Rajasthan High Court vs Ved Priya & Anr.

Constitution of India – Art. 226 – Judicial review by the High Court over the decision taken by its Full Court on administrative side – Held: Although it would be a futile task to exhaustively delineate the scope of writ jurisdiction in such matters but a High Court u/Art. 226 has limited scope and it ought to interfere cautiously – The amplitude of such jurisdiction cannot be enlarged to sit as an ‘appellate authority’, and hence care must be taken to not hold another possible interpretation on the same set of material or substitute the Court’s opinion for that of the disciplinary authority – This is especially true given the responsibility and powers bestowed upon the High Court u/Art.235 of the Constitution – The collective wisdom of the Full Court deserves due respect, weightage and consideration in the process of judicial review.

Service Law – Difference between the termination of a probationer and of a confirmed employee – Held: There is a subtle, yet fundamental, difference between termination of a probationer and that of a confirmed employee – Although it is undisputed that the State cannot act arbitrarily in either case, yet there has to be a difference in judicial approach between the two – Whereas in the case of a confirmed employee the scope of judicial interference would be more expansive given the protection u/Art. 311 of the Constitution or the Service Rules but such may not be true in the case of probationers who are denuded of such protection(s) while working on trial basis – Constitution of India – Art. 311. Service Law – Right to continue in the employment of probationers – Held: Probationers have no indefeasible right to continue in employment until confirmed, and they can be relieved by the competent authority if found unsuitable – It is only in a very limited category of cases that such probationers can seek protection under the principles of natural justice, say when they are ‘removed’ in a manner which prejudices their future prospects in alternate fields or casts aspersions on their character or violates their constitutional rights – In such cases of ‘stigmatic’ removal only a reasonable opportunity of hearing is sine-qua-non. Allowing the appeals, the Court

HELD: 1. The order of termination of services of Respondent No.1 recites that “the Rajasthan High Court, Jodhpur, after examining all the relevant records has been of the opinion that the person in question has not made sufficient use of his opportunities and has otherwise also failed to give satisfaction as a probationer in the Rajasthan Judicial Service.” It is explicit from these contents that neither any specific misconduct has been attributed to Respondent No.1 nor any allegation made. The order is based upon overall assessment of the performance of Respondent No.1 during the period of probation, which was not found satisfactory. Such an inference which can be a valid foundation to dispense with services of a probationer does not warrant holding of an enquiry in terms of Article 311 of the Constitution. It is thus not true on the part of Respondent No.1 to allege that it was a case of an indictment following allegations of corruption against him. [Para 20] [981-D-E]

2. True it is that the form of an order is not crucial to determine whether it is simplicitor or punitive in nature. An order of termination of service though innocuously worded may, in the facts and circumstances of a peculiar case, also be aimed at punishing the official on probation and in that case it would undoubtedly be an infraction of Article 311 of the Constitution. The Court in the process of judicial review of such order can always lift the veil to find out as to whether or not the order was meant to visit the probationer with penal consequences. If the Court finds that the real motive behind the order was to ‘punish’ the official, it may always strike down the same for want of reasonable opportunity of being heard. [Para 21] [981-F-H]

3. There is nothing on record in the present case to infer that the motivation behind the removal was any allegation. Instead, it was routine confirmation exercise. The evaluation of services rendered during the probationary period was made at the end of the first respondent’s tenure, along with 92 others. Vigilance reports were called not just for Respondent No. 1, but also for at least ten other candidates. It is thus clear that the object was not to verify whether the allegations against the first respondent had been proved or not, but merely to ascertain whether there were sufficient reasons or a possible cloud on his suitability, given the higher standard of probity expected of a judge. [Para 22] [982-A-B]

4. Even otherwise, it may not be true that just because there existed on record some allegations of extraneous considerations that the High Court was precluded from terminating the services of Respondent No.1 in a simplicitor manner while he was on probation. The unsatisfactory performance of a probationer and resultant dispensation of service at the end of the probation period, may not necessarily be impacted by the fact that meanwhile there were some complaints attributing specific misconduct, malfeasance or misbehavior to the probationer. If the genesis of the order of termination of service lies in a specific act of misconduct, regardless of over all satisfactory performance of duties during the probation period, the Court will be well within its reach to unmask the hidden cause and hold that the simplicitor order of termination, in fact, intends to punish the probationer without establishing the charge(s) by way of an enquiry. However, when the employer does not pick-up a specific instance and forms his opinion on the basis of over all performance during the period of probation, the theory of action being punitive in nature, will not be attracted. Onus would thus lie on the probationer to prove that the action taken against him was of punitive characteristics. [Para 24] [982-F-H; 983-A-B]

5.Since Respondent No.1 has failed to establish that the High Court intended or has actually punished him for any defined misconduct, it stands crystallized that the object of the High Court on the administrative side was to verify the suitability and not enquire into the allegations against the first respondent. Independently also, this Court does not find that the foundation was the allegations but it was based upon a holistic assessment of the respondent’s service record. Even taking an effects-based approach, this Court does not feel that the order of nonconfirmation or the preceding circumstances would prejudice the respondent, meriting a higher procedural requirement. [Para 26] [983-E-F]

Parshotam Lal Dhingra v. Union of India AIR 1958 SC 36 : [1958] SCR 828 ; Kazia Mohammed

Muzzammil v. State of Karnataka (2010) 8 SCC

155 : [2010] 7 SCR 1061 ; Rajesh Kumar Srivastava v. State of Jharkhand (2011) 4 SCC 447 : [2011] 3 SCR 823 – relied on.