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Rajasthan High Court · body

2005 DIGILAW 3056 (RAJ)

Gopa Ram v. State of Rajasthan

2005-11-19

KRISHAN KUMAR ACHARYA, S.N.JHA

body2005
Judgment 1. This appeal is directed against the order of learned Single Judge dated 18.07.2005 dismissing the writ petition of the appellant. The appellant had filed the writ petition challenging the order dated 16.04.1991 by which he was discharged from service. 2. The appellant was appointed as a police constable on 18.09.1989. After completing training at Police Training Central, Kishangarh, he was posted at Police Lines, pali on 10.12.1990. He remained there until he was discharged by the Superintendent of Police being appointing authority on 16.04.1991 on the ground that his work was not found to be satisfactory. The case of the appellant is that Rule 37 of the Rajasthan Police Subordinate Service Rules, 1989 (hereinafter referred to as the Rules) provides for two years probation and order of discharge cannot be passed before expiry of that period. Our attention was drawn to Rule 39 of the Rules which provides for confirmation, extension of probation and discharge and it was submitted that the words “at the end of probation period” indicate that the probationer can be confirmed or his period of probation can be extended or he can be discharged only at the end of probation period and not earlier. Counsel submitted that as a matter of fact, the order of discharge was a camouflage. He referred to nothings in the file brought on record before the learned Single Judge and submitted that from the nothings it would appear that the discharge was on account of indiscipline. Counsel submitted that in such a case, the proper course should have been to initiate disciplinary proceeding, meanwhile extend the period of probation and then pass the order of discharge, if any. Referring to the stand of the respondents, in the reply before learned Single Judge, Counsel submitted that the validity of an order is to be judged with reference to the phraseology of the order and is not permissible to add to the reasons or grounds as disclosed in the order. Rules 37 and 39 of the Rules so far as relevant, may be quoted as under:-“37 Period of Probation-(1) All persons appointed to the service by direct recruitment against a substantive vacancy shall be placed on probation for a period of two years and those appointed to the service by promotion/special selection against a substantive vacancy shall be placed on probation for a period of one year: Provided that:-.................” “39. Confirmation, extension or probation and discharge-A member of the service who successfully completes his probation period and passes the Departmental Examination prescribed by the Director General of Police shall be eligible for confirmation at the end of the probation period, provided the Appointing Authority is satisfied that his integrity is unquestionable and that he is otherwise fit for confirmation. Explanation.-(1).......................... .(2) ...................... .(3) Where a candidate has not given a satisfactory account during the probat on period or has failed in the prescribed examination during the first attempt, his probation period may be extended upto one year by the Appointing Authority or an Authority superior to the Appointing Authority: ..................................... .(4) ..................................... .(5) ..................................... 3. Before proceeding further it may be observed that legal position regarding status of a probationer is well settled by series of decisions of the Apex Court and other Courts. A probationer has no right to retain the post and his probation can be terminated at any stage before the end of the probation period. The words “at the end of the probation period” referred to in Rule 39 refer to confirmation which is apparent from the words “shall be eligible for confirmation” preceding the words “at the end of the probation period”. Rule 39 cannot be interpreted to mean that before expiry of the probation period, the services of the person cannot be terminated and he cannot be discharged from service. It is permissible to the competent authority to discharge a probationer by an order simplicitor but where the discharge is on the ground of misconduct, the authority is required to hold an inquiry. The question as to whether the discharge is stigmatic or not prima facie is to be considered by reference of the wordings of the order though in an order to appropriate case, it is open to the Court to lift the veil and find the real reasons behind the order. 4. Reference to the pleadings of the respondents and the submission that the respondents cannot be permitted to justify the order by stating additional facts, cannot be accepted. 4. Reference to the pleadings of the respondents and the submission that the respondents cannot be permitted to justify the order by stating additional facts, cannot be accepted. Where validity of the order is challenged, it is open to the authority to State facts in defence of the order and, therefore, if in the instant case, the respondents stated facts, such as that the appellant remained absent from duty without information for 83 days during the period in question, before the order was passed, it cannot be said to be alien to the discharge or an additional ground or reason in considering validity of the order. The reasons are found in the file of the record of the department and it is open to the department to place the record to defend the order. 5. In fairness to the appellant, reference was made to the case of Anoop Jaiswal vs. Government of India & Anr., 1984 (2) SCC 369 . It was a case of discharge of a IPS probationer on the ground that he failed to attend the P.T. On facts the Court found that the real reason for discharge was different from the one stated in the order. The decision does not lend any help to the appellant. The uncontroverted facts of the instant case are that between his appointment on 18.09.1989 and discharge on 16.04.1991, the appellant was absent on 83 days and found negligent in duties. If that is how the appellant treated his probation period, it is clear that he would not have made a good police officer. In the circumstances, the decision to discharge him from service cannot be said to be erroneous or arbitrary. 6. In the result, we find no error in order of learned Single Judge dismissing the writ petition of the appellant to warrant interference by the Division Bench. The appeal is, accordingly, dismissed.