IMPORTANT POINT
Termination of a probationer without due process and opportunity of hearing is unsustainable under Rule 36 of the Rajasthan Technical Education Service Rules, 2010.

ORDER :

1. This appeal is preferred against the order dated 08.12.2016 passed by learned Single Judge, whereby writ petition filed by the respondent has been allowed.

2. The submission of learned counsel for the State is that the learned Single Judge failed to appreciate the correct factual and legal position obtaining on record in allowing the writ petition. First submission of learned counsel for the State is that Rule 36 of the Rajasthan Technical Education (Engineering) Service Rules, 2010 (for short ‘the Rules of 2010’) would not come into play in a case where subsequent appointment is in a different cadre. It is submitted that Rule 36 of the Rules of 2010 must be understood as applicable only in those cases where a person gets fresh appointment on a higher post in the same cadre. In the present case, the respondent was working as Instructor (Electric), but later on, he participated in the process of selection conducted by Public Service Commission for recruitment to the post of Lecturer (Electric) and he was appointed as Lecturer (Electric) in Government Polytechnic College, Banswara.

2.1 The second submission is that as the lien of the petitioner was already terminated from the erstwhile post which he was holding i.e. post of Instructor (Electric), Rule 36 of the Rules of 2010 could not be pressed into service at all.

2.2 The next submission is that against the order of suspension, the writ petitioner had preferred an appeal and he was heard also before its dismissal, therefore, he cannot complain of violation of principles of natural justice.

2.3 Lastly, it is submitted that it is a case where the respondent was involved in a case of corruption and, therefore, he was liable to be terminated forthwith, as he was continuing on probation.

3. Learned counsel for the respondent, on the other hand, supported the impugned order passed by learned Single Judge and submits that specific averments have been made in the writ petition that before passing the impugned order of termination on 20.06.2014, no opportunity of hearing was afforded. He would further submit that Rule 36 of the Rules of 2010 squarely applies in the present case as the writ petitioner was working on a lower post of Instructor (Electric) and upon selection, he was appointed to the post of Lecturer (Electric) on probation. He would further submit that only on the allegation of commission of offence, services of the writ petitioner could not be terminated as there is no such provision contained in the applicable Service Rules. At the most, he could be placed under suspension. It is not a case of conviction leading to termination.

4. We have heard learned counsel for the parties and perused the records.

5. In nutshell, the relevant facts are that the petitioner was initially appointed on the post of Instructor (Electric) after regular selection vide order dated 08.02.1993 in the Directorate of Board of Technical Education, Jodhpur and he was later on confirmed on 04.12.2006. Later on, he participated in the process of selection for appointment to the post of Lecturer (Electric), on which he was appointed on 20.01.2009 and posted in Government Polytechnic College, Banswara.

6. A criminal case however, came to be registered on 20.05.2010 on the allegations of being involved in corrupt practices and due to which, he remained behind the bars beyond 48 hours, which eventually led to his suspension.

6.1 While the respondent, aggrieved by the order of suspension, had taken remedy of appeal to assail the order of suspension, though unsuccessfully, in another turn of events, the impugned order came to be passed on 20.06.2014, by which his services were terminated on the allegation of being involved in a criminal case.

7. The order being challenged, the learned Single Judge allowed the writ petition. One of the main grounds for granting relief to the respondent while setting aside the order of termination is that per force Rule 36 of the Rules of 2010, in the event of termination as