Shamna K.B. v. Punjab National Bank and The Employment Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY, THE 4TH DAY OF JULY 2014/13TH ASHADHA, 1936 WA.No. 808 of 2014 () IN WP(C).15347/2011 ------------------------------------------AGAINST THE JUDGMENT IN WP(C) 15347/2011 of HIGH COURT OF KERALA DATED 11.3.2014 APPELLANT(S)/PETITIONER: ---------------------------------------------- SHAMNA K.B. WIFE OF SANILKUMAR.M.G., PEON (TERMINATED) PUNJAB NATIONAL BANK, MANJAPRA BRANCH, MANJAPRA RESIDING AT KARTIKULAM.P.O., WAYANAD-670 646. ## BY ADV. SRI.KALEESWARAM RAJ ## RESPONDENT(S): ---------------------------- ## 1. PUNJAB NATIONAL BANK REPRESENTED BY ITS CHIEF MANAGER, HRD DEPARTMENT CIRCLE OFFICE, SHATHABDHI BHAVAN, MINI BYPASS ROAD GOVINDAPURAM.P.O., KOZHIKODE-673 016. ## 2. THE EMPLOYMENT OFFICER, DISTRICT EMPLOYMENT EXCHANGE, MANANTHAVADY-670645 KANNUR DISTRICT. R2 BY SR.GOVERNMENT PLEADER SRI.P.M.SANEER R1 BY ADV.SRI.P.RAMAKRISHNAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04-07-2014, ALONG WITH WA. 810/2014, WA. 811/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. ----------------------------------W.A.Nos.808, 810 & 811 of 2014 ----------------------------------Dated this the 4[th] day of July, 2014 ## JUDGMENT ## Antony Dominic, J. 1. These writ appeals are filed by the unsuccessful petitioners in W.P(C).Nos.15347/11, 15337/11 and 15346/11, who are aggrieved by the common judgment of the learned single Judge dismissing the writ petitions. 2.The grievance in the writ petitions related to termination of the appellants, who were appointed as peons in the first respondent bank. During the probationary period, their services were terminated on the ground that they possessed qualifications superior to the qualification of XII standard prescribed by the bank for appointment to the post of peon. In the impugned judgment, learned single Judge accepted the contention of the bank that clause 2 of the orders appointing them on probation entitled the bank to discharge probationers without assigning any reason. For that reason, learned single Judge dismissed the writ petitions. It is this judgment which is called in question before us. 2 WA.810/14 & con. cases - 3.We heard the learned counsel for the appellants, learned counsel appearing for the first respondent bank and the learned Government Pleader appearing for the second respondent. - 4.For convenience, exhibits are referred to with reference to W.A.810/14, unless otherwise stated. Briefly stated, the facts of these cases are as follows: In Ext.R1(a) circular issued by the first respondent bank, it was specified that for the posts in the subordinate cadre of the bank, the qualification shall be pass in XII[th] standard or its equivalent with basic reading/writing knowledge of English. The bank had certain vacancies in the post of peon. Therefore, on 30.06.2010, it made Ext.P1 requisition to the Employment Exchange, followed by Ext.P2 letter dated 28.7.2010, requesting to sponsor suitable candidates for appointment. In the requisitions, the qualification prescribed was shown as XII[th] standard. On receipt of the requisition from the bank, along with others, the appellants, who admittedly are 3 WA.810/14 & con. cases graduates, were also sponsored by the Employment Exchange. 5.On receipt of the list of candidates from the Employment Exchange, the bank issued intimations requiring the candidates to appear for an interview. The candidates were also directed to produce various documents, including certificate in proof of their educational qualification. Accordingly, on receipt of the intimation from the bank, the appellants appeared for interview and in the writ petitions, they have specifically stated that at the time of interview, the original certificates evidencing their qualification were produced before the first respondent and were verified. In fact, neither in the counter affidavit filed by the first respondent nor during the arguments before us, was there a case for the first respondent that the certificates were not produced or were not verified. 6. The appellants were thereafter issued orders dated 19.1.2011, appointing them as peons in the scale of pay of `5850-11350. Clause 2 of the appointment 4 WA.810/14 & con. cases orders stated that the appointees shall be on probation for a period of six months and the first respondent also reserved the right to terminate their services even before the expiry of the period of probation. This provision reads thus: “2. You will be on probation for a period of six months. Your services, are however liable to be terminated at the sole discretion of the Bank even before the expiry of the probationary period, without assigning any reasons but with one month's pay and allowance in lieu thereof.” - 7.Accordingly, the appellants joined duty and while continuing on probation, they were issued orders dated 7.3.2011 stating that in terms of clause 2 of the appointment orders, their services are terminated with effect from 7.3.2011. Along with the termination orders, demand drafts towards pay and allowances in lieu of notice of one month were also enclosed. - 8.Since Ext.P6 order did not contain any reason for termination of their services, the appellant in WA.810/14 & con. cases 5 W.A.810/14 made an application under the Right To Information Act, to which he got Ext.P7 reply, where, it was stated inter alia thus: “Your service was terminated by invoking clause 2 of the appointment order dated 19.01.2011, for the reason that you are not eligible for the post of Peon in Punjab National Bank as per the norms of the Bank for appointment of Peon. The minimum and maximum qualification for appointment of Peon in the Bank is pass in XII with basic reading/writing knowledge in English.” It was in this background, the writ petitions were filed seeking to quash the termination orders and to direct the first respondent to reinstate them in their service as peons. - 9.In paragraph 4 of the counter affidavit filed by the bank, the reason for terminating the services of the appellants was explained thus: “. . . . . . . At the time of joining, he submitted various testimonials including copies of his educational certificates. On perusal of the same, it came to notice that he had acquired BA degree WA.810/14 & con. cases 6 from the University of Calicut in the year 1996. The maximum and minimum stipulated qualification for the post of subordinate staff in the 1st respondent being pass in 12th standard, the petitioner was not eligible to be considered for the post of subordinate staff in the 1st respondent, in terms of Exhibit R-1(a). As continued employment of the petitioner in the cadre of subordinate staff amounted to violation of the rules prescribed for appointment to the said post, the 1st respondent was left with no option but to discontinue the services of the petitioner as such continuance would amount to depriving other candidates satisfying the eligibility criteria of opportunity of employment. Accordingly, vide the impugned order, the services of the petitioner was terminated.” 10. As we have already stated, the contention of the bank which was accepted by the learned Judge was that in view of clause 2 of the appointment orders, the bank was well within its rights to terminate the service of the probationer. Learned single Judge also held that it was not in dispute that even if persons having higher qualification applies such persons also could be considered and there was no principle of law which prevented consideration of such candidates. Proceeding further, learned single 7 WA.810/14 & con. cases Judge further held that if, as a matter of policy, the employer did not appoint any person with a higher qualification on the premise that such higher qualification was not required for the post, the same cannot be said to be illegal. - 11.The first question that arises for consideration is whether the services of the appellants could have been terminated relying on clause 2 of the appointment orders issued to them. To sustain the action of the first respondent, learned counsel for the appellants relied on the principles laid down by the Apex Court in Parshotam Lal Dhingra v. Union of India [AIR 1958 SC 36], Ranendra Chandra Banerjee v. The Union of India [AIR 1963 SC 1552], Samsher Singh v. State of Punjab [AIR 1974 SC 2192] and in Chandra Prakash Shahi v. State of U.P. [(2005) 5 SCC 152]. 12. According to the counsel for the Bank, a person who is appointed on probation, like a temporary employee, has no right to hold the post and clause 2 of the orders appointing the appellants entitled the Bank to terminate their services even during the probationary WA.810/14 & con. cases 8 period. It was stated that in so far as these cases are concerned, the maximum and minimum qualification prescribed by the Bank was XII[th] standard and that as, admittedly, the appellants are graduates, the management found them unsuitable for the post. Therefore, according to him, the Bank was well within its rights to terminate their services. He contended that this action of the Bank is fully supported by the principles laid down by the Apex Court in the aforesaid judgments. 13.However, having considered the issue canvassed before us, we find it difficult to sustain the contention raised by the learned counsel for the respondent Bank. The case of the first respondent Bank itself is that the probationers possessed qualifications which are superior to those prescribed by it. As we have already found, in the intimations given to the candidates requiring them to appear for the interview itself, they were directed to produce certificates proving their qualification. It is also the admitted case of the management that the certificates were produced and were verified at the 9 WA.810/14 & con. cases time of interview. It was thereafter that appointment orders were issued by the Bank. In other words, appointments were made by the Bank fully knowing that the appellants are graduates and this is not a fact which came to the knowledge of the Bank subsequent to the appointment of the appellants. 14.By a long line of decisions of the Apex Court, it has been held that the purpose of placing a person on probation is to try him during the period of probation and to assess his suitability for the job concerned. Probationer is a learner and Probation means the trial of the probationer as an employee who has been provisionally employed to fill in a permanent vacancy whose fitness for the post has not been confirmed or declared. It has been held that the concept of 'fitness for the post' includes three main ingredients viz., performance or productivity, discipline or conduct and attendance. The probationer's suitability for the post is to be assessed applying these yardsticks and if the employer finds him unsuitable for the post, the employer is at liberty to discharge him from service. WA.810/14 & con. cases 10 Such discharge of the probationer does not amount to a punishment and the probationer also cannot complain that any one of his legal rights are violated. The above principles would therefore show that for assessing the suitability of a probationer for confirmation in employment, his conduct and performance as a probationer is what is relevant. Therefore, even if it is accepted that the appellants are overqualified for the post of peon and therefore were ineligible to be appointed, that would not entitle the Bank to invoke clause 2 of the appointment orders, which entitled it to discharge the probationer for unsuitability to be confirmed in service. 15.Taking note of the language of the rule prescribed by the Bank, the learned single Judge has held that even if persons having higher qualification apply, such candidates also could be considered. However, proceeding further, it is also held that if, as a matter of policy, the employer did not appoint any person with higher qualification on the premise that such higher qualification was not required for the WA.810/14 & con. cases 11 post, the same cannot be held illegal. In so far as these findings of the learned Judge are concerned, the eligibility to be considered for a post depends upon the rule prescribed by the appointing authority. Any policy decision of the Bank should be consistent with the rule and policy decisions inconsistent with the rule will be ultra vires. Therefore, as per the rule, if a candidate is eligible to be considered, the appointing authority cannot take a policy decision inconsistent with the rule framed by it and refuse to consider the candidate. Therefore, while we uphold the finding of the learned single Judge that the rule did not prohibit consideration of candidates with superior qualifications, we are unable to endorse the latter finding that based on policy decisions, the appointing authority can exclude eligible candidates. - 16.Coming to the decisions that are relied on by the counsel for the first respondent, in Parshotam Lal Dhingra (supra), the Apex Court has only re-iterated the well settled principle that termination of a probationer is not a punishment attracting Article WA.810/14 & con. cases 12 311 of the Constitution of India. Ranendra Chandra Banerjee (supra) is a case where a probationer was discharged for unsatisfactory service. It was in that context, the Apex Court held in paragraph 5 of its judgment that a Government servant who is on probation can be discharged and such discharge would not amount to dismissal or removal. It is also held that a probationer has no right to the post held by him and under the terms of his appointment, he is liable to be discharged at any time during the period of his probation. Similarly, Samsher Singh (supra) is a case where a probationer was terminated for misconduct. Here again, in paragraph 64 of the judgment, the Apex Court held that before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the petitioner is satisfactory or whether he is suitable for the post. It is also held that in exercise of that power, the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude, the probationer is unsuitable for the job and hence must be discharged. WA.810/14 & con. cases 13 In so far as the judgment in Chandra Prakash Shahi (supra) is concerned, that also was a case of discharge of a probationer where the Apex Court upheld the discharge applying the principles of motive and foundation formulated by the Apex Court in its earlier judgments in Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. [(1999) 2 SCC 21]. - 17.These judgments, in our view, do not recognise any right for the employer to discharge the probationer for reasons other than unsuitability for the job which is to be assessed in the manner as stated above. On the other hand, if clause 2 of the appointment order is understood as conferring such a right on the employer, in our view, such a provision itself will be hit by the principles laid down by the Apex Court in its judgment in Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly [AIR 1986 SC 1571]. - 18.For all these reasons, we are unable to sustain the judgment of the learned single Judge and the judgment WA.810/14 & con. cases 14 dismissing the writ petitions will stand set aside. The orders terminating the services of the appellants are set aside and the writ petitions are allowed accordingly. We further direct that the appellants shall be reinstated in service as probationers with continuity of service and shall be paid 50% backwages. The Bank shall be at liberty to take a decision as to whether the appellants should be confirmed in service or not. Writ appeals are allowed as above. No costs. Sd/ANTONY DOMINIC, Judge. Sd/- DAMA SESHADRI NAIDU, Judge. kkb. /True copy/ PS to Judge