Allahabad High Court · 2025

Judgment

( p e r H o n ’ b l e Ju st i c e Sr i M a n o j K u m a r Ti w a r i )

1. By m eans of t his writ pet it ion, pet it ioner has challenged rej ect ion of his candidat ure for appoint m ent as Assist ant Prosecut ing Officer by Governm ent Ut t arakhand. The reliefs sought are as follows: - “ ( a) I ssue a writ , order or dir ect ion in t he nat ur e of cert iorari quashing t he order la[;k 672@chl&6@2020&01 ¼08½ 2007 Vh- lh-&3 ( Annex ur e No.13) dat ed 05.11.2020 passed by t he respondent . ( b) I ssue a writ , order or direct ion in t he nat ur e of m andam us dir ect ing t he r espondent t o consider pet it ioner’s candidat ure t he post of Assist ant Prosecut ing Officer.”

2. Pet it ioner is a Law Graduat e, who was appoint ed 1 on probat ion as Civil Judge ( J.D.) in St at e of U.P. on t he recom m endat ion of Ut t ar Pradesh Public Service Com m ission. While he was undergoing t raining in Judicial Training Research I nst it ut e ( JTRI ) , Lucknow, an order was passed by Principal Secret ary, Hom e Depart m ent , St at e of U.P. in Sept em ber, 2014, whereby pet it ioner was discharged from service. I n t he said order, it was m ent ioned t hat it is a discharge sim plicit er from service as pet it ioner failed t o give sat isfact ion, as st ipulat ed in Rule 24( 4) of The Ut t ar Pradesh Judicial Service Rules, 2001.

3. I n t o pet it ioner ’s writ pet it ion ( WPSB No.1654 of 2014) , challenging t he aforesaid discharge order, count er affidavit was filed on behalf of Allahabad High Court . I n paragraph nos.17 ( i) and ( ii) t hereof, it was m ent ioned t hat sub- rule ( 5) of Rule 24 of The Ut t ar Pradesh Judicial Service Rules, 2001 was referred t o t he Rule Com m it t ee and on t he recom m endat ion of t he Rule Com m it t ee, t he last sent ence of sub- rule ( 5) , which creat ed a bar for reappoint m ent in service, was rem oved. Sub- rule ( 5) of Rule 24 of t he aforesaid Rules, before am endm ent m ade by Not ificat ion dat ed 04.09.2015, reads as under: - ( 5) A person, w hose services ar e dispensed wit h under sub- r ule ( 4) shall not be ent it led t o com pensat ion and 2 shall also not be eligible for r eappoint m ent t o t he service.”

4. Aft er referring t o sub- rule ( 5) of Rule 24, bot h before and aft er am endm ent , following st at em ent was m ade in para 17 ( ii) of t he count er affidavit : - “ Hence, t her e is no bar against reappoint m ent in t he Ut t ar Pradesh Judicial Service aft er discharge sim plicit or t he pet it ioners ar e not debarr ed from seeking reappoint m ent under t he Ut t ar Pradesh Judicial Ser vice and apart from t he Ut t ar Pradesh Judicial Service, it was always open t he pet it ioner s t o apply t o ot her governm ent or privat e services and t he discharge sim plicit er in quest ion is not at all a bar from em ploym ent in gover nm ent / privat e services. A t rue copy of t he Ut t ar Pradesh Judicial Service ( Thir d Am endm ent ) Rules, 2015 is annex ed her ew it h as Annex ure CA- 2 t o t his affidavit . Ther efore, it cannot be said t hat an order m ade under Rule 24( 5) of t he Rules, 2001 visit s t he pet it ioners wit h civil consequences, and t her efore, t her e is no violat ion of Art icle 311( 2) of t he Const it ut ion of I ndia.”

5. Aft er his discharge from service, pet it ioner responded t o an advert isem ent dat ed 10.06.2016 issued by Ut t arakhand Public Service Com m ission, invit ing applicat ions against 26 vacancies on t he post of Assist ant Prosecut ing Officer. He part icipat ed in t hat select ion and by virt ue of his m erit , he was recom m ended for appoint m ent . Since appoint m ent let t ers were issued t o ot her recom m ended candidat es and pet it ioner alone was left out , 3 t herefore, he m ade a represent at ion t o Secret ary, Hom e Depart m ent , Governm ent of Ut t arakhand, in which he st at ed t hat he is neit her dism issed nor rem oved from service nor he has been convict ed of an offence involving m oral t urpit ude, t herefore, denial of appoint m ent t o him , is wit hout any reason or j ust ificat ion. He also drew at t ent ion t o sub- rule ( 5) of Rule 24 of U.P. Judicial Service Rules, 2001, which aft er am endm ent , perm it s reappoint m ent of a person, who is discharged from service under Rule 24( 4) of t he said Rules in U.P. Judicial Service. He furt her st at ed t hat he has not suppressed any inform at ion and he had also enclosed t he discharge cert ificat e wit h his applicat ion and also point ed out t hat as m any as 15 Trainee Judicial Officers, including t he pet it ioner, were discharged from service, out of which 02 were reappoint ed in Ut t ar Pradesh Judicial Service and 02 ot hers were appoint ed as Assist ant Prosecut ing Officer in St at e of U.P. while som e ot hers were select ed and appoint ed in Delhi Higher Judicial Service, which proves t hat pet it ioner ’s discharge from service does not disqualify him from re- appoint m ent under t he St at e.

6. The Secret ary, Hom e Depart m ent , passed an order on 05.12.2020, rej ect ing candidat ure of t he pet it ioner for appoint m ent as Assist ant Prosecut ing Officer, by relying upon Rule 11 of Ut t arakhand Prosecut ing 4 Officers Service Rules, 2015. Thus, feeling aggrieved pet it ioner has approached t his Court .

7. I n view of t he fact s as m ent ioned above, t he following quest ions fall for considerat ion of t his Court : ( i) Whet her discharge of a probat ioner for unsat isfact ory work would have t he effect of disqualifying him fut ure em ploym ent , and ( ii) Whet her t he Secret ary, Hom e Depart m ent , Governm ent of Ut t arakhand was j ust ified in denying appoint m ent t o t he pet it ioner by invoking Rule 11 of The Ut t arakhand Prosecut ing Officers Service Rules,

8. I t is not in disput e t hat pet it ioner was discharged from service wit hout holding any disciplinary inquiry. He was discharged by invoking provisions of The U.P. Tem porary Governm ent Servant s ( Term inat ion of Service) Rules, 1975 ( hereinaft er referred t o as ‘The Term inat ion Rules, 1975’) . I n t he discharge order passed by t he St at e Governm ent , t here is a reference t o t he Resolut ion passed t he Full Court of Allahabad High Court , which ext ract ed below: - “ The aforesaid probat ioner Judicial Officers were recom m ended t o be discharged sim plicit er from services for having failed t o give sat isfact ion, as st ipulat ed in Rule 24( 4) of t he Ut t ar Pradesh Judicial Service Rules, 2001” 5

9. The order passed by Governm ent of Ut t ar Pradesh reveals t hat t he Judicial Officers, who were discharged from service, were given one m ont h’s pay in

lieu of not ice, in t erm s of first Proviso t o Rule 3( 2) as required under Rule 3 of The Term inat ion Rules, 1975. Rule 1( 3) and Rule 3 of t he said Rules is ext ract ed below” - “ 1( 3) They shall apply t o all persons holding a civil post in connect ion wit h t he affairs of Ut t ar Pradesh and who are under t he rule- m aking cont rol of Governor, but who do not hold a lien on perm anent post under t he Governm ent of Ut t ar Pradesh. 3 . Te r m i n a t i o n o f se r v i ce . – ( 1) Not wit hst anding anyt hing t o t he cont rary in any exist ing rules or orders on t he subj ect , t he services of a Governm ent servant in t em porary service shall be liable t o t erm inat ion at any t im e by a not ice in writ ing given eit her by t he Governm ent servant t o t he appoint ing aut horit y, or by t he appoint ing aut horit y t o t he Governm ent servant . ( 2) The period of not ice shall be one m ont h: Provided t hat t he services of any such Governm ent servant m ay be t er m inat ed fort hwit h, and on such t erm inat ion t he Governm ent servant shall be ent it led t o claim a sum equivalent t o t he am ount of his pay plus allowances, if any, for t he period of t he not ice or as t he case m ay be, for t he period by which such not ice falls short of one m ont h at t he sam e rat es at which he was drawing t hem im m ediat ely before t he t erm inat ion of his services. Provided furt her t hat it shall be open t o t he appoint ing aut horit y t o relieve a Governm ent servant wit hout any not ice or accept not ice for a short er period, wit hout requiring t he Governm ent servant t o pay any penalt y in lieu of not ice: Provided also t hat such not ice given by t he Governm ent servant against whom a disciplinary proceeding is pending or cont em plat ed shall be effect ive only if it is accept ed by t he 6 appoint ing aut horit y, provided in t he case of a cont em plat ed disciplinary proceeding, t he Governm ent servant is inform ed of t he non- accept ance of his not ice before t he expiry of t hat not ice.”

10. I n t he count er affidavit filed on behalf of Allahabad High Court in pet it ioner ’s writ pet it ion, t he st and t aken was t hat his discharge from service will not disqualify him for seeking appoint m ent in U.P. Judicial Service or in any ot her governm ent or privat e service. This st and is in consonance wit h t he law of t he land which provides t hat discharge of a probat ioner for unsat isfact ory work does not cast any st igm a and do not com e in t he way of his reappoint m ent .

11. I n t he celebrat ed j udgm ent of Pa r sh o t a m La l D h i n g r a v s. Un i o n o f I n d i a r e p o r t e d i n A I R 1 9 5 8 Su p r e m e Co u r t 3 6 , a Const it ut ion Bench of Hon’ble Suprem e Court held t hat “ One t est for det erm ining whet her t he t erm inat ion of t he service of a Governm ent servant is by way of punishm ent is t o ascert ain whet her t he servant , but for such t erm inat ion, had t he right t o hold t he post . I f he had a right t o t he post as t he t hree cases hereinbefore m ent ioned, t he t erm inat ion of his service will by it self be a punishm ent and he will be ent it led t o t he prot ect ion of Art . 311. I n ot her words and broadly 7 speaking, Art . 311 ( 2) , will apply t o t hose cases where t he Governm ent servant , had he been em ployed by a privat e em ployer, will be ent it led t o m aint ain an act ion wrongful dism issal, rem oval or reduct ion in rank. To put it in anot her way, t he Governm ent has, by cont ract , express or im plied, or, under t he rules, t he right t o t erm inat e t he em ploym ent at any t im e, t hen such t erm inat ion in t he m anner provided by t he cont ract or t he rules is, prim a facie and per se, not a punishm ent and does not at t ract t he provisions of Art . 311.” ( Em phasis Supplied)

12. I n t he case of Sa m sh e r Si n g h v s. St a t e o f Pu n j a b & A n o t h e r a n d co n n e ct e d m a t t e r , r e p o r t e d i n ( 1 9 7 4 ) 2 SCC 8 3 1 , Hon’ble Suprem e Court held as under: - “ 6 2 . The posit ion of a probat ioner was considered by t his Court in Purshot am Lal Dhingra v. Union of I ndia [ 1958] S C.R. 828 Das, C.J., speaking for t he Court said t hat where a person is appoint ed t o a perm anent post in Governm ent service on probat ion t he t erm inat ion of his service during or at t he end of t he period of probat ion will not ordinarily and by it self be a punishm ent because t he Governm ent servant so appoint ed has no right t o cont inue t o hold such a post any m ore t han a servant em ployed on probat ion by a privat e em ployer ent it led t o do so. Such a t erm inat ion does not operat e as a forfeit ure of any right of a servant t o hold t he post , for he has no such right . Obviously such a t erm inat ion cannot be a dism issal, rem oval or reduct ion in rank by way of punishm ent . 8 There are, however, t wo im port ant observat ions of Das, C.J., in Dhingra's case ( supra) . One is t hat if a right exist s under a cont ract or service Rules t o t erm inat e t he service t he m ot ive operat ing on t he m ind of t he Governm ent is wholly irrelevant . The ot her is t hat if t he t erm inat ion of service is sought t o be founded on m isconduct , negligence, inefficiency or ot her disqualificat ion, t hen it is a punishm ent and violat es Art icle 311 of t he const it ut ion. The reasoning why m ot ive is said t o be irrelevant is t hat it inheres in t he st at e of m ind which is not discernible. On t he ot her land, if t erm inat ion is founded on m isconduct it is obj ect ive and is m anifest .

63. No abst ract proposit ion can be laid down t hat where t he services of a probat ioner are t erm inat ed wit hout saying anyt hing m ore in t he order of t erm inat ion t han t hat t he services are t erm inat ed it can never am ount t o a punishm ent in t he fact s and circum st ances of t he case. I f a probat ioner is discharged on t he ground of m isconduct , or inefficiency or for sim ilar reason wit hout a proper enquir y and wit hout his get t ing a reasonable opport unit y of showing cause against his discharge it m ay in a given case am ount t o rem oval from service wit hin t he m eaning of Art icle 311( 2) of t he Const it ut ion.

64. Before a probat ioner is confirm ed t he aut horit y concerned is under an obligat ion t o consider whet her t he work of t he probat ioner is sat isfact ory or w het her he is suit able for t he post . I n t he absence of any Rules governing a probat ioner in t his respect t he aut horit y m ay com e t o t he conclusion t hat on account of inadequacy for t he j ob or for any t em peram ent al or ot her obj ect not involving m oral t urpit ude t he probat ioner is unsuit able for t he j ob and hence m ust be discharged. No punishm ent is involved, in t his. The aut horit y m ay in som e cases be of t he view t hat t he conduct of t he probat ioner m ay result in dism issal or rem oval on an inquiry. But in t hose cases t he aut horit y m ay not hold an inquiry and m ay sim ply discharge t he probat ioner wit h a view t o giving him a chance t o m ake good in ot her walks of life wit hout a st igm a at t he t im e of t erm inat ion of probat ion. I f, on t he ot her hand, t he probat ioner 9 faced wit h an enquiry on char ges of m isconduct or inefficiency or corrupt ion, and if his services are t erm inat ed wit hout following t he provisions of Art icle 311( 2) he can claim prot ect ion. I n Gopi Kishore Prasad v. Union of I ndia A.I .R. 1960 S.C. 689 it was said t hat if t he Governm ent proceeded against t he probat ioner in t he direct way w it hout cast ing any aspersion on his honest y or com pet ence, his discharge would not have t he effect of rem oval by way of punishm ent . I nst ead of t aking t he easy course t he Governm ent chose t he m ore difficult one of st art ing proceedings against him and branding him as a dishonest and incom pet ent officer.”

13. I n t he case of Pa v a n e n d r a N a r a y a n Ve r m a v s. Sa n j a y Ga n d h i PGI o f M e d i ca l Sci e n ce s a n d a n o t h e r , r e p o r t e d i n ( 2 0 0 2 ) 1 SCC 5 2 0 , Hon’ble Suprem e Court considered and discussed t he ent ire regarding discharge of a probat ioner. Paragraphs 13, 14, 15, 16, 17 and 18 of t his j udgm ent are relevant , which are ext ract ed below: - “ 1 3 . Anot her Const it ut ion Bench of t his Court Benj am in ( A.G.) and Union of I ndia explained t he decision of Parshot am Lal Dhingra. I t followed t he t wo t est s m ent ioned in Dhingras case viz. ( 1) Whet her t he t em porary Governm ent servant had a right t o t he post or t he rank, or ( 2) Whet her he has been visit ed w it h evil consequences. 1 4 . I f “ punishm ent ” were rest rict ed t o “ evil consequences” , t he Court ’s t ask in deciding t he nat ure of an order of t erm inat ion would have been easier. Court s would only have t o scan t he t erm inat ion order t o see whet her it ex facie cont ains t he st igm a or refers t o a docum ent which st igm at ises t he officer, in which case t he t erm inat ion order would have t o 10 be set aside on t he ground t hat it is punit ive. I n t hese cases t he “ evil consequences” m ust be assessed in relat ion t o t he blem ish on t he em ployee’s reput at ion so as t o render him unfit for service elsewhere and not in relat ion t o t he post t em porarily occupied by him . This perhaps is t he underlying rat ionale of several of t he decisions on t he issue. 1 5 . I n V.P. Ahuj a v. St at e of Punj ab ( 2000) 3 SCC 239 cit ed by t he appellant , t he Court const rued t he language of t he order and found t hat it was ex- facie st igm at ic. 1 6 . I n Krishnadevaraya Educat ion Trust & Anr. v. L.A. Balakrishna ( 2001) 1 Scale 196 , t he first let t er of t erm inat ion m ent ioned t hat t he Com m it t ee appoint ed t o go int o t he quest ion of general perform ance of each st aff had found t hat t he em ployee, who had been appoint ed on probat ion, “ was not upt o t he m ark” . This was followed by a second order of t erm inat ion which did not refer t o t he em ployee’s perform ance at all. The Court held t hat it was preferable t hat t he order of t erm inat ion did not m ent ion t hat t he em ployee’s perform ance was not sat isfact ory as t hen “ t he em ployer runs t he risk of t he allegat ion being m ade t hat t he order it self cast s a st igm a.” ( SCC p.320, para 5) . Nevert heless, t he Court held t hat t he reasons st at ed t he first order did not m ean t hat t he t erm inat ion m ay be by way of punishm ent because “ t he probat ioner is on t est and if t he services are found not t o be sat isfact ory, t he em ployer has, t erm s of t he let t er of appoint m ent , t he right t o t erm inat e t he services.” ( SCC p.321, para 6) 1 7 . Finally , t his Court in H.F. Sangat i V. Regist rar General, High Court of Karnat aka and Ot hers dealt w it h t he quest ion whet her an order t erm inat ing t he appoint m ent of a probat ioner Munsif could be considered t o be punit ive. I n t hat case during t he period of probat ion, several adverse rem arks had been m ade in t he confident ial records of t he probat ioner. The Adm inist rat ive Com m it t ee of t he High Court considered t hese confident ial r ecords and cam e t o t he conclusion t hat t he appellant was not fit t o be confirm ed in t he post of a j udicial 11 officer. They recom m ended t o t he High Court accordingly. The High Court accept ed t he recom m endat ion at a Full Court m eet ing and referred t he m at t er t o t he St at e Governm ent . The St at e Governm ent accept ed t he recom m endat ion discharged t he probat ioner from service. The order of t erm inat ion m ent ioned t hat t he em ployee was “ unsuit able t o hold t he post of Munsif” . The Court held t hat t he order did not cast any st igm a on t he em ployee and w as not punit ive. 1 8 . But t he law does not rest t here. I n Sam sher Singh v. St at e of Punj ab, t he Court s were asked t o look behind t he form of t he order t o find out whet her t he t erm inat ion w as in subst ance punit ive. So when a full- scale inquiry is held against a probat ioner or a t em porary appoint ee and he is found guilt y, an order t erm inat ing his services for t his reason has been seen as punit ive and bad. I t is t his search for t he “ subst ance” behind t he “ form ” of t he order of punishm ent which has lead t o som e apparent ly conflict ing decisions.”

14. I n t he aforesaid j udgm ent ( Pavanendra Narayan Verm a vs. Sanj ay Gandhi PGI ) , aft er considering t he j udgm ent s on t he point , Hon’ble Suprem e Court enunciat ed t he law in para- 29 of t he j udgm ent , which is also ext ract ed below: - “ 2 9 . Before considering t he fact s of t he case before us one furt her, seem ingly int ract able, area relat ing t o t he first t est needs t o be cleared viz. what language in a t erm inat ion order would am ount t o a st igm a? Generally speaking when a probat ioner’s appoint m ent is t erm inat ed it m eans t hat t he probat ioner is unfit t he j ob, whet her by reason of m isconduct or inept it ude, what ever t he language used in t he t erm inat ion order m ay be. Alt hough st rict ly speaking, t he st igm a is im plicit in t he t erm inat ion, a sim ple t erm inat ion is not st igm at ic. A t erm inat ion order which explicit ly st at es what is im plicit in every order of t erm inat ion of a probat ioner’s 12 appoint m ent , is also not st igm at ic. The decisions cit ed by t he part ies and not ed by us earlier, also do not hold so. I n order t o am ount t o a st igm a, t he order m ust be in a language which im put es som et hing over and above m ere unsuit abilit y for t he j ob.” ( Em phasis Supplied)

15. I n t he case of Ra j e sh K u m a r Sr i v a st a v a v s. St a t e o f Jh a r k h a n d a n d o t h e r s, r e p o r t e d i n ( 2 0 1 1 ) 4 SCC 4 4 7 , Hon’ble Apex Court reit erat ed t hat a probat ioner can be released from service for unsat isfact ory work and such release would not am ount t o dism issal or rem oval from service. Para 9 and 10 of t his j udgm ent are ext ract ed below: - “ 9. The records placed before us disclose t hat at t he t im e when t he im pugned order was passed, t he appellant was working as a Probat ioner Munsif. A person is placed on probat ion so as t o enable t he em ployer t o adj udge his suit abilit y for cont inuat ion in t he service and also for confirm at ion in service. There ar e various crit eria for adj udging suit abilit y of a person t o hold t he post on per m anent basis and by way of confirm at ion. At t hat st age and during t he per iod of probat ion t he act ion and act ivit ies of t he probat ioner ( appellant ) ar e generally under scr ut iny and on t he basis of his overall perform ance a decision is generally t aken as t o whet her his services should be cont inued and t hat he should be confirm ed, or he should be released from service. I n t he pr esent case, in t he course of adj udging such suit abilit y it was found by t he respondent s t hat t he perfor m ance of t he appellant was not sat isfact ory and t herefor e he was not suit able for t he j ob. 13

10. The aforesaid decision t o r elease him from service was t aken by t he r espondent s considering his overall perfor m ance, conduct and suit abilit y for t he j ob. While t aking a decision in t his r egar d neit her any not ice is required t o be giv en t o t he appellant nor is he requir ed t o be given any opport unit y of hearing. St rict ly speaking, it is not a case of r em oval as sought t o be m ade out by t he appellant , but w as a case of sim ple discharge service. I t is, t her efore, only a t erm inat ion sim plicit er and not rem oval from service on t he grounds of indiscipline or m isconduct . While adj udging his perfor m ance, conduct and ov erall suit abilit y, his perform ance r ecor d as also t he report from t he higher aut horit ies w ere called for and t hey wer e looked int o befor e any decision was t aken as t o whet her t he officer concerned should be cont inued in service or not .” ( Em phasis Supplied)

16. Sim ilar view was expressed by Hon’ble Suprem e Court in St a t e Ba n k o f I n d i a a n d o t h e r s v s. Pa l a k M o d i a n d a n o t h e r , r e p o r t e d i n ( 2 0 1 3 ) 3 SCC 6 0 7 . Para 25 and 36 of t he said j udgm ent are ext ract ed below: - “ 25. The rat io of t he above not ed j udgm ent s is t hat a probat ioner has no right t o hold t he post and his service can be t erm inat ed at any t im e during or at t he end of t he period of probat ion on account of general unsuit abilit y for t he post held by him . I f t he com pet ent aut horit y holds an inquiry for j udging t he suit abilit y of t he probat ioner or for his furt her cont inuance in service or for confirm at ion and such inquiry is t he basis for t aking decision t o t erm inat e his service, t hen t he act ion of t he com pet ent aut horit y cannot be cast igat ed as punit ive. However, t he allegat ion of m isconduct const it ut es t he foundat ion of t he act ion t aken, t he ult im at e 14 decision t aken by t he com pet ent aut horit y can be nullified on t he ground of violat ion of t he rules of nat ural j ust ice.

36. There is a m arked dist inct ion bet ween t he concept s of sat isfact ory com plet ion of probat ion and successful passing of t he t raining/ t est held during or at t he end of t he period of probat ion, which are sine qua non for confirm at ion of a probat ioner and t he Bank’s right t o punish a probat ioner for any defined m isconduct , m isbehaviour or m isdem eanor. I n a given case, t he com pet ent aut horit y m ay, while deciding t he issue of suit abilit y of probat ioner t o be confirm ed, ignore t he act ( s) of m isconduct and t erm inat e his service wit hout cast ing any aspersion or st igm a which m ay adversely affect his fut ure prospect s but , t he m isconduct / m isdem eanor const it ut es t he basis of t he final decision t aken by t he com pet ent aut horit y t o dispense wit h t he service of t he probat ioner albeit by a non st igm at ic order, t he Court can lift t he veil and declare t hat in t he garb of t erm inat ion sim plicit er, t he em ployer has punished t he em ployee for an act of m isconduct .”

17. I n service t he St at e inst rum ent alit ies of St at e, appoint m ent is m ade on probat ion in order t o assess his suit abilit y for t he j ob. During t he period of probat ion, an appoint ee is kept under wat ch. I f t he em ployer t he perform ance of t he probat ioner not up t o t he m ark, t hen he can eit her ext end t he period of probat ion or discharge t he probat ioner from service, which is also referred t o as Term inat ion Sim plicit er. I n t he Rules governing condit ions of service, t he period of probat ion is m ent ioned and t he ext ent t o which it can be 15 ext ended is also provided. Merely because an appoint ee has com plet ed t he period of probat ion do not result in his acquiring perm anent st at us. As per t he law of t he land, t here cannot be aut om at ic confirm at ion of a probat ioner in service and t here has t o be an express order confirm ing t he probat ioner on t he post he was appoint ed.

18. St at e of Ut t ar Pradesh has fram ed Rules exercise of it s rule m aking power under proviso t o Art icle 309 of t he Const it ut ion of I ndia known as The U.P. Tem porary Governm ent Servant s ( Term inat ion of Service) Rules, 1975. The said Rules provide t hat a t em porary governm ent servant shall be liable t o be t erm inat ed at any t im e by giving one m ont h’s not ice in writ ing or one m ont h’s salary in lieu of such not ice. A probat ioner does not hold lien on a post and, as such, his st at us rem ains t hat of a ‘t em porary’ governm ent servant . Alt hough Rule 24( 4) of U.P. Judicial Service Rules, 2001 provides for discharge of a probat ioner from service, however, t he said provision falls short of providing a m echanism t erm inat ing t he services of a probat ioner or discharging him from service. The Term inat ion Rules, 1975 applies t o persons appoint ed t o a civil post in connect ion wit h t he affairs of Ut t ar Pradesh and who are under t he rule- m aking cont rol of Governor but do not hold a lien on any post . The said Rules 16 lay down t he procedure of t erm inat ion of a t em porary governm ent servant including a probat ioner. Thus, t he Term inat ion Rules, 1975 becom es part of condit ions of service of a person appoint ed t o service which is under rule- m aking cont rol of t he Governor, including t he one who is appoint ed t o U.P. Judicial Service. Thus, it can be safely inferred t hat t he St at e Governm ent reserved t he right t o t erm inat e t he em ploym ent of a probat ioner at any t im e under t he Term inat ion Rules, 1975 and in exercise of t hat right , pet it ioner was discharged from service. Therefore, his discharge will not am ount t o punishm ent and cannot be t erm ed as punit ive.

19. Allahabad High Court in it s count er affidavit , filed before t he Lucknow Bench, cat egorically st at ed t hat discharge of t he pet it ioner shall not debar him seeking reappoint m ent in U.P. Judicial Service or any ot her St at e service. I t is nobody’s case t hat disciplinary inquiry was init iat ed against t he pet it ioner before discharging him from service and t hat his discharge was founded on a charge. Thus, by no st ret ch of im aginat ion, pet it ioner ’s discharge from U.P. Judicial Service will operat e as disqualificat ion for his fut ure em ploym ent .

20. Rule 24( 5) of U.P. Judicial Service Rules, 2001, as it exist ed before am endm ent in 2015 also do not disqualify 17 a discharged probat ioner for appoint m ent in ot her services in St at e of Ut t ar Pradesh, it only operat es as bar against appoint m ent in U.P. Judicial Service. That bar has also been rem oved w.e.f. 04.09.2015 by an am endm ent .

21. Rule 11 of The Ut t arakhand Prosecut ing Officers Service Rules, 2015 is ext ract ed below: “ 1 1 . The charact er of a candidat e for direct recruit m ent t o post in t he Service m ust be such as t o render him suit able in all respect s for em ploym ent in Governm ent service. The appoint ing aut horit y shall sat isfy it self on t his point . N o t e – Persons dism issed by Union Governm ent or St at e Governm ent or a Local Aut horit y or by a Corporat ion or a Body owned or cont rolled by t he Union Governm ent or St at e Governm ent shall be ineligible for appoint m ent t o any post in t he service. Persons convict ed of an offence involving m oral t urpit ude shall also be ineligible.”

22. Careful perusal of Rule 11 wit h not e appended t heret o would reveal t hat t he appoint ing aut horit y can deny appoint m ent , by direct recruit m ent , t o a post in service if t he charact er of a candidat e is not found t o be suit able for em ploym ent under t he St at e. The not e appended t o Rule 11 clarifies t hat a person who is dism issed from service by Union Governm ent , St at e Governm ent , Local Aut horit y, Corporat ion or a body under or cont rolled by Union/ St at e 18 Governm ent shall be ineligible for appoint m ent . I t furt her provides t hat person convict ed of an offence involving m oral t urpit ude shall also be ineligible.

23. Now com ing back t o t he fact s of t he case in hand. Pet it ioner ’s discharge from service does not reflect upon his charact er. I n fact , t he discharge order m akes no com m ent on his conduct or charact er and t he reason for discharge indicat ed in t he order is t hat pet it ioner failed t o give sat isfact ion as st ipulat ed in Rule 24( 4) of t he U.P. Judicial Service Rules, 2001. No disciplinary inquiry was held against t he pet it ioner before discharging him from service and he was discharged before com plet ing t raining. Rule 24( 4) of t he aforesaid Rules provides t hat a m em ber of Service, who is on probat ion, m ay be discharged from service, if he has not m ade sufficient use of his opport unit ies or has failed t o give sat isfact ion.

24. Thus, t here is no m at erial available wit h t he Secret ary, Hom e, based on which such opinion can be form ed t hat pet it ioner does not bear good charact er.

25. Governm ent of U.P. has fram ed The U.P. Tem porary Governm ent Servant s ( Term inat ion of Service) Rules, 1975, which enables t he Appoint ing Aut horit y t o t erm inat e services of t em porary governm ent servant at any t im e by issuing one m ont h’s not ice or by paying salary in lieu of 19 such not ice. Thus, t he said Rules form part of condit ions of service of every person appoint ed t o a St at e service including j udicial service. The Com pet ent Aut horit y exercised t he power available under Rule 24( 4) of t he U.P. Judicial Service Rules, 2001 and discharged t he pet it ioner from service by invoking t he provision of The Tem porary Governm ent Servant s ( Term inat ion of Service) Rules, 1975. Thus, it can be safely inferred t hat t he discharge of pet it ioner from service was as per t he service condit ions applicable t o him . His em ployer, in t he count er affidavit , filed before t he Lucknow Bench of Allahabad High Court has m ent ioned t hat pet it ioner ’s discharge was not by way of punishm ent and he was discharged as he failed t o give sat isfact ion. Thus, it cannot be said t hat charact er of t he pet it ioner is such which renders him unsuit able em ploym ent in governm ent service. I n fact , pet it ioner st at ed in his represent at ion m ade t o t he Com pet ent Aut horit y t hat ot her persons, who were discharged from service wit h him , were reappoint ed in U.P. Judicial Service, Delhi Higher Judicial Service and as Assist ant Prosecut ing Officer in St at e of U.P. Pet it ioner ’s discharge from service under Rule 24( 4) of t he aforesaid Rules cannot be t erm ed as dism issal or rem oval from service. Pet it ioner ’s discharge was not by way of punishm ent but as per t he condit ions of 20 his service. Even ot herwise also, it is not t he case t hat pet it ioner was convict ed of an offence involving m oral t urpit ude. Therefore, m erely because pet it ioner was discharged from service will not render him unsuit able for appoint m ent as Assist ant Prosecut ing Officer in St at e of Ut t arakhand.

26. Thus, t his Court has no hesit at ion in holding t hat denial of appoint m ent t o pet it ioner by t he Secret ary, Hom e, Ut t arakhand is unsust ainable in t he eyes of law. I nvocat ion of Rule 11 of Ut t arakhand Prosecut ing Officers Service Rules, 2015 for denying appoint m ent t o t he pet it ioner is ex- facie illegal.

27. For t he aforesaid reasons, im pugned order dat ed

05.11.2020 passed by respondent is liable t o be set aside is hereby set aside. Writ pet it ion is allowed. Respondent is direct ed t o act upon t he recom m endat ion m ade by Ut t arakhand Public Service Com m ission by issuing necessary order, wit hin four weeks t he dat e of product ion of cert ified copy of t his order. ( Su b h a sh Up a d h y a y , J.) ( M a n o j K u m a r Ti w a r i , J.) 22.07.2025 22.07.2025 Raj ni RAJINI GUSAIN DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=97cfa6e4cbd49c07b876db484 48ac3701a9ae475a2547e4b7f1d9b1f17 d01342, postalCode=263001, st=UTTARAKHAND, serialNumber=8D039BC77BD1A2222B 4DF4FC80D4557562F95BEBA013F5306 16A158A0A878BD8, cn=RAJINI GUSAIN 21