Rakesh Tiwari - (1.) -Heard the learned counsel for the parties and perused the records.
(2.) THE present writ petition has been filed by the petitioner challenging the validity and correctness of the order dated 2.11.1999 passed by the Manager, U. P. Kirana Sewa Samiti Vidayalaya (Public School), Kidwai Nagar, Kanpur. By the impugned order, the services of the petitioner as assistant teacher have been terminated with immediate effect without showing any reason. By this writ petition, the petitioner has sought the following reliefs : (i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 2.11.1999 passed by respondent No. 2 ; (ii) issue a writ, order or direction in the nature of mandamus directing the respondents to allow the petitioner to work on the post of assistant teacher in the said institution and to give him month to month salary as well as arrears of salary due ; (iii) issue any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper under the circumstances of the case ; (iv) award the costs of the petition. The facts giving rise to this writ petition are that U. P. Kirana Sewa Samiti Vidyalaya (Public School) Kidwai Nagar, Kanpur, is affiliated to Council of Indian School Certificate Examination, New Delhi. The post of assistant teacher was advertised and after interview on 4.4.1997, the petitioner was appointed on probation vide appointment letter dated 10.4.1997 issued by the Manager of the school. The terms and the conditions of the appointment are as under : (i) The petitioner was appointed on consolidated salary of Rs. 3,000 per month. (ii) He was appointed on probation for the period of one academic year commencing from 12th April, 1997 and ending on 31st March, 1998, with further condition that probation period may be extended and unless the probation period is extended or services are confirmed, services will be deemed to be terminated on expiry of period of probation. (iii) During the period of probation and including any extension thereof service is terminable with one month's notice or one month's salary in lieu thereof notice on either side. It is evident from the order of appointment reproduced above, that the appointment of the petitioner was on probation for a period of one aca-demic year and unless the probation period is extended, the services of the petitioner would automatically be terminated on 31st March, 1998. It is contended by the petitioner that his services have not been treated to be terminated automatically on 31st March, 1998 and hence, his services are stood automatically confirmed by the conduct of the respondents them-selves and even otherwise, if his ser-vices are treated to be on probation, the same shall be terminated by one month's notice or salary of one month in lieu thereof. On this basis, it has been alleged that the respondents in their counter-affidavit have nowhere stated that the period of probation was ever extended in writing after 31st March, 1998. It is also alleged that the institution is State within the def-inition of Article 12 of the Constitution of India and is amenable to the writ jurisdiction under Article 226 of the Constitution of India. The Society is actually discharging functions of the State. In this regard, reliance has been placed on the decisions in the cases of K. Krishnamacharyulu and others v. Sri Venkateshwara Hindu College of Engineering and another, AIR 1998 SC 295 ; Arvind Kumar Sharma (Minor) through his father Govind Ji Sahu v. Central Board of Secondary Education, New Delhi and another, 1996 (3) AWC 1435 : (1996) 2 UPLBEC 1331 and Poornima Banerjee v. Council for the Indian School Certificate Examination, New Delhi and others, (1995) 1 UPLBEC 265.
(3.) LASTLY, the petitioner has contended that he was no more on probation after 31st March, 1998 as per the terms and conditions contained in the appointment letter and the case of Stanny Felix Pinto v. M/s. Builders Pvt. Ltd. and another, JT 2001 (1) SC 620, is not applicable. Rebutting the submissions made by the learned counsel for the petitioner, the learned counsel for the respondents have argued that the pe-titioner was appointed as probationer on 10.4.1997 and remained on pro-bation as he was never confirmed in writing and his appointment letter date 10.4.1997 shows that the petitioner had entered into a contract of personal service, cannot be enforced in writ proceedings. In support of this contention, the respondents have relied upon the case of Dipak Kumar Biswas v. Director of Public Instruction and others, AIR 1987 SC 1422 and the Executive Committee of Vaish Degree College, Shamli and others v. Lakshmi Narain and others, AIR 1976 SC 888. Dipak Kumar Biswas appellant, who was a confirmed auditor in the office of the Accountant General, offered himself as a candidate for appointment as a Lecturer in English in Girls College. The order of appointment stated that the appointment was subject to the approval of the Director of Public Instruction, Meghalaya. He joined the college subsequently. After five months the appellant had received a communication from the Principal stating that his services were being terminated with immediate effect for want of prior approval of the Director of Public Instruction. The appellant filed a suit for permanent injunction and for a declaration that he continues to be in service of college and that he is entitled to all the benefits of the service. The Apex Court held that the declaration sought by the Lecturer that he continues to be in service of college, cannot be granted since refusal though erroneous was not in contravention of any statutory rules.;