G. Ramanujam, J.
1. The petitioner herein was appointed temporarily till 31st May, 1979 as Lecturer in Electrical Engineering in the Department of Electrical Engineering, Annamalai University, by the respondent by an order, dated 6th January, 1979. The petitioner reported for duty on 10th January, 1979. Subsequently, his temporary services were continued upto 30th June, 1980. By a further order, dated 22nd June, 1981 he was put on probation for a period of three years with effect from 10th January, 1979, when he was originally entertained as a Lecturer on a temporary basis. In that letter it was stated:
His case for confirmation in the post of Lecturer will be considered by the Board of Selection at the end of his 3 years probationary period after a review of the work done by him and of his conduct during the term of probation.
However, the Board of Selection passed a resolution, dated 4th January, 1982, terminating the probation of the petitioner with effect from 5th January, 1982. On the basis of the said resolution, the respondent actually terminated the services of the petitioner with effect from 5th January, 1982. The said order dated 5th January, 1982, passed by the respondent terminating the petitioner's services as Lecturer in the Department of Electrical Engineering has been challenged in this writ petition mainly on two grounds, (1) Neither the Board of Selection nor the Registrar of the University is competent to terminate the services of the petitioner and therefore the order impugned in this writ petition is not legally sustainable; and (2) Even if the Board of Selection is competent to terminate the probation of the petitioner, it can be done only in accordance with Standing Order 18 of the Annamalai University Service Rules, contained in Chapter XXVII of the Laws of University and the order impugned in this case having been passed without giving one month's notice as contemplated in the aforesaid Rule, the order cannot be legally sustained.
2. In the counter-affidavit filed by the respondent reliance is placed on statute 8 relating to 'appointments, term and probationary period,' which empowers the Board of Selection to confirm or not to confirm any temporary teacher and it is contended that the Board of Selection in pursuance of the said statute found that the probation of the petitioner was not satisfactory and therefore he should not be confirmed and that only on that basis the Board passed a resolution on 4th January, 1982, terminating the services of the petitioner, which was given effect to by the Registrar by issuing the impugned communication, dated 5th January, 1982, to the petitioner. Thus the respondent seeks to justify the legality of the order by relying on statute 8.
3. In the counter-affidavit of the respondent, it is also contended that S.O. No. 18 of the Annamalai University Service Rules, framed by virtue of Section 22(c) of the Annamalai University Act, 1928 hereinafter referred to as the Rules, will apply only when the Syndicate decides to terminate the services of a temporary Lecturer and that it will not apply when the Board of Selection terminates the probation of a temporary Lecturer.
4. The question, therefore, is whether the impugned order falls within S.O. No. 18 of the Rules on which reliance is placed by the petitioner or whether it falls within Statute 8 on which reliance is placed by the respondent.
5. Statute 8 deals with 'appointments, term and probationary period' and it provides that as soon as a vacancy arises, or when a vacancy is likely to arise, the Vice-Chancellor, shall instruct the Registrar to advertise such vacancy and call for applications for the post, unless such advertisement is dispensed with by the Vice-Chancellor for reasons to be recorded. It also provides that the Vice-Chancellor shall report to the Syndicate such vacancy and the fact of advertisement made therefor, on which the Syndicate shall make a requisition to the Board of Selection for the appointment of a person to the vacancy mentioning the qualifications required and also the emoluments and the classifications prescribed in the laws governing the said post. Thereupon the Board of Selection shall proceed to appoint from among the applicants to the post one who, in their opinion, is best qualified and also fix his initial pay in the scale prescribed for the post. All appointments to the teaching posts in the University shall ordinarily be on probation for a period not exceeding three years. At the end of the probationary period or earlier, if the Board of Selection so decide, the teacher appointed as above shall be confirmed by the Board of Selection after obtaining from the Vice-Chancellor a review in writing of the work done by the person concerned and of his conduct during the term of probation. If not confirmed, the post shall be deemed to be vacant, and the procedure already indicated has to be followed for filling up the vacancy. A teacher once confirmed will continue in service until he attains the age of 60 years.
6. The above provision in Statute 8 deals with the manner of appointment and confirmation by the Board of Selection after reviewing the performance of the teacher during the period of probation. This provision no doubt enables the Board of Selection to appoint teachers on probation and to confirm or not to confirm those who have been put on probation. However, this provision does not seem to empower the Board of Selection to terminate the services of any person appointed as a teacher either for misconduct or otherwise. The only power given to the Board of Selection is to confirm the temporary appointment even before the probationary period is over or not to confirm if the probation of the teacher is not satisfactory. According to this provision, the Board of Selection can confirm the temporary appointment even before the expiry of the probationary period or refuse to confirm if the teacher's probation is found not satisfactory, which means that the power not to confirm can be exercised only after the period of probation is over.
7. S.O. No. 18 (b) of the Rules is as follows:
If a teacher, who is on probation, wishes to resign or the Syndicate decides to terminate his services for reasons other than those mentioned in S.O. No. 16, one month's notice in writing on either side shall be given,
As per this provision, if a teacher, who is on probation, wishes to resign or the Syndicate decides to terminate his services for reasons other than the misconduct contemplated by Rule 16, one month's notice in writing on either side should be given. Thus, it will be seen that the power to terminate the services of a teacher has been given only to the Syndicate and even that power is subject to the condition that one month's notice should be given in writing before the actual termination of service. The service rules which deal elaborately with the conditions of service of teachers give the power only to the Syndicate, to terminate the services of a teacher and therefore it is not possible to say that there is some other authority like the Board of Selection which can also terminate the services of a teacher, in addition to the Syndicate. If such a power has been given to the Board of Selection, then nothing prevented the University from including the Board of Selection also as an authority to terminate the services of a teacher on probation in Rule 18(b). So long as Rule 18(b) refers only to the Syndicate as a body which can terminate the services of a teacher, it is not possible to assume that the Board of Selection also can exercise such power. As already stated, Statute 8 enables the Board of Selection either to confirm or not to confirm the temporary appointment. Though the question of confirmation can be taken up by the Board of Selection and confirmation made even earlier to the expiry of the period of probation as per the said Statute, the question of non-confirmation will arise only after the period of probation is over. This has been made clear even in the order placing the petitioner on probation wherein it is stated that the petitioner's case for confirmation will be considered by the Board of Selection at the end of his 3 years' probationary period after a review of the work done by him and of his conduct during the term of probation. The power of the Board of Selection not to confirm, contained in Statute 8, cannot be equated to the power to terminate the services. It is not therefore, possible for me to say that the Board of Selection has also power to terminate the services or the probation of a temporary teacher and that the said power is not controlled by any condition, as is imposed in S.O. No. 18 referred to above. I am therefore of the view that the power to terminate the services of a teacher either permanent or temporary can be exercised only by the Syndicate under standing Order 38(a) and (b) and the Board of Selection has no such power and that any order terminating the services should satisfy the condition set out in S.O. No. 18. Since in the present case the order of termination of the services of the petitioner has been passed by the Board of Selection without reference to the Syndicate, the order should be deemed to have been passed in contravention of S.O. 18.
8. The learned Advocate-General appearing for the respondent contends that even if the impugned order is taken to have been passed in contravention of S.O. 18, and is set aside on that basis, it will not result in the petitioner continuing as a temporary teacher beyond the three years period. According to him, by operation of Statute 8, in the absence of confirmation of temporary appointment by the Board of Selection, the post automatically becomes vacant and the same has to be filled up in accordance with the regulations. There is therefore no question of the petitioner automatically continuing in office without reference to his performance and conduct during the probationary period.
9. The learned Advocate-General also refers to the decision of the Madhya Pradesh High Court in Shivnarayan v. Vice-Chancellor (1960) M.P.L.J. 15 : (1960) L.L.J. 397 : L.R. 1960 M.P.208 in support of his contention that the impugned order terminating the services of the petitioner does not become illegal merely because there has been an omission to give a month's notice as required by S.O. 18. As already stated, the order terminating the services of the petitioner in this case has not been passed by the Syndicate, but by the Board of Selection which is not the authorite contemplated by S.O. 18. Therefore, the impugned order, even assuming that the omission to give a month's notice cannot be taken to be a serious one, as has been held in the above case, cannot be sustained, in so far as it has been passed by an authority, who is not competent to pass it. Therefore, the said order has to be set aside and the writ petition has to be allowed to that extent.
10. However, the relief claimed by the petitioner for a direction to the respondent to continue him as a teacher cannot be given, for even if the impugned order had not been passed, his right is to continue only upto 10th January, 1982, as a temporary teacher and if his appointment is not confirmed by the Board of Selection at the end of the probationary period, he automatically ceases to be a teacher thereafter, as per Statute 8. The learned Counsel for the petitioner does not dispute the fact that but for the impugned order, the petitioner would have continued in service as a temporary teacher only up to the three year probationary period and his further continuance has to depend on the confirmation by the Board. There is no automatic confirmation on the expiry of the period of probation. Thus, even assuming that the petitioner continues upto the expiry of the period of probation, unless the Board of Selection or the Syndicate finds that the petitioner has satisfactorily completed the period of probation and confirms his appointment, he cannot be said to have become permanent. Therefore, no direction could be given in this case to continue the petitioner in employment as the period of probation had already expired.
11. The writ petition is allowed, with the above observations, with costs. Counsel's fee Rs. 200. (Rs. Two hundred only)