JUDGMENT 1. - The petitioner, an employee of the State of Rajasthan has challenged the order terminating his services. 2. A bare reading of the impugned Order dated August 10, 1983 (Ex.7), is sufficients shock one's conscience. The petitioner's services have been terminated as a punitive measure for his having not passed the departmental test even after three attempts. 3. It has not been shown that not passing of departmental examination is a misconduct under the relevant conduct Rules. In the return what is said is that under the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (for short 'the Rules of 1957' hereinafter), an employee is liable to be removed from service, if he fails to pass departmental test. According to the aforesaid Rules of 1957, the removal of such a Government Servant has to be after following the procedure laid down in the Rajasthan Civil Services (Classification, Control and Appeals) Rules, 1958 (for short 'the Rules of 1958' hereinafter), if such an employee has served for more then three years. 4. The relevant Rules relied on by the respondent - State is sub-rule (5) of Rule 25 of the Rules of 1957, which reads as under : R.25(5):- Notwithstanding anything contained in rule 7 all persons working as Lower Division Clerks during the period from 1.4.1978 to 31.3.1980 on ad hoc basis and who could not appear in or pass the competitive/qualifying examination held by the Commission as yet, shall on availability of permanent vacancies, be made permanent subject to the condition that they pass a Performance Test conducted by the Head of the Department concerned in accordance with the syllabus prescribed in Part-IV of Schedule-I such person shall be allowed three chances to pass the said Test: Provided that if a person fails to pass the said Test in three chances he shall be liable to be removed from the service:- (i) by giving him one month's notice if he has served temporarily in connection with the affairs of the State for less than three years, and (ii) by following procedure as laid down in the Rajasthan Civil Service (Classification Control and Appeal) Rules, 1958, if he has served for more than three years." 5. It is clear that the proviso to above sub-rule is only a safeguard against arbitrary removal from service without following the principles of natural justice. It is clear that the proviso to above sub-rule is only a safeguard against arbitrary removal from service without following the principles of natural justice. It does not permit a punitive action to be taken against an employee who has failed to clear the test. The provision does not require or permit taking of action under Rule 16 of the rules of 1958. Rule 16 of the Rules of 1958 applies to a departmental enquiry for misconduct. The two provisions, if read together, would mean that the procedure for giving a simple discharge to the employee have to be followed. 6. In this case a regular charge-sheet was given to the petitioner and a finding was given that his not passing the examination in three attempts amounted to negligence and dereliction of duty. 7. By no stretch of imagination failing to pass a departmental examination could be said to amount to dereliction of duty or negligence. The action against the petitioner is, therefore, wholly illegal. The impugned order deserves to be set aside and is hereby quashed. 8. So far as the relief which can be granted to the petitioner, it is to be borne in mind that instead of giving a simple discharge to the petitioner, punitive action was unnecessarily against him. The petitioner does not deserves to be reinstated because actually, the order of removal of service by way of punishment has to be substituted by order of simple discharge. The petitioner has not worked for the last about 11 years. He does not deserve to be awarded back wages only on the technicality of the procedure adopted in removing him from service when he had no right to continue in service. The petitioner, therefore, deserves to be granted only a declaration that he could not be removed from service by way of punishment but his services were terminated by way of simple discharge. As the petitioner had to fight this litigation to get himself free from stigma of the punishment, he deserves to be awarded compensatory costs of this litigation. 9. The petition is therefore allowed. The impugned order is quashed. It is instead declared that the petitioner has been given a simple discharge on his not being able to pass departmental examination within the stipulated period. The respondent shall pay Rs. 9. The petition is therefore allowed. The impugned order is quashed. It is instead declared that the petitioner has been given a simple discharge on his not being able to pass departmental examination within the stipulated period. The respondent shall pay Rs. 2500/- (Rupees Two Thousand Five Hundred Only), as consolidated costs of this proceeding to the petitioner.Petition allowed. *******