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Gramin Yuvak Vikas Shikshan Mandal, Kinhi Naik & Another v/s Shivnarayan Datta Raut & Another


Company & Directors' Information:- R DATTA PVT LTD [Strike Off] CIN = U99999DL2000PTC015097

Company & Directors' Information:- VIKAS R & D INDIA PRIVATE LIMITED [Active] CIN = U73100DL2012PTC232875

Company & Directors' Information:- VIKAS PVT LTD [Strike Off] CIN = U99999MH1949PTC007334

    Writ Petition No. 5998 of 2019

    Decided On, 22 September 2020

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE MANISH PITALE

    For the Petitioners: M.M. Agnihotri, h/f S.Z. Qazi, Counsels. For the Respondents: R1, Radhika Bajaj, Counsel, R2, Tajwar Khan, A.G.P.



Judgment Text

1. In the present petition, although the rival parties have raised various questions for determination, one particular question assumes significance in the light of various judgments referred by the parties, which appear to be conflicting. The question pertains to Section 5 (3) of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977 (hereinafter referred to “MEPS Act” for the sake of brevity) and Rule 15 of the Maharashtra Employees of Private School (Conditions of Service) Regulation Rules, 1981 (hereinafter referred to “MEPS Rules” for the sake of brevity). The controversy is, as to whether entire sub-rules (1) to (6) of Rule 15 of the MEPS Rules apply to an employee appointed on probation or only sub-rule (6) of Rule 15 of MEPS Rules applies to such an employee appointed on probation, when read with Section 5(3) of the MEPS Act.2. The learned counsel appearing for the rival parties have invited attention of this Court to various judgments pertaining to the said question and diametrically opposite views have been canvassed.3. Mr. M. M. Agnihotri, learned counsel appearing for the petitioners has referred to the general position of law pertaining to the rights of an employee appointed on probation and invited attention of this Court to judgments of Division Bench and learned Single Judges of this Court, holding that only sub-rule (6) of Rule 15 of the MEPS Rules read with Section 5(3) of the MEPS Act, would apply to an employee appointed on probation.4. On the other hand, Ms Radhika Bajaj, learned counsel appearing for the contesting respondent No.1 has emphasized upon judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another, reported in (2008) 3 SCC 310 and subsequent judgments of Division Bench and learned Single Judges of this Court, to contend that entire Rule 15 of the MEPS Rules read with Section 5(3) of the MEPS Act apply to an employee appointed on probation and failure to adhere to Rule 15(5) of the MEPS Rules, which requires communication of adverse remarks and in absence thereof provides for a presumption that work of the employee was satisfactory, applies to an employee appointed on probation. According to the learned counsel appearing for respondent No.1, the School Tribunal in the present case was justified in holding in favour of the said respondent on the basis of such interpretation.5. The learned counsel appearing for the petitioners has argued that the judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (supra) does not lay down the proposition that entire Rule 15 of the MEPS Rules applies to an employee appointed on probation and that such interpretation of the ratio of the said judgment given by Division Bench and learned Single Judges of this Court in subsequent judgments is misplaced.6. Ms Tajwar Khan, learned Assistant Government Pleader appeared on behalf of respondent No.2.7. Before considering the judgments referred to by the learned counsel appearing for the rival parties, it would be appropriate to consider the rights of an employee appointed on probation, particularly when the service of such an employee is terminated by a nonstigmatic simple order. It is relevant that in the present case, the service of respondent No.1 was terminated during the period of probation by stating that his service was found to be unsatisfactory during such period.8. The Hon’ble Supreme Court in the case of Parshotam Lal Dhingra v. Union of India, reported in AIR 1958 SC 36 held that where a person was appointed on probation, the termination of his service during or at the end of the period of probation will not ordinarily and by itself be a punishment and a person so appointed had no right to continue to hold such post. In the case of High Court of Judicature at Patna v. Pandey Madan Mohan Prasad Sinha and others, reported in (1997) 10 SCC 409, while considering the validity of termination of service of a Munsif appointed on probation in the context of noncommunication of adverse remarks in confidential reports to the employee, the Hon’ble Supreme Court held as follows:“6. ……………………………………………… The question is whether the non-communication of the said adverse remarks vitiates the action that has been taken against Respondent 1, viz., termination of his services on the ground that he was not fit for confirmation on the post of Munsif. As regards a probationer, the law is well settled that he does not have a right to hold the post during the period of probation. The position of a probationer cannot be equated with that of an employee who has been substantively appointed on a post and has a right to hold that post. An order terminating the services of a probationer can be questioned only if it is shown that it has been passed arbitrarily or has been passed by way of punishment without complying with the requirements of Article 311(2) of the Constitution. Since a probationer has no right to hold the post on which he has been appointed on probation, he cannot claim a right to be heard before an order terminating his services is passed. The obligation to communicate the adverse material to a person before taking action against him on the basis of the said material is a facet of the principles of natural justice. But principles of natural justice have no application in the case of termination of the services of a probationer during the period of probation since he has no right to hold the post. It is, therefore, not possible to hold that there is an obligation to communicate the adverse material to a probationer before a decision is taken on the basis of the said material that he is not fit for being retained in service. Such material can be relied upon to show that such a decision does not suffer from the vice of arbitrariness and is not capricious. In this context it may be mentioned that even with respect to persons who have been substantively appointed on a post and have a right to hold that post, it has been held that the failure to communicate the adverse remarks in the service record would not vitiate the order of compulsory retirement. (See : Union of India v. M. E. Reddy and Baikuntha Nath Das v. Chief Distt. Medical Officer).”9. In the case of Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others, reported in (1999) 3 SCC 60, in the context of when an order of termination of service of an employee appointed on probation could be said to be stigmatic, the Hon’ble Supreme Court specifically held that use of words ‘unsatisfactory work and conduct’ in the termination order will not amount to a stigma. This was further noted by the Hon’ble Supreme Court in the case of Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and another, reported in (2002) 1 SCC 520.10. Thus, the aforesaid judgments clearly distinguish the rights that an employee appointed on probation can claim, as compared to a confirmed employee. This is particularly so when the order of termination of service cannot be said to be stigmatic in nature. Before adverting to the specific judgments referred to by the learned counsel appearing for the rival parties, it would be appropriate to briefly state the relevant facts of the present case.11. The respondent No.1 was appointed as Shikshan Sevak for a period of three years i.e. 30/08/2013 to 30/08/2016. It was the case of respondent No.1 himself and it is undisputed that the said period was a period of probation and upon successful completion of such probation period, respondent No.1 would be entitled to be appointed as an Assistant Teacher. There is no dispute about the fact that during this period, petitioner No.2 i.e. Headmaster of the School run by petitioner No.1- Management had issued notices to respondent No.1 on some occasions informing him about his unsatisfactory performance in his duties, to some of which respondent No.1 had replied and in one of such replies, he had even admitted his mistake. The confidential reports of respondent No.1 were prepared by the petitioners, but there is some controversy about the fact as to whether they were communicated to respondent No.1, although it is admitted that a few days before termination of service of respondent No.1 by order dated 09/06/2016, one of the confidential reports was indeed communicated to respondent No.1. A perusal of the order of termination of service dated 09/07/2016 shows that it simply says that the performance of respondent No.1 was found to be unsatisfactory during the period of probation and accordingly the service was being terminated. The respondent No.1 was forwarded the amount due in lieu of notice as per Rules.12. The respondent No.1 approached the School Tribunal challenging the said order of termination of service, inter alia, claiming that although the petitioners could terminate his service during the period of probation under Section 5(3) of the MEPS Act on the ground that his work or behaviour was not found to be satisfactory, the power to be exercised under the aforesaid provision was procedurally governed by Rules 14 and 15 of the MEPS Rules. It was claimed that since Rule 15(5) of the MEPS Rules required communication of confidential report and adverse remarks to respondent No.1 and the petitioners had failed to do so, the effect of the same was that the performance of respondent No.1 was deemed to be satisfactory during the period pertaining to such confidential reports and that therefore, the impugned order of termination of service deserved to be set aside. The School Tribunal accepted the said contention of respondent No.1, despite the same being opposed vehemently by the petitioners.13. Before this Court also the learned counsel appearing for the rival parties vehemently made submissions in respect of the said contention. Before proceeding further, it would be appropriate to refer to the said relevant provisions:“Sec. - 5. Certain obligation of Management of private Schools.(1) ….(2) ....(2A) ….3. If the opinion of the Management, the work or behaviour of any probationer, during the period of his probation, is not satisfactory, the Management may terminate his services at any time during the said period after giving him one month’s notice [[or salary [or honorarium] of one month in lieu of notice].”“Rule - 14. Assessment of employees work.(1) At the beginning of each term, the teacher shall prepare the plan of his academic programme and at the end of the academic year, prepare a report of the work done by him and submit it to the Head.(2) Each employee on the teaching and non-teaching staff of a school shall submit the report of self-assessment in the respective Form in Schedule “G” within one month after the end of a year.Rule - 15. Writing of confidential reports etc.(1) The confidential reports shall be written annually in the respective Form in Schedule “G” The reporting authorities in respect of the employees and the Head shall be the Head and the Chief Executive Officer respectively. Confidential reports shall be written in respect of the employee or the Head who had worked for six months or more during an academic year commencing from June. If the Head or a teacher is the Secretary of the Management the Confidential report in his respect shall be written by the President of the Management.(2) The Confidential reports so written in respect of the employees and the Head shall be reviewed by the Chief Executive Officer and the President of the Management, respectively. The Confidential report of the Head or a teacher written by the President shall be reviewed by the Managing Committee.(3) The respective reporting authority shall arrange to Communicate confidentially in writing adverse remarks, if any, to the concerned employee or the Head, as the case may be, before the end of August every year.(4) Representation, if any, from an employee against the adverse remarks communicated to him in accordance with sub-rule (3) above shall be decided by the School Committee. Similar representation, if any, from the Head shall be decided by the Managing Committee.(5) Failure to write and maintain confidential reports and to communicate adverse remarks to the employees within the period prescribed in sub-rule (3) shall have the effect that the work of the employee concerned was satisfactory during the period under report.(6) Performance of an employee appointed on Probation shall be objectively assessed by the Head during the period of his probation and a record of such assessment shall be maintained.”14. The crux of the controversy is as to whether, while taking action of termination of service under Section 5(3) of the MEPS Act for unsatisfactory work or behaviour of an employee appointed on probation, only sub-rule (6) of Rule 15 of the MEPS Rules applies or all the sub-rules i.e. sub-rules (1) to (6) of Rule 15 of the MEPS Rules apply to such an employee. A perusal of the judgments referred to by the rival parties would show that in the case of Savitribai Fule Shikshan Prasarak Mandal, Wardha and another v. Dhananjay Deoraoji Diwate and others, reported in 2004 (3) Mh.L.J. 18, a learned single judge of this Court emphatically held that considering the scheme of the MEPS Act and the Rules, it can be said that sub-rule (6) of Rule 15 is the only relevant Rule as far as employees appointed on probation are concerned. It is further specifically held that if Section 5(3) of the MEPS Act and Rule 15(6) of the MEPS Rules are read conjointly, it can very well be inferred that adverse remarks need not be communicated to the probationer in order to grant him opportunity to improve upon the same or agitate the same. It is further held that all that is provided for is assessment of probationer’s work by the Head and decision of the Management whether to continue his services or not.15. Following the aforesaid judgment another learned Single Judge of this Court in the case of High School Education Society & another v. Presiding Officer, School Tribunal & another, reported in 2005 (2) Bom. C.R. 773 held that communication of adverse remarks to an employee appointed on probation was not necessary and that a decision under Section 5(3) of the MEPS Act could be taken by complying with only sub-rule (6) of Rule 15 of the MEPS Rules.16. In the case of Ashok Pandurang Janjal v. Secretary, Tulsabai Kawal Vidyalaya, Patur and others, reported in 2006 (4) Mh.L.J. 759, a Division Bench of this Court, after referring to the aforesaid provision, specifically held as follows:“7. Plain reading of the provisions comprised under Rule 15(6) would disclose that as regards the employees on probation, the question of recording of confidential reports in terms of Rule 15, sub-rules(1) to (5) does not arise. The sub-rule (6) specifically provides that in the case of such type of an employee his performance should be objectively assessed by the Head during the period of his probation and of course the records of such assessment shall be maintained by the Management.”17. Thereafter, in the case of Mushtaq Shah s/o Meheboob Shah v. Haidariya Urdu Education Society, Kapustalani and others, reported in 2008 (4) Mh.L.J. 734, a learned Single Judge of this Court again categorically held in para-28 that ‘sub-rule 6 of Rule 15 will have to be read independently and as a scheme or mechanism of recording satisfactoriness etc. of performance of probationer’. This was in the context of Section 5(3) of the MEPS Act.18. It is at this stage that the judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (supra) came to be delivered in the year 2008. In this case, the Hon’ble Supreme Court had an occasion to refer to Section 5(3) of the MEPS Act and Rules 14 and 15 of the MEPS Rules. Much emphasis has been placed by the learned counsel appearing for respondent No.1 on this judgement, while supporting the findings rendered by the School Tribunal, to contend that entire Rule 15 of the MEPS Rules applies to an employee appointed on probation and that the ratio of the aforesaid judgment of the Hon’ble Supreme Court is completely in favour of respondent No.1. The Hon’ble Supreme Court considered arguments raised in the context of the aforesaid provisions and it was held as follows:“15. On a consideration of the submissions made on behalf of the respective parties, the main issue which, in our view, requires determination in this appeal is whether the provisions of Rules 14 and 15, and, in particular sub- Rule (6) of Rule 15 of the MEPS Rules, 1981, would control the powers vested in the Management of the School under Sub-Section (3) of Section 5 of the MEPS Act. The law with regard to termination of the services of a Probationer is well established and it has been repeatedly held that such a power lies with the Appointing Authority which is at liberty to terminate the services of a Probationer if it finds the performance of the Probationer to be unsatisfactory during the period of probation. The assessment has to be made by the Appointing Authority itself and the satisfaction is that of the Appointing Authority as well. Unless a stigma is attached to the termination or the Probationer is called upon to show cause for any shortcoming which may subsequently be the cause for termination of the Probationer's service, the Management or the Appointing Authority is not required to give any explanation or reason for terminating the services except informing him that his services have been found to be unsatisfactory.16. The facts of this case are a little different from the normal cases relating to probation and the termination of the services of a Probationer in that the satisfaction required to be arrived at under sub-Section (3) of Section 5 of the MEPS Act has to be read along with Rule 15 of the MEPS Rules, 1981 with particular reference to sub-Rule (6) which provides that the performance of an employee appointed on probation is to be objectively assessed by the Head during the period of his probation and a record of such assessment is to be maintained. If the two provisions are read together, it would mean that before taking recourse to the powers vested under sub- Section (3) of Section 5 of the MEPS Act, the performance of an employee appointed on probation would have to be taken into consideration by the School Management before terminating his services.17. Accordingly, while Rules 14 and 15 of the MEPS Rules, 1981 cannot override the provisions of sub-Section (3) of Section 5 of the MEPS Act, it has to be said that the requirements of sub-Rule (6) of Rule 15 would be a factor which the School Management has to take into consideration while exercising the powers which it undoubtedly has and is recognised under sub- Section (3) of Section 5 of the Act.”19. In para-19 of the aforesaid judgment, the Hon’ble Supreme Court specifically found that the documents upon which the Management was placing reliance were not above suspicion and that the requirement of Rule 15(6) and 14 of the MEPS Rules had not been complied with prior to invocation of powers under Section 5(3) of the MEPS Act.20. Thereafter, a Division Bench of this Court in the case of Vinayak Vidyadayini Trust and another v. Aruna T. Prabhu and others, reported in 2011 (1) Mh.L.J. 550, held that Rules 14 and 15 of the MEPS Rules have elaborately set out the procedure for assessment of performance of a probationer and writing of his confidential reports. Much emphasis was placed on sub-rule 5 of Rule 15 to hold that failure to maintain confidential reports and to communicate adverse remarks to the employee within the period specified in sub-rule (3) shall have the effect that the work of the employee concerned was satisfactory during the period under report. Thereafter, by referring to the aforesaid judgment of the Hon’ble Supreme Court rendered in the case of Progressive Education Society and another v. Rajendra and another (supra), it has been interpreted that failure to communicate adverse remarks would mean that the work of the probationer was satisfactory.21. It is interesting that after the aforesaid judgment of the Division Bench of this Court was rendered, a learned Single Judge of this Court in the case of Shivdutta Education Trust and another v. Harishchandra Rajabali Yadav and others, reported in 2012 (4) Mh.L.J. 900, after referring to judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (supra) and upon quoting Rule 15 of the MEPS Rules, refused to accept contentions raised on behalf of the employees. It was held that since communications and warnings in writing were given to the employees from time to time to the effect that the Management did not find their work satisfactory, it could not be said that the employees were not communicated with adverse remarks and since record of assessment of such employees appointed on probation had been maintained, the requirement of law had been satisfied.22. Thereafter, a learned Single Judge of this Court in the case of Anjuman-E-Taleem and another v. State of Maharashtra and another, reported in 2015 (3) Mh.L.J. 98, after referring to aforesaid judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (supra) and Division Bench judgment of this Court in the case of Vinayak Vidyadayini Trust and another v. Aruna T. Prabhu and others (supra) held that entire Rule 15 of the MEPS Rules applied to employees appointed on probation. It was found that un-communicated adverse remarks in confidential reports could not be made the basis by the Management with regard to the question of unsatisfactory nature of services. It was held that such communication was necessary to enable the employee to improve his performance and also to represent before the Management regarding such adverse remarks.23. Thereafter, a learned Single Judge of this Court in the case of Prajwala Bhatu Khalane v. Mahatma Phule Vidya Prasarak Sanstha, Deopur and others, reported in 2017 (1) Mh.L.J. 348, after referring to judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (supra) and the aforesaid Division Bench judgment of this Court in the case of Vinayak Vidyadayini Trust and another v. Aruna T. Prabhu and others (supra), again held in favour of employees appointed on probation, on the basis that entire Rule 15 of the MEPS Rules applied to such employees.24. It is in the context of all these judgments that the learned counsel appearing for the rival parties have made detailed submissions in support of their respective stands. A perusal of the aforesaid judgments clearly shows that there are two sets of views on the same material. While a Division Bench of this Court in the case of Ashok Pandurang Janjal v. Secretary, Tulsabai Kawal Vidyalaya, Patur and others emphatically held that only sub-rule (6) of Rule 15 of the MEPS Rules applied to an employee appointed on probation and there was no question of applicability of sub-rules (1) to (5) of Rule 15 of the MEPS Rules, which was also a position specifically stated in judgments of learned Single Judges in the cases of Savitribai Fule Shikshan Prasarak Mandal, Wardha and another v. Dhananjay Deoraoji Diwate and others (supra), High School Education Society & another v. Presiding Officer, School Tribunal & another (supra) and Shivdutta Education Trust and another v. Harishchandra Rajabali Yadav and others (supra), on the other hand, Division Bench of this Court in the case of Vinayak Vidyadayini Trust and another v. Aruna T. Prabhu and others (supra) and learned Single Judges of this Court in the cases of Anjuman-E-Taleem and another v. State of Maharashtra and another (supra) and Prajwala Bhatu Khalane v. Mahatma Phule Vidya Prasarak Sanstha, Deopur and others (supra), held that entire Rule 15 of the MEPS Rules applied to the employees appointed on probation. Therefore, there appears to be a clear cleavage and conflict in the views expressed by the aforesaid Benches of this Court.25. In this context, it was vehemently submitted by the learned counsel appearing for respondent No.1 that the judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (supra) had put the controversy at rest and that the question was no more res integra. It was contended that the Hon’ble Supreme Court had clearly held that Rule 14 and entire Rule 15 of the MEPS Rules applied when decision was to be taken under Section 5(3) of the MEPS Act for terminating the service of an employee appointed on probation, for unsatisfactory work or behaviour. On the other hand, it was equally vehemently argued by the learned counsel appearing for the petitioners that a proper reading of the aforesaid judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (supra) demonstrated that the Hon’ble Supreme Court had nowhere held that entire Rule 15 of the Rules applied to an employee appointed on probation. It was submitted that since only sub-rule (6) of Rule 15 of the MEPS Rules referred specifically to an employee appointed on probation, it is only the said sub-rule that applied to such an employee and that sub-rules (1) to (5) of Rule 15 the MEPS Rules could not be made applicable to such an employee. By referring to various paragraphs of the judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (supra), it was submitted that the said judgment did not lay down a clear proposition in favour of the position argued on behalf of respondent No.1 and accepted in the impugned judgment and order by the School Tribunal.26. In this context, it becomes necessary to read Section 5(3) of the MEPS Act and Rules 14 and 15 of the MEPS Rules closely and to read the judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (supra) in detail.27. Section 5(3) of the MEPS Act provides that the Management may terminate service of an employee appointed on probation if in its opinion the work or behaviour of such an employee, during the period of probation, is not satisfactory. Rule 14(2) of the MEPS Rules lays down that each employee shall submit a report of self assessment in the form provided in ‘Schedule-G’. Rule 15 of the MEPS Rules pertains to writing of confidential reports and gives details regarding the manner in which the confidential reports are to be written. Rule 15(3) of the MEPS Rules requires communication of adverse remarks, if any, to the concerned employee before the end of August every year and Rule 15(5) of the MEPS Rules lays down that failure to write and maintain confidential reports and to communicate adverse remarks to the employee within the period prescribed under Rule 15(3) of the MEPS Rules shall have the effect that the work of the employee was satisfactory during the period under report. Rule 15(6) of the MEPS Rules specifically states that performance of an employee appointed on probation shall be objectively assessed by the Head during the period of his probation and record of such assessment shall be maintained.28. There cannot be any doubt about the fact that only sub-rule (6) of Rule 15 of the MEPS Rules refers to “an employee appointed on probation”. This has some significance. The question is as to whether, the position of law laid down by the Hon’ble Supreme Court and this Court in series of judgments as regards the rights of an employee appointed on probation, while challenging a non-stigmatic order of termination of service issued during or on completion of probation, enjoins that only sub-rule (6) of Rule 15 of the MEPS Rules read with Section 5(3) of the MEPS Act would apply to the case of an employee governed by the said Act and Rules, or that entire Rule 15 of the MEPS Rules read with Section 5(3) of the MEPS Act would apply.29. The fact that rights of an employee appointed on probation under the said Act and Rules creates a different situation has been specifically observed by the Hon’ble Supreme Court in paragraph 16 of the aforesaid judgment in the case of Progressive Education Society and another v. Rajendra and another (supra). But, a reading of paras-15, 16 and 17 of the aforesaid judgment of the Hon’ble Supreme Court, quoted above, would show that although Rules 14 and 15 of the MEPS Rules have been specifically referred to, particular emphasis has been placed by the Hon’ble Supreme Court only on sub-rule (6) of Rule 15 of the MEPS Rules. In the said case also, the Hon’ble Supreme Court was concerned with the question of termination of service of an employee appointed on probation. It is specifically held in paragraph 17 of the aforesaid judgment by the Hon’ble Supreme Court that while Rules 14 and 15 of the MEPS Rules cannot override Section 5(3) of the MEPS Act, the requirements of sub-rule (6) of Rule 15 of the MEPS Rules would be a factor which the School Management has to take into consideration while exercising power, which it undoubtedly has and is recognized under Section 5(3) of the MEPS Act. Besides, the Hon’ble Supreme Court came to a conclusion on facts that the documents pertaining to the record of service of the employee appointed on probation did not appear to be above suspicion, thereby indicating non-compliance of sub-rule (6) of Rule 15 of the MEPS Rules. Therefore, there appears to be substance in the contention raised on behalf of the petitioners that judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (supra) in the context of the aforesaid Act and Rules cannot be said to have altered the rights available to an employee appointed on probation. The subsequent Division Bench judgment and judgments of the learned Single Judges of this Court, are based on an interpretation of the aforesaid judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (supra), on the basis that the Hon’ble Supreme Court has emphatically held that entire Rule 15 of the MEPS Rules applies to an employee appointed on probation.30. As noted above, the Hon’ble Supreme Court in various judgments starting from judgment in the case of Parshotam Lal Dhingra v. Union of India (supra) in the year 1958, has delineated the limited rights available to an employee appointed on probation, when the order terminating his services is simplicitor and non-stigmatic. In fact, as noted above, in the case of High Court of Judicature at Patna v. Pandey Madan Mohan Prasad Sinha and others (supra), the Hon’ble Supreme Court has specifically held that non-communication of adverse remarks cannot be a ground to hold that an order simplicitor terminating the service of a probationer stands vitiated.31. In view of the above, it appears that there is substance in the contention raised on behalf of the petitioners herein that only sub-rule (6) of Rule 15 of the MEPS Rules would apply to an employee appointed on probation under the aforesaid Act and Rules and it is the requirement of only the said sub-rule that needs to be satisfied in the context of action that the Management can take under Section 5(3) of the MEPS Act. Sub-rules (1) to (5) of Rule 15 of the MEPS Rules appear to apply to confirmed employees, particularly because sub-rule (5) of Rule 15 of the MEP

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S Rules has the deemed effect of the work of an employee being satisfactory. It is relevant that under Section 5(3) of the MEPS Act, the Management can terminate the service of an employee appointed on probation not only for unsatisfactory work, but also for unsatisfactory behaviour. It is also relevant that only subrule (6) of Rule 15 of the MEPS Rules, refers to an employee appointed on probation and it requires the Head only to objectively assess an employee appointed on probation and to maintain record of such assessment. This, coupled with the aforementioned judgment of Division Bench of this Court and followed by learned Single Judges of this Court holding that only sub-rule (6) of Rule 15 of the MEPS Rules applies to an employee appointed on probation, shows that there is a clear conflict of opinions in this matter.32. It is in this context that this Court is of the opinion that the controversy needs to be put to rest by an authoritative pronouncement of a Larger Bench of this Court, on questions that arise concerning the present controversy.33. In view of the above, the papers be placed before the Hon’ble the Chief Justice to consider whether the present writ petition can be more advantageously heard by a Larger Bench of this Court on the following questions:(i) Whether only sub-rule (6) of Rule 15 of the MEPS Rules applies to an employee appointed on probation when the Management seeks to take action under Section 5(3) of the MEPS Act or entire Rule 15 from sub-rules (1) to (6) of the MEPS Rules apply to such an employee appointed on probation?(ii) Whether judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (supra) lays down that entire Rule 15 of the MEPS Rules applies to an employee appointed on probation, particularly in the context of power available to the Management under Section 5(3) of the MEPS Act?(iii) Whether failure to adhere to requirements of subrules (3) and (5) of Rule 15 of the MEPS Rules would ipso facto vitiate an action taken by the Management under Section 5(3) of the MEPS Act, despite the fact that the Management satisfies requirement of sub-rule (6) of Rule 15 of the MEPS Rules by ensuring that performance of an employee appointed on probation has been objectively assessed by the Head and record of such an assessment has been maintained?(iv) Whether non-compliance of sub-rule (5) of Rule 15 of the MEPS Rules would vitiate an order of termination of service simplicitor issued by the Management under Section 5(3) of the MEPS Act when the said sub-rule deems that “work of an employee is satisfactory”, while Section 5(3) of the MEPS Act gives power to the Management to terminate the service of an employee appointed on probation not only for “unsatisfactory work”, but also for “unsatisfactory behaviour”?(v) Whether it would be sufficient compliance on the part of the Management while acting under Section 5(3) of the MEPS Act, if it complies with only sub-rule (6) of Rule 15 of the MEPS Rules by ensuring that the performance of an employee appointed on probation is objectively assessed and the Head maintains record of such assessment, and principles of natural justice stand satisfied by issuing notices/warnings for unsatisfactory work to such an employee appointed on probation, considering the limited rights available to such an employee as per law laid down from the case of Parshotam Lal Dhingra v. Union of India (supra) in the year 1958 and onwards?34. Order accordingly.
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