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2010 DIGILAW 164 (CAL)

Baishali Choudhuri v. State of West Bengal

2010-02-18

BISWANATH SOMADDER

body2010
Judgment : Affidavit of service filed today be kept with the record. 2. Heard the learned Advocates for the parties. The instant writ petition has been filed by a former Assistant Teacher of the School named St. John's Diocesan Girls' Higher Secondary School primarily complaining of wrongful termination of her service by the authorities of the concerned School on 11th December, 2009. From the documents annexed to the writ petition, it appears that the writ petitioner was appointed as an Assistant Teacher in the Secondary Department of the concerned School with effect from 12th January, 2009, purely on temporary basis at a consolidated salary of Rs.10,000/- per month. This appears from the appointment letter dated 3rd December, 2008, being Annexure P-1 to the writ petition. In the said letter dated 3rd December, 2008 it has also been stated as follows : "You will be guided by existing service conditions of the School. You are placed on probation for six months during which period your services may be terminated with one month's notice or one month's pay in lieu thereof, on either side, without assigning any reason thereof. The school reserves the right to extend your probation for a further period of six months if found necessary. Your services will be confirmed after the satisfactory completion of your probationary period." 3. Subsequently, by a letter dated 18th September, 2009, addressed to the Hony. Secretary of the concerned School the writ petitioner prayed for regularization of her service by confirming her in the post with a further prayer to the said authority not to fill up the post which was held by her in any manner whatsoever. She ended her said letter dated 18th September, 2009, by stating that any attempt to fill up the post, which she held from outside, would be contrary to law. This letter dated 18th September, 2009, appears at Annexure P-2 to the writ petition. From the other documents annexed to the writ petition, it appears that on 19th September, 2009, the authorities of the concerned school extended the probationary appointment granted to her earlier for a further period of six months up to 11th January, 2010. In the said letter dated 19th September, 2009, it was further stated that she would continue to receive the consolidated amount of Rs. In the said letter dated 19th September, 2009, it was further stated that she would continue to receive the consolidated amount of Rs. 10,000/- per month during the extended period of her probation and other terms and conditions of the appointment letter dated 3rd December, 2008 were to remain unchanged. 4. Subsequently, however, by a letter dated 11th December, 2009, the authorities of the concerned School terminated her services with immediate effect. By the said letter dated 11th December, 2009, she was also informed that she would be paid one month's salary in lieu of notice in terms of the probationary appointment letter dated 3rd December, 2008, read with the extension of her probationary appointment in terms of the subsequent letter dated 19th September, 2009. A cheque towards her pay for the period 01.12.09 till 11.12.09 less deductions and another cheque towards one month pay in lieu of notice were also enclosed in the said letter dated 11th December, 2009. 5. The learned Advocate appearing on behalf of the petitioner submits that her appointment was initially on a temporary and probationary basis as will appear from the letter dated 3rd December, 2008. Subsequently, by dint of the extension granted by the school on 19th September, 2009, the probationary appointment should be deemed to be construed as a permanent one and in such circumstances her termination from service was arbitrary and wrongful. In this regard, the learned Advocate for the petitioner draws this Court's attention to the applicable Rules, namely, the "Special Rules" for the Management of Secondary Schools established and run by the Christian Church Missionary Society (Board) Religious Society, Subsidiary Trust or their Successors in Law, in the State of West Bengal, which has been brought into effect by the Government of West Bengal, Education Department (Secondary) in terms of notification dated 23rd May, 1974, in exercise of the power conferred by Rule 33 of Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969. In particular, he refers to Rule 11 of the Special Rules, which reads as follows:- "11. Appointment, confirmation, dismissal, appeal and termination: (1) In all cases of appointments, permanent or temporary, the School Committee shall issue letters of appointment specifying the terms and conditions governing such appointments. In particular, he refers to Rule 11 of the Special Rules, which reads as follows:- "11. Appointment, confirmation, dismissal, appeal and termination: (1) In all cases of appointments, permanent or temporary, the School Committee shall issue letters of appointment specifying the terms and conditions governing such appointments. When a permanent appointment is made to the selected candidate shall be on probation for a specified period, ordinarily not exceeding one year, after which he or she may not be confirmed, as determined by the School Committee. In the absence of communication of any decision to the contrary, an employee shall be deemed to have been confirmed on the expiry of the period of probation. Where the Committee thinks it necessary, the probationary period of an appointee may be extended up to a period not exceeding one year, or his services terminated if his performance during such extended period is not satisfactory. In either case he or she may appeal to the Governing Body of the respective school. The decision of the Body in such cases shall be final. In any such case the decision of the School Committee shall be notified in writing to the employee on probation, at least six weeks before the expiry of the period of probation". 6. Referring to the above Special Rules he submits that in the instant case the writ petitioner was given permanent appointment and she was to be a probationer only for a specified period, ordinarily not exceeding one year, and in the absence of communication of any decision to the contrary, she shall be deemed to have been confirmed on the expiry of her period of probation. The learned Advocate for the petitioner further submits that if the committee thought it necessary, the probationary period of an appointee could be extended up to a period not exceeding one year or her services terminated if her performance during such extended period was net satisfactory. However, in either cases, she could appeal to the Governing Body of the school. In the facts of the instant case, the learned Advocate for the petitioner submits that the right of appeal has been denied to her since the Headmistress and the Hony. However, in either cases, she could appeal to the Governing Body of the school. In the facts of the instant case, the learned Advocate for the petitioner submits that the right of appeal has been denied to her since the Headmistress and the Hony. Secretary themselves form part of the Governing Body and the decision of the school terminating her services was not informed in writing to her at least six weeks before expiry of the period of probation which is a requirement under Rule 11. The learned Advocate for the petitioner relies on several decisions to substantiate his contention. Referring to the judgment of the Supreme Court rendered in the case of The State of Punjab v. Dharam Singh, reported in AIR 1968 SC 1210 , he submits that where the service rules fixed a certain period of time beyond which the probationary period cannot be extended and an employee appointed or promoted to a post on a probation is allowed to continue in that post after completion of the maximum period of probationer without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rules forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication. 7. Referring to a Division Bench judgment of this Court in the case of Jyotish Chandra Biswas v. Life Insurance Corporation of India & Ors., reported in 2000 (2) Cal LJ 393, he submits that in the facts of the instant case, the writ petition ought to be allowed only on the ground that the Hony. Secretary and the Headmistress of the concerned School, who issued the termination letter dated 11th December, 2009, are also part of the Governing Body of the concerned school, and, therefore, the writ petitioner's right of appeal before the Governing Body has been taken away by the school by virtue of the said letter dated 11th December, 2009. 8. Secretary and the Headmistress of the concerned School, who issued the termination letter dated 11th December, 2009, are also part of the Governing Body of the concerned school, and, therefore, the writ petitioner's right of appeal before the Governing Body has been taken away by the school by virtue of the said letter dated 11th December, 2009. 8. He also relies on a judgment of the Supreme Court in the case of Abhijit Gupta v. S.N.B. National Centre, Basic Sciences & Ors., reported in 2006(4) SCC 469 and submits that an employee on probation should be subjected to assessment of work and should be made aware of the defects in her work and deficiencies in her performance so that she could improve herself, but in the facts of the instant case, the concerned authorities of the school did net do so. 9. Referring to another judgment of the Supreme Court in the case of Registrar, High Court of Gujarat & Anr. v. C. G. Sharma, reported in 2005 (1) SCC 132 , he submits that the writ petitioner having worked satisfactorily, which is evident from the fact that she was allowed to continue her service beyond the period of time specified in her appointment letter, her confirmation to the post can be said to be automatic or deemed in terms of Rule 11. 10. He also refers to the judgment of the Supreme Court in the case of Syed Azam Hussaini v. Andhra Bank Ltd., reported in 1995 Supp (1) SCC 557 and submits that the concerned school has not produced any material to show that there was a reasonable case for terminating the services of the writ petitioner and therefore such termination of service was made without any legal basis. 11. Finally, he relies on a judgment of the Supreme Court in the case of Mrs. Sumati P. Shere v. Union of India & Ors., reported in AIR 1989 SC 1431 and submits that in a relationship of master and servant there is a moral obligation to act fairly and that an informal, if not formal, give-and-take, on the assessment of work of the employee should be there and the employee should be made aware of the defect in her work and deficiency in her performance, which has not been done so in the facts of the instant case. 12. 12. The learned Advocate for the petitioner, thus, submits that the prayer of the writ petitioner for issuance of a writ in the nature of mandamus should be allowed and the School authorities should allow the petitioner to continue with her job and a further direction be issued upon the school authority to terminate the subsequent appointees and also to restrain the school from interfering with the functioning of the writ petitioner. 13. On the other hand, the learned Advocate appearing on behalf of the respondent Nos. 2 and 3, being the authorities of the concerned school, submits that the appointment of .the writ petitioner was purely on a temporary basis which would be clear from the initial appointment letter dated 3rd December, 2008. He submits that although the writ petitioner's probationary period was extended by the school in terms of the subsequent letter dated 19th September, 2009, it was made clear therein that other terms and conditions of the appointment letter dated 3rd December, 2008 were to remain unchanged. He has also referred to sub-rule (3) of Rule 11 of the Special Rules which reads as under:- "The services of a permanent employee may be terminated with three months' notice on either side or in lieu thereof three months' pay. Neither side need show any reason in such cases. For termination of service of a temporary employee or an employee on probation, one months' notice or in lieu thereof one months' pay shall be given. But the Director of Public Instruction, West Bengal, shall have the right to call for all relevant papers relating to such cases and see if the action taken is consistent with the terms and conditions of appointment". 14. Referring to the above sub-rule, he submits that in case of termination of service of a temporary employee or an employee on probation, one months' notice or in lieu thereof, one months' pay shall be given. He further submits that so far as the writ petitioner is concerned, by the letter dated 11th December, 2009, the Headmistress and the Hony. Secretary of the School terminated her probationary appointment with immediate effect and also paid her one month's pay in lieu of notice, as per the requirement under sub-rule (3) of Rule 11 of the Special Rules. He further submits that so far as the writ petitioner is concerned, by the letter dated 11th December, 2009, the Headmistress and the Hony. Secretary of the School terminated her probationary appointment with immediate effect and also paid her one month's pay in lieu of notice, as per the requirement under sub-rule (3) of Rule 11 of the Special Rules. The learned Advocate also refers to a judgment of the Supreme Court rendered in the case of S. Sukhbans Singh v. The State of Punjab, reported in AIR 1962 SCC 1711 and submits that a probationer cannot automatically acquire the status of a permanent employee of a service unless, of course, the rules under which he was appointed expressly provides for such a result. He submits that in the instant case, the Special Rules do not provide so and as such there cannot be any question of even deemed or automatic change of status from a probationary or temporary employee to that of a permanent employee of the concerned school. 15. He also relies on a Division Bench judgment of this Court in the case of M.A. Vidyadharan v. State of West Bengal & Ors., reported in 1981 (2) Cal LJ 333 and submits that if the terms of appointment or the applicable service rules do not provide that an employee's confirmation would automatically follow at the end of a specified period, either expressly or by necessary implication, then it is not open to the employee to contend that her employment should be deemed to have been confirmed automatically upon expiry of the probationary period. 16. In the facts and circumstances, he submits that the writ petition is devoid of any merit and ought to be dismissed. 17. After considering the submission made by the learned Advocates for the parties and upon perusing the instant application as well as the judgments referred to, in my opinion, the only issue that falls for consideration in the instant case is whether the writ petitioner is entitled to grant of her prayer for issuance of a writ in the nature of mandamus directing the school authorities concerned to allow her to continue with her job as an Assistant Teacher in the school, consequent to her termination in terms of the letter dated 11th December, 2009. In my view, the answer to this issue lies in the initial letter of appointment dated 3rd December, 2008, which has been referred to hereinbefore, read with sub-rule (3) of Rule 11 of the Special Rules, which has also been quoted above. By the letter dated 3rd December, 2008, while the writ petitioner was appointed on a purely temporary basis with a consolidated salary of Rs.10,000/- per month, it was clearly stated therein that she was to be guided by the existing service conditions of the school. While extending her probationary period for a further period of six months up to 11th January, 2010, the school, by letter dated 19th September, 2009, referred to the earlier letter dated 3rd December, 2008 and also made it clear that she was to receive the consolidated amount of Rs.10,000/- per month during the extended period of probation and all other terms and conditions as stated in the appointment letter dated 3rd December, 2008 were to remain unchanged. Sub-rule (3) of Rule 11 of the Special Rules makes it clear that for termination of service of a temporary employee or an employee on probation, one months' notice or in lieu thereof one months' pay is to be given to that employee. From the letter dated 11th December, 2009, it is clear that the said sub-rule has also been complied with by the authorities of the concerned school. 18. From the judgments referred to by the learned Advocate for the petitioner, it appears that it is the consistent view of the Supreme Court that unless and until the language of the applicable Rule specifically provides for deemed or automatic confirmation, an employee cannot claim so as a matter of right, even if the period of probation expires. In the instant case, there is no existence of any such Rule which allows such automatic or deemed confirmation. Even otherwise, the letter of termination dated 11th December, 2009, has been issued before the period of probation, as extended by the school in terms of the letter dated 19th September, 2009, came to an end. By the said letter dated 19th September, 2009, the writ petitioner's probationary period was extended for a further period of six months up to 11th January, 2010. By the said letter dated 19th September, 2009, the writ petitioner's probationary period was extended for a further period of six months up to 11th January, 2010. Thus, the probationary appointment of the writ petitioner and her subsequent termination from service cannot be said to be either arbitrary or wrongful or without any legal basis. None of the judgments referred to by the learned Advocate for the petitioner is therefore applicable in the facts of the instant case. 19. The writ petition is, thus liable to be dismissed and is hereby dismissed. 20. There will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be given to the parties as early as possible.