Judgment:
ORDER
B. Seshasayana Reddy, J.
1. The petitioner-A. Narayana Rao joined the service of Dr. B.R. Ambedkar Open University (for short 'Open University') as Assistant Engineer on 15.5.1986. He was promoted as Assistant Executive Engineer on 17.2.1992. While working as Assistant Executive Engineer in the Open University, he applied for the post of Executive Engineer in University of Hyderabad pursuant to employment notification dated 14.5.2005. He was selected and appointed as Executive Engineer in University of Hyderabad (for short UOH) on 14.6.2007. The Open University accorded lien to him for a period of two years five months w.e.f. 14.6.2006. He was on probation as Executive Engineer in UOH. The period of probation was two years. According to him, he completed two years of probation on 13.6.2008 and therefore, he made requests many a time to UOH to declare his probation. The Registrar, University of Hyderabad issued order on 29.7.2008 extending his probation upto 13.12.2008 on the ground that he has a lien in his parent department (lending department) upto 13.12.2008. The Registrar of UOH issued memo dated 29.9.2008 conveying him the Vice Chancellor's order dated 29.9.2008 not to confirm his services as Executive engineer and he would be relieved of his duties on 29.10.2008 i.e. after expiry of one month notice. The memo dated 29.9.2008 reads as hereunder:
It was decided by the competent authority not to confirm the services of Sri A. Narayana Rao as Executive Engineer in this University.
Sri A. Narayana Rao will be relieved of his duties on 29.10.2008 (AN) i.e, after expiry of one month notice from today. He is directed to submit 'No Dues Certificate' before expiry of notice period.
Assailing the said memo, he filed W.P. No. 23139 of 2008 and also moved WPMP No. 32562 of 2008 seeking interim suspension of the memo pending the writ petition. An order of interim suspension came to be granted on 23.10.2008. While so, the Open University directed the petitioner to report to duty by 14.11.2008. It was informed to him that failure of reporting to duty shall be deemed to have resigned from the Open University service w.e.f. the date of expiry of deputation of foreign service as per Service Rule 22(2)(e)(iii). The letter dated 1.11.2008 came to be issued by the Registrar of the Open University to the petitioner on the ground that the maximum period of deputation of foreign service of the petitioner expires by 13.11.2008. The text of the letter dated 1.11.2008 reads as under:
With reference to the subject cited, it is to inform that the maximum period of deputation of foreign service is nearing to complete by 13.11.2008.
As per Service Rules of Dr. BRAOU-part III of 22 Foreign Service (2)(e)(i) 'No employee shall remain on Foreign Service for a total period exceeding five years in the total service.
In view of the above, your request for extension of term of lien for another seven months is not considered. Hence, you are further informed to report to duty in the University by 14.11.2008 forenoon, failing which rejoin the duty shall be treated to have resigned from the University Service with effect from the date of expiry of Deputation on Foreign Service as per Service Rules 22(2)(e)(iii).
The said proceedings are assailed by the petitioner in W.P. No. 24952 of 2008.
2. Since the two writ petitions are interlinked, they were heard together and are being disposed of by this common order.
3. The UOH has filed counter affidavit in W.P. No. 23139 of 2008 and whereas the Open University has filed counter-affidavit in W.P. No. 24952 of 2008. Both the Universities have moved vacate petitions in the respective writ petitions with a prayer to vacate the interim orders passed therein.
4. When the vacate stay petitions came up for consideration, with the consent of the learned Counsel appearing for the parties, the writ petitions are taken up for final disposal.
5. The counter affidavit of UOH, in brief, is:
The petitioner joined the service of UOH on 14.6.2006. He entered into a memorandum of agreement dated 19.6.2006. The period of probation is 24 months. His probation period is liable to be extended and the same shall be informed in writing atleast 30 days before the expiry of that period. At the end of the two years period, his probation came to be extended upto 30.12.2008 till which date he holds lien over his post of Assistant Executive Engineer in the Open University. The petitioner's lien was only till 13.11.2008 but due to inadvertent calculation error, it was mentioned as 13.12.2008. The petitioner's performance was graded as average and below average for the years 2006-07 and 2007-08 and thus the annual confidential reports of him reflected his evaluation of performance as unsatisfactory. Sri Sai Constructions, a contractor, who executed certain works, lodged a written complaint on 18.7.2008 pointing out the pendency of his bill with Junior Engineer and thereupon the petitioner advised the contractor to settle the final bill by paying bribe to the Junior Engineer and the said Junior Engineer was caught red handed by CBI while accepting the bribe. The petitioner was called upon to explain through a letter dated 26.12.2008 the reason for delaying the disposal of final bill by the officers working under his control. The petitioner submitted explanation on 5.8.2008 disputing the allegations levelled against him. The U.O.H. Engineer in his assessment report dated 17.11.2008 opined that the petitioner has not involved himself at site during the execution of works and that he does not sign the order books kept at the site and that he does not carry out the measurements jointly with the Assistant Engineer/Junior Engineer. The petitioner requested UOH to forward a letter addressed to the Open University, inter alia, requesting for transfer of his services rendered in the said University to UOH. A committee comprising of pro-Vice Chancellor-I and Pro-Vice Chancellor-II was constituted to evaluate the performance of the petitioner. The committee considered the request of the petitioner with regard to absorption in the service of the U.O.H. The committee having gone through the entire material has taken the view that the petitioner is not suitable to be retained in the post of Executive Engineer. Accordingly, a memo dated 29.9.2008 was served on the petitioner giving one month's time. The petitioner submitted a representation dated 6.10.2008 to review the decision and take steps to confirm his services. Through a memo dated 22.10.2008 the earlier decision dated 29.9.2008 has been upheld and thus his request has been rejected. Since the performance of the petitioner was not satisfactory, the competent authority - Vice Chancellor of UOH deemed it fit and proper not to confirm the service of the petitioner and decided to give him exit by way of impugned memo so as to enable him to join the substantive post at the Open University. The petitioner has no right to the post held by him under the terms of his appointment. He is liable to be discharged at any rate (sic. time) during the period of his probation. Therefore, the impugned memo is perfectly valid and legal. It is further stated in the counter-affidavit that as per G.I. Dept. of Per. & Trig., O.M. No. 18011/2/98-Estt.[c], dated 28.8.98 the decision to confirm the probationer or to extend the period of probation as the case may be should be communicated to the petitioner within six or eight weeks. Further the confirmation of probation after completion of period of probation is not automatic and shall be followed by final orders. The extension was communicated to the petitioner within the stipulated time. As the evaluation of petitioner's performance was pending, his probation was extended till 13.12.2008 and as such there was no illegality or irregularity in extending the probation. The petitioner's performance was found to be unsatisfactory and therefore, his services were not confirmed and the order of termination simpliciter came to be passed by way of impugned memo.
6. The counter affidavit of Dr. B.R. Ambedkar Open University, in brief, is:
The petitioner joined in the Open University service as Works Supervisor on 15.5.1986 and later the post of Works Inspector was upgraded as Assistant Executive Engineer on 17.2.92. The respondent-University on the request of the petitioner has sanctioned lien on the existing post from 14.6.2006 to 13.11.2008 as approved by the Executive Council at its 135th meeting held on 30.8.2006. Earlier on the request of the petitioner, he was deputed to National Academy of Construction, Hyderabad from 24.12.98 to 23.6.2000 vide resolution 7/98 of the Executive Council meeting held on 13.1.1999 and to Greater Visakhapatnam Municipal Corporation, Visakhapatnam from 13.5.2005 to 7.6.2006 as approved by 127th Executive Council meeting held on 31.5.2005 vide Resolution No. 3 on usual terms and conditions. Maximum period of lien is five years. Since the petitioner's total period of lien has been expired on 13.11.2008, he has been asked to report to duty in the parent department-Open University by letter dated 1.11.2008.
7. The parties hereinafter referred to as they are arrayed in W.P. No. 23139 of 2008.
8. Heard learned Counsel appearing for the parties.
9. Learned Counsel appearing for the petitioner submits that the petitioner completed two years of probation period in UOH as Executive Engineer and therefore, his probation is deemed to have been declared and in which case memo dated 29.9.2008 relieving the petitioner from the duties is illegal and arbitrary and the same is liable to be set aside. He further submits that since the order of discharge is preceded by some written complaint dated 18.7.2008 as stated in para 6 of the counter affidavit, there being no regular enquiry, the order of discharge is opposed to the principles of natural justice and fair play. In a way he submits that the order of discharge in the circumstances of the case amounts to penalty and as the same is not preceded by a regular departmental enquiry, it is liable to be set aside. In support of his submissions, reliance has been placed on the decisions of the Supreme Court in V.P. Ahuja v. State of Punjab and Ors. : (2000)ILLJ1099SC ; Chandra Prakash Shahi v. State of U.P. : AIR2000SC1816 ; and Jaswantsingh Pratapsingh Jadeja v. Rajkot Municipal Corporation and Anr. : 2007(12)SCALE115 .
10. In V.P. Ahuja's case (supra), the Supreme Court held that a probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice. The termination order in the cited case founded on the ground that the probationer had failed in the performance of duties, administratively and technically. In such circumstances, the Supreme Court held that the order of termination is ex facie stigmatic and it could not have been passed without holding a regular enquiry and giving an opportunity of hearing to the probationer.
11. In Chandra Prakash Shahi's case (supra), the Supreme Court reiterated the legal position that the temporary government servant or a probationer are as much entitled to the protection of Article 311(2) of the Constitution of India as the permanent employees despite the fact that temporary government servants have no right to hold the post and their services are liable to be terminated at any time by giving them a month's notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service. The Courts can, therefore, lift the veil of an innocuously worded order to look at the real face of the order and to find out whether it is as innocent as worded. The observations made by the Supreme Court in Paras.12, 26 and 27 read as hereunder:
12. Now, it is well-settled that the temporary Government servants or probationers are as much entitled to the protection of Article 311(2) of the Constitution as the permanent employees despite the fact that temporary government servants have no right to hold the post and their services are liable to be terminated at any time by giving them a month's notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service. The Courts can, therefore, lift the veil of an innocuously worded order to look at the real face of the order and to find out whether it is as innocent as worded. (See : Parshotam Lal Dhingra v. Union of India : (1958)ILLJ544SC ). It was explained in this decision that inefficiency, negligence or misconduct may have been the factors for inducing the Government to terminate the services of a temporary employee under the terms of the contract or under the statutory Service Rules regulating the terms and conditions of service which, to put it differently, may have been the motive for terminating the services but the motive by itself does not make the order punitive unless the order was 'founded' on those factors or other disqualifications.
26. In Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. : (1999)ILLJ432SC , which related to a probationer, the whole legal position was reviewed by Brother M. Jagannadha Rao, J., in an illuminating and research-oriented judgment and after considering various decisions including the decision in Kaushal Kishore Shukla's case 1991 AIR SCW 793 (supra) and a still later decision in Commissioner of Food and Civil Supplies, Lucknow, U.P. v. Prakash Chandra Saxena : [1994]3SCR930 , so as to trace the development of law relating to this aspect of service jurisprudence, laid down that there has not been any conflict of opinion inter se various judgments including those laying down the 'Motive' and 'Foundation' theory. It was held that the question whether the order by which the services were terminated was innocuous or punitive in nature had to be decided on the facts of each case after considering the relevant facts in the light of the surrounding circumstances. Benefit and protection of Article 211(2) of the Constitution is available not only to temporary servants but also to a probationer and the Court in an appropriate case would be justified in lifting the veil to find out the true nature of the order by which the services were terminated.
27. The whole case law is thus based on the peculiar facts of each individual case and it is wrong to say that decisions have been swinging like a pendulam right, the order is valid; left, the order is punitive. It was urged before this Court, more than once including in Ram Chandra Trivedi's case : (1977)ILLJ200SC (supra) that there was a conflict of decisions on the question of order being a simple termination order or a punitive order, but every time the Court rejected the contention and held that the apparent conflict was on account of different facts of different cases requiring the principles already laid down by this Court in various decisions to be applied to a different situation. But the concept of 'motive' and 'foundation' was always kept in view.
12. In Jaswantsingh Pratapsingh Jadeja's case (supra), the Supreme Court after referring V.P. Ahuja's case (supra) apart from other judgments observed that if the termination of service is stigmatic in nature, it amounts to punitive. The facts in the cited case are:- The appellant therein was a Major in the Army. He joined the Respondent Municipal Corporation (the Corporation) as a Vigilance Officer on or about 21.12.1999. He was put on probation for a period of six months. The power to appoint on a temporary basis is conferred on the Municipal Commissioner under the 2nd proviso appended to Section 53(3) of the Bombay Provincial Municipal Corporation Act, 1949 (BMPC Act). The period of probation provided for therein is six months. Although there does not exist any statutory provision in this behalf, the probation period was extended from time to time. At the first instance, it was extended by an order dated 04.07.2000 upto 31.12.2000 and yet again upto 31.12.2001 by an order dated 07.01.2001. The period of probation was yet again extended till 31.12.2002 by an order dated 31.02.2002. No further extension of probation was passed. Appellant continued to function as a Vigilance Officer. He, however, allegedly informed his superior officer that he had been suffering from some illness. He applied for leave. He proceeded on leave on and from 03.02.2003. The period of leave, however, expired. He did not join as allegedly he continued to suffer from the ailments. He telephonically informed his officer for extension of leave. He was, however, served with a show cause notice on or about 22.03.2003 asking him to show cause as to why his services should not be terminated for alleged misconduct of remaining absent from duty without prior leave. He submitted explanation and the same was found to be unsatisfactory. No departmental enquiry was conducted. A finding of fact was arrived at to the effect that the enquiry proceedings which were pending against him were not brought to its logical end. His period of probation was extended upto 30.04.2003 without assigning any reason. There was no such power in the appointing authority. However, he was discharged from service after payment of one month's notice pay. He filed writ petition, which was dismissed by the learned Single Judge of Gujarat High Court by order dated 09.12.2004. He preferred an intra-court appeal thereagainst. The said appeal also ended in dismissal. He carried the matter to the Supreme Court and the Supreme Court came to the conclusion that the order of termination is punitive and it is not a discharge simpliciter. Para. 27 of the judgment reads as hereunder:
27. From the discussions made hereinbefore, it is evident that termination of services of the appellant purporting to discharge him simplicitor cannot be accepted, being stigmatic in nature. The form of the order terminating the services coupled with the background facts clearly leads to the conclusion that the order impugned in the writ petition by the appellant was punitive.
13. Learned Standing Counsel appearing for the U.O.H. submits that the petitioner has been discharged from service during probation period because of his unsuitability to the post of Executive Engineer and therefore, it is not a stigma to his career nor the action of the UOH can be termed as punitive. He would also contend that the petitioner came to be discharged from service during the extended period of probation and therefore, the action of UOH is in accordance with the terms of contract of service. He refers Condition No. 2(4) of the Memorandum of Agreement dated 19.06.2006, which reads as hereunder:
2(4). In case the University decides not to confirm the Employee whether at the end of the twenty four months period of his/her probation or at the end of the extended period of probation, as the case may be, the Employee shall be informed in writing, at least, thirty days before the expiration of that period that he/she would not be confirmed and would, consequently cease to be in the service of the University at the end of such period of his/her probation.
He would also contend that the performance of the petitioner as Executive Engineer was graded as average and below average in the years 2006-07 and 2007-08 and thus, he was found unsuitable to the post of the Executive Engineer and accordingly, order of discharge came to be passed within the extended period of probation and therefore, order impugned in the writ petition cannot be termed as punitive or it is stigmatic on his career. In support of his submissions, reliance has been placed on the following decisions of the Supreme Court:
(1) Purshotam Lal Dhingra v. Union of India : (1958)ILLJ544SC
(2) Bishan Lal Gupta v. The State of Haryana and Ors. : (1978)ILLJ316SC
(3) Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and Anr. : (1999)ILLJ432SC
(4) Chandra Prakash Shahi v. State of U.P. and Ors. (supra)
(5) Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. : (2002)ILLJ690SC
(6) Oil and Natural Gas Commission v. Md. S. Iskender Ali (1980) 3 SCC 428
14. In Md. S. Iskender Ali's case, a three Judge Bench of the Supreme Court held that if the termination of temporary service of probationer does not involve any stigma, it cannot be said that the order of termination attracts provisions of Article 311 of the Constitution of India. It is further observed that the temporary employee is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory, so that he may be retained. In the case of the probationer or a temporary employee who has no right to the post, termination of his service, finding him unsuitable for the post is valid and does not attract Article 311 of the Constitution of India.
15. In Radhey Shyam Gupta's case (cited), the Supreme Court after survey of the earlier judgments has observed as hereunder:
It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the Officer, as stated by Shah, J. (as he then was) in Ram Narayan Das's case : (1961)ILLJ552SC . It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary inquiry is held because the purpose of a preliminary inquiry is to find out if there is prima facie evidence or material to initiate a regular departmental inquiry. It has been so decided in Champaklal's case : (1964)ILLJ752SC . The purpose of the preliminary inquiry is not to find out misconduct on the part of the Officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental inquiry is started, a charge-memo issued, reply obtained, and an enquiry Officer is appointed - if at that point of time, the inquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry Officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur's case : (1970)ILLJ373SC and in Benjamin's case 1967 Lab LJ 718 (SC). In the latter case, the departmental inquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case : (1980)ILLJ137SC , the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer, by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.
16. In Purshotam Lal Dhingra's case (supra), the Supreme Court held that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment.
17. The whole case law is thus based on the peculiar facts of each individual case. The important principles, which are deducible on the concept of 'motive' and 'foundation', concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of 'motive'. 'Motive' is the moving power, which implies action for a definite result, or to put it differently, 'motive' is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which implied the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary enquiry. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct, (c) which culminated in a finding of guilt. If all three factors are present, the termination has been held to be punitive irrespective of the form of the termination order.
18. The Supreme Court in State of Punjab v. Dharam Singh : [1968]3SCR1 ruled out the proposition of automatic confirmation on completion of the period of probation. The permanent status can be acquired only by a specific order confirming the employee on the post held by him on probation. To the same effect is the decision of the Supreme Court in Pratap Singh v. Union Territory of Chandigarh : [1980]1SCR487 . In Municipal Corporation, Raipur v. Ashok Kumar Misra : (1991)IILLJ343SC , the Supreme Court reiterated the same principles.
19. The learned Counsel appearing for the Open University contends that the petitioner did not choose to report to duty on expiry of lien as per Rule 22(2)(e)(iii) of Open University Service Rules on his own volition and therefore, the W.P. No. 29492 of 2008 is liable to be dismissed.
20. The issue that calls for adjudication in these writ petitions is, whether Memo, impugned in the Writ Petition No. 23139 of 2008 is in accordance with the terms of the contract of appointment of the petitioner with U.O.H. The memo impugned in the Writ Petition No. 23139 of 2008 reads as hereunder:
UNIVERSITY OF HYDERABADRegistrar's Office,Personnel Section-IRef. No: UH/P1/A4/2008/775. Dt: 29.09.2008.MEMOVice-Chancellor's Ordersdated 29.09.2008.It was decided by the competent authority not to confirm the services of Sri A. Narayana Rao as Executive Engineer in this University.
Sri A. Narayana Rao will be relieved of his duties on 29.10.2008 (AN) i.e, after expiry of one month notice from today. He is directed to submit 'No Dues Certificate' before expiry of notice period.
21. It is trite to note the terms of the Memorandum of Agreement executed by the petitioner under Section 30(1) of the University of Hyderabad Act. Clause 2 of the Memorandum of Agreement reads as hereunder:
2. (1) The Employee shall be on probation for a period of twenty four months which may be extended by the Executive Council but the total period of probation shall not exceed thirty six months in all.
(2) The University shall have the power to relax the provisions contained in sub-paragraph (1) and shall also have the right to assess the suitability of the employee for confirmation even before the expiry of the period of twenty four months from the date of his/her appointment but not earlier than twelve months from that date.
(3) If the University is satisfied with the suitability of the Employee for confirmation he/she shall be confirmed in the post to which he/she was appointed at the end of the period of probation.
(4) In case the University decides not to confirm the Employee whether at the end of the twenty four months period of his/her probation or at the end of the extended period of probation, as the case may be, the Employee shall be informed in writing, at least, thirty days before the expiration of that period that he/she would not be confirmed and would, consequently cease to be in the service of the University at the end of such period of his/her probation.
22. It is a matter of record that memo impugned in the Writ Petition No. 23139 of 2008 came to be issued before expiry of the extended period of probation. Much argument has been advanced by the learned Counsel appearing for the petitioner that the impugned memo is punitive in nature and it casts a stigma on the career of the petitioner and in which case it must be preceded by a regular departmental enquiry and as admittedly the same is not preceded by a regular departmental enquiry, it is liable to be quashed.
23. In the counter-affidavit filed by the U.O.H. it is stated that the performance of the petitioner has been assessed and found him unsuitable for the post of Executive Engineer and therefore, memo impugned in the writ petition came to be issued discharging him from service during the extended period of probation.
24. Though a reference has been made with regard to certain allegations made against the petitioner in connection with settlement of final bills of a contractor, in my considered view, those allegations have been referred to the limited interest (sic. extent) of assessing the suitability of the petitioner to the post of the Executive Engineer. The allegations mentioned in para 6 of the counter-affidavit are neither be construed as a stigmatic nor order flowing from it can be construed as punitive. The facts stated in the counter-affidavit are considered by the U.O.H. to the limited extent of the suitability of the petitioner to the post of the Executive Engineer and nothing more beyond that. Therefore, the memo, impugned in the Writ Petition No. 23139 of 2008 cannot be termed as punitive and order of discharge also cannot be construed as stigmatic to the career of the petitioner.
25. The learned Counsel appearing for the petitioner submits that since extension of probation period has not been communicated to the petitioner before 30 days of the expiry of the period, his probation is deemed to have been declared. Clause 2 of the Memorandum of Agreement has been referred in the para. 18 of the judgment, it is explicit from the terms of the Memorandum of Agreement that an order confirming the service of the petitioner is required to be passed by the University of Hyderabad. The clauses in the agreement are explicit that there is no automatic confirmation on completion of period of probation. It must be followed by an order of confirmation. Therefore, the contention of the learned Counsel appearing for the petitioner that the probation of the petitioner is deemed to have been declared soon after completion of the initial period of probation has no substance. The order impugned in the W.P. No. 23139 of 2008 does not suffer from any legal infirmity and accordingly, the same is hereby upheld. Since the lien of the petitioner continues in the Open University, the Open University has to take him into service.
26. Accordingly, W.P. No. 24952 of 2008 is disposed of directing the Open University to permit the petitioner to join duty. No costs. W.P. No. 23139 of 2008 is dismissed. No costs.