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Gauhati High Court · body

2015 DIGILAW 136 (GAU)

Navodaya Vidyalaya Samiti v. M. Nandgopal

2015-02-06

C.R.SARMA, M.R.PATHAK

body2015
Judgment M.R. Pathak, J. 1. By this writ petition filed under Article 226 read with Article 227 of the Constitution of India by the petitioners -Navodaya Vidyalaya Samiti and another, one of its regional authority at Shillong, who were Respondents of O.A. No. 201 of 2010, have challenge the order dated 13.09.2011 passed by the Central Administrative Tribunal, Gauhati Bench ('CAT', in short). In the aforementioned O.A. by the impugned order, the CAT allowed the original application of the sole respondent herein (applicant before the CAT) and granted him the relief which he had claimed in his original application against the writ petitioners. 2. The question, which arises for consideration in this writ petition, is whether CAT was justified in allowing the original application of the respondent and thereby was justified in granting him the relief claimed in the original application? 3. Brief fact of the case is that the respondent was initially appointed as Post Graduate Teacher ('PGT, in short) in Economics on regular basis on 18.01.1993 under the Navodaya Vidyalaya Samiti CNVS', in short). Pursuant to the advertisement for the post of Principal in NVS on direct recruitment basis, the respondent being eligible applied for the same and on being selected as such, the NVS authority by an order dated 25.04.2006 (Annexure-P-1) appointed him as a Principal in NVS initially on probation for a period of two years from the date of appointment as per Clause-2 of the said appointment order. Clause-2 of the said appointment order of the petitioner dated 25.04.2006 reads as follows: "2- You will be on probation for a period of two years from the date of appointment extendable at the discretion of the Competent Authority. Failure to complete the period of probation to the satisfaction of the competent authority or if found unsuitable for the post during probation period will render you liable to be discharged/terminated from service at any time without any notice or without assigning any reasons thereof. While on probation you will be required to give one month's notice of resignation in case you leave the Samiti." 4. The respondent joined in the said post on 22.05.2006 under Shillong Regional Office and petitioner No. 2 vide order dated 22.05.2006 (Annexure P-2) posted the respondent at Jawahar Navodaya Vidyalaya, Upper Subansiri, Arunachal Pradesh and thereafter he took the charge of the said School. The respondent joined in the said post on 22.05.2006 under Shillong Regional Office and petitioner No. 2 vide order dated 22.05.2006 (Annexure P-2) posted the respondent at Jawahar Navodaya Vidyalaya, Upper Subansiri, Arunachal Pradesh and thereafter he took the charge of the said School. The petitioners, NVS authority considering overall performance during the period of probation of the respondent, vide Office Memorandum dated 05.11.2008 (Annexure P-3) recommended for extension of his probation period for one year beyond 21.05.2008 and further by the said Office Memorandum dated 05.11.2008 advised the respondent to improve his performance making it clear that if he fails to improve his performance, appropriate action will be taken against him as per the terms and conditions of offer of appointment to the post of Principal. However, considering his overall performance of service records during the period of probation as per Clause-2 of his appointment order dated 25.04.2006 and being not satisfied with his performance as Principal, the petitioners vide Order dated 14.07.2009 (Annexure P-4) terminated the respondent from service of Principal. 5. But, on the prayer of the respondent made on 24.08.2009 (Annexure P-5), the petitioners vide order dated 07.10.2009 (Annexure P-6) allowed him to join on his substantive post as PGT (Eco) under Shillong Region clarifying that the period from his date of relieving from the post of Principal to the date of his joining as PGT (Eco) in JNV shall be treated as the kind of leave due and admissible. The respondent accordingly reported before the Shillong Regional Office of NVS on 13.10.2009. On his such reporting, the petitioners vide order dated 13.10.2009 (Annexure P-7) posted the respondent was as PGT (Eco) at JNV, Golaghat with further direction to take over the complete charge of the said School, as its Principal in-charge, including the financial charge, till further order. Subsequently the petitioners vide order dated 07.01.2010 (Annexure P-8) again transferred and posted the respondent as in-charge Principal of JNV, Baithalangso, Karbi Anglong, Assam, with financial charge. 6. Subsequently the petitioners vide order dated 07.01.2010 (Annexure P-8) again transferred and posted the respondent as in-charge Principal of JNV, Baithalangso, Karbi Anglong, Assam, with financial charge. 6. The respondent in July 2010 approached the CAT, Guwahati Bench against the present petitioners and three others in O.A. No. 201/2008 (Annexure P-9) praying for (i) declaring the aforementioned Office Memorandum dated 05.11.2008 extending his period of probation and the recommendation of the DPC for his termination from service as illegal and void ab-initio, (ii) to set aside and quash the order of his termination dated 14.07.2009 and (iii) to direct the respondents to reinstate and confirm the applicant in the post of Principal of NVS, which he was holding prior to his termination and to treat his service as continuous there from as full fledged Principal with all consequential benefits. The petitioners contesting the matter filed their written statement in the said O.A. No. 201/2010 in December, 2010 (Annexure P-10). 7. By the impugned order dated 13.09.2011 (Annexure P-II), the CAT allowed the original application of the respondent and declared the above noted Office Memorandum dated 05.11.2008 extending the period of probation of the respondent and the recommendation of the DPC for termination of service of the respondent as illegal and void ab-initio and further, ex-consequently, set aside and quashed the termination order of the respondent as Principal. Hence this writ petition by the petitioners Navodaya Vidyalaya Samiti. 8. Heard Ms. Rakhi Sirauthia Choudhury, learned Counsel for the petitioners and Ms. Urna Dutta, learned counsel for the respondent. 9. Ms. Hence this writ petition by the petitioners Navodaya Vidyalaya Samiti. 8. Heard Ms. Rakhi Sirauthia Choudhury, learned Counsel for the petitioners and Ms. Urna Dutta, learned counsel for the respondent. 9. Ms. Choudhury submitted that the CAT proceeded to decide the matter from an erroneous perspective as it failed to appreciate that the Clause-2 of the appointing order of the respondent dated 25.04.2006 specified that failure to complete the period of probation to the satisfaction of the competent authority or if found unsuitable for the post during probation period will render him liable to be discharged/terminated from service at any time without any notice or without assigning any reasons thereafter and that the authorities passed the order dated 14.07.2009 terminating the service of the respondent as Principal JNV after careful consideration of his overall performance and assessment of service record during the period of probation as per Clause-2 of the offer of appointment dated 25.04.2006 (Annexure P-1) and that as the respondent was on probation, the petitioners possessed the jurisdiction to terminate respondent's service due to his unsatisfactory service. Ms Choudhury, also submitted that the CAT, while passing the impugned order failed to take the note of the fact that the respondent after his termination from the post of Principal, JNV during his probation was put back on his substantive post only, as per his representation dated 24.08.2009, in order to ensure that his family do not suffer from un due hardship. 10. Ms. Choudhury, also contended that the employer has right to terminate from service of a probationer/temporary service on account of the incumbent being found unsuitable for the post, which does not attract the provisions of 311 of the Constitution of India and such the said order of termination being an order simplicitor of the respondent, does not cast any stigma on him and for said reason the respondent applicant was allowed to join in his substantial post PGT, Economics over which the said respondent had lien and if the impugned of the Tribunal is accepted in that case the respondent/applicant would not be eligible to hold the post of PGT (Economics) after his termination during his probation. Ms. Ms. Choudhury, further argued that with regard to the respondent, the DPC assessed the performance of the probationers including the respondent to find out whether they are suitable for confirmation and/or absorption in the substantive post of Principal JNV and in assessing such suitability, the DPC found the respondent, who was on probationer, unsuitable to hold the post of Principal in NVS and therefore recommended for his termination from service and thereafter, the petitioners terminated the respondent from his probationary post of Principal NVS. Ms Choudhury also rejected the finding of the CAT that petitioners did not comply with the provision of Section 5(i) of NVS Recruitment (Revised) Rule, 2007, that deals with 'Probation', while issuing the Office Memorandum dated 05.11.2008 by which the period of probation of the respondent to the post of Principal of NVS was extended by 1 (one) more year, since as provided in said Section 5(i) no reasons in writing was recorded. Ms. Choudhury contended that the said Office Memorandum dated 05.11.2008 extending the period of probation of the respondent to the post of Principal NVS by one year clearly shows that it has complied with said Rule 5 (1) as the respondent was asked to improve his performance during the extension of his period of probation. 11. That apart, learned counsel for the petitioners also contended that by the advisory note dated 08.04.2009 the respondent was advised to be careful in future in as much as he was call upon to improve his attitude and work culture as head of the institution and for the aforesaid reasons the finding of the CAT that the order of termination of the respondent during his probation period being arbitrary and illegal, cannot be accepted and therefore liable to be interfered by the High Court. 12. Ms. 12. Ms. R.S. Choudhury, learned counsel for the petitioners, relying on the Judgments of the Hon'ble Supreme Court in the case of Radeshyam Gupta v. U.P. State Agro Industries Corporation Ltd. reported in (1999) 2 SCC 21 and Pavanendra Narayan Verma v. Sanjoy Gandhi PGI of Medical Science, reported in (2002) 1 SCC 520 submitted that the discharge from service of the respondent as Principal of JNV, who was on his probation, was only simplicitor termination of service as the DPC did not consider any misconduct on the part of the respondent but only decided the question of his retention in service as Principal of JNV. Ms. Choudhury also submitted that since the said action of the petitioners in terminating the service of the respondent as Principal was neither punitive nor stigmatic, he has been subsequently placed in his original substantive post of PGT (Eco) under the NVS. 13. Contesting this petition, the respondent submitted that this writ petition preferred by the petitioners lack territorial jurisdiction as the said respondent has been posted in the JNV, Ukhrul, Manipur on 13.03.2012 long before filing of the present petition and that presently the jurisdiction is before Hon'ble Manipur High Court. The respondent also submitted that the extension of his probationary period vide Office Memorandum dated 05.11.2008 beyond 21.05.2008, was done in a mechanical manner without any support and without any valid material to the extent that performance of the respondent is unsatisfactory or without pointing out any deficiency of his performance and in absence of any valid material, such an extensions of an probation period for a period of 1 year and consequential impugned order of termination dated 14.07.2009 are not sustainable in the eye of law being arbitrary & illegal. 14. Ms. U. Dutta, learned counsel for the respondent stated that the present petitioners fail to produce any valid material/document before the CAT and also fail to produce any record of with regard to any valid reasons for extending his period of probation as there is no provision under the Rule that the DPC is required to make assessment for termination of service of the respondent. The respondent further contended that prior to his appointment as Principal in NVS, he rendered about 15 years of service in the cadre of PGT (Eco) in an substantive post under NVS and after his such termination on 14.07.2010 as Principal he was all along posted as in-charge Principal and therefore the impugned order of termination on the alleged ground that the performance of the answering respondent is un satisfactory as per assessment of service record during the period of probation as per Clause-2 of the order of appointment dated 25.04.2006 is not factually correct. The respondent submitted that apparently his service was terminated on the basis of the grounds indicated in the advisory note dated 08.04.2609, and the DPC which was belatedly held in 2009 ignored the good ACR of the respondent and lost the sight of the fact that there was nothing adverse on record during probation period of the respondent. 15. The respondent further argued that the DPC was held only for assessing the suitability or otherwise for confirmation on the basis of service record and not on other extraneous consideration. But in the case of the respondent herein, the DPC travelled beyond its jurisdiction and recommended for termination of his services, which was promptly acted upon by the petitioners, without providing him any opportunity of hearing and/or to defend his case. The respondent stated that there was no material before the said DPC to make such a recommendation for termination of service of the respondent. According to the respondent, the CAT has rightly passed the impugned Order and there is no infirmity in the same. 16. The respondent stated that there was no material before the said DPC to make such a recommendation for termination of service of the respondent. According to the respondent, the CAT has rightly passed the impugned Order and there is no infirmity in the same. 16. The respondent in its affidavit-in-opposition also stated that on the basis of a false allegation against him with regard to an immoral act with a lady Lower Division Clerk of JNV Megdong on the night of 19.03.2008, police visited the place of occurrence on the next day morning, inspected the place and on investigation of the matter found the allegation against him as baseless and concluded that the report of the incident was alleged due to bitter enmity between the teachers-staff and the respondent Principal and that nothing could be proved against him and a copy of the detailed police report dated 20.03.2008, with regard to the said incident was annexed by the respondent in his said O. A. 201/2010 as Annexure-3, which has not been annexed by the petitioners in the present writ petition. The respondent stated that the petitioner No. 2 through the Assistant Commissioner of NVS Regional Office Shillong conducted an inquiry on 22.04.2008. The petitioner No. 2 further inquired the said incident by another Assistant Commissioner (Administration) of NVS Regional Officer Shillong on 16.02.2009 and after going through the said inquiry reports, the petitioner No. 2 on 08.04.2009 issued an 'Advisory Note' to the respondent stating that the respondent did not maintain the official decorum and procedure of the JNV being residential institution and advised the respondent to be careful in future with regard to his attitude and working culture which needs to be to be improved and being the respondent being the head of the institution, he should strictly adhere to the official procedure of a residential institution, failing which disciplinary action would be taken against him as per rule (Annexure-4 to the O.A.). 17. Ms. U. Dutta, learned counsel for the respondent cited the following decisions reported in (i) (2010) 8 SCC 220 [Union of India v. Mahavir C. Singhvi], (ii) (1984) 2SCC 369 [Anoop Jaiswal v. Govt. 17. Ms. U. Dutta, learned counsel for the respondent cited the following decisions reported in (i) (2010) 8 SCC 220 [Union of India v. Mahavir C. Singhvi], (ii) (1984) 2SCC 369 [Anoop Jaiswal v. Govt. of India] (iii) (2013) 3SCC 607[SBI v. Palak Modi] (iv) (2011) 13 SCC 118 [Mahendra Prasad Singh v. State of Bihar] (v) (1989) 3 SCC 311 [Sumoti P. Shere v. Union of India] and (vi) (1989) 3 SCC 60 [Dipti Prakesh Banerjee v. Satyandra Nath Bose National Centre for Basic Sciences]. 18. From the records of the case it is seen that the CAT passed the impugned order dated 13.09.2011 on the following grounds: "(a) That as per the rule 2007, the probation extended beyond a period of 3 years and the authorities concerned must record reasons in writing for extending such probation period and in the present case no reasons were recorded in writing for extending the period of probation of the respondent/applicant. (b) There was absolutely nothing on recode against respondent warranting the order of termination. (c) The said termination order was passed in a mechanical mind without applying mind. (d) Mere recommendation of DPC does not ipso facto make an order of termination as the Hon'ble Apex Court in Dr. Mrs. Sumoti P. Shere v. Union of India and others reported in (1989) 3 SCC 311 held that "if termination is for unsatisfactory performance prior communication of assessment of work to the affective person essential" and in the present case no such communication was made to the respondent. (e) The respondents/petitioners herein failed to produce any documents or paper or evidence as to how the recruitment Rule 5(1) was satisfied." 19. Perused the records produced by the petitioners NVS. Petitioners could not produce any records or materials with regard to the decision of the NVS authority on the basis of which it issued the Office Memorandum dated 05.11.2008 (Annexure P-3 to the petition) by which the authority extended the probationary period of the respondent as Principal of JNV for another year beyond 21.05.2008 advising him to improve his performance during the extending period of probation, failing which the authority would take action as deem fit as per terms of condition and/or offer of appointment to the post of Principal. 20. 20. From the records it is seen that on 22.06.2009, a DPC constituting commissioner of NVS as Chairman; Joint Commissioner, Personal Director CTS A and Assistant Commissioner Personal as members of the said committee to consider the cases of satisfactory completion of probation of 60 (Sixty) Principals appointed on direct recruitment basis in NVS in the pay bend of Rs. 15,800-39,100 along with grad pay of Rs. 7,600/-. 21. Considered the judgments cited by the counsel for the Respondent Ms. U. Dutta. 22. The DPC considered the original ACR (Annual Confidential Report) folders of all the Principals containing the ACRs for the year 2006-07, 2007-08 and 2008, SPRs of 33 months along with their service records, vigilance clearance and performance of Vidyalaya in the Board Exams for the years 2006-07, 2007-08 and 2008-09. 23. It is also seen from the records that the said DPC scrutinized the list of principals for consideration and categorized them in five groups and on their careful consideration of service records, assessment of ACRs, SPRs and performance of the concerned JNVs in CBSE Board exams of Class X and XII, where the Principal worked or presently working. The DPC considered the cases of the probationers on the following criteria:-- "(a) Those who have attained 90% and above result/pass %age in Board exams during 2009 and also having good ACRs and SPRs reports may be deemed to have completed their period of probation successfully. (b) Those who have average grading in their SPRs/ACRs, the probationary period may be extended for a period of 06 months and they may be given suitable advice to improve their performance during the extended period. (c) In those cases, where the board results of Classes X and XII are below 90%, probation period may be extended for a period of one year and may be given suitable advice to improve their performance during the extended period. (d) In those cases, where the vigilance clearance is not given and/or disciplinary proceedings are pending, probation period may be extended for a period of one year. (e) The candidates having Average grading in ACRs/SPRs during 33 months and/or whose performances remained unsatisfactory and are found unsuitable to hold the post of Principal may be terminated from services." 24. (d) In those cases, where the vigilance clearance is not given and/or disciplinary proceedings are pending, probation period may be extended for a period of one year. (e) The candidates having Average grading in ACRs/SPRs during 33 months and/or whose performances remained unsatisfactory and are found unsuitable to hold the post of Principal may be terminated from services." 24. It is seen from the records that on 22.06.2009, before the DPC, report about respondent's vigilance clearance was not clear and further with regard to any disciplinary case, it was mentioned as contemplated. From the record produced before the Court, it is seen that with regard to complaint of immoral activities against the respondent, initially one Assistant Commissioner of NVS was asked to inquire in to the matter and was asked to submit his report and accordingly he submitted the report. As per his report the respondent and the concerned LDC was out of station so the said Assistant Commissioner could not record their statements, but he submitted the report on the basis of the statements of other staffs of the School. The NVS authority going through the said report of Assistant Commissioner of NVS, decided to conduct another inquiry into the matter and asked another NVS personnel to enquire in to the same, who on 17.02.2009 submitted his report after the enquiry and he came to a conclusion that circumstantial evidence goes in favour of the respondent and it cannot be established that on the night of the incident, the respondent was involved in some immoral activities; but he opined that the respondent should have avoided going to her house alone in order to remain above any controversy. 25. It is seen from the records that after going through both the afore said reports, the NVS authority decided to close the inquiry with advisory note that the respondent should be above any such controversy in campus in future and warned one Sri K.K. Das, Music Teacher of the School for his high handedness and said decision was duly approved and on 31.03.2009, the authority of NVS approved the closer of the said inquiry by issuing necessary advisory note and warning to the concerned persons. Accordingly, the petitioner No. 2 issued the advisory note dated 08.04.2009 to the respondent. 26. Accordingly, the petitioner No. 2 issued the advisory note dated 08.04.2009 to the respondent. 26. Record also reveals that in terms of the communication dated 31.03.2009 issued by the NVS authority at Delhi (who was also a member of the DPC held on 22.06.2009), the petitioner No. 2 submitted the Inquiry Report with regard to the complaint of immoral activities against the respondent, informing that after taking into consideration of the statements of the respondent, the concerned LDC, as well as the concerned Music Teacher, the report submitted by Inquiry officer justified the reasons for issuance of the advisory note to the respondent, who was posted at JNV, Dimapur, at that point of time; recommending that that no further action need be taken in that regard. The record also shows that vide communication dated 01.06.2009, the Assistant Commissioner Personal of NVS, sought for the complete records relating to the complaint of immoral activities against the respondent just before the DPC that was held on 20.06.2009 and accordingly, the petitioner No. 2 by his communication dated 05.06.2009, forwarded the inquiry report along with other relevant documents as sought for. It also seen from the record that though the proceeding of alleged immoral activities against the respondent, that was closed by the petitioner No. 2 with an advisory note to the respondent on 08.04.2009, recommending that no further action need be taken against him in that regard. 27. It is also seen from the records of the case that with regard to the other probationary Principals, who were similarly placed with the respondent; the DPC in its meeting on 22.06.2009 considered their similar ACRs, similar percentage (%) of result of Class-X, similar percentage (%) of result of Class-XH and similar average percentage (%) result of Class X & XII region as that of the respondent and recommended for completion of their period of probation successfully or extended the period of their probation for another six months or one year, as the case may be, with suitable advice to improve their performance during the extended period of probation and in cases of those Principals in whose cases, the vigilance clearance are not given due to pending disciplinary proceedings, the DPC recommended for further extension of one year of their probation period. But the said DPC held on 22.06.2009 did not consider the case of the respondent. 28. But the said DPC held on 22.06.2009 did not consider the case of the respondent. 28. Records of the case further revels that the 'Status Report' of the 60 (sixty) probationary Principals including the respondent herein, placed before the DPC held on 22.06.2009 at NVS Head Quarter, wherein it is clearly written against the respondent that Disciplinary Proceeding against him is under contemplation. As such the concerned DPC on 22.06.2009, while taking the decision with regard to the satisfactory completion of probationary period of the respondent as Principal of JNV, was influenced by the said reports. As such on the basis of the said contemplation of inquiry, where opinion were expressed and definite conclusions relating to the respondents immorality was reached by the officials/members of the DPC, based on mere suspicion alone and for the said reason, the DPC took the impugned decision recommending termination of the respondent from service as Principal of JNV. Accordingly, petitioners issued the termination order against the respondent on 14.07.2009. The conclusions relating to the respondent's immorality was reached by the members of the DPC, behind his back for the alleged immorality/misconduct, for which the service of the respondent as Principal of the JNV were brought to an end, was not mere the motive of the said decision, but is also clear of being the foundation of the same. 29. For the aforesaid reasons and discussions, we are of the considered opinion that the order dated 14.07.2009 passed by the petitioners terminating the service of the respondent as Principal of JNV, on the basis of the decision and recommendation of the DPC held on 22.06.2009 suggesting the petitioners herein to terminate the service of the respondent though may be with substance; but it is bad in law, arbitrary and illegal as the respondent's service was terminated without a formal inquiry and without giving him any reasonable opportunity to defend himself. We are of the view that the CAT rightly set aside the termination order of the respondent dated 14.07.2009. To that extent the impugned decision of CAT, Guwahati Bench dated 13.09.2011 passed in O.A. 201 of 2010 is upheld. 30. We are of the view that the CAT rightly set aside the termination order of the respondent dated 14.07.2009. To that extent the impugned decision of CAT, Guwahati Bench dated 13.09.2011 passed in O.A. 201 of 2010 is upheld. 30. From the terms of appointment of the respondent as issued by the petitioners vide order dated 25.04.2006 (Annexure-P 1 to the petition) it is seen that respondent was appointed as Principal under NVS on probation for a period of two years from the date of his appointment. On 22.05.2006, the respondent joined his service under petitioner No. 2 and accordingly he was posted at JNV, Upper Subansiri, Arunachal Pradesh and the petitioners by Office Memorandum dated 05.11.2008 extended the term of probation of the respondent for another year with effect from 21.05.2008 with an advice to improve his performance during the extended period of probation period. But the petitioners issued the said extension order of probation vide Office Memorandum only on 05.11.2008 which is much after completion of his two years probation, which was already completed on 21.05.2008 as the petitioner joined on 22.05.2006. As such respondent's service was required to be regularized. Though the CAT by the impugned order dated 13.09.2011 passed in the said O.A. 201/2010 declared the aforesaid Office Memorandum of the petitioners dated 05.11.2008 extending the period of probation of the respondent as illegal and void ab-initio but no order has been passed by the CAT for regularization of service of the respondent. 31. After hearing the parties and considering the entire aspect of the matter, it is hereby directed that the petitioners shall reinstate the respondent within 30 (thirty) days on his production of the certified copy of this judgment before the petitioner No. 1 and the petitioners shall give him all consequential benefits like pay, allowances, etc. within next one month. The petitioners shall hold a fresh Departmental Promotion Committee (DPC) within 90 (ninety) days of the production of the certified copy of this judgment as aforesaid and the said DPC shall consider towards satisfactory completion of probation of the respondent after considering all aspects and shall give its appropriate finding in accordance with law and thereafter the petitioners shall pass necessary order on such recommendation of the said DPC. 32. With the aforesaid observations and directions this writ petition is partly allowed. No order as to costs. Petition Partly Allowed.