Ms. Pinky Meena D/O Shri Sampat Ram ... vs The High Court Of Judicature
2023 Latest Caselaw 4100 Raj/2

[2023/RJJP/010753]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 D.B. Civil Writ Petition No. 6752/2020

Ms. Pinky Meena D/o Shri Sampat Ram Meena, Aged About 28
Years, Resident Of 6, Shri Chandar Nagar, Amer Road, Ward No.
75, Jaipur.
                                                                    ----Petitioner
                                    Versus
1.       The High Court Of Judicature, For Rajasthan At Jodhpur,
         Through Its Registrar General.
2.       The State Of Rajasthan, Through The Principal Secretary
         To The Government, Law And Legal Affairs Department,
         Government Of Rajasthan, Secretariat, Jaipur.
                                                                 ----Respondents


For Petitioner(s)         :     Mr. R. N. Mathur, Sr. Advocate
                                assisted by Mr. Shovit Jhajharia,
                                Mr. Utkarsh Dubey and
                                Mr. Ankit Kumar
For Respondent(s)         :     Mr. A. K. Sharma, Sr. Advocate
                                assisted by Mr. Vishnu Kant Sharma
                                and Mr. C. P. Sharma



          HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
            HON'BLE MR. JUSTICE ASHUTOSH KUMAR

                                     Order

Date of Reserved                        ::                       26/04/2023
Date of Pronouncement                   ::                       24/08/2023

(By the Court : Per Hon'ble Mr. Justice Ashutosh Kumar)

1. By way of the present petition filed under Article 226 of the

Constitution of India, 1950 the petitioner has challenged the

notice dated 17.02.2020 (Annex.8) and discharge order dated

29.06.2020 (Annex.12)

2. In nutshell, the facts of the petition are that, the petitioner

having acquired B.A., B.Ed., LL.B, LL.M. and D.LL., was initially

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appointed as Teacher Grade-II in Education Department,

Government of Rajasthan w.e.f. 30.12.2014.

3. Thereafter in pursuance of advertisement dated 18.11.2017,

issued by Rajasthan High Court, the petitioner applied for the post

of Civil Judge (Junior Division). She was declared successful vide

order dated 04.11.2018 and appointed as Civil Judge & Judicial

Magistrate vide order dated 11.02.2019.

4. The petitioner joined the services at Rajasthan Judicial

Academy, Jodhpur as a trainee RJS on 06.03.2019 and

successfully completed her training on 07.03.2020.

5. Vide order dated 06.03.2020, the petitioner was kept under

Awaiting Posting Order (APO) and then vide order dated

23.03.2020, her headquarter was changed from Jodhpur to

District and Sessions Judge, Jaipur Metro.

6. The petitioner received a notice dated 17-2-2020, by which

she was asked to submit a detailed explanation on certain points.

She submitted reply to the said notice on 02.03.2020.

7. It is the assertion of the petitioner that the allegations

levelled against her, falls under Rule 16 of Rajasthan Civil Services

(Classification, Control and Appeal) Rules, 1958 (hereinafter

referred to as the 'CCA Rules') but the procedure prescribed under

Rule 16 of CCA Rules was not followed.

8. The enquiry report was prepared by the Enquiry Judge. The

report was placed before the Full Court of Rajasthan High Court.

Thereafter, by an order dated 29.05.2020, the petitioner was

discharged from the services.

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9. The petitioner has also averred that she was not given an

opportunity to assail the said enquiry report, prepared against her,

which is in violation of principles of natural justice.

10. The petitioner has further averred that as per the notice

dated 17.02.2020 (Annex-8), the petitioner was asked to submit

her detailed explanation on 5 allegations, which are as follows:

a) While studying in LL.B. first year, the petitioner also

obtained degree of B.Ed. in the same year, thus fraudulently

succeeding in showing attendance in both the courses. The

contention of the petitioner is that she did not obtain the

degree of LL.B and B.Ed. in the same year. As per the

Ordinance No.168A of the Ordinance Handbook of Rajasthan

University, a candidate cannot appear in two main

examinations in the same year. As per the petitioner, LL.B

First Year Examination is not main examination for obtaining

the degree of LL.B.

b) The petitioner while being in Government job as a Teacher

did her LL.M. and again fraudulently succeeded in showing

attendance in both the courses. The petitioner has given the

explanation that she did not show her attendance fraudulently

at two places simultaneously because generally no regular

classes are held for LL.M. in the University.

c) The petitioner concealed the fact of her employment in

Government job as a Teacher in the checklist submitted at the

time of interview of RJS. To this the petitioner has given her

explanation to the effect that, there were no columns in

Checklist for Interview wherein she was required to say that

she was employed in Government service. The petitioner

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submitted that she had filled her checklist on 02.11.2018,

whereas the petitioner submitted her resignation from the

government service on 25-10-2018 and had stopped reporting

to service.

d) The petitioner did not obtain any permission or 'No

Objection Certificate' from the Education Department for

appearing in the RJS Examination. To this the petitioner has

given explanation that there is no provision in RJS Rules to

obtain prior permission from the employer for appearing in

RJS examination.

e) The petitioner upon selection in RJS concealed this

information from the High Court as well as from Education

Department and joined the judicial services after resignation

on medical grounds. To this the petitioner has explained that

as on the date of joining RJS, the petitioner was not in

Government service, therefore, no information was required

to be furnished by the petitioner.

11. With the above-mentioned averments, the petitioner has

submitted that principles of natural justice mentioned under Rule

16 of CCA Rules have not been followed and the rights guaranteed

under Article 311 of the Constitution of India have not been given

to the petitioner. Therefore, the notice dated 17.02.2020 and

discharge order dated 29.05.2020 may be quashed and set aside

and that the petitioner may be reinstated in RJS.

12. The respondent No.1 in its preliminary submissions of the

reply filed in the writ petition, has averred that an advertisement

No.RHCJ/EXAMCELL/RJS/CIVILJUDGECADRE/2017/1104 dated

18.11.2017, was published for the recruitment of 35 posts in Civil

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Judge Cadre. The application forms of the eligible candidates were

invited online. Clause 14 of the advertisement expressly provided

for the requirement of submission of permission and 'No Objection

Certificate' (NOC) from the employer by a candidate appearing in

examination, who was at that time employed as a Government

servant. In the same clause, it has been unequivocally mentioned

that in case any information was received regarding any

candidate, not having obtained requisite permission or having

been denied permission to appear in the examination, the

candidature of such candidate would be liable to be rejected at

any stage.

13. It is further stated that the petitioner after having being

selected in RJS examination 2017 was appointed on probation for

a period of 2 years vide order dated 11.02.2019 and was sent for

one year's training at Rajasthan Judicial Academy, Jodhpur. When

the petitioner was undergoing the training, Mr. Abhishek Verma

and Mr. Ram Niwas Meena made two separate complaints against

the petitioner on 16.11.2018 and 22.03.2019 respectively. In the

aforesaid complaints, it was alleged that the petitioner had

obtained two professional degrees i.e. LL.B. Part-I and B.Ed.

simultaneously in the same year from Rajasthan University. She

passed LL.B. Part-I in May, 2012 and obtained degree of B.Ed. in

the same academic session i.e. 2011-2012 and then she served as

Teacher Grade-II (English) in Government Secondary School,

Bhadauli, Tehsil Bonli, District Sawai Madhopur from 2015 to

2018. It was also alleged that while serving as a Teacher, she

simultaneously pursued LL.M. from 2015 to 2017 and obtained

her degree from Rajasthan University as a regular student without

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obtaining permission from Education Department. She also did not

disclose to Education Department about her degree of LL.B. It was

contended that the petitioner had passed the RJS examination by

concealing the facts with regard to her previous employment in

Education Department and also furnished false affidavit in

training.

14. It is also stated that in pursuance of the aforesaid

complaints, a fact finding report was prepared. The Registrar,

Rajasthan University, Jaipur and Director Secondary Education

were asked to furnish necessary relevant documents and

information with regard to the petitioner by the Registrar

(Vigilence), Rajasthan High Court .

15. The Registrar, Rajasthan University vide his letter dated

18.10.2019 informed that a student is not allowed to pursue B.Ed.

and LL.B. courses simultaneously in the same year as per the

provisions of Ordinance 168-A and Ordinance 168-B in Hand Book

of University of Rajasthan. It was further informed that the

petitioner had appeared in two examinations in the same year,

which is also not permissible.

16. It is further averred in the reply of the petitioner that as per

the information/documents furnished by the Headmaster,

Government Secondary School, Bhedoli, District Sawai Madhopur,

the petitioner was appointed as Senior Teacher (English) vide

order dated 22.12.2014. Thereafter, petitioner submitted an

application for resignation on 25.10.2018 from the aforesaid post

on the ground of domestic circumstances and sickness, her

resignation was accepted by the Department vide order dated

28.12.2018 w.e.f. 25.10.2018 whereas, she was declared

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successful in the final result of Civil Judge Cadre, 2017 on

04.11.2018. It was apprised by the Headmaster that the petitioner

had not submitted any application for pursuing higher studies or

for seeking permission to appear in the RJS Examination pursuant

to the advertisement dated 18.11.2017. The petitioner's

resignation was accepted by the Education Department vide order

dated 28.12.2018.

17. It has been further averred that the results of preliminary

examination (held on 25.03.2018) and main examination (held on

08/09.09.2018) were declared on 17.05.2018 and 02.10.2018

respectively, but the petitioner concealed and suppressed the

factum of her government employment even at the time of

interview (held on 02.11.2018) and also at the time of filling her

attestion form on 19.11.2018. It was also averred in the reply that

competent authority accepted her resignation subsequently on

28.12.2018, meaning thereby that during the said period she was

in government employment.

18. The Registrar (Vigilance) submitted a detailed report

regarding the complaints made against the petitioner by one -

Mr. Ram Niwas Meena and it was found that all the allegations

were prima facie established. The petitioner was asked to submit

her detailed explanation on each of the allegations levelled in the

notice dated 17-2-2020.

19. Thereafter, the matter was placed before the Full Court and

after thorough examination of all relevant aspects, the Full Court

resolved that the petitioner was not fit for confirmation in

Rajasthan Judicial Service and decided to discharge her from RJS.

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Thereafter, vide order dated 29.05.2020 the petitioner was

discharged from service.

20. In the reply, the respondent No.1 has averred that at the

time when the impugned order of discharge of the petitioner from

RJS was passed, she was working as a probationer. During the

probation period, the suitability for continuation and confirmation

in service, has to be adjudged by the employer. In the present

case, the decision to discharge the petitioner from service was

taken by the respondents considering her overall performance,

conduct and suitability for the post. It is also averred that in view

of the law laid down by the Hon'ble Apex Court, the High Court

has a solemn duty to consider and appreciate the services of a

Judicial Officer before confirming him in service and for this not

only judicial performance but also probity as to how one has

conducted himself, is relevant and important.

21. Mr. R. N. Mathur, learned Senior Advocate assisted by

Mr. Shovit Jhajharia appearing on behalf of the petitioner invited

Court's attention towards Ordinance 168-A of Hand Book of the

University of Rajasthan and submitted that a candidate shall not

appear in two main examinations simultaneously and the

examination of LL.B. First Year is not the final examination. The

petitioner has not obtained the degree of LL.B. and B.Ed. in the

same year and as such she has not shown her attendance at two

places simultaneously. After thorough checking, the admission

card was issued by the University and then she was allowed to

appear in the examination as per the Ordinance 168-A and thus,

she has not committed any fraud.

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22. Learned counsel for the petitioner also contended that there

was no column in the Check List wherein the petitioner was

required to mention that she was in the Government service. She

submitted her resignation from Government service on

25.10.2018 and stopped reporting to service. The resignation was

accepted w.e.f. 25.10.2018 and the documents have been placed

on record. The petitioner filled her checklist on 02.11.2018 and

resigned from Government service w.e.f. 25.10.2018 hence, on a

fateful day when the checklist for interview was filled, she was not

in Government service and thus, discharge of petitioner is illegal.

23. According to the learned counsel for the petitioner, there is

no provision in the Rules of 2010 to obtain prior permission from

Education Department for appearing in the Rajasthan Judicial

Service Examination. It was also contended that it was not

mandatory to obtain permission from employer and it was also not

desired by the Appointing Authority/Recruiting Authority to submit

'No Objection Certificate' along with application form.

24. Learned counsel for the petitioner argued that it is true that

resignation of the petitioner was accepted w.e.f. 25.10.2018, but

then, the fault did not lie with the petitioner to submit any

information to the Education Department. On the day the

petitioner joined, she was not in Government service and there

was no requirement to submit information about prior

employment to the Rajasthan High Court.

25. Learned counsel for the petitioner also invited Court's

attention towards the notice dated 17.02.2020, which was issued

under Rule 14 of the Rules of 2010, and argued that the aforesaid

notice alleges misconduct committed by the petitioner. She has

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resorted to fraud, concealment and non-submission of 'No

Objection Certificate' from the Government. Learned counsel

argued that such allegation as per law, requires to be proved by

the Appointing Authority under Rule 16 of the CCA Rules and not

under Rule 14 of the Rules of 2010, but the same has not been

done in the instant case and thus, the impugned order deserves to

be quashed and set aside. Learned counsel also submitted that

the allegations levelled against the petitioner does not relates to

her conduct and performance during probation period and not a

single instance has been quoted by respondents about her

misconduct during probation period and thus, the action of the

respondents is erroneous.

26. Learned counsel for the petitioner further contended that the

petitioner cannot be discharged on the ground of unsatisfactory

progress during probation, as the service record of the petitioner

was unblemished.

27. Learned counsel for the petitioner also argued that the word

'material information' has not been defined and nothing was

stated in the advertisement dated 20.11.2017 or in any other

document. It was contended that the 'material information' means

concealing of any material which would reasonably be expected to

have a material effect, whether positive or negative and which is

likely to affect the result. The non-disclosure of information, must

be such which has substantial effect, which the Appointing

Authority would consider in making a decision.

28. Learned counsel for the petitioner further argued that while

submitting online application form, there was no such column with

regard to submitting information about petitioner's Government

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employment. The petitioner ceased to be an employee of

Education Department w.e.f. 25.10.2018 and there is no column in

the application form with regard to previous employment and

hence, the allegation of suppressing 'material information' is

patently incorrect.

29. Having made submission on merits of his case, learned

counsel for the petitioner prayed that the petitioner, who is

indisputably a meritorious candidate, may be reinstated in

Rajasthan Judicial Service.

30. Learned counsel for the petitioner while relying upon the

judgment of Hon'ble Supreme Court in the case Samsher Singh

Vs. of Punjab & Anr. reported in AIR 1974 (2) SCC 831

submitted that the substance of the order and not the form would

be decisive. Relevant para Nos.62, 65, 66 & 106 are reproduced

hereinbelow :

"62. The position of a probationer. was considered by this Court in Purshotam Lal Dhingra v. Union of India [1958] S C.R. 828 Das, C.J., speaking for the Court said that where a person is appointed to a permanent post in Government service on probation the termination of his service during or at the end of the period of probation win not ordinarily and by itself be a punishment because the Goverrment servant so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to do so. Such a termination does not operateas a forfeiture of any right of a servant to hold the post, for he has no such right. Obviously such a termination cannot be a dismissal, removal or reduction in rank by way of punishment. There are, however, two important observations of Das, C.J., in Dhingra's case (supra). One is that if a right exists under a contract or service Rules to terminate the service the motive operating on the mind of the Government is wholly irrelevant. The other is that if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification,

[2023/RJJP/010753] (12 of 32) [CW-6752/2020]

then it is a punishment and violates Article 311 of the constitution. The reasoning why motive is said to be irrelevant is that it inheres in the state of mind which is not discernible. on the other land, if termination is founded on misconduct it is objective and is manifest.

65. The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. (See State of Orissa v. Ramnarain Das [1961] 1 S.C.R. 606). If there is an enquiry the facts and circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance. In R. C. Lacy v. State of Bihar & Ors. (Civil Appeal No. 590 of 1962 decided on 23 October, 1963) it was held that an order of reversion passed following an enquiry into the conduct of the probationer in the circumstances of that case was in the nature of preliminary inquiry to enable the Government to decide whether disciplinary action should be taken. A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311 (2). A preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee has been held not to attract Article 311. On the other hand, a statement in the order of termination that the temporary servant is undesirable has been held to import an element of punishment.

66. If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to attract Article

311. The substance of the order and not the form would be decisive.

106. Nehru, Patel, Munshi, Sir B.N. Rao,. Sir Alladi Krishnaswamy Aiyar and, above all, Dr. Ambedkar, who was Chairman of the Drafting Committee, spoke in one voice, with marginal variations on points immaterial to our major purpose. What emerges from such a study is that, with minimal innovations, a Parliamentary-style quasi-federalism was accepted, rejecting the substance of a Presidential- style executive. This welding of statesmanship and scholarship and willingness to borrow whatever was beneficial resulted in a constitutional college where the Westminster symbols, backed by Indian experience, were reverentially preserved and the pattern of ministerial responsibility was built into the framework of federal republicanism. While the shopping list of Constitutions was large, our founders' selectivity narrowed it down to the Constitutions of Commonwealth countries.

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Also British export of Cabinet Government had been made Swadeshi by past experience. Ill-assorted excerpts from the speeches of the activists make for marvelous unanimity on the Cabinet form."

31. Learned counsel for the petitioner also relied upon the

judgment of Hon'ble Supreme Court in the case of State of Bihar

Vs. Gopi Kishore reported in AIR 1960 SC 689 and submitted

that motive of the order is relevant. The para Nos.3, 4, 5 & 6 are

quoted thus :

"3. But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct or inefficiency of for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Art.311(2) of the Constitution.

4. In the last-mentioned case, if the probationer is discharged on any one of those grounds without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will amount to a removal from service within the meaning of Art.311(2) of the Constitution and will, therefore, be liable to be struck down.

5. But, if the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct or inefficiency or some such cause.

6. It would thus appear that, in the instant case, thought the respondent was only a probationer he was discharged from service really because the Government had on enquiry come to the conclusion, rightly or wrongly, that he was unsuitable for the post he held on probation. This was clearly by way of punishment and, therefore, he was entitled to the protection of Art.311(2) of the Constitution. It was argued on behalf of the appellant that the respondent, being a mere probationer, could be discharged without any enquiry into his

[2023/RJJP/010753] (14 of 32) [CW-6752/2020]

conduct being made and his discharge could not mean any punishment to him, because he had no right to a post. It is true, if the Government came to the conclusion that the respondent was not a fit and proper person to hold a post in the public service of the State, it could discharge him without holding any enquiry into his alleged misconduct. If the Government proceeded against him in that direct way, without casting any aspersion on his honesty or competance, his discharge would not, in law, have the effect of a removal from service by way of punishment and he would, therefore, have no grievance to ventilate in any Court. Instead of taking that easy course, the Government chose the more difficult one of starting proceedings against him and of branding him as a dishonest and an incompetent officer. He had the right, in those circumstances, to insist upon the protection of Art. 311 (2) of the Constitution. That protection not having been given to him, he had the right to seek his redress in Court. It must, therefore, be held that the respondent had been wrongly deprived of the protection afforded by Art. 311(2) of the Constitution. His removal from the service, therefore, was not in accordance with the requirements of the Constitution.

32. Learned counsel for the petitioner while contending that if

misconduct was a basis to the discharge and no enquiry was

made, the management is to satisfy the Tribunal about the

misconduct, and relied upon the judgment of Hon'ble Apex Court

in the case of Gujarat Steel Tubes Ltd & Ors Vs. Gujarat Steel

Tubes Mazdoor Sabha & Ors reported in (1980) 2 SCC 593.

The relevant para No.76 is being reproduced hereinbelow :

"76. If misconduct was basic to the discharge and no enquiry precedent to the dismissal was made the story did not end there in favour of the workmen. The law is well- settled that the Management may still satisfy the tribunal about the misconduct."

33. Learned counsel for the petitioner argued that if a

probationer is discharged on the ground of misconduct, or

inefficiency or for similar reason without a proper enquiry and

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without giving him/her a reasonable opportunity, it may amount to

removal from service within the meaning of Article 311 of the

Constitution of India. In support of his submission, learned

counsel relied upon the judgment of Hon'ble Supreme Court in the

case of Registrar General, High Court of Gujarat & Anr. Vs.

Jayshree Chamanlal Buddhabhatti reported in (2013) 16 SCC

59. The relevant extract of the judgment of Hon'ble the Supreme

Court is being reproduced hereunder:-

"27. These judgments have been followed by a bench of seven Judges in Shamsher Singh v. State of Punjab & Anr. reported in AIR 1974 SC 2192 (equivalent to 1974 (2) SCC 831), where this Court was concerned with the termination of the services of a probationary judicial officer on the basis of a vigilance inquiry, which was conducted by the State Government on the request of the High Court. The Court held the termination to be bad, and while doing so laid down the law in this behalf in no uncertain terms in paragraphs 63 to 66 (of the SCC report) which read as follows:-

"63. No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution.

64. Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the

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conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim protection. In State of Bihar v. Gopi Kishore Prasad it was said that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment. Instead of taking the easy course, the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and incompetent officer.

65. The fact of holding an enquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. If there is an enquiry the facts and circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance it was held that an order of reversion passed following an enquiry into the conduct of the probationer in the circumstances of that case was in the nature of preliminary inquiry to enable the Government to decide whether disciplinary action should be taken. A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311(2). A preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee has been held not to attract Article 311. On the other hand, a statement in the order of termination that the temporary servant is undesirable has been held to import an element of punishment.

66. If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to attract Article 311. The substance of the order and not the form would be decisive."

28. These propositions have been reiterated in a number of judgments thereafter, and the counsel for the respondent referred to Anoop Jaiswal v. Govt. of India reported in 1984 (2) SCC 369, where this Court held that, the Court can go behind the formal order of discharge to find out the real cause of action. In that matter, the order of discharge of the probationer on the ground of

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unsuitability was actually based upon the report/recommendation of the concerned authority indicating commission of an alleged misconduct by the probationer. The Court held that the order was punitive in nature, and in the absence of any proper inquiry it amounted to violation to Article 311(2) of the Constitution of India.

At the end of paragraph 13 of the judgment this Court observed as follows:-

"13........Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311 (2) of the Constitution."

29. The propositions in this behalf, as to what constitutes a motive, and what constitutes a foundation for the action were once again crystallized in the judgment of this Court in Chandra Prakash Shahi Vs. State of U.P. & Ors. reported in 2000 (5) SCC 152, where in paragraph 28 and 29 of the judgment of this Court laid down the relevant propositions which are as follows:-

"28. The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general

[2023/RJJP/010753] (18 of 32) [CW-6752/2020]

suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive".

29. "Motive" is the moving power which impels action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry."

34. Per contra, Mr. A. K. Sharma, Senior Advocate assisted by

Mr. Vishnu Kant Sharma opposed the submissions made by

learned counsel for the petitioner and contended that the

Registrar, Rajasthan University, Jaipur vide his letter dated

18.10.2019 informed that a student was not allowed to pursue

B.Ed. and LL.B. Courses simultaneously in the same year as per

the provisions of Ordinance 168-A and Ordinance 168-B of the

Hand Book of University of Rajasthan. Similarly, while serving as a

Government Teacher at Government Secondary School, Bhedoli,

District Sawai Madhopur, the petitioner could not have pursued

LL.M. which is a regular course. Learned counsel submitted that

the petitioner had appeared in two examinations in the same year,

which according to the Ordinances of the University, is not

permissible. The relevant extract of the aforesaid letter dated

[2023/RJJP/010753] (19 of 32) [CW-6752/2020]

18.10.2019 and Ordinance 168-A of Hand Book of University of

Rajasthan respectively are reproduced thus :

"In this context, please note that a student is not allowed to pursue B.Ed. Course and LL.B. Course simultaneously in University of Rajasthan as per provisions of Ord. 168-A and Ord. 168-B. A photocopy of this Ordinance is also being enclosed herewith for your information."

Ordinance 168-A of Hand Book of the University of Rajasthan:

"O.168-A. Notwithstanding anything contained in these Ordinances, a candidate shall in no case be permitted to appear at two main examination of the University simultaneously in the same year.

N.B. : this will not apply to the examination for the Diploma in Indian Culture and Certificate/Diploma in Modern EuropeanLanguages/Sanskrit/Persian/StenoTyping/Certificate in Spoken English/Certificate Courses in Dramatics/Certificate Course in Computer Application/Diploma in Journalish/Tourism and Hotel Management."

35. According to the learned counsel for the respondent, the

petitioner deliberately suppressed and concealed material

information from the respondent as well as from the Education

Department with a view that in case she did not succeed in the

examination, she will continue as a Government Teacher.

36. Learned counsel for the respondent further contended that it

is incorrect that there was no column inquiring about Government

employment. One sub-column was specified in Column No.3 for

mentioning 'Additional Category (If Yes)' and there were two

options in this sub-column one is 'Panchayat Samiti/Zila

[2023/RJJP/010753] (20 of 32) [CW-6752/2020]

Parishad/State Public Sector Undertaking Employee in Substantive

Capacity' and second is 'State Government Employee'. If a

candidate opted to select any one of these two category, then the

selected option was displayed in the print out of the filled in

coloumn in the application form and if a candidate did not opt to

select any one of the two categories, the column 'Additional

Category' would not be displayed in the print out of the filled in

application form. It shows intention of the petitioner to suppress

material facts. She purposely chose to download the format which

was not applicable to the candidates already in employment at the

time of submitting application for RJS Examination, 2017.

37. Learned counsel for the respondent further submitted that

permission from employer was mandatory as stated in the

Clause- 14 of the advertisement dated 18.11.2017 which provides

for submission of permission and 'No Objection Certificate' (NOC)

from the employer, with the application form by a candidate

appearing in the examination, who was already a Government

servant. Clause 14 of the advertisement dated 18.11.2017 reads

thus :

^^14 vukifŸkizek.k i= %&

jktLFkku jkT;] iapk;rlfefr;ksa] ftykifj"knksa ;k lkotZfud {ks= ds miØeksa@ fuxeksa ds dk;Zdykiksa ds lEcU/k esa vf/k"Bk;h gSfl;r ls lsokjr O;fDr;ksa dks vkosnu djus ds iwoZ gh vius fu;ksDrksa dks fyf[kr esa lwfpr dj bl ijh{kk ds fy;s vkosnu djus dh vuqefr izkIr dj ysuh pkfg;sA ;fn fu;ksDrk }kjk jktLFkku mPp U;k;ky;

dks vkosnd }kjk vuqefr ugha fy;s tkus vFkok vkosnd dks ijh{kk esa cSBus dh vuqefr ugha fn;s tkus ds ckjs esa lwfpr fd;k tkrk gS rks vkosnd dh vH;fFkZrk ¼candidature½ rqjUr izHkko ls fdlh Hkh Lrj ij jn~n dh tk ldrh gSA^^

[2023/RJJP/010753] (21 of 32) [CW-6752/2020]

38. He argued that such Clause stipulates that, in case any

information with regard to a candidate having not obtained

permission or having been denied permission to appear in the

examination is withheld, then the candidature of such candidate

would be liable to be rejected at any stage. Thus, the argument of

the learned counsel for the petitioner that on the date of joining as

RJS Officer, she was not in Government employment is wholly

misconceived.

39. Sum and substance of aforesaid arguments by learned

counsel for the respondent was, that the petitioner was appointed

as a RJS Officer on the basis of irregular or improper means and

by concealing material facts, she had appeared in the examination

conducted for the post of Civil Judge cum Judicial Magistrate and

got appointment and thus, she cannot be held eligible for

reinstatement.

40. Learned counsel for the respondent further argued that the

petitioner submitted an application on 25.10.2018 before the

Headmaster, Government Secondary School, Bhedoli, District

Sawai Madhopur requesting him to accept her resignation from the

post of Senior Teacher (English) w.e.f. 25.10.2018 on the ground

of domestic circumstances and sickness. Her resignation was

accepted by the Department vide order dated 28.12.2018 w.e.f.

25.10.2018 whereas, she was declared successful in the final

result of Civil Judge Cadre, 2017 on 04.11.2018. It was apprised

by the Headmaster that the petitioner had not submitted any

application for pursuing higher studies or for seeking permission to

appear in the RJS Examination pursuant to the advertisement

[2023/RJJP/010753] (22 of 32) [CW-6752/2020]

dated 18.11.2017. The petitioner's resignation was accepted by

the Education Department vide order dated 28.12.2018 whereas

she was declared successful in the final result dated 04.11.2018

and thus, she concealed and suppressed the factum of her

Government employment. Learned counsel also submitted that

resignation letter was submitted to the Headmaster, who was not

competent to accept it. The petitioner deliberately suppressed and

concealed material information from the answering respondent as

well as from the Education Department with a view that in case

she did not succeed in the examination, she will continue as a

Government Teacher.

41. Learned counsel for the respondent submitted that the

matter of confirmation of RJS Officer is governed by Rules 44, 45

& 46 of Rules of 2010, which are reproduced hereinbelow :

"44. Probation :- All persons appointed to the service in the cadre of Civil Judge and District Judge by direct recruitment shall be placed on probation for a period of two years: Provided that such of them as have previous to their appointment to the service officiated on temporary post in the service may be permitted by the Appointing Authority on the recommendation of the Court to count such officiation or temporary service towards the period of probation.

45. Confirmation :- (1) A probationer appointed to the service in the cadre of Civil Judge shall be confirmed in his appointment by the Court at the end of his initial or extended period of probation, if the Court is satisfied that he is fit for confirmation.

(2) A person appointed to the service in the cadre of Senior Civil Judge by promotion shall be substantively appointed by the Court in the cadre as and when permanent vacancies occur.

[2023/RJJP/010753] (23 of 32) [CW-6752/2020]

(3) A probationer appointed to the service in the cadre of District Judge by direct recruitment shall be confirmed in his appointment by the Court at the end of his initial or extended period of probation, if the Court is satisfied that he is fit for confirmation.

(4) A person appointed to the service in the cadre of District Judge by promotion on the basis of merit-cum-seniority or by Limited Competitive Examination shall be confirmed in his appointment by the Court on availability of permanent vacancies in the cadre.

46. Unsatisfactory progress during probation and extension of probation period :- (1) If it appears to the Court, at any time, during or at the end of the period of probation that a member of the service has not made sufficient use of the opportunities made available or that he has failed to give satisfactory performance, the Appointing Authority may, on recommendations of the Court, discharge him from service:

Provided that the Court may, in special cases, for reasons to be recorded in writing, extend the period of probation of any member of the service for a specified period not exceeding one year.

(2) An order sanctioning such extension of probation shall specify the exact date up to which the extension is granted and further specify as to whether the extended period will be counted for the purpose of increment.

(3) If the period of probation is extended on account of failure to give satisfactory service, such extension shall not count for increments, unless the authority granting the extension directs otherwise.

(4) If a probationer is discharged from service during or at the end of the initial or extended period of probation under sub-rule (1), he shall not be entitled to any claim whatsoever."

[2023/RJJP/010753] (24 of 32) [CW-6752/2020]

42. In view of the aforementioned Rules, it transpires that when

the impugned order was passed, the petitioner was working as a

probationer. 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. In the present case, the

decision to discharge the petitioner from service was taken by the

respondent considering her overall performance, conduct and

suitability. It is settled law that the Appointing Authority should

consider and appreciate the services of a Judicial Officer before

confirming him/her in service and for this not only judicial

performance but also probity as to how one has conducted

himself/herself, is relevant and important.

43. Learned counsel for the respondent vehemently denied the

submission of the petitioner that during the training period from

06.03.2019 to 07.03.2020 conduct of the petitioner was

unblemished. Learned counsel submitted that soon after her

joining the training, a complaint dated 22.03.2019 was made by

one - Shri Ram Niwas Meena and notice was issued to the

petitioner on 17.02.2020. The petitioner herself had submitted her

explanation.

44. In addition to it, learned counsel for the respondent

submitted that as no enquiry under Rule 16 of CCA Rules was

initiated against the petitioner, there was no need to follow the

said Rule.

45. Learned counsel further submitted that according to Rule

882 of Rajasthan High Court Rules, 1952 (hereinafter referred to

as the 'Rules of 1952'), copy of Full Court resolution cannot be

[2023/RJJP/010753] (25 of 32) [CW-6752/2020]

provided to any person. Rule 882 of the Rules of 1952 is

reproduced hereunder :

"882. Confidential papers:- (1) No copy of, or extract from, any minute, letter or document on any administrative or confidential file of the Court shall be issued except under an order in writing of the Chief Justice countersigned by the Registrar. Every such Order shall be kept in a file by the Registrar and he shall make a note thereof duly dated and signed by him on such minute, letter or document.

(2) No copy of, or extract from, the minute book of the Administrative Committee shall be given except in accordance with any resolution passed at a meeting of the Administrative Committee.

(3) No copy of, or extract from, the minute book of the Full Court or a Full 'Court circulation' file marked confidential or secret, shall be issued.

46. Learned counsel further submitted that the law with respect

of termination of services of a probationer is now well settled.

However, it is also well settled that the principles of natural justice

need not be followed before termination of services of a

probationer. In catena of judgments Hon'ble the Supreme Court

has observed that while taking a decision with respect to

termination of services of a probationer no notice is necessary to

be given to the probationer. He argued that the termination

order is a termination simplicitor and cannot be called as

stigmatic. He, therefore, argued that the order is sustainable in

the eyes of law and, therefore, the present petition is a fit case for

dismissal.

[2023/RJJP/010753] (26 of 32) [CW-6752/2020]

47. Heard learned counsel for the parties, and perused the

record.

48. Before adverting to the rival submissions, it would not be out

of context to firstly refer to and reproduce relevant Rule 14 of the

Rules of 2010 :

"14. Employment by irregular or improper means:- A candidate who is or has been declared by the Recruiting Authority or the Appointing Authority, as the case may be, guilty of impersonation or of submitting fabricated or tampered with documents or of making statements which are incorrect or false or of suppressing material information or using or attempting to use unfair means in the examination or interview or otherwise resorting to any other irregular or improper means for obtaining admission to the examination or appearance at any interview shall, in addition to rendering himself liable to criminal prosecution, be debarred either permanently or for a specified period,-

(a) by the Recruiting Authority or the Appointing Authority, as the case may be, from admission to any examination or appearing at any interview held by the Recruiting Authority for selection of candidates, or

(b) by the Government from employment under the Government."

49. We find no merit in the argument of the petitioner that the

notice dated 17.02.2020 was a notice under Rule 16 of CCA

Rules. As has been pointed out by the counsel for the

respondents, the said notice was in fact issued to seek explanation

from the petitioner on certain complaints made against her.

50. As per Clause 14 of the advertisement, the petitioner was

required to obtain a 'No Objection Certificate', failing which, as per

[2023/RJJP/010753] (27 of 32) [CW-6752/2020]

the said clause, the candidature of a candidate could be cancelled

at any stage.

51. Further the petitioner deliberately suppressed and concealed

the factum of her employment as a government teacher. It was

submitted by the counsel for respondent that in the application

form, one sub-column was specified in Column No.3 for

mentioning 'additional category (if Yes)'. Following options in the

sub-column are reproduced hereinbelow :

"1) Panchayat Samiti/Zilla Parishad/State Public Sector undertaking employee in substantive capacity and

2) State Government employee"

52. If a candidate opted to select any of these two categories

then the selected option would have been displayed on the print

out of the filled in application form. If the candidate did not opt to

select any of these two categories, then the column 'additional

category' would not be displayed in the print out of the filled in

application form. It is sufficiently clear from the record that at the

time of filling of the application form, the petitioner was a State

Government Employee.

53. From perusal of record, it transpires that the petitioner

actively concealed material information about her Government

Employment at every stage. She did not fill the requisite details in

the application form of RJS Examination-2017, even though the

application form mandatorily required her to do so. At the stage of

the interview, the petitioner did not furnish the details that she

was a government employment. The petitioner neither obtained

'No Objection Form' from the Education Department nor did she

[2023/RJJP/010753] (28 of 32) [CW-6752/2020]

inform the department about her intentions to appear in the RJS

examination.

54. Additionally, the petitioner simultaneously pursued B.Ed and

LL.B courses, which was impermissible under Ordinance 168-A

and 168-B of Handbook of University of Rajasthan. Further, the

record clearly suggests that while being in regular employment in

the Education Department of Rajasthan as a Teacher at Sawai

Madhopur, she also pursued LL.M., which is also a regular course.

55. As per the counsel for the respondents these aspects were

considered by Full Court while considering the 'suitability' of the

petitioner to be confirmed for the post of RJS.

56. It was contended by the petitioner that the order dated

29.05.2020 was in nature of termination on the ground of

misconduct and the same was punitive in nature. Further, it was

contended that since the termination was punitive, an enquiry

must have been conducted and an opportunity of being heard

must have been given to the petitioner. However, Hon'ble the

Supreme Court in the case of State of Bihar Vs. Gopi Kishore

Prasad reported in AIR 1960 SC 689, has observed thus :

"In so far as those observations have a bearing on the termination of service or discharge of a probationary public servant, they may be summarised as follows :

1. Appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated, without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant, or removing him from service.

2. The termination of employment of a person holding a post on probation without any enquiry whatsoever

[2023/RJJP/010753] (29 of 32) [CW-6752/2020]

cannot be said to deprive him of any right to a post and is, therefore, no punishment.

3. But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Article 311(2) of the Constitution.

4. In the last mentioned case, if the probationer is discharged on any one of those grounds without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will amount to a removal from service within the meaning of Article 311(2) of the Constitution and will, therefore, be liable to be struck down.

5. But, if the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or inefficiency, or some such cause."

57. Thus in the present case, discharging the petitioner without

any enquiry, cannot be said to have deprived her of any right to a

post and, therefore, is not punitive in nature. This Court is of the

view that it was a discharge simpliciter and not a punitive

termination. Further, in light of the above discussed judgment of

Hon'ble the Supreme Court and after perusal of record of this

case, it is abundantly clear that since no enquiry was conducted to

terminate the petitioner, the discharge cannot be said to be

stigmatic in nature. Further, no stigmatic observations were made

in the discharge order dated 29.05.2020.

[2023/RJJP/010753] (30 of 32) [CW-6752/2020]

58. The petitioner has also placed reliance on Shamsher Singh

and Ors. reported in AIR 1974 SC 2192. In the opinion of this

court, much reliance cannot be placed by the petitioner on the

judgment, as no enquiry was conducted in the present case and

no enquiry was required to be conducted, as the petitioner was a

probationer.

59. Furthermore, it was observed by the Court, in the above

mentioned judgment that if a right to terminate the services of the

probationer exists and no enquiry has been conducted while

exercising the said right, the motive on part of the employer

becomes irrelevant. The situation is similar in the present case

and hence the motive to terminate does not come into question.

The relevant para is cited for convenience :

"62. The position of a probationer was considered by this Court in Purshottam Lal Dhingra v. Union of India MANU/SC/0126/1957 : (1958)ILLJ544SC Das, C.J., speaking for the Court said that where a person is appointed to a permanent post in Government service on probation the termination of his service during or at the end of the period of probation will not ordinarily and by itself be a punishment because the Government servant so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to do so. Such a termination does not operate as a forfeiture of any right of a servant to hold the post, for he has no such right. Obviously such a termination cannot be a dismissal, removal or reduction in rank by way of punishment. There are, however, two important observations of Das, C.J., in Dhingra's case (supra). One is that if a right exists under a contract or service Rules to terminate the service the motive operating on the mind of the Government is wholly irrelevant."

[2023/RJJP/010753] (31 of 32) [CW-6752/2020]

60. As per rule 45 of the Rules of 2010, the fitness for

confirmation of a pobationer has to be seen before he or she is

appointed permanently on the post of RJS Officer.

61. It is clear from the above discussion that the respondent-

High Court was well within its power to check the fitness for

confirmation of the probationer, and consequently if the

probationer was unfit for confirmation, it may very well discharge

the probationer.

62. The fitness for confirmation may not necessarily pertain to

the meritorious performance of the probationer and may very well

pertain to the overall suitability of the probationer.

63. The Hon'ble Supreme Court while dealing with the issue of

discharge of a judicial officer has in the case of Rajesh Kohli Vs.

High Court of J. & K. and Ors (MANU/SC/0751/2010) opined

that :

" 26. Upright and honest judicial officers are needed not only to bolster the image of the judiciary in the eyes of litigants, but also to sustain the culture of integrity, virtue and ethics among judges. The public's perception of the judiciary matters just as much as its role in dispute resolution. The credibility of the entire judiciary is often undermined by isolated acts of transgression by a few members of the Bench, and therefore it is imperative to maintain a high benchmark of honesty, accountability and good conduct."

64. At this juncture, it is pertinent to refer to the observation

made by Hon'ble the Supreme Court in Rajasthan High Court

Vs. Ved Priya and Ors. : MANU/SC/0318/2020. The said

observation relates to the exercise of writ jurisdiction against the

decision of full court. The same is as follows:

[2023/RJJP/010753] (32 of 32) [CW-6752/2020]

"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."

65. Therefore, we find that the writ petition is devoid of merits.

Hence, it is dismissed.

66. Pending application(s), if any, along with stay application

also stand(s) disposed of.

                                    (ASHUTOSH KUMAR),J                                  (ASHOK KUMAR GAUR),J




                                   A.Arora/-(Reserved)









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