RAJASTHAN HIGH COURTversusVED PRIYA & ANR.

                          [2020] 4 S.C.R. 971                            971


                   RAJASTHAN HIGH COURT                                  A
                                  v.
                       VED PRIYA & ANR.
               (Civil Appeal Nos. 8933-8934 of 2017)
                         MARCH 18, 2020                                  B
  [S. A. BOBDE, CJI, B. R. GAVAI AND SURYA KANT, JJ.]
       Judicial Service – Probation period – Order of non-
confirmation in – Respondent no.1 – a former Judicial Officer was
appointed as a Civil Judge (Junior Division)-cum- Judicial
                                                                         C
Magistrate and he was placed on probation for a period of two
years – There were certain allegations of 7 and corruption in
discharge of judicial functions during the probation period against
respondent no.1 – On basis of which the Registrar of Vigilance
was called and he submitted a report – The Administration
Committee of the High Court did not confirm the service of               D
respondent no.1 – The Full Court of the High Court confirmed the
recommendations – Consequently, on basis of the recommendation
of the High Court the State government dispensed with the services
of respondent no.1 – Writ Petition by respondent no.1 – The
Division Bench of the High Court quashed the termination order
and directed reinstatement of respondent no. 1 – Before the Supreme      E
Court, the respondent no. 1 contended that it was a case of an
indictment following allegations of corruption against him – On
appeal, held: The entire object of probation is to provide the
employer an opportunity to evaluate the probationer’s performance
and test his suitability for a particular post – The true test of
suitability is actual performance of duties which can only be applied    F
after the candidate joins and starts working – In the instant case,
the order of termination of services of respondent no. 1 is based
upon overall assessment of performance of respondent no. 1 during
the period of probation, which was not found satisfactory – Such
an inference which can be valid foundation to dispense with
                                                                         G
services of a probationer does not warrant holding of an enquiry
in terms of Art. 311 of the Constitution – It is thus not true on part
of respondent no. 1 to allege that it was a case of an indictment
following allegations of corruption against him – There is nothing
in the present case to infer that the motivation behind the removal
was any allegation – Instead, it was a routine confirmation exercise     H
                                 971
972            SUPREME COURT REPORTS                       [2020] 4 S.C.R.


A     – The foundation for removal was not the allegations but it was a
      holistic assessment of respondent’s service record – Therefore, the
      judgment of the High Court set aside.
             Constitution of India – Art. 226 – Judicial review by the High
      Court over the decision taken by its Full Court on administrative
B     side – Held: Although it would be a futile task to exhaustively
      delineate the scope of writ jurisdiction in such matters but a High
      Court u/Art. 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
C     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 u/Art.235 of the
            Constitution – The collective wisdom of the Full Court
      deserves due respect, weightage and consideration in the process
D     of judicial review.
            Service Law – Difference between the termination of a
      probationer and of a confirmed employee – Held: There is a subtle,
      yet fundamental, difference between termination of a probationer
      and that of a confirmed employee – Although it is undisputed that
E     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 u/Art. 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
F     working on trial basis – Constitution of India – Art. 311.
             Service Law – Right to continue in the employment of
      probationers – Held: Probationers have no indefeasible right to
      continue in employment until confirmed, and they can be relieved
      by the competent authority if found unsuitable – It is only in a very
G     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 a reasonable opportunity of hearing is sine-qua-non.
H
      RAJASTHAN HIGH COURT v. VED PRIYA & ANR.                          973


      Allowing the appeals, the Court                                   A
       HELD: 1. 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 the person in question has not made sufficient use of his
opportunities and has otherwise also failed to give satisfaction as     B
a 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              C
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. [Para 20] [981-D-E]
                                                                        D
      2. 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.        E
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. [Para 21] [981-F-H]              F

      3. 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.         G
Vigilance reports were called not just for Respondent No. 1, 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
                                                                        H
974           SUPREME COURT REPORTS                     [2020] 4 S.C.R.


A     suitability, given the higher standard of probity expected of a
      judge. [Para 22] [982-A-B]
            4. 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
B     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
C     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
D     termination, in fact, intends to punish the probationer without
      establishing the charge(s) by way of an enquiry. However, when
      the employer does not pick-up 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
E     not be attracted. Onus would thus lie on the probationer to prove
      that 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 the
      High Court intended or has actually punished him for any defined
F     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, this Court does 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 effects-based
G     approach, this Court does not feel that the order of non-
      confirmation or the preceding circumstances would prejudice the
      respondent, meriting a higher procedural requirement. [Para 26]
      [983-E-F]

H
       RAJASTHAN HIGH COURT v. VED PRIYA & ANR.                               975


      Parshotam Lal Dhingra v. Union of India AIR 1958                        A
      SC 36 : [1958] SCR 828 ; Kazia Mohammed
      Muzzammil v. State of Karnataka (2010) 8 SCC
      155 : [2010] 7 SCR 1061 ; Rajesh Kumar Srivastava
      v. State of Jharkhand (2011) 4 SCC 447 : [2011] 3
      SCR 823 – relied on.
                                                                              B
                         Case Law Reference
[2010] 7 SCR 1061                    relied on              Para 14
[2011] 3 SCR 823                     relied on              Para 15
[1958] SCR 828                       relied on              Para 19
                                                                              C
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8933-
8934 of 2017
      From the final Orders dated 19.11.2014 and 16.12.2014 of the
High 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 Petition          D
No.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. Anzu
K. Varkey, Mrs. Pratima Yadav, Ritesh Patil, Atul Jha, Advs. for the          E
Respondents.
      The following Judgment of the Court was delivered:
                             JUDGMENT
       1. These civil appeals have been preferred by the Rajasthan High
Court against the order dated 16.12.2014 by which a Division Bench            F
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.
      FACTS                                                                   G
      2. Respondent No. 1 was recruited into the Rajasthan
Judicial Services on 16.07.2002 and appointed as Civil Judge (Junior
Division)-cum-Judicial 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.                                   H
976            SUPREME COURT REPORTS                          [2020] 4 S.C.R.


A            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
B     Court, along with a wealth of other material while it was undertaking
      the confirmation process of over ninety-three probationary judges. This
      five-judge 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
C     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
D     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.
E            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.
F
             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 laid-off without any reason but the decision so taken would always
      be amenable to a limited judicial review. Though the High Court opined
G     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’ service-record of the
H     Respondent No.1 and the positive feedback given by his reporting
         RAJASTHAN HIGH COURT v. VED PRIYA & ANR.                             977


authority and the endorsements by the Inspecting Judges, the Court            A
viewed that there was no material on the basis of which the Full Court
could resolve to dispense with the services of Respondent 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
                                                                              B
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             C
Psychotropic Substances Act, 1985 (hereinafter, “NDPS Act”). The
High Court, however, declined to entertain the review petition and
dismissed it by noting that the above stated report had in fact been kept
in mind while allowing the writ petition.
         CONTENTIONS OF PARTIES                                               D

        7. Learned counsel appearing for the appellant-High 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      E
justified for the appellant to 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             F
authority. Learned Counsel while placing reliance on a series of
decisions, highlighted that it was a settled position of law that adequacy
or reliability of evidence could not be canvassed before the judicial side
of a High Court under Article 226 of the Constitution, and the judgment
in High Court of Patna v. Pandey Gajendra Prasad1, where this                 G
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.
1
    (2012) 6 SCC 357.                                                         H
978               SUPREME COURT REPORTS                       [2020] 4 S.C.R.


A            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
B
      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
C     his status as a temporary or probationer employee. Relying upon
      Shamsher Singh v. State of Punjab 2, it was buttressed that
      notwithstanding the provisions contained in statutory rules or employment
      conditions permitting termination of services of probationers without
      reason, if one was discharged on grounds of specific allegations or
D     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
E     simplicitor, but was stigmatic in effect. Even if no explicit reasons were
      accorded for termination, yet the preceding circumstances had made
      clear that certain allegations of corruption or erroneous exercise of
      jurisdiction were the foundation of the action, and the ultimate decision
      could hence be invalidated on ground of violation of principles of natural
      justice as per State Bank of India v. Palak Modi.3
F
             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.
G
               ANALYSIS
             13. At the outset, we may observe that both the appellant as well
      as the impugned judgment have elucidated the correct statement of law
      2
          (1974) 2 SCC 831.
      3
H         (2013) 3 SCC 607.
         RAJASTHAN HIGH COURT v. VED PRIYA & ANR.                              979


regarding the width and sweep of judicial review by a High Court over          A
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
                                                                               B
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.        C
      14. The present 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 Karnataka4:
         “25. The purpose of any probation is to ensure that before            D
         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              E
         probation. …”
     15. Similarly, in Rajesh Kumar Srivastava v. State of
Jharkhand5 it was opined:
         “… A person is placed on probation so as to enable the
         employer to adjudge his suitability for continuation in the           F
         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         G
         scrutiny and on the basis of his overall performance a
         decision is generally taken as to whether his services should


4
    (2010) 8 SCC 155.
5
    (2011) 4 SCC 447.                                                          H
980               SUPREME COURT REPORTS                        [2020] 4 S.C.R.


A              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
B     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 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,
C
      Respondent No.1’s contention that confirmation of probationers must
      be based only on objective material is far-fetched. 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
D     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
E     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.
F            19. Probationers have no indefeasible right to continue in
      employment 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
G     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 sine-qua-non.
      Way back in Parshotam Lal Dhingra v. Union of India 6, a
      Constitution Bench opined that:
      6
H         AIR 1958 SC 36.
       RAJASTHAN HIGH COURT v. VED PRIYA & ANR.                              981


      “28.... In short, if the termination of service is founded on the      A
      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           B
      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
                                                                             C
      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       D
to give satisfaction as a 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           E
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.
                                                                             F
      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        G
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.                               H
982             SUPREME COURT REPORTS                           [2020] 4 S.C.R.


A            22. 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
B     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.
C             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
D     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
E     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.
F            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
G     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
H     well within its reach to unmask the hidden cause and hold that the
       RAJASTHAN HIGH COURT v. VED PRIYA & ANR.                                 983


simplicitor order of termination, in fact, intends to punish the probationer    A
without establishing the charge(s) by way of an enquiry. However,
when the employer does not pick-up 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 action
taken against him was of punitive characteristics.                              B

       25. There is something more which the learned Division Bench
failed to notice and reconcile. On page 22 of the impugned judgment,
it has been stated that “on consideration of material available before
the committee, the committee resolved to recommend that petitioner
Ved Priya is not fit for confirmation”, additionally, it was stated that        C
“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
                                                                                D
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                 E
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
effects-based approach, we do not feel that the order of non-confirmation
                                                                                F
or the preceding circumstances would prejudice the respondent, meriting
a higher procedural requirement.
      CONCLUSION
      27. In light of the above discussion, the appeals are allowed. The
judgment of the High Court is set aside and the order of discharge dated        G
30.09.2004 whereby services of Respondent No.1 were dispensed with
during probation, is hereby approved. No order as to costs.


Ankit Gyan                                                   Appeals allowed.

                                                                                H