Municipal Board Bindki v. Narain Verma — 1977 DIGILAW 595 (ALL)

JUDGMENT M.P. Mehrotra, J. - This second appeal arises out of a suit whereby the plaintiff sought a declaration that the notice dated 1-11-1969 issued by the defendant No. 3 terminating his services was invalid and ineffective. A permanent injunction restraining the defendants Nos. 1 and 2 from interfering with the plaintiff's functioning as an Assistant Teacher in Nehru Inter College, Bindki, was also sought. The facts, in brief, are these. 2. The plaintiff claimed to have been appointed as an Assistant Teacher in the said college on 1-8-1968. The college is maintained and managed by the Municipal Board, Bindki. The plaintiff further claimed that he was confirmed in the said post on 1st February 1969. By the notice dated 1st November 1969, the defendant No. 3 Mahendra Bir Singh, who was the the Administrator of the superseded Municipal Board, terminated the services of the plaintiff on one month's notice. It was stated in the notice that on the expiry of one month from the date of the receipt of the said notices, the plaintiff's services were to stand determined. The notice was received by the plaintiff on 25th November, 1969. It was claimed that as the plaintiff was a confirmed employee in the post his service could not be terminated by giving one month's notice. He was entitled to a show cause notice and was entitled to be approved of the grounds on which his service was sought to be terminated. The defendant Municipal Board, Bindki, contested the suit on a variety of grounds. Inter alia, it was claimed that the appointment of the plaintiff was a temporary one or an ad hoc appointment in a such as much as there was no post against as which he might have been appointed. There was no provision for his post in the budget and in such circumstances the appointment could be terminated and was terminated by giving one month's notice. It was denied that he was confirmed on 1st February, 1969. The suit was said to be premature as before the suit could be filed in a civil court, the plaintiff was bound to exhaust departmental remedies which he had failed to do. The suit was also said to be not maintainable on the ground of the absence of a valid notice under section 326 of the Municipalities Act. 3. The suit was said to be premature as before the suit could be filed in a civil court, the plaintiff was bound to exhaust departmental remedies which he had failed to do. The suit was also said to be not maintainable on the ground of the absence of a valid notice under section 326 of the Municipalities Act. 3. The trial court framed the necessary issues and dismissed the same. It held that "the plaintiff was not a permanent employee of the Board but his appointment was made subject to the creation of the post and approval of the appointment by the Board. He was purely temporary." It was also held that the claim of the plaintiff that he became confirmed with effect from 1st February, 1969, was not correct. The trial court relied on Rule 11 of the U.P. Municipal Boards Servants (Enquiry, Punishment and Termination of Services) Rules, 1960 and held that as the plaintiff was temporary servant, his Services were liable to be terminated at any time by a notice in writing by the competent authority. Rule 9 of the said Rules was held to be inapplicable. On appeal however, the lower appellate court set aside the judgment and decree of the trial court. The lower appellate court upheld the finding of the trial court that the plaintiff was not a confirmed employee of the Board. However, on two grounds, the trial court's judgment was set aside. Firstly, it was held that it had not been shown that the District Magistrate was the Administrator of the Municipal Board, Bindki. No notification was produced to show that the District Magistrate had been appointed to function as the Administrator of the Board. Therefore, the defendant was not competent to issue the notice dated 1st November, 1962. The second ground on which the appeal was allowed by the said court was that the trial court wrongly thought that Rule 11 of the aforesaid Rules was applicable to the plaintiff. The lower appellate court held that the plaintiff was not a temporary servant but was a probationer. Hence, he was governed by Rule 9 and not by Rule 11. It was held that the procedure prescribed by Rule 9 was not observed inasmuch as no show cause notice was issued to the plaintiff and his explanation was not called for in respect of the action proposed to be taken against him. Hence, he was governed by Rule 9 and not by Rule 11. It was held that the procedure prescribed by Rule 9 was not observed inasmuch as no show cause notice was issued to the plaintiff and his explanation was not called for in respect of the action proposed to be taken against him. Therefore, the notice dated 1st November, 1969 purporting to put an end to the plaintiff's service was illegal inasmuch as it was violative of the mandatory provisions contained in Rule 9 of the aforesaid Rules. The appeal was accordingly allowed. 4. The Municipal Board, Bindki, has come up in the instant second appeal and in support of thereof I have heard Sri M.C. Dwivedi, learned counsel for the appellant. Sri S.N. Agrawal, learned counsel for the plaintiff-respondent, has made his submissions in opposition. Certain provisions of law have to be noticed for deciding the controversy at hand. Sections 71 and 73 of the U.P. Municipalities Act are as follows: "71. Power of board to determine permanent staff. Except as provided by secs. 57, 66, 68 and 70, (and subject to any general or special directions as the State Government may from time to time Issue) a board may, by special resolution, determine what servants are required for the discharge of the duties of the board and their qualifications and condition of service. "73. Appointment, etc. of servants on the educational establishment. (1) subject to the provisions of sub-section (2) the appointment of persons on the educational establishment of a board shall be made by such authority as may be specified in this behalf by the State Government, and different authorities may be specified for different classes of posts on the establishment. (2) The State Government may make rules regulating the recruitment, punishment, appeal and other conditions of service of persons appointed to the educational establishment of a board." 5. The U.P. Municipal Board Educational Establishment Services Rules, 1954, were framed under section 73(2) but it is conceded as the bar that the said rules are applicable to Junior High Schools and Primary Schools and not to an Intermediate College. The U.P. Municipal Board Educational Establishment Services Rules, 1954, were framed under section 73(2) but it is conceded as the bar that the said rules are applicable to Junior High Schools and Primary Schools and not to an Intermediate College. These rules have been referred to in the judgment of the trial court and it was observed: "Though these rules do not relate to the services of plaintiff on the principles governing the services of teachers upto the standard of Junior High Schools and in absence of Rules being shown I am of the opinion that the plaintiff could have not been confirmed with effect from 1-8-1969 for by that time he had completed only the half of the period of probation." In my view, when the said rules were not applicable to the plaintiff, there was no point in saying that the principle of the rules could be made applicable to him. There is another notification No. A 204/XV-2233-55 dated August 6, 1955 which was issued under section 73(1) wherein authorities were specified for the purpose of appointment of persons to the posts in Higher Secondary Schools maintained by the Municipal Board. This notification provides that Board shall be the appointing authority in respect of posts of the Head Master, Head Mistress and Principal of Higher Secondary Schools in the scale of Rs. 200-10-350 per mensem and Rs. 250-20-450-25-500 per mensem respectively. The President of the Board is the appointing authority in respect of posts in (a) Lecturers scale of Rs. 150-10-190-250 per mensem (b) Trained Graduates scale of Rs. 120-6-168-EB-8-200 per mensem and (c) Trained undergraduates scale of Rs. 75-5-100-EB-6-140 EB-7 175 (CT) and Rs. 45-2-65 EB-3-80 (J.T.C.) per mensem. This notification was applicable to posts in Higher Secondary Schools and in view of the definition of Higher Secondary Schools given in the Education Code, it has to be held that Intermediate Colleges are covered by this notification. 6. The Uttar Pradesh Municipal Boards Servants (Enquiry, Punishment and Termination of Services) Rules, were published in the U.P. Government Gazette, dated April 16, 1960, and counsel for the parties are agreed that these rules will be applicable to the case of the plaintiff. 6. The Uttar Pradesh Municipal Boards Servants (Enquiry, Punishment and Termination of Services) Rules, were published in the U.P. Government Gazette, dated April 16, 1960, and counsel for the parties are agreed that these rules will be applicable to the case of the plaintiff. Explanation to Rules 4 lays down as follows:- "Explanation : The discharge : (a) of a person appointed on probation, during or at the end of the period of probation, in accordance with the terms of the appointments and the rules governing the probationary service, or (b) of a person appointed otherwise than under contract to hold a temporary appointment, on the expiration of the period of the appointment, or (c) of a person appointed otherwise than under contract to hold a temporary appointment for an unspecified period, in accordance with the provisions of rule 11, or (d) of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dismissal within the meaning of this rule or of rule 5." Rule 9 lays down as under :- "9. Where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation or of a temporary servant for any specific fault or on account of his unsuitability for the service, it shall not be necessary to observe the detailed procedure laid down in rule. In such cases, the probationer or temporary servant concerned shall be apprised of the grounds of such proposal, given an opportunity of showing cause against the action proposed to be taken against him, and his explanation in this behalf, if any, shall be duly considered before orders are passed by the competent authority." Rule 11 sub-rule (1) and (2) provide as follows:- "(1) Subject to the provisions of rule 9, the services of a temporary servant shall be, liable to termination at any time by notice in writing given either by the servant to the competent authority, or by the competent authority to the servant. (2) The period of such notice given either by the competent authority to the servant or by the servant to the competent authority shall be one month provided that in the case of notice by the competent authority the latter may substitute for the whole or part of this period of notice, pay in lieu thereof ; and provided further that it shall be open to the competent authority to relieve a servant without any notice or accept notice for a shorter period, without requiring the servant to pay any penalty in lieu of notice." 7. Sri Dwivedi's contention is that the initial appointment of the plaintiff was not against any post and it was purely ad hoc appointment. He says that the trial court returned a finding to the said effect and the lower appellate court did not upset the said finding. The said finding should, therefore, be held to be confirmed by the lower appellate court. Counsel's contention is that in this view of the matter, the plaintiff was really not a probationer and was a temporary servant liable to be discharged from the service by one month's notice in the alternative, even if the plaintiff was probationer, his service did not automatically get confirmed after the one year's period of probation He has placed reliance on the Supreme Court pronouncement in State of Bihar v. Gopi Krishna Prasad, AIR 1960 SC 689 . The Supreme Court referred to its earlier judgement in Purshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 and called out the following propositions from the said judgement: "Appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated, without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant or removing him from service. 2. The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment. 3. But if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. 3. But if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Article 311 (2) of the Constitution. 4. In the last mentioned case, if the probationer is discharged on any one of those grounds without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it will amount to a removal from service within the meaning of Article 311 (2) of the Constitution and will, therefore, be liable to be struck down. 5. But, if the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant can have no cause of action even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding on account of his misconduct, or inefficiency, or some such cause." 8. In Municipal Board, Allahabad v. Jagmohan Prasad and another, 1961 ALJ 52 a Division Bench laid down that: "A Municipal Board has an implied power subject to its rules and regulations and to the terms of any contracts of service, to terminate the services otherwise than by way of punishment of its employees by giving them reasonable notice." 9. The State of Punjab v. Dharam Singh, AIR 1968 SC 1210 was a special case where the service rules fixed a certain period of time beyond which the probationary period could not be extended and the employee concerned was allowed to continue beyond the maximum period of probation permissible. In such circumstances, it was held that by implication, the employee stood confirmed and he should not be treated to be a probationer after the expiry of the maximum period of probation permissible under the rules. The court, distinguished such a case from those cases where no maximum period of probation is prescribed. In such circumstances, it was held that by implication, the employee stood confirmed and he should not be treated to be a probationer after the expiry of the maximum period of probation permissible under the rules. The court, distinguished such a case from those cases where no maximum period of probation is prescribed. It was observed: "This court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation, he should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules. In such a case, an express order of confirmation is necessary to give the employee a substantive right to the post, and from the very fact that he is allowed to continue in the post after the expiry of the specific period of probation, it is not possible to hold that he should be deemed to have been confirmed." 10. In Samsher Singh v. State of Punjab and another, 1975 SLJ 1 Rule 9 Punjab Civil Services (Punishment and Appeal) Rules, 1952, came up for interpretation. It was held that the order of termination in the said case was by way of punishment and therefore, hit by Article 311 (2) of the Constitution of India. The lower appellate court has relied on this authority for holding that in the instant case also Rule 9 should be similarly interpreted. 11. In Dr. Mukhtar Ahmad v. State of U.P. and another, Spl. Appeal No. 135 of 1975, Decided on 22.12.1975. decided on a Division Bench of this court held that even after the expiry of the period of two years of probation the probationer did not get automatically confirmed and his services were liable to be terminated on one month's notice. 12. Sri S.N. Agrawal, learned counsel for the plaintiff-respondent contended that the appointment letter Ext. 1 clearly stated that the plaintiff was being appointed as an Assistant Lecturer on one year's probation and, therefore, it should be deemed that he was appointed in a clear vacant post and the appointment was not a temporary one. 12. Sri S.N. Agrawal, learned counsel for the plaintiff-respondent contended that the appointment letter Ext. 1 clearly stated that the plaintiff was being appointed as an Assistant Lecturer on one year's probation and, therefore, it should be deemed that he was appointed in a clear vacant post and the appointment was not a temporary one. He further contended that the salary was being paid by the Board from month to month and that clearly indicated the approval by the Board by implication. Counsel next contended that in the notice dated 1st November 1969 terminating the plaintiff's services it was not stated that the termination was in consequence of the disapproval of the Municipal Board. Lastly, Sri Agrawal contended that the lower appellate court rightly placed reliance on AIR 1974 S.C. 2192 and that Rule 9 of the U.P. Municipal Board Servants Inquiry, Punishment and Termination of Service) Rules, 1960, on a proper interpretation, has laid down that the probationer is entitled to a notice in every case of termination and in the case of a temporary servant he is entitled to a notice under the said rules in case of any specific fault or on account of his unsuitability for the service. In the alternative, Sri Agrawal contends that even if it be held that the grounds for specific fault or unsuitability for the job were applicable to the probationers also, then these are the only two grounds on which the probationers services could be terminated and a show cause notice was, therefore, necessary. He placed reliance on the following observation of Chief Justice Ray in the said Supreme Court case: "Rule 9 provides that where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation, for any specific fault or on account of the unsatisfactory record or unfaithful reports implying the unsuitability for the service, the probationer shall be apprised of the grounds of such proposal, and give an opportunity to show cause against it, before orders are passed by the authority competent to terminate the appointment." I have considered the rival contentions raised from the bar. In my opinion, this appeal deserves to be allowed. The appointment letter Ext. 1 has been signed by the President of the Municipal Board, Bindki as the Manager of the Nehru Inter College, Bindki. In my opinion, this appeal deserves to be allowed. The appointment letter Ext. 1 has been signed by the President of the Municipal Board, Bindki as the Manager of the Nehru Inter College, Bindki. It seems to me that in terms of the aforesaid notification dated August 6, 1955 the appointing authority was the President of Municipal Board and, therefore in the instant case, he should be held to have the authority to appoint the plaintiff respondent. However in the appointment letter, it was observed that the appointment was being made in anticipation of the Municipal Board, Bindki. Shri Agrawal contends that this rider was uncalled for and even illegal in view of the clear provision in the aforesaid notification that the President was the appointing authority so far as the plaintiff was concerned. I cannot accept this contention. It seems to me that the trial court correctly held that in the facts of the instant case, there was no post created by the Municipal Board under section 71 to which the plaintiff could be appointed. Therefore, it was obligatory that the Board's approval should be obtained for the creation of the post and for the appointment in the said post of the plaintiff. Hence, the President, in the appointment letter made it explicit that the appointment was subject to and in anticipation of the approval of the Municipal Board, Bindki. The trial court was entitled to record the said finding in view of the evidence on record. The Head Master was examined and the clearly stated that there was no provision for the post in which the plaintiff had been appointed and there was no budgetary allocation for the same. Learned counsel for the plaintiff respondent has assailed the said finding and has referred to me Rule 11(3) but in my view the same is not relevant to determine whether in the facts of the instant case there was or there was no post to which the plaintiff would be appointed. The said question undoubtedly to a large extent is a question of fact and no light can be said to be thrown on the said question by sub-rule (3) of rule II. Even apart from the said aspect of the matter, I apprehend that it should not be open to the plaintiff to repudiate and question the condition contained in the appointment letter which was issued to him. Even apart from the said aspect of the matter, I apprehend that it should not be open to the plaintiff to repudiate and question the condition contained in the appointment letter which was issued to him. He joined the post on the basis of clear representation to him that his appointment was subject to and in anticipation of the approval of the Municipal Board, Bindki. Whether such approval was needed in law or not is a different question. Even if the appointing authority had the competence to make the appointment of his own, there is nothing, in any view, to prevent such an authority from making an appointment subject to the approval of the Board. Even if that approach of mine is not correct, still, as I stated above in my view, the plaintiff cannot be allowed to question the appointment letter and say while one part of it relating to his appointment is good, the other part relating to the condition of such appointment is bad in law. In my opinion, it was for the plaintiff to substantiate his allegation in the plaint that he was a permanent employee of the Municipal Board. He placed reliance on a letter dated 2nd April 1969, (Ext 2). But both the courts below concurrently did not place reliance on the said letter and have not been persuaded to hold that the courts below were wrong in not relying on the said document. The plaintiff did not refer to any other document from which it would be held that the Municipal Board, Bindki, as such, had approved his appointment and in the absence of such specific approval, I hold that when the defendant No. 3 was appointed the Administrator, in terms of section 31-B of the Municipalities Act, he should be deemed to have disapproved of the plaintiff's appointment. The plaintiff could not raise any grievance to the notice terminating his service because it was the Board which was recording its disapproval to his appointment and in specific terms of the appointment letter, the plaintiff's appointment was subject to the approval by the Municipal Board, Bindki. 13. Now, adverting to the controversy whether the plaintiff was a temporary servant or a probationer of permanent servant in my opinion, there can be no question of treating the plaintiff to be a permanent servant. 13. Now, adverting to the controversy whether the plaintiff was a temporary servant or a probationer of permanent servant in my opinion, there can be no question of treating the plaintiff to be a permanent servant. I am not impressed by the argument of the learned counsel for the plaintiff respondent that as during the period when the plaintiff worked as an employee of the Board, he was paid his salary from month to month, it should be deemed that the Board impliedly approved his appointment. Even temporary servants and ad hoc appointees are paid their emoluments but this cannot lead to the inference that such payment to such employees amounts to the specific approval of the employer to a permanent appointment. In my opinion, when in the appointment letter Ext. 1, it was given out to the plaintiff that his appointment was subject in anticipation of the approval by the Municipal Board, what was contemplated was a specific approval by a resolution of the Board and not an implied approval merely on the ground that salary was being paid to him from month to month of his employment. Similarly, I do not think that the other contention raised by the learned counsel that because in the notice dated 1st November 1969, it is not specifically stated that the appointment was being terminated because the Municipal Board did not approve the same, it is not open to the Board to set up the said plea. It was not necessary that such statement should have been made in the said notice. The notice was being given by the Administrator who was the Board in terms of section 31B of the U.P. Municipalities Act and there was no obligation on the Board to give any reason whatsoever. He was entitled to terminate the plaintiffs service by a simple notice and without stating any reason or ground for the same. 14. Lastly, I shall consider the contention raised by Sri Agrawal that on a true interpretation of Rule 9 the probationer should be entitled to a notice in every circumstance. In my opinion, the said rule, the same makes no distinction between a prabationer or a temporary servant. 14. Lastly, I shall consider the contention raised by Sri Agrawal that on a true interpretation of Rule 9 the probationer should be entitled to a notice in every circumstance. In my opinion, the said rule, the same makes no distinction between a prabationer or a temporary servant. Both are entitled to a show cause notice in two situations namely (I) where the employment is sought to be terminated for any specific fault and (2) where such employment is sought to be terminated on account of unsuitability for the job. Similarly, the alternative contention that a probationer's services can be terminated only when he was guilty of any specific fault or on account of his unsuitability for the service is also not acceptable to time. In this connection, attention is invited to the Explanation to Rule 4 of the U.P. Municipal Boards Servants (Inquiry, Punishment and Termination of Service) Rules which has been reproduced above. Clause (a) of the said Explanation clearly lays down that where a probationers' service is terminated in accordance with the terms of the appointment and the rules governing the probationary service, than such discharge shall not be deemed to be removal or dismissal under Rule 4 or Rule 5. This clause of the Explanation clearly negatives the learned counsel's contention that by virtue of Rule 9, in every case, a probationer is entitled to a show cause notice or that his services can be terminated only when he is found to be guilty of specific fault or on account of his unsuitability for the service. In my view therefore, the plaintiffs' services could be terminated even without a notice under Rule 9. Such termination would be in accordance with the appointment letter which was issued to the plaintiff which clearly stated that his appointment was in anticipation of the Municipal Board's approval. The Board chose not to give such approval and terminated the service. In my view therefore, the plaintiffs' services could be terminated even without a notice under Rule 9. Such termination would be in accordance with the appointment letter which was issued to the plaintiff which clearly stated that his appointment was in anticipation of the Municipal Board's approval. The Board chose not to give such approval and terminated the service. My interpretation of Rule 9 is that if the Municipal Board chooses to terminate the employment of the probationer for any specific fault or on account of his unsuitability for service, then the procedure laid down in the said rule has to be observed but it was open to the Municipal Board to terminate the services of a probationer even without recourse to Rule 9 where the termination was not on account of any specific fault or on account of the unsuitability for the job. In the facts of the instant case, it was open to the Municipal Board not to give the approval to the appointment in terms of the appointment letter Ext 1. 15. In my view, the decision of the Supreme Court in AIR 1974 S.C. 2122 : 1975 S.L.J. (Short Note 1) is not an authority for holding that in every case a probationer can only be removed on two grounds, namely, on the ground of specific fault or on the ground of unsuitability for the job. It is not clear from the judgment of the Supreme Court as to what were the specific terms of Rule 9 in the said case. The propositions which were laid down by the Supreme Court in AIR 1960 S.C. 689 (supra) clearly provide that it is open to the employer to terminate the service of the probationer by a simple notice and without making any enquiry against him. In such a situation, the probationer cannot have any cause of action. In my view, as Rule 9 in the U.P. Municipal Boards Servants (Inquiry, Punishment and Termination of Service) Rules stands, it is not possible to contend that a change has been brought about in the aforesaid position of law laid down by the Supreme Court and to say that now it is obligatory that a probationer must be issued a show cause notice before his services can be terminated either during or at the end of the period of probation. 16. 16. I think Sri Dwivedi is right in contending that in the facts of the instant case, there was 110 implied confirmation of the plaintiff after the expiry of the period of one year even if he were to be treated as a probationer and not as a temporary employee. The case law which has been discussed above is very clear and it has not been argued before me that there was any maximum period of probation prescribed in the instant case or that the plaintiff had been allowed to continue beyond such maximum period, if any. Therefore, the instant case will not be governed by the ratio laid down in AIR 1968 SC 1210 (Supra) but will be governed by the law laid down in AIR 1960 SC 689 and other cases. 17. This appeal accordingly succeeds. The judgment and decree of the lower appellate court are set aside and that of the trial court restored. In the circumstances of the case, there will be no order as to costs.