IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA LPA No.132 of 2008 Reserved on: February 24, 2009 Decided on: 03.03.2009 High Court of H.P. …Appellant. Versus Mrs. Veerta Verma and another …Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. K.D. Sood, Advocate. For the Respondents : Mr. Ajay Sharma, Advocate, for respondent No.1. Mr. P.K. Sharma, Additional Advocate General, for respondent No.2. Surjit Singh, Judge This Letters Patent Appeal by the High Court of Himachal Pradesh, through its Registrar General, is directed against the judgment dated 30th September, 2008, rendered by a learned Single Judge of this Court in CWP No.355 of 1997, whereby allowing the said Writ Petition, filed by respondent Veerta Verma, the order of her discharge from H.P. Judicial Service, during probation period, has been quashed and set aside and it has been directed that the said respondent shall be deemed to be in service, with all consequential benefits. 2. Relevant facts may be stated thus. Respondent Veerta Verma was appointed to Himachal Pradesh Judicial Whether reporters of the local papers may be allowed to see the judgment? …2… Service, vide Notification dated 26th July, 1995, issued in the name of Governor of Himachal Pradesh. She was posted as Sub Judge-cum-Judicial Magistrate at Mandi, vide notification dated 28th July, 1995, by the High Court of Himachal Pradesh. According to the notification of appointment, dated 26th July, 1995, Annexure P-1, her appointment was purely temporary and it was in accordance with sub-rule (I) of Rule 5, Part-III-C of Himachal Pradesh Judicial Service Rules, 1973, which says that an appointee to the service shall be on probation, initially for a period of two years and this period may be extended by another two years. Respondent Veerta Verma was discharged vide Notification dated 20th September, 1997, Annexure P-3, on the ground that she had not completed her probation period satisfactorily. She challenged the order, alleging that the action of the High Court and the Governor in discharging her from service was arbitrary and discriminatory, inasmuch as another Officer, namely Dr. Baldev Singh, against whom an enquiry with regard to serious allegations of misconduct was pending, had not been discharged from service and his period of probation was extended by one year but she had been discharged simply for the reason that a police case had been registered against her and sanction to prosecute her in that case had been accorded by the High Court. 3. High Court (the appellant) in its reply denied the allegations of arbitrariness or discrimination and pleaded that respondent Veerta Verma had been recommended for discharge to the Governor, on account of her having not …3… completed the period of probation satisfactorily. It was admitted that a case had been registered against respondent Veerta Verma and on completion of investigation sanction was sought by the police from the High Court to prosecute her and the High Court had accorded the sanction. However, it was denied that respondent Veerta Verma had been discharged from service because of the institution of a criminal case against her by the police, with the prior sanction of the High Court. 4. Learned Single Judge has compared the merit of respondent Veerta Verma with that of Dr. Baldev Singh, who was appointed to the Judicial Service by the same notification as respondent Veerta Verma, i.e. Anneuxre P-1, on the basis of confidential reports and held that her performance was in no way inferior to that of Dr. Baldev Singh and, therefore, if Dr. Baldev Singh, against whom enquiry for serious allegations of misconduct was pending, could have been retained in service by extension of his probation period, the act of the High Court in recommending discharge of respondent Veerta Verma is discriminatory. Although, it has been held by the learned Single Judge that Annexure P-3 is an order of discharge simpliciter and does not contain any stigma or stigmatic comments, yet on lifting the veil by way of looking into the record of proceedings, which led to the passing of the resolution for the discharge of respondent Veerta Verma, it is clear that the sole basis for her discharge was the fact that a case had been registered against her and on completion of …4… investigation sanction had also been accorded by the High Court for her prosecution and that this amounted to the indictment of the said respondent, without trial. Learned Single Judge has observed that the High Court should have waited for the verdict of the trial, before recommending the discharge of respondent Veerta Verma from service. 5. We have heard the learned counsel for the parties. Also, we have perused the record. 6. Settled legal position is that a probationer can be discharged from service if he is found to be unsuitable for the job. Courts can set aside an order of discharge only if it is shown that the order is arbitrary or by way of punishment. If the order is motivated by consideration that the person is not suitable for the job and there is material for forming such an opinion the Courts cannot interfere and set aside such an order. It is in the light of this settled proposition of law that the matter is required to be dealt with. 7. We may state at the very outset that law does not permit the Court to compare the record of two government servants, appointed to similar posts, for the purpose of examining whether the order of discharge of one of them, on the ground of unsuitability, is justified or not. It is the employer who has to judge the suitability of an employee for the post to which he is appointed and for judging that suitability it is not only the service record or the confidential reports which may be taken into account, but many factors, which an employer may take into consideration. In this view …5… of the matter, we find support from a Supreme Court judgment in Dr. T.C.M. Pillai versus The Indian Institute of Technology, Guindy, Madras, AIR 1971 SC 1811. 8. Otherwise also, nature of the allegations against Dr. Baldev Singh is not discernible from the record and, therefore, it cannot be said that the allegations were more serious in nature than the allegations on which the High Court permitted the prosecution of respondent Veerta Verma, on the request of the police made after the completion of the investigation. Further, in the case of Dr. Baldev Singh, there was a complaint containing some allegations. We are not aware what those allegations were. There was no material available with the Full Court of the High Court in support of those allegations. On the other hand, against respondent Veerta Verma there were specific allegations that she had helped certain persons in forging two sheets of an agreement submitted to the State Roadways Corporation, by attesting in back date those two sheets, which had in fact been replaced, by those persons. Signatures of respondent Veerta Verma appearing on those two sheets, as attestator thereof in the capacity of Oath Commissioner (prior to her appointment to service), were compared with the standard writings of the said respondent by Government Examiner of Questioned Documents and he gave the opinion that the two signatures tallied. No doubt, respondent Veerta Verma was finally acquitted and appeal against acquittal filed by the State has also been dismissed, but a reading of the judgment of …6… acquittal passed by the High Court clearly shows that the acquittal of the respondent is for the reason that the opinion evidence of the handwriting expert is not corroborated by any other evidence and so she has been given the benefit of doubt. 9. A perusal of the record of the High Court, including the agenda note and the minutes of the meeting of the Full Court, shows that on 5th July, 1996, a meeting of the Full Court of the High Court was held and one of the items for consideration was that a criminal case had been registered by the Hamirpur Police against respondent Veerta Verma. Following resolution was passed: “Considered. Resolved that the Superintendent of Police, Hamirpur be asked to expedite the investigation and intimate the High Court the result of investigation. Keeping in view the seriousness of allegations against the Judicial Officer (Ms. Veerta Verma), her case for confirmation will not be put up by the Registrar till the investigation is complete and report of the Supdt. Of Police is received.” Thereafter, the police completed the investigation and sought sanction from the High Court to prosecute respondent Veerta Verma. Sanction was accorded on 5th July, 1997, pursuant to a resolution of the Full Court. Resolution to recommend the discharge of respondent Veerta Verma from service was passed in the meeting held on 29th August, 1997. 10. Now, when the Full Court accorded sanction for the prosecution of respondent Veerta Verma by resolution dated 5th July, 1997, it was supposed to have before it the entire record of the investigation of the case against the respondent. …7… The record was supposed to contain the opinion of the Government Examiner of Questioned Documents, per which the purported signatures of respondent Veerta Verma on the two replaced forged sheets of the agreement were similar to those of the standard signatures of the said respondent. When the resolution, dated 29th August, 1997, recommending the discharge of respondent Veerta Verma was passed, the Full Court had before it Agenda Note submitted by the Registrar General, in which it was stated that a case of forgery and cheating, etc. had been registered against the respondent and sanction had also been accorded by the High Court for her prosecution. The Full Court passed the following resolution with respect to the item pertaining to confirmation/extension of period of probation of respondent Veerta Verma: “Having assessed the performance and conduct of Ms. Veerta Verma, it was resolved that she cannot be said to have passed her probationary period satisfactorily and therefore, it is resolved that she be discharged from service and the Governor be informed to issue notification discharging her from the Service.” 11. From a reading of the aforesaid resolution, it is clear that the Hon’ble High Court did not make any observation that respondent Veerta Verma was guilty of any act of misconduct nor did it make any other comment, which may be considered stigmatic. No doubt it does appear that the Full Court took into consideration the fact that there was a police case against respondent Veerta Verma and sanction for her prosecution in that case had already been accorded by the High Court, but ex-facie this fact was considered only for …8… judging whether the said respondent was suitable for the post or not and not for punishing her. As already noticed, the Full Court did not make any observation that she was guilty of any offence. Not only this, the Full Court did not even say that prima facie case was there against respondent Veerta Verma. 12. Full Court had enough material before it for judging whether respondent Veerta Verma was suitable for the post of Judicial Officer or not and on the basis of that material it recommended to the Governor to discharge her. Thus, the action of the appellant-High Court is neither discriminatory nor arbitrary. Also, the action is not punitive as the motive of the appellant was to discharge the respondent, who as per record, was found to be unsuitable for judicial post. 13. In view of the above discussion, we do not find ourselves in agreement with the conclusions and the final verdict of the learned Single Judge. The appeal is, therefore, accepted. Judgment of the learned Single Judge, dated 30th September, 2008, passed in Civil Writ Petition No.355 of 1997 is set aside and consequently the writ petition is dismissed. ( R.B. Misra ), J. March 03, 2009(sd) ( Surjit Singh ), J.