205200124462020_7

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 12446/2020
Lokesh Kumar Kushwah S/o Niranjan Lal Mali, Aged About 33

Years, R/o Near Of Drda Office, Jagdamba Colony, Tehsil And
District Karauli (Rajasthan)-322241
----Petitioner
Versus
1. The State Of Rajasthan, Through Its Principal Secretary,
Rural Development And Panchayati Raj Department,
Government Of Rajasthan, Government Secretariat,
Jaipur.
2. The State Mission Director, Rajasthan Gramin Aajeevika
Vikas Parishad, Udhyog Bhawan, C-Scheme, Jaipur,
Rajasthan.
3. The State Project Manager (Human Resource), Rajasthan
Gramin Aajeevika Vikas Parishad, Udhyog Bhawan, C-
Scheme, Jaipur, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Vigyan Shah, Adv.

For Respondent(s) : Mr. Pradeep Kalwania, Adv.
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment / Order
Reserved On 13/01/2021
Pronounce on 09/02/2021
1. Both the counsels agreed that the present writ petition may
be decided at this stage. Hence, the writ petition was finally heard
and the judgment was reserved.
2. Instant writ petition has been filed by the petitioner assailing
the order dated 06/10/2020, passed by the State Project Manager
(Human Resources), Rajasthan Gramin Aajeevika Vikas Parishad
(D.B. SAW/290/2021 has been filed in this matter. Please refer the same for further orders)
(Downloaded on 06/07/2024 at 06:48:36 PM)
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(respondent No.3) by which the services of the petitioner have
been dispensed with and he has been relieved from the post.
3. Brief facts which require to be considered for adjudication of
the present case are that the petitioner had applied for the post of
State Project Manager, Value Chain and Forward Linkage under the
advertisement issued by the T & M Services Consulting Pvt. Ltd. in
December, 2019 which mentioned for requiring Manpower on
contract basis for providing professional services in Central/State
Government Projects of the Rajasthan Gramin Aajeevika Vikas
Parishad (for short, 'RGAVP'). Apart from the aforesaid post, other
posts were also advertised.
4. The petitioner applied under the said advertisement and was
selected for the post of State Project Manager, Value Chain and
Forward Linkage after clearing the written examination and
interview.
5. The interviews were conducted by the Committee of RGAVP
and was offered appointment on 16/07/2020. The petitioner
resigned from the post of Chief Executive Officer which he was
holding in Jagroti Kisan Producer Co. Ltd. to join with the state
Government on a consolidated remuneration of Rs.70,000/- per
month. He was appointed for a period of one year which was to
end on 16/07/2021 with the stipulation of extension for five years.
After resignation from earlier employer i.e. Jagroti Kisan Producer
Co. Ltd., the petitioner joined on 17/07/2020 as State Project
Manager, Value Chain and Forward Linkage. Vide another order
dated 21/07/2020, the respondent RGAVP affirmed the fact of the
petitioner having joined the post. The petitioner was paid salary
for the first one and half month on 11/09/2020, however, vide
order dated 06/10/2020, he was served with the termination order
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which contained the conditions mentioned in Rules 3.5 & 3.6 of HR
Manual and invoking the same, his services were terminated with
immediate effect and was also relieved from the post.
6. The petitioner has challenged the said order in the present
writ petition, inter-alia, on the grounds that the same is illegal and
arbitrary and has been passed by an officer not having authority
to terminate services of the petitioner. It is further submitted that
his services could be terminated under the signature of the State
Mission Director (SMD) whereas the order has been passed by the
State Project Manager (Human Resources), RGAVP
7. Learned counsel for the petitioner further submitted that the
order impugned is stigmatic andhas been passed in exercise of
colourable power and is in violation of principles of natural justice.
It cannot be said to be an order simpliciter. Learned counsel
further submitted that the petitioner just left his earlier coveted
job and his performance cannot be said to be below level within
three months of his appointment and the action has been taken
arbitrarily and illegally mainly on account of extraneous reasons
and considerations. There was no letter served upon the petitioner
relating to any complaint of dissatisfaction or even no letter was
issued for asking the petitioner to improve his performance. As
per the HR Manual, the performance is to be assessed periodically
and the feedback was to be provided to the employee. Even in
cases where the performance is below level, the probation period
is extended by six months so that the person may improve.
However, the respondents proceeded to terminate services of the
petitioner within a period of three months of his joining. It is
submitted that the petitioner had taken up the issue relating to
accepting of commissions by certain officers i.e. his higher-ups but
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instead of taking appropriate action against the concerned
officials, services of the petitioner were dispensed with.
8. The respondents had entered as caveators and therefore,
copy of writ petition was served upon them and reply has been
filed. Thereafter, rejoinder and sur-joinder have also been filed.
9. Learned counsel for respondents submitted that the
petitioner was not an employee of the State Government but was
engaged as contractual employee on a time bound scheme for a
particular work under NRETP Project. He did not perform properly
and therefore his engagement on contract basis was terminated.
Initially, the respondents raised objection relating to
maintainability of the writ petition. However, the counsel for
respondents dropped the objection during course of arguments
stating that he does not press the issue relating to maintainability.
10. The respondents have stated that the allegation of the
officials taking commissions for their works as levelled by the
petitioner was false and that the reasons are coming out forthwith
from the letter dated 06/10/2020. The respondents have stated
that the Government of India had expressed dissatisfaction and
annoyance with the work of Value Chain and Forward Linkage and
the e-mail dated 01/10/2020was handed over to the petitioner.
11. It is stated that the petitioner was warned several times and
the objective of National Rural Economic Transformation Project
(NERTP) is to establish efficient and effective institutional
platforms in order to increase the household income through
sustainable livelihood enhancements, and improved access to
financial and selected public service. The Government of India and
World Bank funded the National Rural Economic Transformation
Project. This Project was launched in the year 2019-20 to promote
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Value Chain, Forwarding Linkage and enterprises development. It
is being implemented in 36 blocks of 9 Districts. Out of these 9
District 6 Districts were identified for the formation of Produce
Group- PGs and the remaining 3 Districts were identified for
Producer Company to be formed for Dairy Value Chain and
Agriculture Value Chain. In the initial phase the target of 6 Blocks
was taken to implement the project by Formation of Producer
Group of Livestock and Agriculture. Till the end of financial year
2019-20 the Target of Livestock Producer Group formation was
achieved along with Udhyum Sakhi Module Development, Training
of Udhyum Sakhi Livestock and Account opening of Livestock
Producer Groups etc. For Dairy Value Chain Development the
Memorandum of Understanding was done with the National Dairy
Service to implement the same in three Districts Kota, Baran and
Jhalawar.
12. In the year 2020-2021 this project was expanded in the
remaining 27 blocks identified in 9 Districts. In the years 2020-21
the target of Livestock Producer Group is 276, in Agriculture
Target of Producer Group is 276 along with 60 PGs of the year
2019-20.
13. The SPM Value Chain and Forward Linkage under NRETP
joined on 17th July, 2020. He has to take up both Forward Linkage
Livestock and Agriculture activities as per planning of the year
2020-21, initially being a new appointee and fresh here, he as
given only the charge of Forward Linkage - Agriculture. But since
17th July, 2020 to the end of September the progress of NRETP
Agriculture - Forward Linkage was not improved in NRETP, such
as-
Base Line survey;
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Module Development of Udhyam Sakhi Training ;
Udhyam Sakhi Training
Producer Group Formation;
Bank account opening of Producer Group
Working capital and one time grant to producer groups
Request for Proposal Finalization for taking technical support
agency on board for value Chain etc.
The coverage of 2020-21 till September 2020 has been as
under :
Activity Target Achievement
District identified 0 0
Blocks identified 24 24
Udhym Sakhi 336 0
Producer groups 336 0
Households 26,880 0
Account Opening 336 0
Fund Release 336 0
14. As NRETP is a time bound project and the Government of
India is rigorously monitoring to achieve the time bound progress
to ensure the achievement experienced professional were selected
to support the value chain and forward Linkages, Digital Financial
institutions etc.
15. Because of non-start-up of value chain related activities
Rajeevika is unable to promote PGs and provide support to SHG
members in th farm sector in the Kharif season as the Physical
progress of NRETP is Low, so the Respondents were not able to
take next installment of Fund from NRETP and the budget or RS.
93983200/- could not be spend along with TSA cost of
approximately RS. 60 lakhs as per the Annual Action Plan of 2020-
21 of NRETP. Approximately 26886 HHs could have been mobilized
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under 336 Producer Groups of PG to provide the benefit to them
such as-
Employment to SHG HHs- 336 Udhyam Sakhi
Fund of 552 lakhs to 275 PGs
Honorarium to Udhyam Sakhi agriculutrure'
Technical Support to HHs;
Value Chain and Forward Linkage of Agriculture Commodities
of 26880 HHs etc.
16. In October 2020 the progress of NRETP Agriculture has been
improved such as Agriculture Udhyam Sakhi Training Module
Development, Training of Udhyam Sakhi Agriculture, Formation of
Producer Group, Producer Group Books of record etc.
Agriculture Coverage in October 2020
Activity Target Achievement

District identified 0 0
Blocks identified 24 24
Udhym Sakhi 336 336
Producer groups 336 269
Households 26,880 17485
Account Opening 336 0
Fund Release 336 0
17. A negative remark was made about his performance by SPM
(M & E) and forwarded by the Project Director, RGAVP. on work
done report which was submitted to the State Mission Director,
RGAVP.
18. It is further stated by the respondents that on the basis of
SPM (M&E) remarks the State Mission Director, RGAVP expressed
dissatisfaction regarding the work of the Petitioner and queried
about Request For Proposal preparation, which has been
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mentioned in the work done without specified target. In this
regard a Committee was constituted by the State Mission Director,
RGAVP to review the work performance of the Petitioner. The said
Committee observed that the Petitioner doesn't have the capacity
to lead this vertical, which affects the overall progress of the core
activities of the NREPT.
19. It is further submitted by the respondents that as the
petitioner could not reach up to the mark, he was de-selected in
terms of Clause 3.5 of the HR Manual and there was no
requirement of notice. Similarly, Clause 3.6 of the HR Manual has
been relied upon to submit that the petitioner had been de-
selected as he was not upto the required level. It is stated that the
petitioner was not sent for induction as the field induction was on
hold due to Covid-19 and was attached with Agri Based Livelihood
for 15 days. The respondents have further stated that the
petitioner was not required to be given formal training as already
he was having experience of 10 years. Learned counsel has
further placed the note-sheet to submit that approval was taken
from the Managing Director, SMD, RGAVP and Additional Chief
Secretary, (RD & PR) and has placed on record note-sheet in
support of these averments.
20. Rejoinder has been filed and contention of the respondents
have been denied by the petitioner. Apart from reiterating the
stand taken, the petitioner has further stated that termination of
the petitioner is on false and baseless grounds. He had never been
served with notice regarding poor performance nor there was any
complaint from any stake holder. Even the report as placed on
record by the respondents does not show any negative remark by
his superior. No negative incident or any warning was ever issued
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to the petitioner and the order has been passed whimsically.
Moreover, learned counsel for the petitioner in his rejoinder has
pointed out that performance of the petitioner had improved which
is available from the table as placed by the respondents. As far as
the assessment of the Committee is concerned, learned counsel
has pointed out that the Committee which made recommendations
for unsatisfactory performance never gave an opportunity of
hearing to the petitioner. It has assessed the performance
wrongfully and due to inherent prejudice, as the Members of the
Committee were holding the same rank as that the petitioner, the
Committee constituted of persons who were of same rank but in
different fields, they could not have assessed work of the
petitioner to be unsatisfactory. When the petitioner joined services
on 17/07/2020, he had sent e-mail for allocation of budget on
13/08/2020 and came to know that at mass scale necessary
action was not taken by the earlier appointed staff and then took
several attempts for achieving the targets that were reasonably
achieved. It is submitted that three months' time cannot be
reasonable for assessing the work of a probationer. There was no
show cause issued to the petitioner at any point of time and the
action is unjustified. Learned counsel for petitioner further
submitted that the order impugned was passed on 06/10/2020
while approval for terminating services was sent to the SMD on
06/10/2020 and the SMD thereafter forwarded the matter to the
Additional Chief Secretary, (RD & PR) on 07/10/2020 who has
signed mentioning of an earlier date of 06/10/2020. Thus, learned
counsel for petitioner submitted that the order passed by the
respondents cannot be said to be having received prior approval
from the SMD nor it can be said to have been passed by the
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appointing authority namely; SMD. In the circumstances, learned
counsel for petitioner submitted that the Court must lift the veil
and quash the order impugned which is essentially stigmatic and
has been passed with oblique purposes and motive to terminate
services of the petitioner.
21. The respondents have file replica to the rejoinder and stated
that the petitioner was advised many times to improve his
performance but whenever he was given such advise, he made it
as a harassment and made representations to the Chief Minister
the copies of which have also been placed on record.
22. Heard learned counsel for the parties and perused the
material available on record.
23. The law in relation to probation has been well settled in
Parshotam Lal Dhingra Vs. Union of India: AIR 1958 (SC)
36 wherein five Judges Bench of the Apex Court held as under:-
"28. The position may, therefore, be summed up as

follows: Any and every termination of service is not a
dismissal, removal or reduction in rank. A termination
of service brought about by the exercise of a con'.
tractual right is not per se dismissal or removal, as
has been held by this Court in Satish Chander Anand
v. The Union of India (supra). Likewise the termination
of service by compulsory retirement in terms of a .
specific rule regulating the conditions of service is not
tantamount to the infliction of a punishment and does
not attract Art.; 311(2), as has also been held by this
Court in Shyam Lal v. The State of Uttar Pradesh
(I). ,In either of the two abovementioned cases the
termination of the service did not carry with it the
penal consequences of loss of pay, or allowances
under r. 52 of the Fundamental Rules. It is true that
the misconduct, negligence, inefficiency or other
disqualification may be the motive or the inducing
factor which influences the Government to take action
under the terms of the contract of employment or the
specific service rule, nevertheless, if a right exists,
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under the contract or the rules, to terminate the

service the motive, operating on the mind of the
Government is, as Chagla C.J. has said in Shrinivas
Ganesh v. Union of India (supra), wholly irrelevant. In
short, if the termination of service is founded on the
right flowing from contract or the service rules then,
prima facie, the termination is not a punishment and
carries with it no evil consequences and so Art. 3 1 1
is not attracted. But even if the Government has, by
contract or under the rules, the right to terminate the
employment without going through the procedure
prescribed for inflicting the punishment of dismissal or
removal or reduction in rank, the Government may,
nevertheless, choose to punish the servant and if the
termination of service is sought to be founded on
misconduct, negligence, inefficiency or other
disqualification, then it is a punishment and the
requirements of Art. 311 must be complied with. As
already stated if the servant has got a right to
continue in the post, then, unless the contract of
employment or the rules provide to the contrary, his
services cannot be terminated otherwise than for
misconduct, negligence, inefficiency or other good and
sufficient cause. A termination of the service of such a
servant on such grounds must be a punishment and,
therefore, a dismissal or removal within Art. 311, for it
operates as a forfeiture of his right and he is visited
with the evil consequences of loss of pay and
allowances. It puts an indelible stigma on the officer
affecting his future career. A reduction in rank likewise
may be by way of punishment or it may be an
innocuous thing.' If the Government servant has a
right to a particular rank, then the very reduction from
that rank will operate as a penalty, for he will then
lose the emoluments and privileges of that rank. If,
however, he has no right to the particular rank, his
reduction from an officiating higher rank to his sub-:
stantive lower rank will not ordinarily be a
punishment. But the mere fact that the servant has no
title to the post or the rank and the Government has,
by contract, express or implied, or under the rules, the
right to reduce him to a lower post does not mean that
an order of reduction of a servant to a lower post or
rank cannot in any circumstances be a Punishment.
The real test for determining whether the reduction in
such cases is or is not by way of punishment is to find
out if the order for the reduction also visits the servant
with any penal consequences. Thus if the order entails
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or provides for the forfeiture of his pay or allowances

or the loss of his seniority in his substantive rank or,
the stoppage or postponement of his future chances of
promotion, then that circumstance may indicate that
although in form the Government bad purported to
exercise its right to terminate the employment or to
reduce the servant to a lower rank under the terms of
the contract of employment or under the rules, in
truth and reality the Government has terminated the
employment as and by way of penalty. The use of the
expression " terminate " or " discharge " is not con,
elusive. In spite of the use of such innocuous
expressions, the court has to apply the two tests
mentioned above, namely, (1) whether the servant
had a right to the post or the rank or (2) whether he
has been visited with evil consequences of the kind
hereinbefore referred to ? If the case satisfies either of
the two tests then it must be held that the servant has
been punished and the termination of his service must
be taken as a dismissal or removal from service or the
reversion to his substantive rank must be regarded as
a reduction in rank and if the requirements of the rules
and Art.311, which give protection to Government
servant have not been complied with, the termination
of the service or the reduction in rank must be held to
be wrongful and in violation of the constitutional right
of the servant."
24. In Union of India & Ors. Vs. R.S. Dhaba: 1969(3) SCC
604, three Judges Bench of the Apex Court held as under:-
"...Further, even though misconduct, negligence,

inefficiency or other disqualification may be the
motive or the inducing actor which influences the
Government to take action under the express or
implied terms of the contract of employment or under
the statutory rule, nevertheless, if a right exists,
under the contract or the rules, to terminate the
service the motive operating on the mind of the
Government is whole irrelevant. The test for
attracting Article 311(2) of the Constitution in such a
case is whether the misconduct or negligence is a
mere motive for the order of reversion or termination
of service or whether it is the very foundation of the
order of termination of service of the temporary
employee.
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25. In Samsher Singh Vs. State of Punjab & Anr.: (1974) 2
SCC 831, seven Judges Bench of the Apex Court was examining
the issue relating to termination of service of a probationer where
there were allegations against the said probationer and it was
observed that if there are charges and enquiry has been initiated,
the same should reach to logical conclusion.
26. In Anoop Jaiswal Vs. Govt. of India (1984) 2 SCC 369,
the Apex Court held as under:-
12. It is, therefore, now well settled that where the

form of the order is merely a camouflage for an order
of dismissal for misconduct it is always open to the
Court before which the order is challenged to go
behind the form and ascertain the true character of
the order. If the Court holds that the order though in
the form is merely a determination of employment is
in reality a cloak for an order of punishment, the Court
would not be debarred, merely because of the form of
the order, in giving effect to the rights conferred by
law upon the employee.
13. In the instant case, the period of probation had
not yet been over. The impugned order of discharge
was passed in the middle of the probationary period.
An explanation was called for from the appellant
regarding the alleged act of indiscipline, namely,
arriving late at the Gymansium acting as one of the
ring leaders on the occasion and his explanation was
obtained. Similar explanations were called for from
other probationers and enquiries-were made behind
the back of the appellant, only the case of the
appellant was dealt with severely in the end. The
cases of other probationers who were also considered
to be ring leaders were not seriously taken note of.
Even though the order of discharge may be non-
committal, it cannot stand alone. Though the noting in
the' file of the Government may be irrelevant, the
cause for the order cannot be ignored. The
recommendation of the Director which is the basis or
foundation for the order should be read along with the
order for the purpose of determining its true
character. If. On reading the two together the Court
reaches the conclusion that the alleged act of
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misconduct was the cause of the order and that but

for that incident it would not have been passed then it
is inevitable that the order of discharge should fall to
the ground as the appellant has not been afforded a
reasonable opportunity to defend himself as provided
ill Article 311(2) of the Constitution."
27. In Dipti Prakash Banerjee Vs. Satyendra Nath Bose
National Centre for Basic Sciences: (1999) 3 SCC 60, the
Apex Court held as under:-

“19. As to in what circumstances an order of
termination of a probationer can be said to be
punitive or not depends upon whether certain
allegations which are the cause of the termination are
the motive or foundation. In this area, as pointed out
by Shah, J. (as he then was) in Madan Gopal v. State
of Punjab there is no difference between cases where
services of a temporary employee are terminated and
where a probationer is discharged. This very question
was gone into recently in Radhey Shyam Gupta v.
U.P. State Agro Industries Corpn. Ltd. and reference
was made to the development of the law from time to
time starting from Parshotam Lal Dhingra v. Union of
India to the concept of “purpose of enquiry”
introduced by Shah, J. (as he then was) in State of
Orissa v. Ram Narayan Das and to the seven-Judge
Bench decision in Samsher Singh v. State of Punjab
and to post-Samsher Singh case-law. This Court had
occasion to make a detailed examination of what is
the “motive” and what is the “foundation” on which
the innocuous order is based.
21. If findings were arrived at in an enquiry as to

misconduct, behind the back of the officer or without a
regular departmental enquiry, the simple order of
termination is to be treated as “founded” on the
allegations and will be bad. But if the enquiry was not
held, no findings were arrived at and the employer was
not inclined to conduct an enquiry but, at the same time,
he did not want to continue the employee against whom
there were complaints, it would only be a case of motive
and the order would not be bad. Similar is the position if
the employer did not want to enquire into the truth of the
allegations because of delay in regular departmental
proceedings or he was doubtful about securing adequate
evidence. In such a circumstance, the allegations would be
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a motive and not the foundation and the simple order of

termination would be valid.” (emphasis supplied)
28 In State Bank of India & Ors. Vs. Palak Modi & Anr.:
(2013) 3 SCC 607, the Apex Court held as under:-
"22. In Dipti Prakash Banerjee v. Satyendra Nath

Bose National Centre for Basic Sciences (1999) 3 SCC
60, the two Judge Bench considered the appellant’s
challenge to the termination of his service after
adverting to the various communications sent by the
Head of the Organization to the appellant and
formulated the following points:
“(1) In what circumstances, the termination of a

probationer's services can be said to be founded
on misconduct and in what circumstances could it
be said that the allegations were only the motive?
(2) When can an order of termination of a
probationer be said to contain an express stigma?
(3) Can the stigma be gathered by referring back
to proceedings referred to in the order of
termination?
(4) To what relief?”
While dealing with the first point, the Court referred to
various earlier judgments and observed:
“19. As to in what circumstances an order of
termination of a probationer can be said to be
punitive or not depends upon whether certain
allegations which are the cause of the
termination are the motive or foundation. In
this area, as pointed out by Shah, J. (as he
then was) in Madan Gopal v. State of Punjab
there is no difference between cases where
services of a temporary employee are
terminated and where a probationer is
discharged. This very question was gone into
recently in Radhey Shyam Gupta v. U.P.
State Agro Industries Corpn. Ltd. and
reference was made to the development of
the law from time to time starting
from Parshotam Lal Dhingra v. Union of
India to the concept of “purpose of enquiry”
introduced by Shah, J. (as he then was)
in State of Orissa v. Ram Narayan Das and to
the seven-Judge Bench decision in Samsher
Singh v. State of Punjab and to post-Samsher
Singh case-law. This Court had occasion to
(16 of 23) [CW-12446/2020]
make a detailed examination of what is the

“motive” and what is the “foundation” on
which the innocuous order is based.
21. If findings were arrived at in an enquiry as

to misconduct, behind the back of the officer or
without a regular departmental enquiry, the
simple order of termination is to be treated as
“founded” on the allegations and will be bad. But
if the enquiry was not held, no findings were
arrived at and the employer was not inclined to
conduct an enquiry but, at the same time, he did
not want to continue the employee against whom
there were complaints, it would only be a case of
motive and the order would not be bad. Similar is
the position if the employer did not want to
enquire into the truth of the allegations because
of delay in regular departmental proceedings or
he was doubtful about securing adequate
evidence. In such a circumstance, the allegations
would be a motive and not the foundation and
the simple order of termination would be valid.”
(emphasis supplied)
"23. In Chandra Prakash Shahi v. State of U.P.
(2000) 5 SCC 152, the Court considered the
correctness of the order passed by the High Court
which had allowed the writ petition filed by the State
and set aside the order passed by U. P. Public
Services Tribunal for reinstatement of the appellant.
The competent authority had terminated the
appellant’s service in terms of Rule 3 of the U. P.
Temporary Government Servants (Termination of
Service) Rules, 1975. It was argued on behalf of the
appellant that the order by which his service was
terminated, though innocuous, was, in fact, punitive
in nature because it was founded on the allegation
that he had fought with other colleagues and used
filthy and unparliamentary language. In the counter
affidavit filed on behalf of the respondents, it was
admitted that there was no adverse material against
the appellant except the incident in question. The
original record produced before the Tribunal revealed
that the appellant’s service was terminated on
account of his alleged involvement in the quarrel
between the constables. After noticing various
precedents, this Court observed:
“27. The whole case-law is thus based on the
peculiar facts of each individual case and it is
wrong to say that decisions have been
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swinging like a pendulum; right, the order is

valid; left, the order is punitive. It was urged
before this Court, more than once including in
Ram Chandra Trivedi case that there was a
conflict of decisions on the question of an
order being a simple termination order or a
punitive order, but every time the Court
rejected the contention and held that the
apparent conflict was on account of different
facts of different cases requiring the
principles already laid down by this Court in
various decisions to be applied to a different
situation. But the concept of “motive” and
“foundation” was always kept in view.
28. The important principles which are
deducible on the concept of “motive” and
“foundation”, concerning a probationer, are
that a probationer has no right to hold the
post and his services can be terminated at
any time during or at the end of the period of
probation on account of general unsuitability
for the post in question. If for the
determination of suitability of the probationer
for the post in question or for his further
retention in service or for confirmation, an
inquiry is held and it is on the basis of that
inquiry that a decision is taken to terminate
his service, the order will not be punitive in
nature. But, if there are allegations of
misconduct and an inquiry is held to find out
the truth of that misconduct and an order
terminating the service is passed on the basis
of that inquiry, the order would be punitive in
nature as the inquiry was held not for
assessing the general suitability of the
employee for the post in question, but to find
out the truth of allegations of misconduct
against that employee. In this situation, the
order would be founded on misconduct and it
will not be a mere matter of “motive”.
29. “Motive” is the moving power which
impels action for a definite result, or to put it
differently, “motive” is that which incites or
stimulates a person to do an act. An order
terminating the services of an employee is an
act done by the employer. What is that factor
which impelled the employer to take this
action? If it was the factor of general
(18 of 23) [CW-12446/2020]
unsuitability of the employee for the post held

by him, the action would be upheld in law. If,
however, there were allegations of serious
misconduct against the employee and a
preliminary inquiry is held behind his back to
ascertain the truth of those allegations and a
termination order is passed thereafter, the
order, having regard to other circumstances,
would be founded on the allegations of
misconduct which were found to be true in
the preliminary inquiry.
30. Applying these principles to the facts of
the present case, it will be noticed that the
appellant, who was recruited as a Constable
in the 34th Battalion, Pradeshik Armed
Constabulary, U.P., had successfully
completed his training and had also
completed two years of probationary period
without any blemish. Even after the
completion of the period of probation under
para 541 of the U.P. Police Regulations, he
continued in service in that capacity. The
incident in question, namely, the quarrel was
between two other Constables in which the
appellant, to begin with, was not involved.
When the quarrel was joined by few more
Constables on either side, then an inquiry
was held to find out the involvement of the
Constables in that quarrel in which filthy
language was also used. It was through this
inquiry that the appellant's involvement was
found established. The termination was
founded on the report of the preliminary
inquiry as the employer had not held the
preliminary inquiry to find out whether the
appellant was suitable for further retention in
service or for confirmation as he had already
completed the period of probation quite a few
years ago but was held to find out his
involvement. In this situation, particularly
when it is admitted by the respondent that
the performance of the appellant throughout
was unblemished, the order was definitely
punitive in character as it was founded on the
allegations of misconduct.” (emphasis
supplied)
24. In Union of India v. Mahaveer C. Singhvi (2010)
8 SCC 220, the three-Judge Bench considered the
(19 of 23) [CW-12446/2020]
question whether termination of the respondent’s

service who was serving as I.F.S. probationer by way
of discharge in accordance with the terms of
employment was punitive. The Court noted that the
respondent’s service was terminated because he had
sought extension to join the Mission at Madrid in
Spain because of sudden deterioration in the health
condition of his parents and also requested for
providing medical facilities and diplomatic passports
to them. The Court also noted that the Ministry of
External Affairs had taken cognizance of the
complaint made by one Mrs. Narinder Kaur Chadha
that the respondent had been threatening her entire
family and in particular her daughter which was
followed by some enquiries conducted into his
conduct or character by Joint Secretary, Foreign
Service Institute and a memorandum was issued to
the respondent alleging his unauthorized absence.
The Joint Secretary found that the complaint was
wholly unfounded. The Court then referred to the
principles laid down in earlier judgments and
approved the view taken by the High Court that even
though the order of discharge did not contain any
stigma, the same was not conclusive and the High
Court had rightly termed the same as punitive. Some
of the observations made in the judgment are
extracted below:
“47. The materials on record reveal that the
complaint made by Mrs Narinder Kaur Chadha
to the Minister of External Affairs had been
referred to the Joint Secretary and the
Director (Vigilance) on 8-2- 2002 with a
direction that the matter be looked into at the
earliest. Although, nothing adverse was found
against the respondent, on 19-2- 2002, the
Joint Secretary (Vigilance) held further
discussions with the Joint Secretary (Admn.)
in this regard. What is, however, most
damning is that a decision was ultimately
taken by the Director, Vigilance Division, on
23-4-2002, to terminate the services of the
respondent, stating that the proposal had the
approval of the Minister of External Affairs.
This case, in our view, is not covered by the
decision of this Court in Dipti Prakash
Banerjee case.”
25. The ratio of the above noted judgments is that a
probationer has no right to hold the post and his
(20 of 23) [CW-12446/2020]
service can be terminated at any time during or at the

end of the period of probation on account of general
unsuitability for the post held by him. If the
competent authority holds an inquiry for judging the
suitability of the probationer or for his further
continuance in service or for confirmation and such
inquiry is the basis for taking decision to terminate his
service, then the action of the competent authority
cannot be castigated as punitive. However, if the
allegation of misconduct constitutes the foundation of
the action taken, the ultimate decision taken by the
competent authority can be nullified on the ground of
violation of the rules of natural justice."
29. A look at the impugned order dated 06/10/2020 shows that
the respondents have mentioned in their order as under:-
"DAY-NRLM (NMMU) xzkeh.k fodkl ea=ky;] Hkkjr

ljdkj }kjk NRETP ifj;kstuk esa Value Chain &
Forward Linkage ds dk;ksZa ij vlarks"k o ukjktxh
tkfgj dh x;hA blds vfrfjDr budh dk;Z n{krk
gsrq xfBr desVh ds fu"d"kZ vuqlj Hkh Jh dq'kokgk dks
buds in ds dk;Z gsrq ;ksX; ugha ik;k x;kA bl
lEcU/k esa foHkkxk/;{k }kjk Hkh Jh dq'kokgk dks dk;Z esa
lq/kkj ,oa xq.koÙkk ds fy, le; le; ij ekSf[kd
psrkouh nh tkrh jgh gSA blds mijkUr Hkh buds }kjk
dk;Z ds izfr mnklhu jgs] o budk dk;Z vlarks"ktud
jgkA
HR Manual ds fu;e 3-5 ,oa 3-6 ds vuqlkj dk;Z
xzg.k ds izkjfEHkd 6 ekg dh vof/k dh x.kuk ifjoh{kk
vof/k jgsxhA ifjoh{kk vof/k esa dkfeZd dh lsokvksa dh
xq.koÙkk ,oa n{krk ds vk/kkj ij fcuk uksfVl ,oa dkj.k
crk;s lsok lekfIr dk vf/kdkj LVsV fe'ku Mk;jsDVj
dk gksxkA**
30. Thus, it is apparent that the reason for terminating services
is the allegation as mentioned herein above and that a Committee
was constituted which gave its recommendations that the
petitioner is not fit for the post. Thus, the order is stigmatic in
(21 of 23) [CW-12446/2020]
nature and casts remarks on the performance of the petitioner
which has been made as a foundation to terminate his services
during probation.
31. A look at the report of the Committee, which has
recommended that the petitioner is not fit for the post, shows that
the Committee was constituted of the officers who are of the same
rank. While the petitioner was employed to work as a State
Project Manager, Value Chain & Forward Linkage, the Committee
constituted to review his performance was consisting of State
Project Manager (Live Stock), State Project Manager (M&E) and
State Project Manager (HR) which could not have reviewed the
progress of a State Project Manager of a different aspect namely;
Value Chain and Forward Linkage. The selection of the petitioner
on the post of State Project Manager, Value Chain and Forward
Linkage was by a Committee formed for the purpose and he has
cleared the written examination as well as interview. In the
circumstances, the Committee could not have given an opinion as
mentioned in Annexure-R/3 to the effect that 'SPM (VC&FL)
Position at State level requires intensive knowledge on Value
Chain Development, while reviewing the progress, it is observed
that Sh. Lokesh Kushwah not having capacity to lead his vertical
and affects overall progress of Core activities of NRETP.'
32. The respondents have placed on record the minutes of
meeting to review the implementation of the Value Chain
Development Project sanctioned under the NRETP held on
24/07/2020 and from the perusal of the report, this Court does
not find any averse comments made as against the petitioner.
Further, this Court finds that there were several action points and
key observations noticed which included review of Value Chain
(22 of 23) [CW-12446/2020]
Project by the State Mission Director with the concerned team.
However, there is no such allegation as against the petitioner of
non-performance. A note-sheet has also been placed on record
wherein the concerned State Project Manager (HR) has given his
opinion not to continue services of the petitioner due to
unsatisfactory performance reported by the Committee of which
he himself was a member. However, it is noticed that on
06/10/2020, the impugned order was passed while file was put up
for approval before the Managing Director on 07/10/2020. Thus,
the order, which mentions Para 3.6 i.e. De-Selection, Termination,
Separation and Exit pointing out that the decision of SMD will be
final on termination of contract of staff is contradictory since the
approval as per the original order-sheet, which has been called
upon by the Court, upon lifting the veil, shows that the SDM has
signed on the note-sheet on 07/10/2020 and the SMD has
forwarded the same to the Additional Chief Secretary for approval
on 07/10/2020 but the signatures of Additional Chief Secretary
are of 06/10/2020. There is another date of 07/10/2020 written
on Para No.98 of the note-sheet.
33. This Court further notices from the order-sheets place before
it that no notice for improvement was ever given to the petitioner
and on a noting given by the State Managing Director of SPM of
not doing work assigned to the petitioner, the process has been
started to take action according to para 3.5 of the HR Manual.
Thus, even before the Committee was formed to review
performance of the petitioner, the State Project Director (HR) had
taken a decision to take action according to Point No.3.5 as is
apparent from Para 82N of the note-sheets.
(23 of 23) [CW-12446/2020]
34. Thus, this Court is satisfied that the entire action of
conducting review of performance of work of the petitioner was an
afterthought. A decision had already been taken at the level of the
State Project Manager and the SMD on 09/09/2020 as per
Paras/Notes 82 to 84 of the note-sheets to take action under
clause/point No.3.5 of the HR Manual to terminate services of the
probationer. Such an approach is held to be unjustified and
contrary to the precedential law as noticed above. The action has
been taken without giving opportunity of hearing to the petitioner
and being stigmatic, the principles of natural justice have not been
followed.
35. In view of the discussions made above, the instant writ
petition is allowed. The order impugned dated 06/10/2020
terminating services of the petitioner is hereby quashed & set
aside and the respondents are directed to reinstate the petitioner
in service with all consequential benefits. The compliance of this
order be made within three months henceforth.
(SANJEEV PRAKASH SHARMA),J
Raghu
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HIGH COURT OF JUDICATURE FOR RAJASTHAN

S.B. Civil Writ Petition No. 12446/2020

Lokesh Kumar Kushwah S/o Niranjan Lal Mali, Aged About 33

For Petitioner(s) : Mr. Vigyan Shah, Adv.

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

and the judgment was reserved.

2. Instant writ petition has been filed by the petitioner assailing

the order dated 06/10/2020, passed by the State Project Manager

(Human Resources), Rajasthan Gramin Aajeevika Vikas Parishad

(respondent No.3) by which the services of the petitioner have

3. Brief facts which require to be considered for adjudication of

advertisement issued by the T & M Services Consulting Pvt. Ltd. in

December, 2019 which mentioned for requiring Manpower on

contract basis for providing professional services in Central/State

Government Projects of the Rajasthan Gramin Aajeevika Vikas

posts were also advertised.

4. The petitioner applied under the said advertisement and was

Forward Linkage after clearing the written examination and

5. The interviews were conducted by the Committee of RGAVP

and was offered appointment on 16/07/2020. The petitioner

resigned from the post of Chief Executive Officer which he was

Government on a consolidated remuneration of Rs.70,000/- per

month. He was appointed for a period of one year which was to

end on 16/07/2021 with the stipulation of extension for five years.

After resignation from earlier employer i.e. Jagroti Kisan Producer

Co. Ltd., the petitioner joined on 17/07/2020 as State Project

Manager, Value Chain and Forward Linkage. Vide another order

dated 21/07/2020, the respondent RGAVP affirmed the fact of the

order dated 06/10/2020, he was served with the termination order

which contained the conditions mentioned in Rules 3.5 & 3.6 of HR

immediate effect and was also relieved from the post.

6. The petitioner has challenged the said order in the present

arbitrary and has been passed by an officer not having authority

to terminate services of the petitioner. It is further submitted that

his services could be terminated under the signature of the State

State Project Manager (Human Resources), RGAVP

7. Learned counsel for the petitioner further submitted that the

order impugned is stigmatic andhas been passed in exercise of

colourable power and is in violation of principles of natural justice.

It cannot be said to be an order simpliciter. Learned counsel

job and his performance cannot be said to be below level within

arbitrarily and illegally mainly on account of extraneous reasons

and considerations. There was no letter served upon the petitioner

relating to any complaint of dissatisfaction or even no letter was

issued for asking the petitioner to improve his performance. As

per the HR Manual, the performance is to be assessed periodically

and the feedback was to be provided to the employee. Even in

cases where the performance is below level, the probation period

is extended by six months so that the person may improve.

However, the respondents proceeded to terminate services of the

petitioner within a period of three months of his joining. It is

submitted that the petitioner had taken up the issue relating to

accepting of commissions by certain officers i.e. his higher-ups but

instead of taking appropriate action against the concerned

officials, services of the petitioner were dispensed with.

8. The respondents had entered as caveators and therefore,

filed. Thereafter, rejoinder and sur-joinder have also been filed.

9. Learned counsel for respondents submitted that the

petitioner was not an employee of the State Government but was

engaged as contractual employee on a time bound scheme for a

particular work under NRETP Project. He did not perform properly

and therefore his engagement on contract basis was terminated.

Initially, the respondents raised objection relating to

maintainability of the writ petition. However, the counsel for