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2017 Supreme(Bom) 136
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
V.M. KANADE, SANGITRAO S.PATIL, JJ.
Vrunda d/o Jeevanrao Dahitankar – Petitioner
Versus
Shri Tuljabhavani Temple Trust, Tuljapur, Dist.: Osmanabad, Through its Chairman – Respondent
W.P. No. 2969, 2974 of 1997, W.P. No.634 of 1998
Decided on : 02-02-2017
Advocate Appeared:
For the Petitioner:Mr. S.R. Barlinge, Advocate
For the Respondents:Mr. Amol Gandhi, Advocate holding for Mr. P.V. Mandlik, Senior Advocate, Mr. S.B. Joshi, A.G.P.
Important Point: The orders terminating the services of the petitioners, much after the expiry of their period of probation without holding any regular disciplinary proceedings against them, are illegal and unsustainable.
Headnote:Constitution of India, 1950-Article 227-Grant of backwages on reinstatement.-Petitioners not gainfully employed after termination of their service, entitled to 50% of backwages from date of termination till date of reinstatement.
These two petitioners were appointed on regular basis. They served with respondent Nos. 1 and 2 for about 5-1/2 years. They were entitled to be continued in the service of respondent Nos. 1 and 2 for a considerably long a period. However, respondent Nos. 1 and 2 have illegally taken away their right to work contrary to the relevant laws and deprived them of their earnings. In the circumstances, considering the long span of period i.e. from 1997 till 2017, during which, these two petitioners were not in the service of respondent Nos. 1 and 2 and considering the fact that they did not plead and prove that they were not gainfully employed during this long interregnum. Court is not inclined to award full backwages to these two petitioners while directing their reinstatement. The interest of justice would be served if these two petitioners are directed to be paid 50% of the backwages from the date of termination of their services till the date of reinstatement. Since these two petitioners have not worked with respondent Nos. 1 and 2, they would not be entitled to get increments or promotional pay scales. Respondent Nos. 1 and 2 would be liable to pay backwages to these two petitioners at the rate prevailing at the time of termination of their services and also as revised from time to time. Respondent Nos. 1 and 2 shall calculate the amount of backwages of these two petitioners accordingly and pay the same to them within three months from today, failing which the amount payable to these petitioners would carry interest at the rate of Rs. 9% per annum. These two petitioners are entitled to get continuity of service for the purpose of calculating their qualifying service for getting pensionary benefits.
Constitution of India, 1950-Article 227-Reinstatement in service.-Since petitioner, on setting aside his termination, is not entitled to reinstatement as he reached age of superannuation during pendency of writ petition hence he is entitled to 50% of amount of salary from date of termination till date of superannuation.
Maharashtra Non-Agricultural Universities and Affiliated Colleges Standard Code (Terms and Condition of Service of Non-Teaching Employees) Rules, 1984-Rule 7(6)-Termination from service.-Termination of petitioners from service, who were appointed temporarily on probation, after expiry of period of probation as contemplated under Rule 7(6) is illegal.
The orders terminating the services of the petitioners, much after the expiry of their period of probation without holding any regular disciplinary proceedings against them, are illegal and unsustainable. The Presiding Officer of the University and College Tribunal, Aurangabad, did not consider properly the facts of the case and the legal position pertaining to probation and has wrongly held that the termination of services of the petitioners was valid. The orders terminating the services of the petitioners are liable to be quashed and set aside. Consequently, the judgments and orders passed by the Presiding Officer, University and College Tribunal, Aurangabad, also are liable to be quashed and set aside and accordingly, quashed and set aside.
SANGITRAO S. PATIL, J.
Rule, returnable forthwith. With the consent of the parties, heard finally.
2. Common questions of law and facts are involved in these Writ Petitions. Hence, they are being decided by this common judgment.
3. The petitioners, vide orders dated 15.07.1991 came to be appointed by respondent no. 1 as Telephone Operator, Telephone Operator and Security Inspector, respectively, on regularly basis to officiate the said posts on probation for a period of one year from the respective dates of their joining the said posts. As per Clause 6 of their appointment orders, it was made clear that they would be governed by Conduct, Discipline, etc. Rules of the Government of Maharashtra and that of Shri Tulja Bhavani Temple Trust College of Engineering. Accordingly, the petitioners joined the said posts. The services of the petitioners came to be terminated as per the orders dated 11.08.1993. They challenged the said orders before the University and College Tribunal. The learned Presiding Officer of the University and College Tribunal, allowed their appeals on 24.04.1996 and directed respondent nos. 1 and 2 to reinstate the petitioners with continuity in services. Accordingly, the petitioners continued their services with respondent no.1. However, their services again came to be terminated as per the orders dated 27.01.1997, on the ground that they were appointed temporarily on probation and that their performance being unsatisfactory, their services were no more required by respondent no.1. The petitioners filed appeals before the University and College Tribunal, Aurangabad against the said termination orders. The learned Presiding Officer of the University and College Tribunal, Aurangabad, passed a common judgment on 30.06.1997 and dismissed their appeals. Being aggrieved by the said common judgment and being aggrieved by the termination of their services, the petitioners presented the abovenumbered writ petitions praying that the common judgment dated 30.06.1997 delivered by the University and College Tribunal, may be quashed and set aside and they may be ordered to be reinstated with continuity in services and all other consequential benefits.
4. The petitioners had further claimed the relief that Rule 7 of the Maharashtra Non-Agricultural Universities and Affiliated Colleges Standards Code (Terms and Conditions of Services of Non-Teaching Employees) Rules, 1984 (for short, “the Rules of 1984”) might be declared ultra vires to the Constitution of India. However, the learned counsel for the petitioners submits that the petitioners do not wish to press the said claim. As such, the said claim stood abandoned.
5. Indisputably, the petitioners are governed by Rule 7 of the Rules of 1984, which reads as under :
“7. Probation : (1) The employee appointed to a permanent post by selection shall be on probation for a period of two years. The Competent Authority may, in exceptional circumstances, reduce the period of probation upto one year, after reviewing his confidential reports:
Provided that the employee appointed to officiate in higher post for a temporary period shall not be considered to be on probation.
(2) During the period of probation, the employee shall comply with conditions of successful completion of probation, prescribed by the Competent Authority from time to time.
(3) The Head of the Department/Section (Assessing Authority) under whom the employee on probation is working shall send to the Registrar or the Principal his report in Form 3 appended to these rules about his work and conduct, after every six months from the date of his joining. The deficiencies, if any, mentioned in the report shall be conveyed to the employee on probation for the guidance.
(4) The Assessing Authority under whom the employee on probation is working, shall send to the Registrar or the Principal at least three months before the expiry of probationary period, a report about the work and conduct of the employee with specific recommenda
