordinarily, be made on probation for a period of two years, which may,at the discretion of the Headmaster or the Chairman in the case ofmembers of the staff appointed by the Board, be extended by anotheryear, the probationary period of the petitioner had been extendedbeyond the initial period of two years, by implication. Since aspecific order is required for confirming the services of thepetitioner, after the successful completion of his probationary periodand since no such order had been passed by the management of theschool confirming the services of the petitioner, he cannot claim anyright to the post, as though he was a confirmed employee of theschool. 16. In view of the submissions made by the learned counselsappearing on behalf of the petitioner, as well as the first and thesecond respondents and in view of the decisions placed before thisCourt and on a perusal of the records available, it is clear that thepetitioner has not shown sufficient cause or reason for this Court toset aside the impugned order of the second respondent, dated14.12.2002, as prayed for by the petitioner in the present writpetition. 17. According to the Service Rules of the school applicable tothe petitioner, the petitioner had continued as a probationer evenafter the completion of the initial period of two years ofprobationary period. There has been no confirmation of the services ofthe petitioner, as required under the said Rule. Thus, it is clearthat the petitioner does not have any right to the post in which hehad been initially appointed as a probationer. Unless, it is shownthat there was a specific order issued by the management of theschool, confirming the services of the petitioner, such a statuscannot be claimed by the petitioner based on a presumption of deemedconfirmation. Only if there are Service Rules providing for such acontingency, it could be held that there would be an automaticconfirmation of the services of an employee at the end of the periodof probation. Since no such Rules or Regulations exist, conferringdeemed confirmation on the employee, in respect of the LawrenceSchool, Lovedale, the claims made by the petitioner cannot besustained. As such, even if the petitioner had been terminated withouthaving been issued a notice and without conducting an enquiry, itcannot be said that the impugned order of termination passed by the https://hcservices.ecourts.gov.in/hcservices/ second respondent is arbitrary or illegal. In such view of the matter,the present writ petition is liable to be dismissed. Hence, it isdismissed. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.cshTo.1.Central Board of SecondaryEducation, Southern Region,1030-A.J.Block,Anna Nagar, Chennai-40.2.The Headmaster,The Lawrence School,Lovedale, Nilgiris. + 1 CC to Mr.T.Poornam,Advocate,SR.3212W.P.No.1182 of 2003JP(CO)EM/13.2.09