DHARA K SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Petitioner has invoked Articles 14, 16 and 226 of the Constitution to challenge the order dated 07.07.2009 terminating her service as probationer Mamalatdar Class II. There is no dispute about the facts that petitioner was appointed on purely temporary basis and on probation by order dated 29.7.2005 with the clear stipulation that she would remain on probation as long as she is not confirmed in service by an order. During the course of her service under such order, the respondent proposed to terminate her service on account of certain reports and upon assessment of her confidential reports. When the matter was referred to the Gujarat Public Service Commission (GPSC) by letter dated 20.02.2009 for its opinion and approval, it was advised that the petitioner may be appointed under a different officer and after obtaining Annual Confidential Reports (ACRs) from such officer, the proposal to terminate the petitioner's service may be referred again. However, the Revenue Department again wrote confidential letter dated 28.5.2009 to the Secretary of GPSC explaining the circumstances under which the petitioner's service was required to be terminated. Besides relating the facts appearing against the petitioner, it was mentioned in the letter that legal actions for criminal offences were being taken against the petitioner, that from her ACRs for the period from 01.4.2007 to 31.8.2008, it was apparent that the petitioner was lacking in devotion to duty and she was found to be repeatedly indulging in improper activities. Since duties of the petitioner were connected with public affairs, it was not advisable to continue her in any post, according to the letter. After consideration of that letter, the GPSC agreed with the proposal to terminate service of the petitioner and ultimately the impugned order dated 07.07.2009 was issued.

(2.) The only reason expressed and depicted in the impugned order dated 07.07.2009 for terminating service of the petitioner was that her service was not satisfactory during the period of probation and that conclusion was stated to be clearly and only based upon the ACRs for the period from 01.4.2007 to 03.7.2007 and 04.7.2007 to 31.3.2008.

(3.) It was vehemently argued by learned counsel Mr.Kariel that the aforesaid order of termination was stigmatic and based upon a preliminary enquiry, behind the back of petitioner, at which it was found by the officer concerned that the petitioner was guilty of serious misconduct. Even as the impugned order does not make reference to any other document, order or proceeding, it was vehemently argued that the correspondence of the department with the GPSC would clearly reveal the basis of the impugned order and the alleged misconduct being the foundation of the impugned order, it could be made only after giving to the petitioner an opportunity of being heard. These arguments, however, have no factual basis insofar as the impugned order neither refers to any other document nor is it found to be stigmatic, and "unsatisfactory service" being the only ground substantiated by facts, which were also placed on record, the petitioner cannot claim the right of being heard, even before exercising the right reserved by the respondent in the order of appointment itself.