SC: Good ACR’s do not confer a right on probationer to continue in service

The Hon’ble Supreme Court, on 18th March 2020, in the matter of Rajasthan High Court v. Ved Priya & Anr. observed that merely because ACR’s were consistently marked ‘Good’, cannot be a ground to bestow a probationer with a right to continue in service.

The Hon’ble Supreme Court observed that:

Over the decisions taken by the High Court’s Full Court on administrative side, a High Court under Article 226 has limited scope and it ought to interfere cautiously. The amplitude of such jurisdiction cannot be enlarged to sit as an ‘appellate authority’, and hence care must be taken to not hold another possible interpretation on the same set of material or substitute the Court’s opinion for that of the disciplinary authority. This is especially true given the responsibility and powers bestowed upon the High Court under Article 235 of the Constitution. The collective wisdom of the Full Court deserves due respect, weightage and consideration in the process of judicial review. (This inference has been drawn on the basis of Para 13)

The entire objective of probation is to provide the employer an opportunity to evaluate the probationer’s performance and test his suitability for a particular post. Such an exercise is a necessary part of the process of recruitment, and must not be treated lightly. Written tests and interviews are only attempts to predict a candidate’s possibility of success at a particular job. The true test of suitability is actual performance of duties which can only be applied after the candidate joins and starts working. (Para 16)

Contention that confirmation of probationers must be based only on objective material is far­fetched. Although quantitative parameters are ostensibly fair, but they by themselves are imperfect indicators of future performance. Qualitative assessment and a holistic analysis of non­ quantifiable factors are indeed necessary. (Para 17)

Merely because ACR’s were consistently marked ‘Good’, cannot be a ground to bestow a probationer with a right to continue in service. (This inference has been drawn on the basis of Para 17)

Furthermore, there is a subtle, yet fundamental, difference between termination of a probationer and that of a confirmed employee. Although it is undisputed that the State cannot act arbitrarily in either case, yet there has to be a difference in judicial approach between the two. Whereas in the case of a confirmed employee the scope of judicial interference would be more expansive given the protection under Article 311 of the Constitution or the Service Rules but such may not be true in the case of probationers who are denuded of such protection(s) while working on trial basis. (Para 18)

Probationers have no indefeasible right to continue in employment until confirmed, and they can be relieved by the competent authority if found unsuitable. Its only in a very limited category of cases that such probationers can seek protection under the principles of natural justice, say when they are ‘removed’ in a manner which prejudices their future prospects in alternate fields or casts aspersions on their character or violates their constitutional rights. In such cases of ‘stigmatic’ removal only that a reasonable opportunity of hearing is sine­-qua-­non. (Para 19)

True it is that the form of an order is not crucial to determine whether it is simplicitor or punitive in nature. An order of termination of service though innocuously worded may, in the facts and circumstances of a peculiar case, also be aimed at punishing the official on probation and in that case it would undoubtedly be an infraction of Article 311 of the Constitution. The Court in the process of judicial review of such order can always lift the veil to find out as to whether or not the order was meant to visit the probationer with penal consequences. If the Court finds that the real motive behind the order was to `punish’ the official, it may always strike down the same for want of reasonable opportunity of being heard. (Para 21)

The question of exercising equity arises only when the Court is conferred jurisdiction expressly or by implication. (Para 23)

If the genesis of the order of termination of service lies in a specific act of misconduct, regardless of over all satisfactory performance of duties during the probation period, the Court will be well within its reach to unmask the hidden cause and hold that the simplicitor order of termination, in fact, intends to punish the probationer without establishing the charge(s) by way of an enquiry. However, when the employer does not pick­up a specific instance and forms his opinion on the basis of over all performance during the period of probation, the theory of action being punitive in nature, will not be attracted. Onus would thus lie on the probationer to prove that the action taken against him was of punitive characteristics. (Para 24)

Copy of judgement: 18-Mar-2020

-Adv. Tushar Kaushik

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