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IN THE HIGH COURT OF BOMBAY
(Panaji Bench)
A.A. Ginwala G.F. Couto, JJ.
Ishveralal J. Naik... Petitioner.
Versus
S.C. Arya, Principal, Govt. Arts Science College, Daman, others... Respondents.
Special Civil application No. 84-B of 1977, decided on 8-8-1983.
Advocates appeared :
Petitioner in person.
J. Dias, Govt. Pleader, for respondent.
Petitioner, a Lecturer in Gujarati in a Government College, challenged the order terminating his services in pursuance of the proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. The Court held that the petitioner was appointed on probation for a period of two years and on the expiry of the period of probation he continued to be on probation till his service was terminated. The Court further held that the petitioner could not be deemed to have been confirmed on the expiry of the period of probation for want of a permanent post. The Court also held that the impugned order was not in accordance with the terms of appointment as the payment of the sum equivalent to the amount of pay and allowances for the period of notice was not made simultaneously with the order of termination. The Court further held that the impugned order was vitiated for the reason that the services of the petitioner have not been terminated in accordance with term No. (ii) inasmuch as he has not been paid the pay and allowances in lieu of the period of notice simultaneously with the service of order on him. The Court also held that the impugned order was arbitrary and discriminatory as the services of the petitioner were terminated while retaining the services of his juniors.
Fact of the Case:
Petitioner, a Lecturer in Gujarati in a Government College, challenged the order terminating his services in pursuance of the proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965.
Finding of the Court:
The Court held that the petitioner was appointed on probation for a period of two years and on the expiry of the period of probation he continued to be on probation till his service was terminated. The Court further held that the petitioner could not be deemed to have been confirmed on the expiry of the period of probation for want of a permanent post. The Court also held that the impugned order was not in accordance with the terms of appointment as the payment of the sum equivalent to the amount of pay and allowances for the period of notice was not made simultaneously with the order of termination. The Court further held that the impugned order was vitiated for the reason that the services of the petitioner have not been terminated in accordance with term No. (ii) inasmuch as he has not been paid the pay and allowances in lieu of the period of notice simultaneously with the service of order on him. The Court also held that the impugned order was arbitrary and discriminatory as the services of the petitioner were terminated while retaining the services of his juniors.
Issues: Whether the petitioner was appointed on probation for a period of two years and on the expiry of the period of probation he continued to be on probation till his service was terminated. Whether the petitioner could be deemed to have been confirmed on the expiry of the period of probation for want of a permanent post. Whether the impugned order was in accordance with the terms of appointment as the payment of the sum equivalent to the amount of pay and allowances for the period of notice was not made simultaneously with the order of termination. Whether the impugned order was vitiated for the reason that the services of the petitioner have not been terminated in accordance with term No. (ii) inasmuch as he has not been paid the pay and allowances in lieu of the period of notice simultaneously with the service of order on him. Whether the impugned order was arbitrary and discriminatory as the services of the petitioner were terminated while retaining the services of his juniors.
Ratio Decidendi: The Court held that the petitioner was appointed on probation for a period of two years and on the expiry of the period of probation he continued to be on probation till his service was terminated. The Court further held that the petitioner could not be deemed to have been confirmed on the expiry of the period of probation for want of a permanent post. The Court also held that the impugned order was not in accordance with the terms of appointment as the payment of the sum equivalent to the amount of pay and allowances for the period of notice was not made simultaneously with the order of termination. The Court further held that the impugned order was vitiated for the reason that the services of the petitioner have not been terminated in accordance with term No. (ii) inasmuch as he has not been paid the pay and allowances in lieu of the period of notice simultaneously with the service of order on him. The Court also held that the impugned order was arbitrary and discriminatory as the services of the petitioner were terminated while retaining the services of his juniors.
Final Decision: The Court allowed the petition and made the rule absolute in terms of prayer Clause (B)(iv) and (vi). In the circumstances of the case, there shall be on order as to costs.
A.A. GINWALA, J.:---The petitioner who at the relevant time was serving as Lecturer in Gujarati in the Government College of Arts and Science at Daman ("the College" for brief) has by this writ petition involed the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution, Inter alia to challenge the order dated 5-6-1976 under which his services are terminated in pursuance of the proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 ("Temporary Service Rules" for short).
2. The facts leading to this petition stated briefly are that some time in January 1966 the Collector of Daman issued a notification inviting applications for the posts of Professors and Lecturers in various subjects including the posts of Lecturers in Hindi, for the College. It was stated in this notification that "the appointments are temporary for the present, but likely to be made permanent". The petitioner applied for the post of Lecturer in Hindi in pursuance of this notification and he was appointed. He joined the post on 12-5-1966.
3. On 23-9-1967 the Union Public Service Commission advertised ten posts of Lecturers in various subjects including Hindi and Gujarati for the said College. In this advertisement it was stated that the posts were temporary "but likely to continue indefinitely and be made permanent eventually". Though the petitioner was already serving as Lecturer in Hindi, he applied for the posts of Lecturer in Hindi and Lecturer in Gujarati in response of this advertisement. The Union Public Service Commission selected him for the post of Lecturer in Gujarati and recommended his name to the Government of Goa, Daman and Diu (hereinafter referred to as "the fourth respondent"). On 1-4-1968 the fourth respondent by its memorandum offered the said temporary post of Lecturer in Gujarati to the petitioner on certain terms specified in para 2 therein, which are as follows:
(i) The post in temporary but likely to be made permanent. In the event of its becoming permanent his/her claim for "Permanent Absorption" will be considered in accordance with the rules of force.
(ii) The appointment may be terminated at any time by a month's notice given by either side viz., the appointee or the appointing authority, without assigning any reason. The appointing authority, however, reserves the right of terminating the service of the appointee forthwith or before the expiration of the stipulated period of notice by making payment to him/her of a sum equivalent to the pay and allowances for the period of notice or the unexpired portion thereof.
(iii) The appointment carries with if the liability to serve in any part of Goa, Daman and Diu.
(iv) 'Other' conditions of service will be governed by the relevant rules and order is in force from time to time."
By this memorandum, the petitioner was asked to communicate his acceptance of the offer on the above terms by 15-4-1968. In this memorandum nothing was stated as regards the probation or the period thereof. The petitioner having accepted the offer the order of appointment was issued on 10-7-1968. This order stated that the petitioner was temporarily appointed as Lecturer in Gujarati in the said College and that the appointment was subject to the conditions specified in the memorandum dated 1-4-1968 and "the rules and regulations laid down by the Government from time to time". In this order also nothing was stated as regards the probation. On 18-10-1966 the fourth respondent issued three corrigendum in respect of the appointment of the incumbents on the posts of Lecturer in Biology, Political Science and Mathematics in the said College stating that their appointments were on probation for a period of two years. No such corrigendum was however issued in respect of the appointment of the petitioner.
4. Pursuant to the said appointment the petitioner started serving as Lecturer in Gujarati in the said College. It seems that pursuant to h
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