JUDGMENT & ORDER : 1. The petitioner has preferred this writ petition assailing the order of termination dated 24/09/1999 whereby his services were dispensed with from the post of Carpenter. 2. Brief facts which need to be noted are that the petitioner was appointed after undergoing regular selection process on the post of Carpenter on probation for a period of two years and placed in the regular pay scale vide order dated 24/09/1996. The petitioner’s services were extended on probation further vide order dt.16/04/1999 from 25/09/1998 to 15/07/1999. Again, vide order dated 21/07/1999, his probation period was extended from 16/07/1999 to 13/09/1999 and then again vide order dated 20/09/1999 the probation period was exten ded from 13/09/1999 to 25/09/1999. Thereafter his services were dispensed with by the impugned order dated 24/0/9/1999 stating that he had been given chance to learn the work but has not shown interest in learning the work of Carpenter and the Superintendent of Police, Baran has stated that the petitioner is wholly incompetent to perform the work. 3. Learned counsel for the petitioner submits that in terms of Rule 21 and 21A of the Rajasthan Class IV Service Rules, 1963, which govern the service conditions of the petitioner who is a Class IV employee, the services of the petitioner could not have been continued on probation endlessly as has been done from time to time. 4. Apart from above, learned counsel for the petitioner also points out that the order is actually stigmatic in nature. The Superintendent of Police could not have been stated to be a person who can declare work of the petitioner to be of incmpetent as the petitioner had already passed ITI Diploma in Carpentry Trade from the Government ITI, Jaipur and had been selected after undergoing a regular process of selection. There had not been any objection relating to work of the petitioner and it is submitted that the action had been taken with a predetermined approach. In order to spoil record of the petitioner, a letter was sent to him on 24/08/1999 alleging that he had not maintained the record relating to the work conducted by him to which he replied that the record had been continuously maintained for the period vide his letter dated 25/08/1999. In order to spoil record of the petitioner, a letter was sent to him on 24/08/1999 alleging that he had not maintained the record relating to the work conducted by him to which he replied that the record had been continuously maintained for the period vide his letter dated 25/08/1999. Document has also been placed on record as Annexure-6 to show the work which the petitioner had been doing for the entire month, duly attested by the concerned authorities. It is stated that the petitioner had been working at the Superintendent of Police House and performing the work which was assigned to him regularly. However, the concerned authority was unhappy for reasons not known to the petitioner and a charge-sheet was issued to the petitioner under Rule 17 of the Rajasthan Civil Services (CCA) Rules, 1958 on 20/09/1999 alleging that he was absent from duty from 13/09/1999 to 15/09/1999. The petitioner submits further that he was working at the residence of the Superintendent of Police on 14/09/1999 and his attendance has also been marked for 14/09/1999 but he was absent on 13/09/1999 and for one day, charge-sheet was issued to him. However, without acting upon the charge-sheet, the order dated 24/09/1999 was passed terminating his services on the ground of unsatisfactory service during probation although he had already completed more than the requisite period of probation and there is no provision for extension of probation period under the Rules of 1963. 5. Learned counsel for the respondents submits that the order impugned has been passed finding that the services of the petitioner are unsatisfactory during probation. In reply, it has been stated that the petitioner was not improving his work due to the reason that he was a patient of Psychotic Depression for which he was undergoing treatment. Document of treatment slip has been placed by the respondents on record. It is submitted that services of the petitioner had been dispensed with after taking report of the Reserved Inspector, Police Lines, Baran relating to work of the petitioner. The order is stated to be a simplicitor order and submits that it dos not call for any interference. 6. Heard learned counsel for both the parties and carefully gone through the material on record. 7. The order is stated to be a simplicitor order and submits that it dos not call for any interference. 6. Heard learned counsel for both the parties and carefully gone through the material on record. 7. Before proceeding further, it would be appropriate to look into the provisions of Rule 21 and 21A of the Rules of 1963 which provide as under:- “21 Confirmation :- A Probationer shall be confirmed in his appointment at the end of his period of probation, if (a) he has passed the departmental examination, if any, completely, and (b) Head of office is satisfied that his integrity is unquestionable and that he is otherwise fit for confirmation.” “21A. Notwithstanding anything contained in rule 21, a probationer shall be confirmed in his appointment at the end of his period of probation even if the prescribed Departmental Examinationtrainingproficiency test in Hindi, if any, are not held during the period of probation laid in the rule, provided (i) he is otherwise fit for confirmation, and thereafter (ii) period of probation expires on or before the date of publication of this amendment in the Rajasthan Rajpatra.” 8. In view of the provisions, as noted above, it is apparent that the maximum period of keeping a person on probation is two years and there is no provision for extension. However, at the same time, there is a specific order which requires to be passed for confirming an individual after completion of probation period. It appears that the respondents have acted on the basis of Rule 36 of the Rajasthan Police Subordinate Service Rules, 1989 as has been stated in the reply filed by them although the relevant rules which were applicable to the petitioner were the Rajasthan Class IV Service Rules, 1963, as quoted above. Thus, the basis of passing of the order is wrongful. 9. Apart from above, a look at the background under which the impugned order has been passed, goes to show that the order is essentially punitive in nature and cannot be said to be a simplicitor order. A charge-sheet under Rule 17 of the CCA Rules of 1958 has been issued to the petitioner on 20/09/1999. The reply being filed pointing out that the petitioner was essentially absent from duty only on 14/09/1999 and decision has been taken to remove him from service on the ground of unsatisfactory service during the probation vide order dt. A charge-sheet under Rule 17 of the CCA Rules of 1958 has been issued to the petitioner on 20/09/1999. The reply being filed pointing out that the petitioner was essentially absent from duty only on 14/09/1999 and decision has been taken to remove him from service on the ground of unsatisfactory service during the probation vide order dt. 24/09/1999 by the same officer. 10. The law relating to probation has been examined at length in various judgments. In the case of Samsher Singh Vs. State of Punjab and another: AIR 1974 SC 2192 , the Supreme Court reached to the conclusion that if there has been a charge-sheet issued to a probationer, the same must reach to its logical end and a person cannot be ousted treating his services as unsatisfactory during probation. Relying upon the same as a basis to terminate services treating it as of unsatisfactory service, the Court held that the order of termination was one of punishment. 11. In the case of Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others: (1999) 3 SCC 60 , after examining the entire law relating to probation, the Supreme Court framed certain points of consideration and held as under:- “18. On the basis of the above contentions, the following points arise for consideration: (1) In what circumstances, the termination of a probationer's services can be said to be founded on misconduct and in what circumstances could it be said that the allegations were only the motive? (2) When can an order of termination of a probationer be said to contain an express stigma? (3) Can the stigma be gathered by referring back to proceedings referred to in the order of termination? (4) To what relief? Point 1: 19. As to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. In this area, as pointed out by Shah, J. (as he then was) in Madan Gopal vs. State of Punjab there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. This very question was gone into recently in R.S. Gupta vs. U.P. State Agro Industries Corporation Ltd. & Anr. In this area, as pointed out by Shah, J. (as he then was) in Madan Gopal vs. State of Punjab there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. This very question was gone into recently in R.S. Gupta vs. U.P. State Agro Industries Corporation Ltd. & Anr. and reference was made to the development of the law from time to time starting from Purshottam Lal Dhingra vs. Union of India, to the concept of “purpose of inquiry” introduced by Shah, J. (as he then was) in State of Orissa vs. Ram Narayan Das and to the seven Judge Bench decision in Samsher Singh vs. State of Punjab and to post Samsher Singh case-law. This Court had occasion to make a detailed examination of what is the “motive” and what is the “foundation” on which innocuous order is based. 21. If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as “founded” on the allegations and will be bad. But if the inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid.” 12. Considering whether an order is stigmatic or not and taking into consideration the law laid down in the case of Purshottam Lal Dhingra Vs.Union of India: AIR 1958 (SC) 36 , the Supreme Court held on point 2 as under:- “23. Considering whether an order is stigmatic or not and taking into consideration the law laid down in the case of Purshottam Lal Dhingra Vs.Union of India: AIR 1958 (SC) 36 , the Supreme Court held on point 2 as under:- “23. The Scheme of the Service Rules may now be broadly summarised as follows : They enumerated different punishments which, for good and sufficient reason, might be inflicted on Government servants and they prescribed special procedure which had to be followed before the three major punishments, of dismissal, removal or reduction in rank could be meted out to the Government servants. Thus Rr. X and XIII of the 1920 Classification Rules prescribed several kinds of punishments to which the different classes of Government servants could be subjected and R. XIV of those rules laid down certain special procedure for cases in which the three major punishments of dismissal, removal or reduction of an officer were contemplated. Likewise R. 49 of the 1930 Classification Rules reproduced with some additions the punishments prescribed in Rr. X and XIII and R. 55 of the 1930 Classification Rules provided similar procedural protection as had been prescribed by R. XIV of the 1920 Classification Rules before the punishments of dismissal, romoval or reduction in rank could be inflicted. The scheme of the rules applicable to the railway servants was similar in substance. Thus Rr. 1702 to 1714 and 2310 of the Indian Railway Code substantially reproduce the provisions of Rr. 49 and 55 of the 1930 Classification Rules. In short, the service rules, out of the several categories of punishments, selected the three graver punishments of dismissal, removal and reduction in rank and laid down special procedure for giving protection to the Government servants against the infliction of those three major punishments. 26. The foregoing conclusion, however does not solve the entire problem, for it has yet to be ascertained as to when an order for the termination of service is inflicted as and by way of punishment and when it is not. 26. The foregoing conclusion, however does not solve the entire problem, for it has yet to be ascertained as to when an order for the termination of service is inflicted as and by way of punishment and when it is not. It has already been said that where a person is appointed substantively to permanent post in Government service, he normally acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rule read with Art. 311(2) Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant’s rights and brings about a premature end of his employment. Again where a person is appointed to a temporary post for a fixed term of say five years his service cannot, in the absence of a contract or a service rule permitting its premature termination be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the rules read with Art. 311(2). The premature termination of the service of a servant so appointed will prima facie be a dismissal or removal from service by way of punishment and so within the purview of Art. 311(2). Further, take the case of a person who having been appointed temporarily to a post has been in continuous service for more than three years or has been certified by the appointing authority as fit for employment in a quasi-permanent capacity, such person, under R. 3 of the 1949 Temporary Service Rules, is to be in quasi-permanent service which, under R. 6 of those Rules, can be terminated (i) in the circumstances and in the manner in which the employment of a Government servant in a permanent service can be terminated or (ii) when the appointing authority certifies that a reduction has occurred in the number of post available for Government servants not in permanent service. Thus when the service of a Government servant holding a post temporarily ripens into a quasi-permanent service as defined in the 1949 Temporary Service Rules, he acquires a right to the post although his appointment was initially temporary and, therefore, the termination of his employment otherwise than in accordance with R. 6 of those Rules will deprive him of his right to that post which he acquired under the rules and will prima facie be a punishment and regarded as a dismissal or removal from service so as to attract the application of Art. 311. Except in the three cases just mentioned a Government servant has no right to his post and their termination of service of a Government servant does not, except in those cases. Amount to a dismissal or removal by way of punishment. Thus where a person is appointed to a permanent post in a 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, for the Government servant so appointed has no right to continue to hold such a post any more than the servant employed on probation by a private employer is entitled to do. Such a termination does not operate as a forfeiture of any right of the servant to hold the post, for he has no such right and obviously cannot be a dismissal, removal or reduction in rank by way of punishment. This aspect of the matter is recognised in the Explanation of R. 49 of the 1930 Classification Rules which correspond to the Note to R. 1702 of the Indian Railway Code and R. 3 of the 1955 Rules and R. 13 of the 1957 Rules, for all those rules expressly save that the termination of such an appointment does not amount to the punishment of dismissal or removal within the meaning of those rules. Likewise if the servant is appointed to officiate in a permanent post or to hold a temporary post other than one for a fixed term, whether substantively or on probation or on a officiating basis, under the general law, the implied term of his employment is that his service may be terminated on reasonable notice and the termination of the service of such a servant will not per se amount to dismissal or removal from service. This principle also has been recognised by the Explanations to R. 49 of the 1930 Classification Rules corresponding to the Note to R. 1702 of the Indian Railway Code and R. 5 of the 1949 Rules and R. 3 of the 1955 rules and R. 13 of the 1957 Rules. Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripended into a quashi-permanent service as defined in the Temporary service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a government servant is by way of punishment is to ascertain whether the servant but for such termination, had the right to hold the post. If he had a right to the post as in the three cases herein before mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Art. 311. In other words and broadly speaking, Art. 311(2), will apply to those cases where the government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put it in another way, if the government has, by contract, express or implied, or, under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is, prima facie and per se, not a punishment and does not attract the provisious of Art. 311. 35. I have used the word “right” but must hasten to explain that I use it in a special sense. 35. I have used the word “right” but must hasten to explain that I use it in a special sense. The “right” need not necessarily be justiciable nor need it necessarily amount to a contract but, broadly speaking, it must be the sort of “right” which, even when not enforceable in the courts, would form a good foundation for a “Petition of Right” in England. 37. The word “contract” is used in Art. 310(2), but as these “contracts” are as much subject to “pleasure” as any other engagement of service (except as otherwise provided by the Constitution) they are not contracts in the usual sense of the term; nor are the conditions of service that apply to Government servants who do not serve under a special “Contract”, A contract that can be determined at will despite an express condition to the contrary (and that is what Art. 310(2) contemplates) is not a contract as usually understood; nor are conditions of service that can be unilaterally varied without the consent of the other “contracting Party”. And even behind his back. But they are convenient terms to convey a thought and that is the sense in which “contract” is used in Art. 310(2) and the sense in which it has been used in some Privy Council rulings.” 13. In view of the law laid down by the Supreme Court in the case of Karnataka State Road Transport Corporation and another Vs. S. Manjunath: AIR 2000 SC 2070 , the confirmation order has to be passed. 14. Keeping in view the law laid down as above, it is noted that the order dt. 24/09/1999 refers to its earlier orders but conspicuously the charge-sheet issued to the petitioner under Rule 17 of the CCA Rules, 1958 on 20/09/1999 does not find mention. Thus, apparently the authority has proceeded to make it as a foundation to remove the petitioner in stead of passing orders on the charge-sheet and the order impugned is therefore, vitiated in law. The submission of learned counsel for the respondents with regard to medical treatment which the petitioner was undergoing, relating to depression shows that there is a concentrated effort to remove the petitioner from service. 15. In view of the aforesaid, the only conclusion which can be drawn is that the order impugned is vitiated and stigmatic. 16. Consequently, the writ petition is allowed. 15. In view of the aforesaid, the only conclusion which can be drawn is that the order impugned is vitiated and stigmatic. 16. Consequently, the writ petition is allowed. The order impugned dated 24/09/1999 dispensing with services of the petitioner is quashed and set aside and the respondents are directed to reinstate the petitioner in service with all consequential benefits of pay, fixation etc., however, the petitioner would be allowed 50% of the actual back wages. The compliance be made by the respondents. within three months of the receipt of certified copy of this order.