RAJASTHAN HIGH COURT versus VED PRIYA & ANR.
[2020] 4 S.C.R. 971, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Arguments
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RAJASTHAN HIGH COURT
v.
VED PRIYA & ANR.
(Civil Appeal Nos. 8933-8934 of 2017)
MARCH 18, 2020
[S. A. BOBDE, CJI, B. R. GAVAI AND SURYA KANT, JJ.]
Judicial Service – Probation period – Order of non-
confirmation in – Respondent no.1 – a former Judicial Officer was
appointed as a Civil Judge (Junior Division)-cum- Judicial
Magistrate and he was placed on probation for a period of two
years – There were certain allegations of 7 and corruption in
discharge of judicial functions during the probation period against
respondent no.1 – On basis of which the Registrar of Vigilance
was called and he submitted a report – The Administration
Committee of the High Court did not confirm the service of
respondent no.1 – The Full Court of the High Court confirmed the
recommendations – Consequently, on basis of the recommendation
of the High Court the State government dispensed with the services
of respondent no.1 – Writ Petition by respondent no.1 – The
Division Bench of the High Court quashed the termination order
and directed reinstatement of respondent no. 1 – Before the Supreme
Court, the respondent no. 1 contended that it was a case of an
indictment following allegations of corruption against him – On
appeal, held: The entire object of probation is to provide the
employer an opportunity to evaluate the probationer’s performance
and test his suitability for a particular post – The true test of
suitability is actual performance of duties which can only be applied
after
the candidate joins and starts working – In the instant case,
the order of termination of services of respondent no. 1 is based
upon overall assessment of performance of respondent no. 1 during
the period of probation, which was not found satisfactory – Such
an inference which can be valid foundation to dispense with
services of a probationer does not warrant holding of an enquiry
in terms of Art. 311 of the Constitution – It is thus not true on part
of respondent no. 1 to allege that it was a case of an indictment
following allegations of corruption against him – There is nothing
in the present case to infer that the motivation behind the removal
was any allegation – Instead, it was a routine confirmation exercise
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– The foundation for removal was not the allegations but it was a
holistic assessment of respondent’s service record – Therefore, the
judgment of the High Court set aside.
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.
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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
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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 non-
confirmation or the preceding circumstances would prejudice the
respondent, meriting a higher procedural requirement. [Para 26]
[983-E-F]
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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.
Case Law Reference
[2010] 7 SCR 1061
relied on
Para 14
[2011] 3 SCR 823
relied on
Para 15
[1958] SCR 828
relied on
Para 19
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8933-
8934 of 2017
From the final Orders dated  19.11.2014 and 16.12.2014 of the
High Court of  Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B.
Civil Writ Petition No.1993 of 2006 and in D.B. Writ Review Petition
No.199 of 2014 respectively.
Purushaindra Kaurav, Sr. Adv., Sunil Kumar Jain, Abhishek Jain,
Anuradha Mishra, Advs. for the Appellant.
Ranbir Singh Yadav, Nitin Meshram, D. Subramanyam, Ms. Anzu
K. Varkey, Mrs. Pratima Yadav, Ritesh Patil, Atul Jha, Advs. for the
Respondents.
The following Judgment of the Court was delivered:
JUDGMENT
1. These civil appeals have been preferred by the Rajasthan High
Court against the order dated 16.12.2014 by which a Division Bench
of the said High Court dismissed a petition for review of its earlier order
dated 19.11.2014 wherein the High Court had allowed the writ petition
filed by Ved Priya (Respondent No. 1 – a former judicial officer) and
directed his reinstatement with consequential benefits and seniority.
FACTS
2. Respondent No. 1 was recruited into the Rajasthan
Judicial
Services on 16.07.2002 and appointed as Civil Judge (Junior
Division)-cum-Judicial Magistrate. He was placed on probation for a
period of two years w.e.f. 02.08.2002, which was later extended by a
further period of two months on 28.07.2004.
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3. Certain allegations of misdemeanour and corruption in
discharge of judicial functions were received during the probation period
against a few judicial officers (including Respondents No. 1), on the
basis of which the Registrar (Vigilance) of the Rajasthan High Court
called for the records and submitted a report dated 05.08.2004. This
report was put forth before the Administrative Committee of the High
Court, along with a wealth of other material while it was undertaking
the confirmation process of over ninety-three probationary judges. This
five-judge Committee sought to determine the suitability of the
probationers as per terms and conditions of the appointment by
evaluating their integrity, knowledge, conduct and behaviour. In this
process the Committee relied upon numerous materials, including reports
submitted by their District Judges, Inspecting Judges, ACRs as well the
aforementioned report submitted by the Registrar (Vigilance). After due
consideration, it was recommended that the services of ninety officers
be confirmed, the probationary period of one officer be extended and
services of two judicial officers (including Respondent No. 1) not be
confirmed. This report was placed before the Full Court of the High
Court, which on 16.09.2004 confirmed the recommendations.
Consequently and on the recommendation of High Court, State
Government vide order dated 30.09.2004 dispensed with the services
of Respondent
No.1.
4. Respondent No. 1 being aggrieved approached the Rajasthan
High Court on its judicial side and filed a writ petition seeking quashing
of the termination order, as well as reinstatement of his services. It was
vehemently contended that the termination order was punitive and a
result of subjective notions, and was delivered without due enquiry or
hearing.
5. The Division Bench relied upon a catena of judgments to
observe that although evaluation of probationary period was necessary
to determine suitability for confirmation and that a probationer could
be laid-off without any reason but the decision so taken would always
be amenable to a limited judicial review. Though the High Court opined
that such like orders ought not to state reasons as it gave rise to the
possibility of casting stigma, it nonetheless proceeded to evaluate the
actual reasons behind the termination of services of Respondent No.1
with a view to determine whether the action of the appellant was
arbitrary or illegal. Taking note of the ‘good’ service-record of the
Respondent No.1 and the positive feedback given by his reporting
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authority and the endorsements by the Inspecting Judges, the Court
viewed that there was no material on the basis of which the Full Court
could resolve to dispense with the services of Respondent No. 1. The
Full Court’s reliance on unsubstantiated allegations and that too without
affording an opportunity of hearing, was held to be impermissible which
made the action punitive. The Court accordingly quashed the termination
order and directed reinstatement of Respondent No.1.
6. A review was later filed by the appellant, who contended that
the Division Bench failed to take note of the special report submitted
by the Registrar (Vigilance). This report was stated to have shown as
to how the judicial  officer had, without competence, granted bail in
two matters pertaining to offences under the Narcotics, Drugs and
Psychotropic Substances Act, 1985 (hereinafter, “NDPS Act”). The
High Court, however, declined to entertain the review petition and
dismissed it by noting that the above stated report had in fact been kept
in mind while allowing the writ petition.
CONTENTIONS OF PARTIES
7. Learned counsel appearing for the appellant-High Court
vehemently contended that the termination order could not be labelled
as punitive or arbitrary or having been passed without sufficient
material. The report submitted by the Registrar (Vigilance) dated
05.08.2004 when read with various other material on record, sufficiently
justified for the appellant to form an opinion
regarding the unsuitability
of Respondent No. 1.
8. It was then argued that the Division Bench of the High Court
erred in entering into the merits of the case, and in doing so transgressed
the scope of judicial review and assumed the role of an appellate
authority. Learned Counsel while placing reliance on a series of
decisions, highlighted that it was a settled position of law that adequacy
or reliability of evidence could not be canvassed before the judicial side
of a High Court under Article 226 of the Constitution, and the judgment
in High Court of Patna v. Pandey Gajendra Prasad1, where this
Court had held that an order of termination of a judicial officer could
not be altered through writ jurisdiction merely on the ground that his
Annual Confidential Reports (ACRs) had good remarks, was squarely
applicable to the present facts.
1 (2012) 6 SCC 357.
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9. Placing reliance on past precedents and the provisions of
Rajasthan Judicial Service Rules, 1955, it was urged that services of
temporary employees and probationers could be terminated without
attracting the operation of Article 311 of the Constitution. It was
highlighted how no mala fide had been alleged or proved, and in such
a scenario, the only limited issue which could be gone into was as to
whether or not there was due application of mind before taking the
innocuous administrative decision.
10. On the other hand, Respondent No. 1 submitted that an
opportunity of hearing was one of the most fundamental protections
known to law, and no one could be condemned unheard irrespective of
his status as a temporary or probationer employee. Relying upon
Shamsher Singh v. State of Punjab2, it was buttressed that
notwithstanding the provisions contained in statutory rules or employment
conditions permitting termination of services of probationers without
reason, if one was discharged on grounds of specific allegations or
inefficiency without proper enquiry and reasonable opportunity of
hearing, such an action would amount to ‘removal’ from service within
the meaning of Article 311(2) of the Constitution.
11. Tracing the various events leading up to the present appeal,
the  first respondent asserted that although the termination was ostensibly
simplicitor, but was stigmatic in effect. Even if no explicit reasons were
accorded for termination, yet the preceding circumstances had made
clear that certain allegations of corruption or erroneous exercise of
jurisdiction were the foundation of the action, and the ultimate decision
could hence be invalidated on ground of violation of principles of natural
justice as per State Bank of India v. Palak Modi.3
12. Further, it was urged that even on merits no case was made
out, for the complainant could not be found in a spot enquiry by the
learned District judge. Other allegations too were without substance
and adequate explanations were provided for certain alleged violations
of law.
ANALYSIS
13. At the outset, we may observe that both the appellant as well
as the impugned judgment have elucidated the correct statement of law
2 (1974) 2 SCC 831.
3 (2013) 3 SCC 607.
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regarding the width and sweep of judicial review by a High Court over
the decisions taken by its Full Court on administrative side. Although it
would be a futile task to exhaustively delineate the scope of writ
jurisdiction in such matters but a High Court under Article 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 under Article 235 of the
Constitution.  The collective wisdom of the Full Court deserves due
respect, weightage and consideration in the process of judicial review.
14. The present case is one where the first respondent was a
probationer and not a substantive appointee, hence not strictly covered
within the umbrella of Article 311. The purpose of such probation has
been noted in Kazia Mohammed Muzzammil v. State of Karnataka4:
“25. The purpose of any probation is to ensure that before
the employee attains the status of confirmed regular
employee, he should satisfactorily perform his duties and
functions to enable the authorities to pass appropriate orders.
In other words, the scheme of probation is to judge the
ability, suitability and performance of an officer under
probation. …”
15. Similarly, in Rajesh Kumar Srivastava v. State of
Jharkhand5 it was opined:
“… A person is placed on probation so as to enable the
employer to adjudge his suitability for continuation in the
service and also for confirmation in service. There are
various criteria for adjudging suitability of a person to hold
the post on permanent basis and by way of confirmation. At
that stage and during the period of probation the action and
activities of the probationer (appellant) are generally under
scrutiny and on the basis of his overall performance a
decision is generally taken as to whether his services should
4 (2010) 8 SCC 155.
5 (2011) 4 SCC 447.
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be continued and that he should be confirmed, or he should
be released from service. …”
16. It is thus clear that the entire objective of probation is to
provide the employer an opportunity to evaluate the probationer’s
performance and test his suitability for a particular post. Such an
exercise is a necessary part of the process of recruitment, and must
not be treated lightly. Written tests and interviews are only attempts to
predict a candidate’s possibility of success at a particular job. The true
test of suitability is actual performance of duties which can only be
applied after the candidate joins and starts working.
17. Such an exercise undoubtedly is subjective, therefore,
Respondent No.1’s contention that confirmation of probationers must
be based only on objective material is far-fetched. Although quantitative
parameters are ostensibly fair, but they by themselves are imperfect
indicators of future performance. Qualitative assessment and a holistic
analysis of non-quantifiable factors are indeed necessary. Merely
because Respondent No. 1’s ACRs were consistently marked ‘Good’,
it cannot be a ground to bestow him with a right to continue in service.
18. Furthermore, 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 under Article
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.
19. Probationers have no indefeasible right to continue in
employment until confirmed, and they can be relieved by the competent
authority if found unsuitable. Its 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 that a reasonable opportunity of hearing is sine-qua-non.
Way back  in Parshotam Lal Dhingra v. Union of India6, a
Constitution Bench opined that:
6 AIR 1958 SC 36.
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“28.... In short, if the termination of service is founded on the
right flowing from contract or the service rules then, prima facie,
the termination is not a punishment and carries with it no evil
consequences and so Article 311 is not attracted. But even if
the Government has, by contract or under the rules, the right to
terminate the employment without going through the procedure
prescribed for inflicting the punishment of dismissal or removal
or reduction in rank, the Government may, nevertheless, choose
to punish the servant and if the termination of service is sought
to be founded on misconduct, negligence, inefficiency or other
disqualification, then it is a punishment and the requirements of
Article 311 must be complied with.”
20. 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 Shri Ved Priya 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.
21. 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.
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22. 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 the Respondent No. 1 petitioner, 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.
23. The vigilance report suggests that one of the factors which
prompted the Administrative Committee or the Full Court to not confirm
Respondent No.1, was his action granting bail in the matters under the
NDPS Act. It has not been alleged nor it may be true that the first
respondent granted bail in NDPS matters owing to illegal gratifications
or any other extraneous consideration. The stand taken by him before
us is that bail was granted keeping in mind ‘equitable and humanitarian
considerations’. We find no merit in such an explanation. The question
of exercising equity arises only when the Court is conferred jurisdiction
expressly or by implication. Respondent No.1 was expected to be in
know of Section 36(3) of
the NDPS Act, 1985 which expressly ousts
competence of a judicial officer below the rank of Sessions Judge or
an Additional Sessions Judge in NDPS matters. The High Court on
administrative side, therefore, justifiably inferred that Respondent No.1
was prone to act negligently or had the tendency to usurp power which
the law does not vest in him.  This was a relevant factor to determine
suitability of a probationer judicial officer.
24. 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
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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.
25. There is something more which the learned Division Bench
failed to notice and reconcile.  On page 22 of the impugned judgment,
it has been stated that “on consideration of material available before
the committee, the committee resolved to recommend that petitioner
Ved Priya is not fit for confirmation”, additionally, it was stated that
“certain reference has been made in regard to the
complaints……which according to the respondent was considered
by the committee while taking the final decision.” This suggests that
there was, if not substantial, at least some material under consideration
before the committee. However, on page 24 later the Division Bench
has observed that there was “absence of any material which could
support in arriving at the conclusion” and that such a decision would
be violative of Article 14 of the Constitution.
26. 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, we do 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, we do not feel that the order of non-confirmation
or the preceding circumstances would prejudice the respondent, meriting
a higher procedural requirement.
CONCLUSION
27. In light of the above discussion, the appeals are allowed. The
judgment of the High Court is set aside and the order of discharge dated
30.09.2004 whereby services of Respondent No.1 were dispensed with
during probation, is hereby approved. No order as to costs.
Ankit Gyan
Appeals allowed.
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