Dr. Rajesh Kr Nain v. State & Ors.

By way of instant petition, petitioner has assailed order dt.10/12/2009 (Ann.5) whereby his services having been found unsatisfactory during period of probation were terminated in exercise of R.29 of Rajasthan Medical & Health Service Rules, 1963 (“Rules, 1963”).

After regular selection through Rajasthan Public Service Commission (“PSC”) petitioner was appointed as Medical Officer vide order dt.16/05/2006 - in pursuance thereof, as alleged, he joined duties on 28/05/06 before Chief Medical & Health Officer, Jhunjhunu. However, since he was selected for post-graduate course in subject of Paediatrics at Government College, Kota where he was to report on or before 20/06/2006. It appears that he submitted application on 28th May, 2006 before CMHO who relieved him to report in the office of Director, Medical & Health Service for necessary orders but the fact as alleged is that as he submitted application dated Nil (Ann.3) in the Directorate of Medical & Health Service, Jaipur and directly joined post graduation course on 20/06/06 and only after its completion, reported for duty as Medical Officer on 22/06/2009 (Ann.4). Since his whereabouts were not known during period of probation, it was considered to be unsatisfactory service for reasons as apparent from the record (supra), competent authority in exercise of powers U/r 29 of Rules, 1963, terminated his services vide order dt.10 December, 2009 (Ann.5).

Counsel submits that before passing order impugned, opportunity of hearing was not afforded to him and terminating services of petitioner U/r 29 of Rules, 1963 was in violation of principles of natural justice.

Counsel further submits that in identical case of one Dr. Rameshwar Lal, who too was selected & appointed along with him as Medical Officer, after undergoing post graduation course, he was allowed to join the service as medical officer putting him on probation period from the date he reported for duty, as is evident from order dt.14/07/09 (Ann.7) but the petitioner was not permitted to join as Medical Officer rather his services have been terminated vide order impugned; as such action of respondents in case of petitioner is wholly discriminatory and violative of Art.14 of the Constitution of India.

Submission made by Counsel is without merit for the reason that in case of persons being appointed on probation, if employer finds his services unsatisfactory, no prior notice or opportunity is required to be afforded to the incumbent/probationer while exercising power by the authority as referred to U/r 29 of Rules, 1963. That apart, in instant case, as per his own saying, after petitioner joined service as Medical Officer on 28/05/2006 and thereafter without taking prior permission from competent authority, he joined post graduation course on 20/06/2006 and only after having completed PG course, he reported for duty as medical officer on 22/06/2009. Thus, in fact, during period of probation he had not worked even for a day as Medical Officer, that was considered to be unsatisfactory service and taking note whereof, if the authoritty has taken decision to terminate his services in exercise of powers U/r 29 of Rules, 1963, there cannot be said to be any infirmity in its decision impugned.

As regards plea of discrimination raised by Counsel, suffice it to say that there can always be a positive discrimination, which can be examined at the anvil of Art.14 of the Constitution. That apart, no facts are available on record which could be appreciated by this Court while examining as to in what circumstances, respondent-State took decision to grant permission in favour of Dr. Rameshwarlal and in giving appointment on probation as referred in the order dt.14/07/2009 (Ann.7). That apart, this Court would like to observe that if whereabouts of a probationer are not known to the authority during period of probation, and this fact remains undisputed that he had joined post graduation course on 20/06/2006 and only after its completion, reported for duty on 22/06/09 (Ann.4), certainly if the authority has considered to terminate services of probationer, there seems to be no infirmity therein, inasmuch as when it is not stigmatic and the decision has been taken holding his services unsatisfactory during period of probation, terminated his services U/r 29 of Rules, 1963, this Court finds no infirmity in such decision impugned, which may require any inference.

Consequently, writ petition fails and is hereby dismissed.