Full Judgment Text
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
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.
ACTS
F
Signature Not Verified
Digitally signed by
Charanjeet kaur
Date: 2020.10.01
18:19:50 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.
C ONTENTIONS OF P ARTIES
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
1
Gajendra Prasad , 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.
2
, it was buttressed that notwithstanding the provisions
State of Punjab
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
3
State Bank of India v. Palak Modi.
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.
NALYSIS
A
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
4
:
Kazia Mohammed Muzzammil v. State of Karnataka
“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. …”
5
15. Similarly, in Rajesh Kumar Srivastava v. State of Jharkhand 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
6
Parshotam Lal Dhingra v. Union of India , 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
", additionally, it was stated that "
confirmation 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.
C ONCLUSION
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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