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S.R. Patel Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1983)1GLR740
AppellantS.R. Patel
RespondentState of Gujarat and ors.
Cases ReferredPratap Singh v. Union Territory of Chandigarh and Anr.
Excerpt:
- - the petitioner has challenged the aforesaid order (annexure 'j') and the resolution (annexure i') on the ground that the termination order is not an order of termination simpliciter but it is as and by way of punishment and also on the ground that although he is well and sufficiently qualified for the job, the authorities concerned have erroneously decided against him that he did not possess the requisite qualification at the time when he was taken in service as assistant professor of pharmacology. [1980]1scr487 .the law on this question is well settled in several decisions of the supreme court that there is no automatic confirmation on the probation period being over......to him the fact that the petitioner was allowed to continue after the expiration of the two years' period shows that his work was satisfactory and that the respondents had thought it fit to let him continue without passing any further order extending his probation period. from this, mr. tanna argued that after the two years' probation period was over the petitioner should have been treated as having been automatically confirmed because, according to him, there cannot be the continuation of probation period ad infinitum or for an indefinite period. to these arguments mr. panchal has answered that there is no automatic confirmation on the expiration of specified probation period. mr. panchal relied on the decision of the supreme court in pratap singh v. union territory of chandigarh.....
Judgment:

A.S. Qureshi, J.

1. In this petition the petitioner has challenged the order No. MCS/Hc/161-165 of 1982 passed by the Dean of the Government Medical College, Surat on the basis of the Government Resolution No. MCG-1078-5417/82/V dated 28th July, 1982, whereby the services of the petitioner as probationary Assistant Professor of Pharmacology, Government Medical College, Surat were terminated with immediate effect. The petitioner has challenged the aforesaid order (Annexure 'J') and the Resolution (Annexure I') on the ground that the termination order is not an order of termination simpliciter but it is as and by way of punishment and also on the ground that although he is well and sufficiently qualified for the job, the authorities concerned have erroneously decided against him that he did not possess the requisite qualification at the time when he was taken in service as Assistant Professor of Pharmacology.

2. Mr. B.P. Tanna, the learned Counsel for the petitioner has urged that the respondents are not correct in saying that the petitioner did not possess the requisite qualification as it was set out in the advertisement for the post because the advertisement had stated that the candidate must have the degree of M.Sc. in Pharmacology with a course of 3 1/2 years duration because the present petitioner had done a course which at the time was a two-years' course, but there was a compulsory pre-requisite orientation course of 1 1/2 years covering the medical subjects which are now included in the 3 1/2 years' course. According to Mr. Tanna, the course in which he studied for M. Sc. Pharmacology covered all the subjects which are now covered by 3 1/2 years' course with the only difference that the 1 1/2 years course of study of medical subjects was not regarded as a part of the two years' course for M.Sc. He has also submitted that when he applied for the post he bad set out very clearly that be had studied the 1 1/2 years' course in the medical subjects preparatory to the 2 years' M.Sc. Pharmacology course and that having passed 1 1/2 years' qualifying course he was allowed to study for and pass the two years' M.Sc. Course which taken together is the exact equivalent with the present 3 1/2 years' course in M.Sc. Pharmacology. According to him, the Public Service Commission must have taken into account that the entire course covered by the present petitioner was either identical or similar to the present 3 1/2 years' course and on that basis the petitioner was taken into employment. Hence, according to him, it is not open to the respondents now to say that the petitioner did not have sufficient or requisite qualification of M.Sc. Pharmacology of 3 1/2 years course.

3. Mr. M.A. Panchal, the learned Counsel for the respondents submits that the earlier two years' course for M.Sc. Pharmacology was quite different from the present 3 1/2 years' course inasmuch as the preparatory 1 1/2 years' course was not a part of the M.Sc. Examination course. Hence, according to him, it cannot be said that the petitioner did possess the requisite qualification as set out in the advertisement. Mr. Panchal has argued that it is not open to this Court or to any other authority to decide at this stage the question of equivalence between the former two years' M.Sc. Pharmacology course, and the present 3 1/2 years' M.Sc. Pharmacology course. On this point Mr. Panchal is right that this Court would not go into the question of equivalence but it is not at all necessary that to go into that question at this stage. It is sufficient for the purpose of deciding the present petition that the Public Service Commission had, at the time of taking the petitioner in the employment, regarded the qualification as sufficient and had appointed the petitioner on that basis. It is not open to the respondents now to find fault with the qualification of the petitioner which they had accepted earlier nor is it proper for them to say that the petitioner had either misled them or they were themselves misled. In either case, the original appointment could not be called in question now on the ground of sufficiency of qualification.

4. The next question that is urged before this court is with regard to the question whether the petitioner was on probation at the time when his services were sought to be terminated. Mr. Tanna has argued that the initial appointment of the petitioner was for a period of two years on probation. According to him the fact that the petitioner was allowed to continue after the expiration of the two years' period shows that his work was satisfactory and that the respondents had thought it fit to let him continue without passing any further order extending his probation period. From this, Mr. Tanna argued that after the two years' probation period was over the petitioner should have been treated as having been automatically confirmed because, according to him, there cannot be the continuation of probation period ad infinitum or for an indefinite period. To these arguments Mr. Panchal has answered that there is no automatic confirmation on the expiration of specified probation period. Mr. Panchal relied on the decision of the Supreme Court in Pratap Singh v. Union Territory of Chandigarh and Anr. : [1980]1SCR487 . The law on this question is well settled in several decisions of the Supreme Court that there is no automatic confirmation on the probation period being over. Hence the submission of Mr. Tanna that the petitioner must be deemed to be confirmed on his successful completion of the probation period of two years, must be rejected.

5. The next point urged by Mr. Tanna is that the termination of the petitioner's services is not a termination simpliciter but it is as and by way of punishment and that while passing such an order the authority concerned has made an allegation against the petitioner which amounts to a stigma on the petitioner. For this contention Mr. Tanna has referred to the affidavit of the respondent No. 1 stating that the petitioner had misled the Public Service Commission creating an impression that he had the degree of M.Sc. Pharmacology with 3 1/2 years' course and that if the Public Service Commission had known that the petitioner does not possess the M.Sc. Pharmacology Degree of 3 1/2 years' course, the Commission would not have selected him for the post, although at the time when the order of termination of service was paused, it was not known what was the reason or motive in passing that order but by the subsequent affidavit the respondent-State has given an indication of the basis for passing the impugned order of termination of service. Hence, there is some substance in the argument of Mr. Tanna that the impugned termination of service is not a termination simpliciter but it is as and by way of punishment and that it carries a stigma with it that the petitioner had deliberately misled the Public Service Commission by his alleged non-disclosure. Hence the impugned order of termination of service of the petitioner cannot be sustained and deserves to be quashed and set aside.

6. Mr. Tanna had also urged that the petitioner had subsequently obtained the degree of Ph.D. in Pharmacology and that at the time of the alleged termination of the service of the petitioner he had sufficient qualification to be appointed to the post in question even on the basis of his Doctorate in Pharmacology. This argument of Mr. Tanna cannot be sustained as the question before this Court is whether the petitioner possessed the requisite qualification at the time of his appointment or not. If his original appointment is legally invalid or untenable then, his subsequent acquisition of qualification with requisite qualification would not validate his original appointment. If he has requisite qualification now, he can seek the post on the basis of that subsequently acquired qualification. However, that question really is not material while deciding the present petition. As stated above, the impugned order is unsustainable and the same is quashed and set aside. Rule is made absolute with no order as to costs.

At this stage Mr. Panchal mentions that the respondent-State will have to consider whether it should take this matter to carry further and in the event of the matter being carried further, the operation of the present judgment and order may be stayed for a period of three weeks from the day when the judgment is duly signed. The request is quite reasonable and is granted. The operation of the present order is stayed for a period of three weeks from the day the judgment becomes operative.


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