Post Nasirda, Tehsil Deoli, District Tonk (Raj.). vs The State of Rajasthan, Through Its Principal Secretary,

Judgment

1. The State of Rajasthan, through its Principal Secretary, Department of Home, Govt. Secretariat, Jaipur.

2. Director, State Forensic Science Laboratory, Nehru Nagar, Jaipur (Raj.).

Mr. Ajay Sharma, Dy. Director, State Forensic Science Laboratory, Nehru Nagar, Jaipur (Raj.). ----Respondents Connected With S.B. Civil Writ Petition No.27794/2018 Deepak Kumar Goutam S/o Shri Ramesh Chand Goutam, aged about 26 Years, R/o Opp. Shri Laxmi Nath Mandi, Village and Post Nasirda, Tehsil Deoli, District Tonk (Raj.). Versus ----Petitioner

1. The State of Rajasthan, Through Its Principal Secretary, Department of Home, Govt. Secretariat, Jaipur.

2. Director, State Forensic Science Laboratory, Nehru Nagar, Jaipur (Raj.) ----Respondents For Petitioner(s) : Mr.Akshit Gupta with Mr.Nakul Bansal For Respondent(s) : Mr.Bhuwnesh Sharma, AAG with Mr.Samee Khan JUSTICE ANOOP KUMAR DHAND Order 18/02/2025

1. At the outset, learned counsel for the petitioner as well as the counsel for the State submits that the controversy involved in [2025:RJ-JP:7033] (2 of 6) [CW-8511/2019] this petition has already been decided by the Co-ordinate Bench of this Court in the case of Kailash Chand Sharma Vs. State of Rajasthan & Ors. while deciding S.B. Civil Writ Petition No.8091/2019. Counsel submits that the instant petitions be disposed of in the light of the similar direction issued in the case of Kailash Chand Sharma (supra).

2. Considering the above factual aspect of the matter and looking to the fact that the respondents are agreeing that the issue involved in these petitions is covered by the judgment passed by the Co-ordinate Bench of this Court in the case of Kailash Chand Sharma (supra), this Court deems it just and proper to dispose of both the instant writ petitions in the light of the similar directions as given by the Co-ordinate Bench of this Court in the case of Kailash Chand Sharma (supra) which reads as under:- "1. Instant writ petition under Article 226 of the Constitution of India, has been preferred by the petitioner impugning the order dated 15.04.2019, passed by the Director, State Forensic Science Laboratory, Jaipur, terminating service of petitioner as probationer from the post of Junior Lab Assistant, invoking Rule 23-A of the Rajasthan Service Rules, 1951 (for short, “RSR”).

2. The contention of counsel for petitioner is that the appointment of petitioner was against the substantive post by way of regular appointment as per procedure of law and he was given appointment vide order dated 23.04.2018 (Annx.3), pursuant to the vacancies advertised on 22.09.2016. It has been contended that as per appointment order of petitioner dated 23.04.2018, he was appointed on probation for a period of two years pursuant to which he joined his services on 09.05.2018. Later on, before completion of his probation, petitioner has been informed vide letter dated 18.04.2019 that his services have been terminated vide order dated 15.04.2019 by the [2025:RJ-JP:7033] (3 of 6) [CW-8511/2019] appointing authority, invoking the provision of Rule 23-A of RSR.

3. Counsel for petitioner contends that Rule 23-A of RSR deals with termination of service of a temporary employee and such rule does not apply on a regular appointee though on probation, therefore, the order impugned is ex-facie illegal as much as suffers from perversity and wrong exercise of powers by the appointing authorities. In support of his contention, reliance has been placed on the order dated 26.02.2018 passed by the Coordinate Bench in case of Dinesh Kumar Meena Vs. State ofRajasthan & Ors. reported RLW 1002 MANU/RH/0711/2018], which has been followed by the Coordinate Bench in another case of Mahesh Kumar Vs. State of Rajasthan & Ors. in S.B. Civil Writ Petition No.9460/2024, whereby reinstatement was allowed vide order dated 29.07.2024. [2019 (2)

4. Per contra, the Government counsel appearing on behalf of respondents-State authorities submits that the petitioner availed Extra Ordinary Leaves (EOLs) during his probation period from 02.04.2019 to 16.04.2019 and then from 22.04.2019 to 10.05.2019, which were not sanctioned and hence, on account of absenteeism of petitioner w.e.f. 02.04.2019 onwards, his services have been terminated vide order dated 15.04.2019. Counsel for respondent has supported the impugned order.

5. Heard counsel for both parties and perused the record including the impugned order and the relevant provision of Rule 23A of RSR. Rule 23A of RSR reads as under:- “23A. Notice for termination of service of a temporary employee:- @1 (a) Except as otherwise provided in sub- rule (2), the service of a temporary Government Servant shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the government servant. (b) The period of such notice shall be one month; Provided that the services of any such Government servant may be terminated forthwith, and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay [2025:RJ-JP:7033] (4 of 6) [CW-8511/2019] plus allowance for the period of the notice at the same rates at which he was drawing them immediately before the termination of the services or as the case may be for the period by which such notice falls short of one month. *2(a) The service of a temporary Government servant who has been in continuous Government service for more than three years and who satisfied the suitability in respect of age and qualifications prescribed for the post and has been appointed in consultation with the Rajasthan Public Service Commission where such consultation is necessary, shall be liable to termination at any time by a notice of three months given in writing either by the Government servant to the appointing authority or by the appointing authority to the Government servant : Provided that the service of any such Government servant may be terminated forthwith, and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice at the same rate at which he was drawing immediately before the termination of his service for the period by which such notice falls short of three months, as the case may be; (b) Where reduction has occurred in the number of post available for Government servants not in permanent service, termination of service consequent upon the reduction of posts in the cadre under the appointing authority shall take place in the order of juniority.”

6. The Coordinate Bench of this Court, in case of Dinesh Kumar Meena (supra), while dealing with the applicability of Rule 23A of RSR for terminating the services of probationers, has held and observed as under:- “The first issue is with regard to applicability of Rule 23-A of RSR to the probationers, this Court finds that a bare reading of Rule 23-A makes it clear that services of a temporary Government servant can be terminated by the employer at any time by a notice in writing and in case notice is not to be given and if the employer wants to terminate the services of temporary [2025:RJ-JP:7033] (5 of 6) [CW-8511/2019] Government servant forthwith, notice pay can be given to such employee. This Court finds that Rule 23-A only applies to the temporary Government servants and not to the probationers. This Court is of the opinion, that if the person is appointed after undergoing regular mode of selection, his service conditions are governed by statutory Rules (like in the present case, the service condition of petitioners are regulated after their appointment as per Rajasthan Police Subordinate Rules of 1989). Such person acquires a status of probationer and he is not temporary Govt. employee. The Court finds that once the petitioners were appointed on probation, they could not have been treated as a temporary Government servant and respondents exercised power under Rule 23-A of RSR in a wrong and illegal manner. The definition given under RSR of Probationer and Probationer-Trainee makes it very clear that persons appointed on substantive basis against substantive post have been appointed on regular basis and they are not temporary Govt. employees.” (emphasis supplied)

7. The judgment delivered in case of Dinesh Kumar Meena (supra) has been followed by the Coordinate Bench in another case of Mahesh Kumar (supra) and the termination order of a probationer employee in exercise of powers under Rule 23-A of RSR was set aside.

8. Counsel for the petitioner submits that the ratio decidendi expounded by the Coordinate Bench in case of Dinesh Kumar Meena (supra) is squarely applicable to the facts of present case and in that view, the impugned order of termination dated 15.04.2019 is liable to be set aside. It has also been pointed out that in the instant writ petition, at the time of issuance of notice, vide order dated 09.05.2019, the effect and operation of impugned termination dated 15.04.2019 was stayed, hence, in pursuance thereof, the petitioner is continuously rendering his services and though, his probation period has completed but he has not been given regular pay-scale.

9. Counsel appearing on behalf of respondents-State Authorities is not in a position to show any law contrary [2025:RJ-JP:7033] (6 of 6) [CW-8511/2019] to the proposition of law in respect of applicability of Rule 23-A of RSR to a probationer as decided by the Coordinate Bench of this Court in Dinesh Kumar Meena (supra) and followed in case of Mahesh Kumar (supra).

10. This Court finds that it is explicit that the appointment of petitioner was made by way of regular appointment under the statutory rules of Rajasthan State Forensic Science Laboratory, against the substantive post and his services during the probation period has been terminated invoking Rule 23A of RSR vide impugned order which is ex facie illegal and unsustainable in law. Indisputably, no charge-sheet for absenteeism of petitioner from duty without leave was ever serve nor show cause notice or opportunity of hearing was extended to the petitioner before terminating his service vide order impugned. Thus, the impugned order of termination deserves to be set aside.

11. As a result, the writ petition is allowed and the impugned order of termination dated 15.04.2019 is hereby quashed and set aside. Petitioner be granted all consequential benefits including the grant of regular pay-scale, treating him in continuity of service from the date of his appointment. However, this order shall not preclude the respondents to initiate the inquiry against the petitioner on the ground of absenteeism for the period, if respondents so desires.

12. All pending application(s), if any, stand(s) disposed of."

4. In view of the submissions made by the counsel for both sides, both the instant writ petitions stand disposed of, in terms of the order passed in the case of Kailash Chand Sharma (supra).

5. All pending application(s), if any, also stand disposed of. (ANOOP KUMAR DHAND),J Aayush Sharma /250-251