The discharge of a probationer must comply with procedural requirements, and insufficient assessment of performance leads to implied confirmation, while discharge based on unsatisfactory work isn't punitive.

JUDGMENT :

Sunita Agarwal, J.

1. By means of this writ petition the petitioner has sought for quashing of the order dated 11.03.2022 passed by the respondent No.2, the State of Gujarat on the recommendation of the respondent No.1, namely the High Court of Gujarat in passing a simpliciter order of discharge of the petitioner from services with immediate effect, considering her unsuitability for the post she held, i.e. Civil Judge (J.D.).

2. By means of an amendment brought under the order of this Court dated 16.12.2022, the petitioner had further sought the relief to hold and declare the Rule 14(5) of the Rules’ 2005, namely the GUJARAT STATE JUDICIAL SERVICE RULES ’ 2005 being ultra vires to Articles 14,16,19 and 21 of the Constitution of India and the alternate prayer of interpretation of Rule 14(5) of the Rules’ 2005 to hold and declare that the period of probation mentioned in Rule 14(5) does not include extended period of probation. It was prayed that an interpretation is to be made to the ‘delay’ mentioned in Rule 14(5) of the Rules’ 2005 so as to declare it to be reasonable, justifiable and bona fide.

3. The petitioner has also prayed a relief of mandamus holding and declaring that the petitioner is deemed to be confirmed in service with effect from 05.09.2015 or 05.09.2017. It is prayed that a declaration in the nature of mandamus be made in the alternate, that the petitioner cannot be treated as a deemed probationer while deciding to discharge the petitioner from service and further that the petitioner is entitled to be reinstated in service with all consequential benefits including continuity of service, seniority, promotion, full backwages with interest at the prevailing bank rate.

4. Brief facts relevant to decide the controversy at hand are that the petitioner was selected for the post of Civil Judge(JD) vide Notification dated 07.05.2013 and she was appointed as 3rd Additional Civil Judge at Gandhidham on 21.08.2013. After the appointment, the probation period of the petitioner was extended from time to time and she was kept on probation until 11.03.2022, when her services had been discharged simpliciter on the ground of being unsatisfactory.

5. The contention of the learned counsel for the petitioner is that the petitioner has been illegally discharged from service after a period of 8 ½ years of service, on the ground of unsuitability for the post she held, though there was no material before the competent authority, namely the High Court and the State Government to hold the petitioner as unsuitable. It was urged that the factors or material to hold the petitioner unsuitable could be Assessment of performance and disposal, Annual Confidential Report and the complaints namely, Administrative or Vigilance complaints and the Departmental Inquiry, if any.

6. In the case of the petitioner that the assessment of the work done by the petitioner has been carried out from the year 2014 to 2018 and even from the statement showing the details as regards Grading, Adverse remarks, Vigilance Complaints, Departmental inquiry and Administrative complaint, appended with the counter affidavit of the respondent High Court, it can be seen that the Assessment of Quarterly disposal of the petitioner had been “Excellent” and “Outstanding” apart from being “Good” and “Very Good” mostly. The Quarterly Assessment disposal report indicates that the petitioner had shown remarkable improvement/ excellence in the disposal of cases and had secured the remarks as “Outstanding” throughout in the entire year 2018, whereas it was “Outstanding” and “Excellent” in the year 2019. It is stated that for recording the performance of the petitioner being unsatisfactory by the High Court, the assessment of disposal of the year 2016 could no