RAJASTHAN HIGH COURT versus VED PRIYA & ANR.

[2020] 4 S.C.R. 971

RAJASTHAN HIGH COURT

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 – former Judicial Officer wasappointed as Civil Judge (Junior Division)-cum- JudicialMagistrate and he was placed on probation for period of twoyears – There were certain allegations of 7 and corruption indischarge of judicial functions during the probation period againstrespondent no.1 – On basis of which the Registrar of Vigilancewas called and he submitted report – The AdministrationCommittee of the High Court did not confirm the service ofrespondent no.1 – The Full Court of the High Court confirmed therecommendations – Consequently, on basis of the recommendationof the High Court the State government dispensed with the servicesof respondent no.1 – Writ Petition by respondent no.1 – TheDivision Bench of the High Court quashed the termination orderand directed reinstatement of respondent no. 1 – Before the SupremeCourt, the respondent no. 1 contended that it was case of anindictment following allegations of corruption against him – Onappeal, held: The entire object of probation is to provide theemployer an opportunity to evaluate the probationer’s performanceand test his suitability for particular post – The true test ofsuitability is actual performance of duties which can only be appliedafter the candidate joins and starts working – In the instant case,the order of termination of services of respondent no. 1 is basedupon overall assessment of performance of respondent no. 1 duringthe period of probation, which was not found satisfactory – Suchan inference which can be valid foundation to dispense withservices of probationer does not warrant holding of an enquiryin terms of Art. 311 of the Constitution – It is thus not true on partof respondent no. 1 to allege that it was case of an indictmentfollowing allegations of corruption against him – There is nothingin the present case to infer that the motivation behind the removalwas any allegation – Instead, it was routine confirmation exercise

A– The foundation for removal was not the allegations but it was aholistic assessment of respondent’s service record – Therefore, thejudgment of the High Court set aside.

Constitution of India – Art. 226 – Judicial review by the HighCourt over the decision taken by its Full Court on administrativeBside – Held: Although it would be futile task to exhaustivelydelineate the scope of writ jurisdiction in such matters but HighCourt u/Art. 226 has limited scope and it ought to interferecautiously – The amplitude of such jurisdiction cannot be enlargedto sit as an ‘appellate authority’, and hence care must be taken tonot hold another possible interpretation on the same set of materialCor substitute the Court’s opinion for that of the disciplinaryauthority – This is especially true given the responsibility andpowers bestowed upon the High Court u/Art.235 of the

Constitution – The collective wisdom of the Full Courtdeserves due respect, weightage and consideration in the processDof judicial review.

Service Law – Difference between the termination of aprobationer and of confirmed employee – Held: There is subtle,yet fundamental, difference between termination of probationerand that of confirmed employee – Although it is undisputed thatthe State cannot act arbitrarily in either case, yet there has to beEa difference in judicial approach between the two – Whereas inthe case of confirmed employee the scope of judicial interferencewould be more expansive given the protection u/Art. 311 of theConstitution or the Service Rules but such may not be true in thecase of probationers who are denuded of such protection(s) whileFworking on trial basis – Constitution of India – Art. 311.Service Law – Right to continue in the employment ofprobationers – Held: Probationers have no indefeasible right tocontinue in employment until confirmed, and they can be relievedby the competent authority if found unsuitable – It is only in veryGlimited category of cases that such probationers can seekprotection under the principles of natural justice, say when theyare ‘removed’ in manner which prejudices their future prospectsin alternate fields or casts aspersions on their character or violatestheir constitutional rights – In such cases of ‘stigmatic’ removalonly reasonable opportunity of hearing is sine-qua-non.

Allowing the appeals, the Court

HELD: 1. The order of termination of services ofRespondent No.1 recites that “the Rajasthan High Court, Jodhpur,after examining all the relevant records has been of the opinionthat the person in question has not made sufficient use of hisopportunities and has otherwise also failed to give satisfaction asa probationer in the Rajasthan Judicial Service.” It is explicit fromthese contents that neither any specific misconduct has beenattributed to Respondent No.1 nor any allegation made. Theorder is based upon overall assessment of the performance ofRespondent No.1 during the period of probation, which was notfound satisfactory. Such an inference which can be validfoundation to dispense with services of probationer does notwarrant holding of an enquiry in terms of Article 311 of theConstitution. It is thus not true on the part of Respondent No.1to allege that it was case of an indictment following allegationsof corruption against him. [Para 20] [981-D-E]

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

3. There is nothing on record in the present case to inferthat the motivation behind the removal was any allegation.Instead, it was routine confirmation exercise. The evaluation ofservices rendered during the probationary period was made atthe end of the first respondent’s tenure, along with 92 others.Vigilance reports were called not just for Respondent No. 1, butalso for at least ten other candidates. It is thus clear that theobject was not to verify whether the allegations against the firstrespondent had been proved or not, but merely to ascertainwhether there were sufficient reasons or possible cloud on his

ABC

[2020] 4 S.C.R.

Asuitability, given the higher standard of probity expected of ajudge. [Para 22] [982-A-B]

4. Even otherwise, it may not be true that just becausethere existed on record some allegations of extraneousconsiderations that the High Court was precluded fromBterminating the services of Respondent No.1 in simplicitormanner while he was on probation. The unsatisfactoryperformance of probationer and resultant dispensation ofservice at the end of the probation period, may not necessarilybe impacted by the fact that meanwhile there were somecomplaints attributing specific misconduct, malfeasance orCmisbehavior to the probationer. If the genesis of the order oftermination of service lies in specific act of misconduct,regardless of over all satisfactory performance of duties duringthe probation period, the Court will be well within its reach tounmask the hidden cause and hold that the simplicitor order ofDtermination, in fact, intends to punish the probationer withoutestablishing the charge(s) by way of an enquiry. However, whenthe employer does not pick-up specific instance and forms hisopinion on the basis of over all performance during the periodof probation, the theory of action being punitive in nature, willEnot be attracted. Onus would thus lie on the probationer to provethat 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 theHigh Court intended or has actually punished him for any definedFmisconduct, it stands crystallized that the object of the HighCourt on the administrative side was to verify the suitability andnot enquire into the allegations against the first respondent.Independently also, this Court does not find that the foundationwas the allegations but it was based upon holistic assessmentof the respondent’s service record. Even taking an effects-basedGapproach, this Court does not feel that the order of non-confirmation or the preceding circumstances would prejudice therespondent, meriting higher procedural requirement. [Para 26][983-E-F]

Parshotam Lal Dhingra v. Union of India AIR 1958SC 36 : [1958] SCR 828 ; Kazia MohammedMuzzammil v. State of Karnataka (2010) 8 SCC155 : [2010] 7 SCR 1061 ; Rajesh Kumar Srivastavav. State of Jharkhand (2011) 4 SCC 447 : [2011] 3SCR 823 – relied on.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8933-8934 of 2017

From the final Orders dated 19.11.2014 and 16.12.2014 of theHigh 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 PetitionNo.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. AnzuK. Varkey, Mrs. Pratima Yadav, Ritesh Patil, Atul Jha, Advs. for theRespondents.

The following Judgment of the Court was delivered:

JUDGMENT

1. These civil appeals have been preferred by the Rajasthan HighCourt against the order dated 16.12.2014 by which Division Benchof the said High Court dismissed petition for review of its earlier orderdated 19.11.2014 wherein the High Court had allowed the writ petitionfiled by Ved Priya (Respondent No. 1 – former judicial officer) anddirected his reinstatement with consequential benefits and seniority.

FACTS

2. Respondent No. 1 was recruited into the RajasthanJudicial Services on 16.07.2002 and appointed as Civil Judge (JuniorDivision)-cum-Judicial Magistrate. He was placed on probation for aperiod of two years w.e.f. 02.08.2002, which was later extended by afurther period of two months on 28.07.2004.

A3. Certain allegations of misdemeanour and corruption indischarge of judicial functions were received during the probation periodagainst few judicial officers (including Respondents No. 1), on thebasis of which the Registrar (Vigilance) of the Rajasthan High Courtcalled for the records and submitted report dated 05.08.2004. Thisreport was put forth before the Administrative Committee of the HighBCourt, along with wealth of other material while it was undertakingthe confirmation process of over ninety-three probationary judges. Thisfive-judge Committee sought to determine the suitability of theprobationers as per terms and conditions of the appointment byevaluating their integrity, knowledge, conduct and behaviour. In thisCprocess the Committee relied upon numerous materials, including reportssubmitted by their District Judges, Inspecting Judges, ACRs as well theaforementioned report submitted by the Registrar (Vigilance). After dueconsideration, it was recommended that the services of ninety officersbe confirmed, the probationary period of one officer be extended andservices of two judicial officers (including Respondent No. 1) not beDconfirmed. This report was placed before the Full Court of the HighCourt, which on 16.09.2004 confirmed the recommendations.Consequently and on the recommendation of High Court, StateGovernment vide order dated 30.09.2004 dispensed with the servicesof Respondent No.1.E4. Respondent No. 1 being aggrieved approached the RajasthanHigh Court on its judicial side and filed writ petition seeking quashingof the termination order, as well as reinstatement of his services. It wasvehemently contended that the termination order was punitive and aresult of subjective notions, and was delivered without due enquiry orhearing.F

5. The Division Bench relied upon catena of judgments toobserve that although evaluation of probationary period was necessaryto determine suitability for confirmation and that probationer couldbe laid-off without any reason but the decision so taken would alwaysbe amenable to limited judicial review. Though the High Court opinedGthat such like orders ought not to state reasons as it gave rise to thepossibility of casting stigma, it nonetheless proceeded to evaluate theactual reasons behind the termination of services of Respondent No.1with view to determine whether the action of the appellant wasarbitrary or illegal. Taking note of the ‘good’ service-record of theHRespondent No.1 and the positive feedback given by his reporting

authority and the endorsements by the Inspecting Judges, the Courtviewed that there was no material on the basis of which the Full Courtcould resolve to dispense with the services of Respondent No. 1. TheFull Court’s reliance on unsubstantiated allegations and that too withoutaffording an opportunity of hearing, was held to be impermissible whichmade the action punitive. The Court accordingly quashed the terminationorder and directed reinstatement of Respondent No.1.

6. review was later filed by the appellant, who contended thatthe Division Bench failed to take note of the special report submittedby the Registrar (Vigilance). This report was stated to have shown asto how the judicial officer had, without competence, granted bail intwo matters pertaining to offences under the Narcotics, Drugs andPsychotropic Substances Act, 1985 (hereinafter, “NDPS Act”). TheHigh Court, however, declined to entertain the review petition anddismissed it by noting that the above stated report had in fact been keptin mind while allowing the writ petition.

CONTENTIONS OF PARTIES

7. Learned counsel appearing for the appellant-High Courtvehemently contended that the termination order could not be labelledas punitive or arbitrary or having been passed without sufficientmaterial. The report submitted by the Registrar (Vigilance) dated05.08.2004 when read with various other material on record, sufficientlyjustified for the appellant to form an opinion regarding the unsuitabilityof Respondent No. 1.

8. It was then argued that the Division Bench of the High Courterred in entering into the merits of the case, and in doing so transgressedthe scope of judicial review and assumed the role of an appellateauthority. Learned Counsel while placing reliance on series ofdecisions, highlighted that it was settled position of law that adequacyor reliability of evidence could not be canvassed before the judicial sideof High Court under Article 226 of the Constitution, and the judgmentin High Court of Patna v. Pandey Gajendra Prasad[1], where thisCourt had held that an order of termination of judicial officer couldnot be altered through writ jurisdiction merely on the ground that hisAnnual Confidential Reports (ACRs) had good remarks, was squarelyapplicable to the present facts.

1 (2012) 6 SCC 357.

A9. Placing reliance on past precedents and the provisions ofRajasthan Judicial Service Rules, 1955, it was urged that services oftemporary employees and probationers could be terminated withoutattracting the operation of Article 311 of the Constitution. It washighlighted how no mala fide had been alleged or proved, and in sucha scenario, the only limited issue which could be gone into was as toBwhether or not there was due application of mind before taking theinnocuous administrative decision.

10. On the other hand, Respondent No. 1 submitted that anopportunity of hearing was one of the most fundamental protectionsknown to law, and no one could be condemned unheard irrespective ofChis status as temporary or probationer employee. Relying uponShamsher Singh v. State of Punjab[2], it was buttressed thatnotwithstanding the provisions contained in statutory rules or employmentconditions permitting termination of services of probationers withoutreason, if one was discharged on grounds of specific allegations orDinefficiency without proper enquiry and reasonable opportunity ofhearing, such an action would amount to ‘removal’ from service withinthe 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 ostensiblyEsimplicitor, but was stigmatic in effect. Even if no explicit reasons wereaccorded for termination, yet the preceding circumstances had madeclear that certain allegations of corruption or erroneous exercise ofjurisdiction were the foundation of the action, and the ultimate decisioncould hence be invalidated on ground of violation of principles of naturaljustice as per State Bank of India v. Palak Modi.[3]F

12. Further, it was urged that even on merits no case was madeout, for the complainant could not be found in spot enquiry by thelearned District judge. Other allegations too were without substanceand adequate explanations were provided for certain alleged violationsof law.G

ANALYSIS

13. At the outset, we may observe that both the appellant as wellas the impugned judgment have elucidated the correct statement of law

2 (1974) 2 SCC 831.H3 (2013) 3 SCC 607.

regarding the width and sweep of judicial review by High Court overthe decisions taken by its Full Court on administrative side. Although itwould be futile task to exhaustively delineate the scope of writjurisdiction in such matters but High Court under Article 226 haslimited scope and it ought to interfere cautiously. The amplitude of suchjurisdiction cannot be enlarged to sit as an ‘appellate authority’, andhence care must be taken to not hold another possible interpretationon the same set of material or substitute the Court’s opinion for that ofthe disciplinary authority. This is especially true given the responsibilityand powers bestowed upon the High Court under Article 235 of theConstitution. The collective wisdom of the Full Court deserves duerespect, weightage and consideration in the process of judicial review.

14. The present case is one where the first respondent was aprobationer and not substantive appointee, hence not strictly coveredwithin the umbrella of Article 311. The purpose of such probation hasbeen noted in Kazia Mohammed Muzzammil v. State of Karnataka[4]:

“25. The purpose of any probation is to ensure that beforethe employee attains the status of confirmed regularemployee, he should satisfactorily perform his duties andfunctions to enable the authorities to pass appropriate orders.In other words, the scheme of probation is to judge theability, suitability and performance of an officer underprobation. …”

15. Similarly, in Rajesh Kumar Srivastava v. State ofJharkhand[5]it was opined:

“… person is placed on probation so as to enable theemployer to adjudge his suitability for continuation in theservice and also for confirmation in service. There arevarious criteria for adjudging suitability of person to holdthe post on permanent basis and by way of confirmation. Atthat stage and during the period of probation the action andactivities of the probationer (appellant) are generally underscrutiny and on the basis of his overall performance adecision is generally taken as to whether his services should

4 (2010) 8 SCC 155.

5 (2011) 4 SCC 447.

Abe continued and that he should be confirmed, or he shouldbe released from service. …”

16. It is thus clear that the entire objective of probation is toprovide the employer an opportunity to evaluate the probationer’sperformance and test his suitability for particular post. Such anBexercise is necessary part of the process of recruitment, and mustnot be treated lightly. Written tests and interviews are only attempts topredict candidate’s possibility of success at particular job. The truetest of suitability is actual performance of duties which can only beapplied after the candidate joins and starts working.

17. Such an exercise undoubtedly is subjective, therefore,CRespondent No.1’s contention that confirmation of probationers mustbe based only on objective material is far-fetched. Although quantitativeparameters are ostensibly fair, but they by themselves are imperfectindicators of future performance. Qualitative assessment and holisticanalysis of non-quantifiable factors are indeed necessary. MerelyDbecause Respondent No. 1’s ACRs were consistently marked ‘Good’,it cannot be ground to bestow him with right to continue in service.18. Furthermore, there is subtle, yet fundamental, differencebetween termination of probationer and that of confirmed employee.Although it is undisputed that the State cannot act arbitrarily in eitherEcase, yet there has to be difference in judicial approach between thetwo. Whereas in the case of confirmed employee the scope of judicialinterference would be more expansive given the protection under Article311 of the Constitution or the Service Rules but such may not be truein the case of probationers who are denuded of such protection(s) whileworking on trial basis.F

19. Probationers have no indefeasible right to continue inemployment until confirmed, and they can be relieved by the competentauthority if found unsuitable. Its only in very limited category of casesthat such probationers can seek protection under the principles of naturaljustice, say when they are ‘removed’ in manner which prejudices theirGfuture prospects in alternate fields or casts aspersions on their characteror violates their constitutional rights. In such cases of ‘stigmatic’removal only that reasonable opportunity of hearing is sine-qua-non.Way back in Parshotam Lal Dhingra v. Union of India[6], aConstitution Bench opined that:

“28.... In short, if the termination of service is founded on theright flowing from contract or the service rules then, prima facie,the termination is not punishment and carries with it no evilconsequences and so Article 311 is not attracted. But even ifthe Government has, by contract or under the rules, the right toterminate the employment without going through the procedureprescribed for inflicting the punishment of dismissal or removalor reduction in rank, the Government may, nevertheless, chooseto punish the servant and if the termination of service is soughtto be founded on misconduct, negligence, inefficiency or otherdisqualification, then it is punishment and the requirements ofArticle 311 must be complied with.”

20. The order of termination of services of Respondent No.1recites that “the Rajasthan High Court, Jodhpur, after examining all therelevant records has been of the opinion that Shri Ved Priya has notmade sufficient use of his opportunities and has otherwise also failedto give satisfaction as probationer in the Rajasthan Judicial Service.”It is explicit from these contents that neither any specific misconducthas been attributed to Respondent No.1 nor any allegation made. Theorder is based upon overall assessment of the performance ofRespondent No.1 during the period of probation, which was not foundsatisfactory. Such an inference which can be valid foundation todispense with services of probationer does not warrant holding of anenquiry in terms of Article 311 of the Constitution. It is thus not trueon the part of Respondent No.1 to allege that it was case of anindictment following allegations of corruption against him.

21. True it is that the form of an order is not crucial to determinewhether it is simplicitor or punitive in nature. An order of terminationof service though innocuously worded may, in the facts andcircumstances of peculiar case, also be aimed at punishing the officialon probation and in that case it would undoubtedly be an infraction ofArticle 311 of the Constitution. The Court in the process of judicialreview of such order can always lift the veil to find out as to whetheror not the order was meant to visit the probationer with penalconsequences. If the Court finds that the real motive behind the orderwas to ‘punish’ the official, it may always strike down the same forwant of reasonable opportunity of being heard.

ABC

A22. There is nothing on record in the present case to infer thatthe motivation behind the removal was any allegation. Instead, it wasroutine confirmation exercise. The evaluation of services renderedduring the probationary period was made at the end of the firstrespondent’s tenure, along with 92 others. Vigilance reports were callednot just for the Respondent No. 1 petitioner, but also for at least tenBother candidates. It is thus clear that the object was not to verify whetherthe allegations against the first respondent had been proved or not, butmerely to ascertain whether there were sufficient reasons or possiblecloud on his suitability, given the higher standard of probity expectedof judge.C23. The vigilance report suggests that one of the factors which

C23. The vigilance report suggests that one of the factors whichprompted the Administrative Committee or the Full Court to not confirmRespondent No.1, was his action granting bail in the matters under theNDPS Act. It has not been alleged nor it may be true that the firstrespondent granted bail in NDPS matters owing to illegal gratificationsor any other extraneous consideration. The stand taken by him beforeDus is that bail was granted keeping in mind ‘equitable and humanitarianconsiderations’. We find no merit in such an explanation. The questionof exercising equity arises only when the Court is conferred jurisdictionexpressly or by implication. Respondent No.1 was expected to be inknow of Section 36(3) of the NDPS Act, 1985 which expressly oustsEcompetence of judicial officer below the rank of Sessions Judge oran Additional Sessions Judge in NDPS matters. The High Court onadministrative side, therefore, justifiably inferred that Respondent No.1was prone to act negligently or had the tendency to usurp power whichthe law does not vest in him. This was relevant factor to determinesuitability of probationer judicial officer.F

24. Even otherwise, it may not be true that just because thereexisted on record some allegations of extraneous considerations thatthe High Court was precluded from terminating the services ofRespondent No.1 in simplicitor manner while he was on probation.The unsatisfactory performance of probationer and resultantGdispensation of service at the end of the probation period, may notnecessarily be impacted by the fact that meanwhile there were somecomplaints attributing specific misconduct, malfeasance or misbehaviorto the probationer. If the genesis of the order of termination of servicelies in specific act of misconduct, regardless of over all satisfactoryperformance of duties during the probation period, the Court will beHwell within its reach to unmask the hidden cause and hold that the

simplicitor order of termination, in fact, intends to punish the probationerwithout establishing the charge(s) by way of an enquiry. However,when the employer does not pick-up specific instance and forms hisopinion on the basis of over all performance during the period ofprobation, the theory of action being punitive in nature, will not beattracted. Onus would thus lie on the probationer to prove that the actiontaken against him was of punitive characteristics.

25. There is something more which the learned Division Benchfailed to notice and reconcile. On page 22 of the impugned judgment,it has been stated that “on consideration of material available beforethe committee, the committee resolved to recommend that petitionerVed Priya is not fit for confirmation”, additionally, it was stated that“certain reference has been made in regard to thecomplaints……which according to the respondent was consideredby the committee while taking the final decision.” This suggests thatthere was, if not substantial, at least some material under considerationbefore the committee. However, on page 24 later the Division Benchhas observed that there was “absence of any material which couldsupport in arriving at the conclusion” and that such decision wouldbe violative of Article 14 of the Constitution.26. Since Respondent No.1 has failed to establish that the HighCourt intended or has actually punished him for any defined misconduct,it stands crystallized that the object of the High Court on theadministrative side was to verify the suitability and not enquire into theallegations against the first respondent. Independently also, we do notfind that the foundation was the allegations but it was based upon aholistic assessment of the respondent’s service record. Even taking aneffects-based approach, we do not feel that the order of non-confirmationor the preceding circumstances would prejudice the respondent, meritinga higher procedural requirement.

CONCLUSION

27. In light of the above discussion, the appeals are allowed. Thejudgment of the High Court is set aside and the order of discharge dated30.09.2004 whereby services of Respondent No.1 were dispensed withduring probation, is hereby approved. No order as to costs.

Appeals allowed.