CHAUHAN, J. - (1.) -
(2.) THE instant writ petition has been filed for quashing of the order of termination of the petitioner dated 17.5.1999 (Annx. 5). The facts and circumstances giving rise to this case are that in pursuance of an advertisement, selection on the post of Librarian was held and petitioner was issued appointment letter dated 27.8.98 (Annx.2) on a temporary post with certain conditions incorporated therein. As the services of the petitioner had not been found satisfactory during the probation period, the impugned order dated 17.5.99 (Annx. 5) was passed terminating the services of the petitioner. Hence this petition. As per the terms of appointment, it was a temporary post and appointment, though temporary, was likely to continue on satisfactory performance of the petitioner. The contention raised by Mr. Anand Purohit that petitioner stood appointed by following the selection process, therefore, his appointment has to be treated as having been made substantively, is devoid of any merit for the reason that it is settled legal proposition that even if the post is filled-up temporarily or on ad-hoc basis, the appointment must be in consonance with the mandate of Article 16 of the Constitution and if appointment is made without following the fair selection process, it will be in flagrant violation of the provisions of Article 16 of the Constitution. (Vide Prabhat Kumar Sharma vs. State of U.P. (1), J.A.S. Inter College, Khurja vs. State of U.P. & ors. (2), and Raj Kishore Vishwakarma vs. Union of India & ors. (3). In State of Haryana vs. Piara Singh (4), the Hon'ble Apex Court has held as under:- "......Even where an ad-hoc or temporary employment is necessitated on account of exigencies of administration, it should ordinarily be drawn from the employment exchange unless it can brook delay, in which case the pressing cause must be stated on the file. If no candidate is available, or is not sponsored by the employment exchange, some appropriate method consistent with the requirement of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto, should be considered fairly...." A Full Bench of Allahabad High Court, in Kumari Radha Raizada vs. Committee of Management, Smt. Vidyawati Darbari Girls College, (5), held that if appointments are made without advertising the vacancies in the local news papers having wide circulation and without holding a fair selection even for filling-up the short-term vacancies, the appointment would amount to be the back-door entries which cannot be protected on any ground whatsoever. Similar view has been taken by this Court in Thomas Chandy vs. Rajasthan Financial Corporation & Anr., (6). Thus, in view of the above, petitioner cannot be held to be holding a permanent post.
(3.) IN Parshottam Lal Dhingra vs. Union of INdia & ors., (7), a Constitution Bench of the Supreme Court held that appointment even to a permanent post on probation means that the employee was taken on trial and such an appointment comes to an end even during or at the end of the probation if the person so appointed is found to be unsuited and his services are terminated. A Seven Judges Bench of the Hon'ble Apex Court, in Samsher Singh vs. State of Punjab (8), has held that an appointment on probation or on an officiating basis, is of a transitory character with an understanding/implied condition that such an appointment is terminable at any time. The appointment on temporary basis or on probation cannot be equated with holding the permanent post, for the reason that when a person is appointed on probation, he does not have a right to hold the post and if it is found that he was not suitable for the post, his probation can be terminated at any time. (Vide State of Maharashtra vs. Veerappa R. Saboji & Anr., (9) and Union of India & ors. vs. P.S. Bhat, (10). The period of probation is a period of test, during which the work and conduct of an employee is under scrutiny. If on an assessment of his work and conduct during this period it is found that the employee is not suitable for the post, it would be open to the employer to terminate his services, as the same cannot be equated with that of a permanent employee, who, on account of his status, is entitled to be retained in service which cannot be terminated abruptly without any plausible cause and without following the law provided for termination. It is only a permanent employee, who substantively holds a permanent post, has a right to continue on the post till he reaches the age of superannuation or is removed from service by following the due process of law. (Vide Moti Ram Deka vs. General Manager, N.E.F. Railways, (11) and Life Insurance Corporation of India & Anr. vs. Shri Raghavendra Seshagirirao Kulkarni, (12). ;