TMI Blog2020 (3) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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. 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. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 laidoff without any re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Prasad (2012) 6 SCC 357, 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 Karnataka (2010) 8 SCC 155: 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 Jharkhand (2011) 4 SCC 447 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing is sine-qua-non. Way back in Parshotam Lal Dhingra v. Union of India AIR 1958 SC 36, 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 probationer in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dispensatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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