TMI Blog2010 (7) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... tification/letter of appointment, he was appointed on probation for two years. According to the appellant, he had completed the probation period successfully and there was no specific communication issued to him by the authority extending his probation period. Thus, the appellant would be deemed to be a confirmed judge as per the rules. A Sub-Committee of the Hon'ble Judges constituted by the High Court had recommended to the Full Court in its meetings held on 11th February, 1999 and 15th October, 1999 for discharge of the appellant from service. It appears that in October 1999, the Registrar General of the High Court addressed a communication to the Chief Secretary of the State seeking the discharge of the appellant in terms of Rule 6(1) Karnataka Civil Service (Probation) Rules, 1977 on the ground that appellant was not 'suitable for the post'. Pursuant to this recommendation, the Government issued a notification on 24th March, 2000 discharging the appellant from service. According to the appellant, the notification dated 24th March, 2000 was arbitrary, contrary to rules and was unsustainable in law. The appellant had put in 3 years 10 months and 10 days in service as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 7 of the KCSRs is not sustainable. It is seen that the petitioner has not been removed on misconduct pending probation. So the argument that Rule 7 of the KCSRs has not been considered by this Court and the decisions referred to above are not applicable, it not acceptable in the facts of the given case as Rule 7 deals with termination for misconduct during or at the end of probation period, whereas as stated in the present case on hand, the probationer has been discharged from his services as he is found unsuitable to hold the post and there is no violation of the provisions of the 1957 Rules. 2. Aggrieved from the judgment of the High Court, the appellant has preferred the present appeal to this Court under Article 136 of the Constitution of India. The challenge to the judgment of the High Court as well as notification, dated 24th of March 2000, is on the ground that the appellant could not have remained probationer beyond the period of probation. He had held the office for a period of more than 3 years. After this period, the appellant will be deemed to have been confirmed and thus his discharge from service is contrary to the rules. A confirmed employee cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances supported by cogent material on record that this order is stigmatic and is intended to over reach the process of law provided under the rules, there is no occasion for this Court to interfere on facts. As far as law is concerned, the question raised is with regard to the applicability of the concept of 'deemed confirmation', to the present case under the service jurisprudence. 4. We may also notice that conduct of the appellant, who is a Judicial Officer, belonging to the Higher Judicial Services of the State is matter of some concern. Contradictory statements have been made in the Writ Petition before the High Court, memorandum of appeal before this Court and even in the rejoinder and further affidavit filed before this Court. Strangely, the High Court has neither contested this case nor pursued it in its correct perspective. As it appears, even appearance on behalf of the High Court was not entered upon. Despite specific orders of this Court the High Court had failed to produce the records and even no responsible officer was present. This attitude of the respondents in this Court compelled the Bench to pass an order dated 20th May, 2010 which reads as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... local activities were being watched. The appellant has filed the writ petition praying for quashing and deletion of his name from the said list. This fact does not find mention either in the reply filed by the appellant before the High Court. Learned Counsel for the appellant submitted that this event was subsequent to the filing of the writ petition. Whatever be the merit or otherwise of that Writ Petition, we fail to understand why this fact was not taken note of and brought to the notice of the High Court when the police gave a verification report about the appellant which was monitored prior to the appointment of the Higher Judicial Services of the State. We find that we are unable to appreciate the conduct of the appellant as well as that of the High Court in the present proceedings and in our view certain directions need to be issued in this regard. Before we issue any such orders or consider the conduct of either of them in accordance with law, we consider it appropriate to require the appellant to file an affidavit explaining the above-mentioned events. The High Court is also at liberty to file affidavit, if any, but the Registrar General of the High Court shall be present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without basis or arbitrary. The ancillary but an important issue that flows from these facts is as to how and what the Police Verification Report was submitted to the Government/High Court before the appellant was permitted to join his duties as an Additional District Judge? Normally, the person, with such antecedents, will hardly be permitted to join service of the Government and, particularly, the post of a Judge. The High Court on the administrative side also appears to have dealt with the matter in a very casual manner. The averments made in the Writ Petition 16244 of 2000, if it were true, it was a matter of serious concern for the High Court as he was being appointed as an Additional District and Sessions Judge and would have remained as such for a number of years. It was expected of the Government as well as the High Court to have the character verification report before the appointment letter was issued. The cumulative effect of the conduct of the appellant in making incorrect averments in the Court proceedings as well as the fact that his name was in the 'Rowdie list' of the concerned Police Station are specific grounds for the Courts not to exercise its discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;A' for the period from 1.1.1988 onwards. 7. Even thereafter, the records were submitted to the concerned Judge of the High court and no Confidential Reports were recorded. All this demonstrates not a very healthy state of affairs in relation to the recording of Confidential Reports of the officers in the Judicial Services of the State of Karnataka. The Confidential Report of an officer is a proper document, which is expected to be prepared in accordance with the Rules and practice of the Court, to form the basis while considering the officer for promotion to higher post and all other service related matters, in future. Non-writing of the Confidential Reports is bound to have unfair results. It affect the morale of the members of the service. The timely written Confidential Reports would help in putting an officer at notice, if he is expected to improve in discharging of his duties and in the present days where 25% (now 10%) of the vacancies in Higher Judicial Service cadre are expected to be filled, from out of turn promotions after holding of written examination and interview. Highly competitive standard of service discipline and values are expected to be maintained by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant Rules in force. It will be cumulative effect of these two basics that would determine application of the principle of law to the facts of that case. Thus, it will be necessary for us to refer to this legal contention in some elucidation. According to the appellant the language of Rule 3 of 1977 Rules provides that the probation period can not be extended beyond 3 years and upon expiry of such period the appellant would be deemed to have been confirmed. To substantiate this contention, the appellant relied upon Rules 3 and 4 of 1977 Rules and Entry 2 of schedule under Rule 2 of 1983 Rules which provide that there shall be two year probation during which period, the officer was to undergo such training, as may be specified by the High Court of Karnataka. Therefore, the submission is that once the maximum period of probation provided under these Rules has expired the officer will stand automatically confirmed and thus is incapable of being discharged under Rule 5(B) of the 1977 Rules. We shall now proceed to discuss the judgments which have been relied upon by the appellant in support of his contentions. On merits these judgments are hardly applicable to the facts of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which he discharged the duties of the post to which he was appointed or of a post the duties of which are in the opinion of the Government, similar (and) equivalent to those of such post. 5. Declaration of satisfactory completion of probation etc.: (1) At the end of the prescribed or as the case may be the reduced or extended period of probation the appointing authority shall consider the suitability of the probationer to hold the post to which he was appointed, and- (a) if it decides that the probationer is suitable to hold the post to which he was appointed and has passed the special examinations or test, if any, required to be passed during the period of probation it shall, as soon as possible, issue an order declaring the probationer to have satisfactorily completed his probation and such an order shall have effect from the date of expiry of the prescribed, reduced or extended period of probation; (b) if the appointing authority decides that the probationer is not suitable to hold the post to which he was appointed or has not passed the special examinations or special tests. If any, required to be passed during the period of probation, it shall, unless the period of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period where the Authorities have not passed any order for extending or declining to extend the period of probation provided the circumstances stated therein are satisfied. 12. The purpose of any probation is to ensure that before the employee attains the status of confirmed regular employee, he should satisfactorily perform his duties and functions to enable the Authorities to pass appropriate orders. In other words, the scheme of probation is to judge the ability, suitability and performance of an officer under probation. Once these ingredients are satisfied the Competent Authority may confirm the employee under Rule 5 of the 1977 Rules. Rule 5(2) places an obligation upon the Authority that at the end of the prescribed period of probation, the Authority shall consider the suitability of the probationer to the post to which he is appointed and take a conscious decision whether he is suitable to hold the post and issue an order declaring that the probationer has satisfactorily competed his probation period or pass an order extending the period of probation etc. Rule 5(b) empowers the Authority that in the event it is of the view that the period of probation has not been satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the primary Rules dealing with probation. These Rules have admittedly been adopted by the High Court. Under the 1983 Rules, the emphasis is on performance and training during the period of probation. In other words, the primary purpose of these Rules is only to ensure that the concerned officer undergoes training during the period of probation. While the significance under the 1983 Rules is on training, under 1977 Rules, all matters relating to probation are specifically dealt with. It would not be permissible to read the relevant part of 1983 Rules to say that it mandates that probation period shall be only for two years and not more. If that was to be accepted, all provisions under Rules 3 to 6 of 1977 Rules will become redundant and ineffective. In fact, it would frustrate the very purpose of framing the 1977 Rules. What will be the period of probation, the circumstances under which it can be extended or reduces and discharge of the Probationer Officer in the event of unsuitability etc. are only dealt with under the 1977 Rules. The 1983 Rules would have to be read harmoniously with 1977 Rules to achieve the real purpose of proper and timely training of Judicial Officers on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... implication. But under the proviso to Rule 6(3), the probationary period could not extend beyond October 1, 1960. In view of the proviso to Rule 6(3), it is not possible to presume that the competent authority extended the probationary period after October 1, 1960, or that thereafter the respondents continued to hold their posts as probationers. 9. Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct during the period of probation was in the opinion of the authority unsatisfactory. Instead of dispensing with their services on completion of the extended period of probation, the authority continued them in their posts until sometime in 1963, and allowed them to draw annual increments of salary including the increment which fell due on October 1, 1962. The rules did not require them to pass any test or to fulfil any other condition before confirmation. There was no compelling reason for dispensing with their services and re-employing them as temporary employees on October 1, 1960, and the High Court rightly refused to draw the inference that they w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case (supra) discussing the case of appellant, who had completed his initial period of two years' probation on 11th November, 1967 and the maximum period of three years' probation on 11th November, 1968 and by reason of the fact that he continued in service after the expiry of the maximum period of probation he became confirmed, was the contention raised before the Bench. In that case the relevant Rule 7(1) provided that every subordinate Judge, in the first instance, be appointed on probation for two years but this period may be extended from time to time expressly or impliedly so that the total period of probation does not exceed three years. Explanation to Rule 5(1) further provided that period of probation shall be deemed to have been extended if a Subordinate Judge is not confirmed on the expiry of his period of probation. The appellant had also placed reliance on Dharam Singh' case (supra) to contend that the only view possible was that he would be deemed to have been confirmed. However, on the facts of the case before the Bench the Court held as under: Any confirmation by implication is negatived in the present case because before the completion of three years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich came into existence on November 19, 1970. That proviso of course does not apply to the facts of the present case. That proviso states that if the report of the High Court regarding the unsatisfactory work or conduct of the probationer is made to the Governor before the expiry of the maximum period of probation, further proceedings in the matter may be taken and orders passed by the Governor of Punjab dispensing with his services or reverting him to his substantive post even after the expiry of the maximum period of probation. The second proviso makes explicit which is implicit in Rule 7(1) and Rule 7(3) that the period of probation gets extended till the proceedings commenced by the notice come to an end either by confirmation or discharge of the probationer. In the present case, no confirmation by implication can arise by reason of the notice to show cause given on October 4, 1968 the enquiry by the Director of Vigilance to enquire into allegations and the operation of Rule 7 of the Service Rules that the probation shall be extended impliedly if a Subordinate Judge is not confirmed before the expiry of the period of probation. Inasmuch as Ishwar Chand Agarwal was not confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quiry. A Constitution Bench of this Court referred Sukhbans Singh v. State of Punjab AIR 1962 SC 1711; G.S. Ramaswamy v. Inspector General of Police AIR 1966 SC 175 and State of U.P. v. Akbar Ali Khan AIR 1966 SC 1842 cases and distinguished the same as cases where the rules did not provide for a maximum period of probation but that if the rule, as in the case before them provided for a maximum, then that was an implication that the officer was not in the position of a probationer after the expiry of the maximum period. The presumption of his continuing as a probationer was negatived by the fixation of a maximum time-limit for the extension of probation. The termination after expiry of four years, that is after the maximum period for which probation could be extended, was held to be invalid. This view has been consistently followed in Om Parkash Maurya v. U.P. Coop. Sugar Factories' Federation (1986) Supp. SCC 95; M.K. Agarwal v. Gurgaon Gramin Bank (1987) Supp SCC 643 and State of Gujarat v. Akhilesh C. Bhargav (1987) 4 SCC 482 which are all cases in which a maximum period for extension of probation was prescribed and termination after expiry of the said period was held to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. (2) The appointing authority may, for sufficient reasons, extend the period of probation by a further period not exceeding one year. Note.--A probationer whose period of probation is not extended under this sub-rule, but who has neither been confirmed nor discharged from service at the end of the period of probation shall be deemed to have been continued in service, subject to the condition of his service being terminable on the expiry of a notice of one calendar month given in writing by either side. It was held by this Court as follows: (SCC p. 328, para 4) 4. ... Under the Note to Sub-rule (2) if the probationer is neither confirmed nor discharged from service at the end of the period of probation, he shall be deemed to have been continued in service as probationer subject to the condition of his service being terminated on the expiry of a notice of one calendar month given in writing by either side. The consequence of the Note was explained further as follows: (pp. 328-29) As per Sub-rule (6), on passing the prescribed departmental examination and on successful completion of the period of probation, the probationer shall be confirmed in the service or post to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices were not liable to be terminated simplicitor. Regulation 11(8), which was pressed into service by the Corporation, provided that a person should not be considered to have satisfactorily completed the period of probation unless specific order to that effect is made and the delay in issuance of certificate would not entitle the person to be deemed to have satisfactorily completed the period of probation. This Court, while noticing that Rule 11(8) was applicable to promotees alone because of the expression of 'officiating' having been used, the appellants, before the Court were direct recruits, therefore, covered under Regulation 11(1) which provides that the probation period shall be for two years extendable by one year and that the period of probation shall not be further extended. In this view of the matter and while referring to the case of Dharam Singh (supra) and Wasim Beg v. State of U.P. (1998) 3 SCC 321 the Court further noticed that the two view theory expressed in the case of Dayaram (supra) was further extended in the case of Wasim Beg (supra) and after discussing the entire gamut of law such cases were classified into three categories. After detailed discu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a probationer in such class of cases is not to be considered confirmed, till an order of confirmation is actually made. The further question for consideration in such category of cases where the maximum period of probation has been fixed would be, as to whether there are anything else in the rules which had the effect of whittling down the right to deemed confirmation on account of the prescription of a maximum period of probation beyond which there is an embargo upon further extension being made, and such stipulation was found wanting in Dayaram Dayal case. xxx xxx xxx 14. As indicated by us, the Regulation deals with two different categories of cases -- one about the probation of an appointee other than by way of promotion and the other relating to officiation of a person appointed on promotion. The similarity of purpose and identity of object apart, of such provision, there is an obvious difference and positive distinction disclosed in the manner they have to be actually dealt with. The deliberate use of two different phraseology probation and officiation cannot be so lightly ignored obliterating the substantial variation in the method of handling such categories ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch confirmation and his passing of the departmental examination by the higher standards. Thus declined to accept the principle of automatic or deemed confirmation the Court held as under: 11. The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed. It necessarily stipulates that the question of confirmation can be considered at the end of the period of probation, and on such consideration if the probationer is found suitable by the appointing authority and he is found to have passed the prescribed departmental examination then the appointing authority may issue an order of confirmation. It is too well settled that an order of confirmation is a positive act on the part of the employer which the employer is required to pass in accordance with the Rules governing the question of confirmation subject to a finding that the probationer is in fact fit for confirmation. This being the position under Sub-rule (1) of Rule 24, it is difficult for us to accept the proposition, broadly laid down in the case of Dayaram Dayal and to hold that since a maximum period of probation has been provided thereunder, at the end of that period the probationer must be held to be deemed to be confirmed on the basis of the judgment of this Court in the case of Dharam Singh. 17. This view was followed by another two Judge Bench of this Court in a subsequent judgment relating to judicial officers in Registrar, High Court of Gujarat v. C.G. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts and circumstances in the case on hand are entirely different and the administrative side of the High Court and the Full Court were right in taking the decision to terminate the services of the respondent, rightly so, on the basis of the records placed before them. We are also satisfied, after perusing the confidential reports and other relevant vigilance files, etc. that the respondent is not entitled to continue as a judicial officer. The order of termination is termination simpliciter and not punitive in nature and, therefore, no opportunity needs to be given to the respondent herein. Since the overall performance of the respondent was found to be unsatisfactory by the High Court during the period of probation, it was decided by the High Court that the services of the respondent during the period of probation of the respondent be terminated because of his unsuitability for the post. In this view of the matter, order of termination simpliciter cannot be said to be violative of Articles 14, 16 and 311 of the Constitution. The law on the point is crystallised that the probationer remains a probationer unless he has been confirmed on the basis of the work evaluation. Under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld rise: one, that he would attain the status of an employee being eligible for confirmation and second, that actually he will attain the status of a confirmed employee. The Courts have repeatedly held that it may not be possible to prescribe a straight jacket formulae of universal implementation for all cases involving such questions. It will always depend upon the facts of a case and the relevant Rules applicable to that service. 19. Reverting back to the Rules of the present case it is clear that Rule 3, unlike other Rules which have been referred in different cases, contains negative command that the period of probation shall not be less than two years. This period could be extended by the competent authority for half of the period of probation by a specific order. But on satisfactory completion of the probation period, the authorities shall have to consider suitability of the probationer to hold the post to which he was appointed. If he is found to be suitable then as soon as possible order is to be issued in terms of Rule 5(1)(a). On the other hand, if he is found to be unsuitable or has not passed the requisite examination and unless an order of extension of probation pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of two years. On the contrary, a clear distinction is visible in these Rules as it is stated that probation period shall not be less than two years and can be extended by the authority by such period not exceeding half the period. The negative expression is for half the period and not the maximum period totally to be put together by adding to the initial period of probation and to extended period. Even if, for the sake of argument, we assume that this period is of three years, then in view of the language of Rules 5(1) and 5(2) there cannot be automatic confirmation, a definite act on the part of the authority is contemplated. The act is not a mere formality but a mandatory requirement which has to be completed by due application of mind. The suitability or unsuitability, as the case may be, has to be recorded by the authority after due application of mind and once it comes to such a decision the other requirement is that a specific order in that behalf has to be issued and unless such an order is issued it will be presumed that there shall not be satisfactorily completion of probation period. The Rules, being specific and admitting no ambiguity , must be construed on their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the same does not suffer from any factual or legal infirmity. 22. Before we part with this file, it is required of this Court to notice and declare that the concerned authorities have failed to act expeditiously and in accordance with the spirit of the relevant Rules. Rule 5(2) of 1977 Rules has used the expression 'as soon as possible' which clearly shows the intent of the rule framers explicitly implying urgency and in any case applicability of the concept of reasonable time which would help in minimizing the litigation arising from such similar cases. May be, strictly speaking, this may not be true in the case of the appellant but generally every step should be taken which would avoid bias or arbitrariness in administrative matters, no matter, which is the authority concerned including the High Court itself. Long back in the case of Shiv Kumar Sharma v. Haryana State Electricity Board (1988) Supp. SCC 669 this Court had the occasion to notice that due to delay in recording satisfactory completion of probation period where juniors were promoted, the action of the authority was arbitrary and it resulted in infliction of even double punishment. The Court held as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dards of proper administration. There is a constitutional obligation on the High Court to ensure that the members of the judicial services of the State are treated appropriately, with dignity and without undue delay. They are the face of the judiciary inasmuch as a common man, primarily, comes in contact with these members of the judicial hierarchy. It is a matter of concern, as we are of the considered view, that timely action on behalf of the High Court would have avoided this uncalled for litigation as it would have been a matter of great doubt whether the appellant could at all be inducted into the service in face of the admitted position that the name of the appellant was stated to be on the rowdy list at the relevant time. 24. Although for the reasons afore recorded we find no merit in this appeal and dismiss the same. While dismissing the appeal we feel constrained to issue the following directions: 1. The judgment of this Court shall be placed before the Hon'ble the Chief Justice of Karnataka High Court for appropriate action. We do express a pious hope that steps will be taken to ensure timely recording of the confidential reports of the judicial officers by appr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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