S NEELAVATHI Vs. PONDICHERRY INSTITUTE OF POST-MATRIC TECHNICAL EDUCATION (PIPMATE) AND THE PRINCIPAL WOMENS POLYTECHNIC COLLEGE

JUDGEMENT

(1.) By consent the main Writ Petition itself is taken up for disposal. The prayer in the Writ Petition is to quash an order passed by the 1st Respondent dated 30.05.2008 and to direct the Respondents to reinstate the Petitioner in service in the post of Lecturer (Computer Engineer) with all consequential benefits. Though the Petitioner has filed a Petition to amend the prayer in M.P. No. 1 of 2010, the same would be dealt with in the later part of this order.

(2.) The Petitioner who completed her B.E. in Computer Science and Engineering during the year 2001 was appointed as Lecturer by the 1st Respondent by an order of appointment dated 14.12.2001 and she was initially posted at Dr. B.R. Ambedkar Polytechnic, Yanam. According to the Petitioner she had satisfactory completed her probation and by order dated 17.05.2006 her probation was declared. The Petitioner applied for M.Tech. Computer Science and Engineering Course at Pondicherry University and her application was forwarded by the 2nd Respondent by letter dated 15.05.2007. The Petitioner applied for study leave for 24 months which was declined by the Member Secretary of the 1st Respondent by letter dated 17.07.2007, therefore she submitted a representation dated 9.8.2007 stating that she would be put to grave loss if she is not able to pursue her higher studies. By memo dated 12.09.2007 the 2nd Respondent stated that there is no possibility for grant of study leave and that disciplinary action would be taken if the petitioner fails to join duty. Subsequently the Petitioner is stated to have submitted representations on 4.10.2007 and 21.01.2008. However by an order dated 30.05.2008 the 1st Respondent terminated the petitioner services with effect from the date expiry of the period of one month by invoking Rule 5 of the Central Civil Services (Temporary Service) Rule 1965, hereinafter referred as Temporary Service Rules. This order dated 30.05.2006 is impugned in this Writ Petition.

(3.) The correctness of the impugned order is assailed on the ground that the Temporary Service Rules have no application to the 1st Respondent society and even assuming the said Rule applies, the Petitioner having been confirmed after satisfactory completing her probation, the temporary service rules cannot be made applicable and therefore the impugned order is without jurisdiction. The Petitioner by placing heavy reliance on the order dated 17.05.2006, by which her probation was declared, stated that she can no longer be treated as a temporary employee. It is further submitted that the Petitioner is the 2nd Senior most Lecturer in her Department and has been in service for 7 years and cannot be treated as temporary employee. Even assuming without admitting that the Petitioner is a temporary employee the principle of "last come first go" has to be followed before termination. It is further submitted that the impugned order is punitive and hence without issuing showcase notice or hearing, the impugned order is violative of the principles of natural justice. The Petitioner further submitted that the impugned order is discriminatory since no action was taken against several Lecturers in Computer Engineering who have joined courses without prior study leave or study permission. Mr. P.V.S. Giridhar, Learned Counsel appearing the Petitioner would submit that Rule 1(3)(i) of the Temporary Service Rules deals with the persons to whom the Rules shall apply. That looking into Rule 1(3)(i), it is clear that such Rule shall apply to a person holding a Civil post under the Government India and who are under the Rule making control of the President, but who do not hold a lien or a suspended lien on any post under the Government of India or any State Government. Further Rule 1(3)(ii) states that the Temporary Service Rules shall apply to persons who are employed temporarily in work charged establishment and who have opted for pensionary benefits. It is submitted that the 1st Respondent is a Registered Society fully financed, controlled and sponsored by the Government of Puducherry and therefore the post held by the Petitioner is not a civil post nor she was employed temporarily in work - charged establishment, therefore the Temporary Service Rule have no application to the Petitioner. The Learned Counsel would further submit that Section 2(d) defines temporary service to mean the service of a temporary Government Servant in a temporary post or officiating service in a permanent post, under the Government of India, as the Petitioner was not employed in a temporary post but was appointed in a permanent post, her service would not fall within Section 2(d). Therefore the Learned Counsel would submit that the impugned order is outcome of non application of mind and the authority was guided by irrelevant consideration and since there is a stigma caused on the Petitioner, her services cannot be terminated without issuing a showcase notice and without conducting an enquiry. The Learned Counsel would further submit that the Petitioner has completed the M.Tech. Course and if she is allowed to serve the Institution, it would be beneficial for the students.