Rajasthan High Court vs Ved Priya on 18 March, 2020


Supreme Court of India

Rajasthan High Court vs Ved Priya on 18 March, 2020

Author: Hon’Ble The Justice

Bench: Hon’Ble The Justice, B.R. Gavai, Surya Kant

                                                                              REPORTABLE


                                     IN THE SUPREME COURT OF INDIA
                                      CIVIL APPELLATE JURISDICTION


                                   CIVIL APPEAL Nos. 8933­8934 OF 2017


      Rajasthan High Court                                               ..... Appellants(s)


                                                  VERSUS


      Ved Priya & Anr.                                                 .....Respondents(s)


                                                  JUDGMENT

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

09.11.2014 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
Signature Not Verified

Digitally signed by
CHARANJEET KAUR
Date: 2020.03.18
16:11:05 IST
Reason:

2. Respondent No. 1 was recruited into the Rajasthan Judicial Services

on 16.07.2002 and appointed as Civil Judge (Junior Division)­cum­Judicial

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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.

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 five­judge 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.

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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 laid­off 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’ service­record of the Respondent No.1 and the positive feedback

given by his reporting 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

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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 appellant­High 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

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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.

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.

1 (2012) 6 SCC 357.

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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

2 (1974) 2 SCC 831.

3 (2013) 3 SCC 607.

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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 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

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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 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

4 (2010) 8 SCC 155.

5 (2011) 4 SCC 447.

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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 far­fetched. 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

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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 sine­qua­non. Way back in

Parshotam Lal Dhingra v. Union of India 6, a Constitution Bench opined

that:

“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

6 AIR 1958 SC 36.

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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.

22. There is nothing on record in the present case to infer that the

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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.

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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 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 pick­up 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

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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 effects­based approach,

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we do not feel that the order of non­confirmation 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.

……………………….. CJI.

(S. A. BOBDE)

………………………… J.

(B.R. GAVAI)

…………………………. J.

(SURYA KANT)
NEW DELHI
DATED : 18.03.2020

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