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2006 DIGILAW 1222 (RAJ)

Miss. Nandini Jagetia v. State of Rajasthan

2006-04-18

R.P.VYAS

body2006
Judgment Rajesh Balia, J.-Heard the learned Counsel for the appellant and learned Counsel for Respondent No. 1. For Respondents No. 2 and 3, none appeared despite service. 2. This appeal is directed against the Judgment of the learned Single Judge, dismissing the writ petition filed by the appellant, inter alia on the ground that since the service of the petitioner has come to an end, because she has not completed satisfactory probation, so no interference is called for. 3. Facts which emerge from the record and about which there is no dispute are that the petitioner appellant was appointed as a teacher by the Panchayat Samiti Mandalgarh vide order dated 05.02.1990 in pursuance of allotment of selected candidate made by the Zila Parishad, Bhilwara. Thereafter about 20 months later the petitioner was transferred to the Education Department vide order dated 10.1991. However, vide order dated 110.1991, she was repatriated to the parent department from the Education Department, inter alia, on the ground that the petitioner was not appointed under the Rajasthan Education (Subordinate Service) Rules and she cannot be sent under the Education Department by the Panchayat Samiti. Another ground to return to the petitioner to parent department was that prima facie she did not hold the qualification in mathematics in any examination, therefore, she is ineligible. 4. It was directed by the order dated 110.1991 that enquiry should be conducted regarding eligibility of the petitioner and if she is not found eligible, her services be terminated. Thereafter vide order dated 110.1991 she was again given posting by Panchayat Samiti Mandalgarh. 5. Aggrieved with the communication dated 10.11.1991 and 110.1991 repatriating the petitioner from Education Department to Zila Parishad with remark that she is not eligible to hold the post, the petitioner prefer writ petition S.B.C. Writ No. 5624/1991 which was dismissed as having become infructuous, when the respondents brought to the notice of the Court that petitioners services have been terminated during pendency of writ petition on 112.1995. 6. What happened to the enquiry directed to be held into eligibility of the petitioner was not brought on record. 7. Petitioners services came to be terminated after more than 5 years service and after 4 years of her repatriation to the P.S. Mandalgarh vide order dated 112.1995 by saying that during the probation period, her services were not found satisfactory. 8. 7. Petitioners services came to be terminated after more than 5 years service and after 4 years of her repatriation to the P.S. Mandalgarh vide order dated 112.1995 by saying that during the probation period, her services were not found satisfactory. 8. From the documents filed by Respondents No. 2 and 3 with their reply, it is clear that petitioner was appointed on probation of two years. There is no mention of any order extending period of probation on account of unsatisfactory working for any reason. Therefore, after expiry of period of 5 years from the date of substantive appointment there cannot be continuance of probation period. No provision has been brought to our notice that even without extension of probation period, probation period continues for indefinite period. 9. In fact, though the order dated 112.1995 speaks about unsatisfactory work during probation period, the resolution that has been placed on record by respondent in reply shows, that it speaks of unsatisfactory work during first two years of service, for the first time in 1995. More over it speaks about continued absence from duty as ground for terminating service in 1995. That is not the ground which is disclosed in order of termination. If the order of termination is taken to be founded on alleged absence from duty the order is punitive and could not have been passed without giving any opportunity to explain the alleged wilful absence from duty after giving her a chance to join the duty. That is not even the case of the respondents that the petitioner was even afforded any opportunity to join the duty by cautioning that if she does not join, her services are liable to be terminated. More over no new reasons can be supplied to sustain the order, different from the one appearing from the impugned order. Hence, on that ground the order of termination cannot be sustained. If on the other hand the order is taken on face value that is termination of order for unsatisfactory service during probation then too the order cannot be sustained. Such an order can be made only during continuance of probation period. Hence, on that ground the order of termination cannot be sustained. If on the other hand the order is taken on face value that is termination of order for unsatisfactory service during probation then too the order cannot be sustained. Such an order can be made only during continuance of probation period. Admittedly the petitioner was inducted in service on 05.02.1990 for a period of two years and there is no order on record by which it can be inferred that the petitioners continuance in service after two years continued on probation independently until the respondents decided to terminate the services as probationer. However, the order of terminating services of the petitioner for not completing probation period satisfactorily is apparently not well founded and cannot be sustained. 10. The order on the face of it appears to be arbitrary, unjust and without any basis, only to defeat the pending litigation. The service has not been terminated within the period of probation or within the extended period of probation. Termination beyond the probation period is impermissible on the alleged unsatisfactory work during probation period of two years. So far as question of eligibility of petitioner is concerned, no issue has been raised in this writ petition nor it is foundation of order of termination. 11. We are, therefore, of the opinion that the impugned order Annexure-5 dated 112.1995 cannot be sustained and deserves to be quashed. 12. Accordingly the appeal is allowed and Judgment under appeal is set aside. As a result of aforesaid discussion, writ petition is allowed. The impugned order dated 112.1995 is quashed. Since, the petitioner has approached this Court about 1 ½ years of termination of service, therefore, we further direct that petitioner shall not be entitled for any emoluments prior to the period she remained filed writ petition. Since, the date of filing writ petition she shall be entitled to 50% emoluments only. However, she shall be entitled to other consequential benefits as if she has continued in service uninterrupted. No costs.