JUDGMENT Rakesh Tiwari, J.
1. This writ petition is preferred by the petitioner against the impugned order of termination of his services dated 26.6.2002 from the post of Principal, Army School, Mathura Cantt. issued by the Brigadier who is the Chairman of the School.
2. The Army School, Mathura Cantt. is an institution governed by the Army Welfare Educational Society and is affiliated to the Central Board of Secondary Education, New Delhi known as C.B.S.E., New Delhi. The Society published an advertisement for filing up the post of Principal of the School. The petitioner also applied for the same and was selected. He was appointed on the post of the Principal vide letter dated 26.12.2000.
3. The Army School is a registered Society, governed by the Army Welfare Education Society (A.W.E.S.) Rules and Regulations. It is neither financed by the State nor by the Central Government. The appointments of Teachers is on contract basis as is apparent from Annexure 5 to the writ petition.
4. An agreement was executed between the parties on 15.4.2001 appointing the petitioner on probation for a period of one years and the services could be terminated by either party by giving one month's notice to the other. According to the contract/agreement the terms and conditions of service were to be governed by Army Welfare Education Society (A.W.E.S.) Rules and Regulations, 1997 as amended from time to time. Relevant extract of the agreement as given in the schedule is an under :-
Schedule to the Agreement "1. Subject to the provisions of this agreement, the employees is engaged for the post of Principal, from the date of his joining duties at the Army School, Mathura Cantt. (Subject to the period of one year of probation which may, however, be increased at the discretion of the School).
2. During the period of probation, the engagement may be terminated by either party giving the other one-month's notice or on payment of the month's salary in lieu.
3. After successful completion of probation and during the remaining period this agreement may be terminated by cither party by giving the other three months notice in writing to that effect or on payment of three months' salary in lieu. Provided however, in cases of gross misconduct or dereliction of duty or breach of any of the terms and conditions prescribed under the Army Welfare Education Society's Rules and Regulations agreement will be terminated forthwith without notice or compensation in lieu of notice, but on paying the employee the portion of salary due by the date of termination."
5. The brief facts leading to the circumstances of culminating in termination of the services of the petitioner are that on 26.5,2002 certain posts of Teachers were advertised for appointment on the post of primary trained teacher. In pursuance thereof his wife also applied. After evaluation of the answer books certain candidates, including the wife of the petitioner were called for interview.
6. It is alleged that the petitioner was also a Member of the Interview Board and informed the Chairman that he may be excused from participating in the interview as his wife was also one of the candidates but the Chairman insisted that he should sit as one of the members of the Interview Board and that his wife should not be permitted to appear in the interview. The Interview Board consisted of six persons and that before the interview could start, the Chairman informed the Selection Committee that he has called two candidates Mrs. Raturi and Mrs. Dilawari for interview although they had not qualified the written test. It is further alleged that after the interview was over the Presiding Officer asked the members of the Board to sign on a blank sheet of paper which was to be later on filled up by the Chairman and Sri A.K. Gautam, Mrs. Kiran Sharma and the petitioner declined to sign the aforesaid blank papers.
7. It is submitted that in the aforesaid circumstances a show cause notice was issued to the petitioner on 20.6.2002 which is as under :-
Engineers Branch, Headquarters I Corps, C/O 56 APO.
"1. During the LSB to select Teachers for Army School, Mathura held between 12th and 18th June, 2002, you as Principal of this School were one of the most important members of the selection board to ensure that the selection process is carried out in a transparent and fair manner. During my visit to the School on 6th June, 2002,I had discussed with you and the Adm. Officer in details the SOP issued by AWES for conduct of LSB and gave following directions :-
(a) That the LSB be conducted strictly as per the above SOP.
(b) Only those candidates be permitted to appear for selection who already possess B.Ed, qualification (this was decided as per the provision of above SOP). The applications were to be accordingly screened prior to the written test due on 12th June, 2002.
(c) While the last date for receipt of applications as advertised by the School was 8th June, 2002, the same in respect of wives/daughters of Army personnel be accepted upto 11th June, 2002 due to Army personnel being away on operational commitments.
2. However, it is seen that you violated the above instructions for conduct of the LSB as under :-
(a) Despite the fact that Adm. Officer brought to your notice four cases where the applicants did not possess B.Ed, degree, you over Ruled him and allowed all these candidates to appear in the written test on 12th June, 2002. You never informed me about this change to my directions.
(b) You submitted your wife's application for the post of PRT to the School on 10th June, 2002 while the date for the same had expired on 8th June, 2002. In this regard, another notable aspect is that the question papers for LSB prepared by the School under your directions were in your possession for many days prior to the written test (you had mentioned this to me on 6th June, 2002 that these were already with you). It was only on the evening of 13th June, 2002 when your wife had already appeared in the written test on 12th June, 2002 that you informed me about her candidature given the sensitivity of you're appointment as the Principal, the fact that you already had access to the question papers as also begin a member of the selection board, it was expected that your wife should not have been a candidate. Alternatively you should have informed me well in time of the same so that a timely decision to disassociate you from the selection process could have been taken. It should be realized by you that circumstances in which your wife was included as a candidate for selection raised serious questions on your being a fair member of the selection process. In the given circumstances, the decision was conveyed to you on 14th June, 2002 that your wife's candidature could not be allowed to continue and she should not come for interview on 17th June, 2002 to avoid any embarrassment to the School. In effect, her candidature was cancelled.
3. It has now been brought to my notice by the Presiding Officer of LSB that while your had signed the written test and interview result sheets as a member of the LSB, you have refused to sign the board proceedings prepared by the Presiding Officer.
4. The above actions on your part, besides being violative of the given instructions to you, arc also unbecoming of the Principal of an Army School. I, therefore, ask you to explain as to why action should not be taken against you for your lapses as stated above. Your reply should be handed over to the bearer of this letter in your School office between 10 A.M. and 11 A.M. on 22nd June, 2002.
Sd/- Daljit Singh, Brigadier, Chairman."
8. He submitted his reply (Annexure 8 to the writ petition) to the aforesaid show cause notice on 22.6.2002 which is as under :-
Army School, Mathura Cantt, 22nd June, 2002.
ASM/011 The Chairman, Army School, Mathura Cantt.
Sub : REPLY TO YOUR SHOW CAUSE NOTICE DATED 20TH JUNE, 2002 REF NO. 19072/ARMY SCHOOL/CE'S SECTT.
Sir, I am in receipt of your notice, which cam to me as a shock , but my humble reply is submitted as under:
1. (a) The LSB are strictly conducted as per the SOP under the Presiding Officer, Col. D. Palit.
(b) 106 application forms were sold for the advertised posts and were collected by the School office.
Prior to the Written Test, I briefed the Presiding Officer regarding your instructions given to us on 6th June, 2002. I specifically informed the Presiding Officer, Col. D. Palit on 12th June, 2002 at 9 O'clock, that after screening the applications few candidates did not qualify on account of their being Non-B.Ed and we could restrain them from appearing for the Written Test. Since the Presiding Officer is the overall incharge of conducting the LSB and we have to work under his guidance, I had no role to play as far as inclusion of the B.Ed and Non-B.Ed candidates were concerned.
(c) Though the last date for the receipt of application as per the advertisement was 8th June, 2002 being a Second Saturday and the school office being closed due to a school holiday, we had no option but to entertain the applications on the next working day i.e., 10th June, 2002 as per the Rules.
3-4 applications were deposited on and after 10th June, 2002. One of the candidates deposited the application on 12th June, 2002 at 9:15 AM directly with the permission of Presiding Officer.
2. Regarding Mrs. Walia's application, this was not a mistake on my part since I wanted to inform you and I tried to contact you on phone but unfortunately the call never materialized even after long hours. However, the Presiding Officer was informed about her candidature before the conduct of Written Test could begin. She was called for interview by the Presiding Officer, with other candidates, dated 13th June, 2002.
I wanted to disassociate myself from the interview board.
Subsequently when I was not disassociated from the interview board despite my request to you on 14th June, 2002, 16th June, 2002 and again on 17th June, 2002, my wife could not appear for the interview.
Moreover the Written Test was conducted by the Presiding Officer and Question Papers were got prepared by the Vice Principal, being incharge of the Examinations did all the preparations related to Written Test (Copy of her statement duly signed is enclosed).
3. The conduct of the Written Test is the responsibility of the Presiding Officer. I being the Principal had only to give the venue I was not supposed to sign which 1 didn't. In your show cause noticed in Para 3, this fact has been wrongly stated. As regarding the interview result sheets, I was one of the members. Hence it was my duty as member and I signed at the end of the Interviews alongwith other members. As regards Board Proceedings prepared by the Presiding Officer few manipulated cuttings were may by the Presiding Officer to which I objected and wanted to be corrected. After that he did not ask me to sign.
4. I am in a state of shock after receiving your show cause notice for the acts which were not committed by me. It seems as if I am being pressurized for reasons best known to you.
I am an educationist and am trying to serve the school to the best of my abilities and take the school to heights, never before taken by any other Principal.
I have not committed any error intentionally in my working nor did I desire Mrs. Walia to work as PRT in the School. So under these circumstances where there is no fault of mine kindly drop the show cause notice proceedings so as to allow me to work without any unreasonable pressures in the interest of school.
Thanking you.
Your faithfully, Sd/- V.K. Walia, Principal.
22.6.2002
9. It is further alleged by the petitioner that he was called on 26.6.2002 by the Chairman and the Chairman on 26.6.2002 insisted him to sign his character roll entry in token of communication of the entry, in which a negative image of the petitioner was presented and after the petitioner signed the character roll entry the Chairman passed the order dated 26.6.2002 terminating his services. The order of termination is as under :-
" 1. I regret to inform you that your performance as the Principal of Army School, Mathura Cantt. since your appointment on 15th April, 2001 has not been found satisfactory and upto our expectations. In terms of Para 2 of the 'Schedule of Agreement1 as part of your Appointment Letter, your services stand terminated with effect from 27th June, 2002.
2. You will be paid one-month salary in lieu of a month's notice on your clearing various dues of the School.
Sd/- Dalit Singh, Brigadier, Chairman, Army School, Mathura Cantt.
10. At the outset the respondents have raised a preliminary objection that the writ petition is not maintainable as they are in no way amenable to writ jurisdiction as the respondent-society docs not function by or under the authority of the State or the Central Government nor they exercise deep and pervasive control over its functionary and is, therefore, not a State under Article 12 of the Constitution of India.
11. In support of the preliminary objection reliance has been placed by the respondents on a judgment of Jammu & Kashmir High Court in Writ Petition No. 1475 of 1996, Mrs. Asha Khosa v. Army Public School, decided on 17.2.1997 in which the Division Bench of that Court held that writ petition is not maintainable as the Army Welfare Education Society is not an instrumentality of the State in terms of Article 12 of the Constitution of India. A Special Leave Petition No. 6482 of 1997 was filed before the Apex Court against the aforesaid judgment, which was dismissed vide judgment and order dated 17.2.1997.
12. Reliance has further been placed by the respondents on a decision of the Apex Court in Integrated Rulers Development Agency v. Ram Pyare Upadhyaya, 1995 Supplement (2) SCC 495. In this case, it has been held that Integrated Rulers Development Agency a registered society which was not constituted under any statute and did not function by or under the authority of the State Government or the Central Government and as such no relief of reinstatement or back wages could be granted to the petitioner. It is also submitted that similar controversy regarding the termination of one of the employees of the Army School had come up before this Court which was decided against the petitioner holding that the relation between the employee and the Army School is contractual and as such relief of reinstatement cannot be granted in case of termination.
13. Relying upon the decision in (i) Smt. Rajni Sharma v. Union of India and Ors., (1995) 3 UPLBEC 1664 and (ii) Sandeep Chauhan v. State of U.P. and Ors., (2001) 3 UPLBEC 2259, in this regard it is submitted by the Counsel for the petitioner that the Army School run by the Army Welfare Education Society is a State within the meaning of Article 12 of the Constitution of India as there is total Administrative and Financial Control of the Army over the society and the schools run by it. It is also stated that the society and its schools are financed by the Welfare Funds of the Adjutant General's Branch and that the school in question is also recognized by the Central Board of Secondary Education, New Delhi. It is urged that while imparting education the Society discharges a public duty hence writ petition under Article 226 of the Constitution of India is maintainable.
14. On merits of the case Sri Shashi Nandan, Counsel for the petitioner, states that the provisions of A.W.E.S. Rules and Regulations were not followed prior to the termination of the services of the petitioner. The agreement dated 15.4.2001 entered into between the parties specifically mention that the conditions of service of the petitioner shall be governed by the provisions of the A.W.E.S. Rules as amended from time to time. He submits that Rule 104 of the said Rules provides a detailed procedure for assessment of the work and suitability of a probationer. The aforesaid provision is being quoted as below :-
"104. One of the principal terms and conditions of appointment applicable to the staff in the school is that the appointment will be on probation for a period of one year, which may be extended two years by the appointing authority. For this purpose, two special reports on probations, one on completion of six months of service and the other on completion of 11 months of service, shall be forwarded by the Principal of the school to the Chairman, Managing Committee. In specimen forms of the report on probation for Principal and for staff other than Principal are placed at Appendix 'G' and 'H' respectively."
15. It is contended that a bare perusal of the aforesaid Rule indicates that two special reports on probationer-one on completion of six months and the other on completion of 11 months of service is to be submitted to the competent authority and the specimen forms of the report on probation for Principal is to be placed at Appendix 'G'. A copy of the Appendix 'G' has been filed by the petitioner as Annexure SRA-1 to the supplementary rejoinder affidavit. He further contends that a perusal of the aforesaid Appendix 'G' clearly indicates that the Chairman has to submit a report on the work and conduct of the appointee in the prescribed manner to the Reviewing Authority (Patron), i.e., General Officer Commanding of the Headquarters for final disposal.
16. Attention of this Court has also been drawn by the Counsel for the respondent to Paragraph 3 of the counter-affidavit in which it has mentioned that the conduct of the petitioner regarding surreptitious candidature of his wife in the school as teacher spoke volumes in itself particularly when he himself was associated in the selection process. It is submitted that the aforesaid assertions made in the counter-affidavit are sufficient to demonstrate that the services of the petitioner have been actually terminated on charges of misconduct i.e., firstly, loss of faith and secondly, surreptitious candidature of the petitioner's wife while he was in possession of the question papers.
17. The Counsel for the petitioner urged that the averments in the counter-affidavit amply disclose that the periodical assessment of the work and suitability of the petitioner was not made in accordance with the provisions of Rule 104 of the A.W.E.S. He states that in fact there has been no proper assessment of the work, conduct and suitability of the petitioner and in the absence of which the termination of the services of the petitioner is clearly invalid.
18. Relying upon Paras 13 and 33 of the judgment of Hon'ble Supreme Court in the case of Chandra Prakash Sahi v. State of U.P., AIR 2000 SC 1706, the Counsel for the petitioner submitted that it has specifically been held that a clear inquiry should be conducted regarding the assessment of work and conduct including the suitability of a candidate and if the particular procedure prescribed by the Regulation has not been followed prior to the termination of the services of a probationer then in that case the termination of service would be invalid for failure to follow the procedure prescribed. On the basis of the aforesaid judgment it is argued that the failure of the respondents to comply with the mandatory terms of Rule 104 of the A.W.E.S. Rules the impugned order of termination of the services of the petitioner cannot be sustained and the same is liable to be quashed.
19. The order contention on behalf of the petitioner is that termination of his services is punitive in nature and has been passed as a measure of punishment. It is contended that from the facts narrated in writ petition it is established that he had declined to sign on the interview list, which had resulted into the issuance of a show cause notice dated 20.6.2002 mentioning that the petitioner has permitted him wife to appear in the written examinations. It is stated that in response to the show cause notice dated 22.6.2002 he had submitted his reply on 22.6.2002 and the Annual Confidential Report of the petitioner was finalized on 26.6.2002. It is alleged that he was forced to sign the same and immediately thereafter the order of termination of his services was passed on the same date and that aforesaid sequence of events are sufficient to demonstrate that the termination of the services of the petitioner was actually punitive in nature and his services were termination on the basis of an alleged misconduct.
20. In support of the above arguments he has placed reliance on Anup v. State, AIR 1984 S.C. 636, in which it has been held by the Apex Court that where the form of the order is merely a camouflage for an order of dismissal is for misconduct, it is always open for the Court to go behind the form and ascertain the true character of the order by piercing the veil. He also placed reliance upon the judgment of the Supreme Court in the case of State of Punjab v. Sukhraj Bahadur, AIR 1968 SC 1089, in which it has been held that the circumstances preceding or attendant to the order of termination have to be examined in each case, the motive behind it being immaterial.
21. The Counsel for the petitioner further relied upon Paras 7 and 8 of the Judgment in V.P. Ahuja v. State of Punjab, in 2000 (3) SCC 239, that the allegations made in the affidavit regarding misconduct can be relied upon for the purposes of determining as to whether the services of the probationer have been terminated on the ground of misconduct. Reliance has also been placed on Paragraph Nos. 4 and 5 of the U.P. State Spining Mills Co. Ltd. v. N.K. Tripathi, in 2002 (2) Education and Services Cases 1142, for the purposes of determining as to whether the termination of services of the probationer is termination simplicitor or his services have been terminated on the basis of misconduct.
22. Counsel for the respondents has drawn the attention of the Court to Paragraph 1 (e) of the counter affidavit and submits that the petitioner had the custody of question papers since 9.5.2002 and associated with the conduct of the petitioner of irregular and surreptitious candidature of his wife resulted in total loss of faith in him by the management. He further states that the termination of the services of the petitioner as probationer was on the basis of his over all performance as well as loss of faith and confidence in him by the Management. The C.R. of the petitioner was initiated for the first time on 27.5.2002 and that it was finalized on 26.6.2003 and communicated to him on the same date.
23. It is further contended that it is not in dispute that the petitioner was probationer and if one year expired even then in that case unless and until there is specific order by the competent authority either extending the probation period or of confirmation, legally no employee can claim that he has become permanent immediately after the period of probation is over. In view of the judgment reported in AIR 1996 SC 750 and Judgment Today 1996 Vol. VI Supreme Court 312, wherein it has been held by the Apex Court that unless and until specific order regarding confirmation of the probation period is passed an employee is always to be treated on probation and the law settled by the Apex Court is that the services of probationer can be terminated and the order of termination in the aforesaid circumstances will not be violative of principles of natural justice, if proper procedure as provided under the service Rules has been followed.
24. The citation relied upon by the Counsel for the petitioner regarding maintainability of the writ petition is distinguishable to its own peculiar facts and circumstances of the case whereas the Apex Court in the case of Special Leave Petition No. 6482 of 1997, Mrs. Asha Khosa v. Army Public School, has upheld the judgment and order dated 17.2.97 of Jammu and Kashmir High Court holding that Army Welfare Education Society is not an instrumentality of the State in terms of Article 12 of the Constitution of India. This proposition of law has also been strengthened in the case of Army Public School and in the case of Integrated Rulers Development Agency (supra). In this view of the matter, the preliminary objection of the respondents is upheld and it is held that the writ petition filed by the petitioner is not maintainable.
25. In the present case show cause notice was given and the order of termination was passed against the petitioner after giving him opportunity. The order of termination is order simplicitor and in view of the judgment reported in (2002) 1 UPLBEC 28, also it is not a fit case for interference in exercise of power under Article 226 of the Constitution of India, as the order of termination does not cast any stigma.
26. For the reasons stated above, the writ petition filed by the petitioner is not maintainable and further that the services of the petitioner were under the contract it can be inforced which is amenable to suit jurisdiction. Even otherwise, there is no illegality and infirmity in the impugned order. The writ petition is liable to be dismissed. Order accordingly. No order as to costs.