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TMI Blog2004 (11) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... rat Judicial Service Recruitment Rules, 1961 (hereinafter referred to as "the Rules") regarding the power of the Government to extend the period of probation. Hence both these appeals have been heard together and are being disposed of by a common judgment. Mr. C.G. Sharma, respondent in C.A.No.4019/2002 was appointed as Civil Judge (Junior Division) and Judicial Magistrate, First Class on probation for a period of two years vide Government Notification dated 7.6.1991. He joined his duties on 29.6.1991. By the order dated 22.9.1994, the respondent's services were terminated with immediate effect on account of unsuitability for the post held by him under the recommendations of the High Court. The said order was challenged in Special Civil Application No. 11218 of 1994 on various grounds, more particularly, on the ground that two years' period of probation having expired, the respondent must be deemed to have been confirmed on the post of Civil Judge (Junior Division) and, therefore, the respondent's services could not have been terminated without holding a departmental enquiry. The respondent also invoked the principles of natural justice by contending that oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the arguments advanced, came to the conclusion that there is no automatic confirmation on the expiry of the probation period of two years in the first instance and that on the expiry of the said period and on the fulfillment of the requirement of sub-clauses (a) and (b) a Government servant becomes eligible for being confirmed. Holding so, the petition filed by Mr. C.G. Sharma was dismissed. Being aggrieved, Mr. C.G. Sharma preferred Letters Patent Appeal assailing the judgment of the learned single Judge on three grounds: 1) The first ground was that with the expiry of the period of two years of probation in 1993 when the respondent was allowed to continue, he stood automatically confirmed and that there was no question of termination of his services without holding any enquiry. 2) The judgment of the learned single Judge suffers from the vice of the non-adjudication of the plea that the respondent had been subjected to pick and choose inasmuch as the other officers, who had no disposal as per the norms, were confirmed whereas Mr. C.G. Sharma had been terminated and this point was not considered by the learned single Judge. 3) That except the case of less disposal in civil c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed subject to the adjustment of the emoluments drawn by him as an employee of the High Court Staff. Aggrieved by the above judgment and final order, the Registrar of the High Court of Gujarat and the State of Gujarat preferred S.L.P.(C)No.22808/2001. Leave was granted on 12.7.2002. Hence, Civil Appeal No.4019/2002. This Court, after issuing notice, ordered to maintain the status quo. We heard Mr. L.Nageswara Rao, learned senior counsel, assisted by Mrs. H.Wahi, learned counsel, appearing for the Registrar of the High Court of Gujarat & for the State of Gujarat and Mr. Colin Gonsalves, learned senior counsel, assisted by Mr. Vikram and Mr. Rajesh Pandey, learned counsel appearing for Mr. C.G. Sharma. We have been taken though the entire pleadings and annexures filed by both sides and the judgments of the learned single Judge and of the Division Bench. It is to be noticed here that though various grounds have been raised in the writ petition, the learned counsel appearing for Mr. C.G. Sharma concentrated only on the legal contention on the interpretation of the relevant Rule and the consequential question about the status of Mr. C.G. Sharma as probationer or officer deemed to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itting in appeal over the decision of the High Court on the administrative side. The High Court was exercising power of judicial review when the conclusion reached by the High Court, on the administrative side, is based on evidence, the High Court on the judicial side is devoid of power to re-appreciate the evidence and came to a different conclusion. He would further submit that the Division Bench erred in picking up one of the aspects of the assessment in allowing of the L.P.A. The order of termination was passed by the High Court on administrative side after examining all aspects and his overall performance which was found not satisfactory. Concluding his arguments, Mr. L.N. Rao, submitted that the Division erred in law in applying the concept of equality as envisaged in articles of the Constitution in negative manner. When any authority shows to have committed illegality or irregularity in favour of any individual or group of individuals others cannot claim the same illegality or irregularity on ground of denial thereof. Mr. L.N. Rao further submitted that the impugned judgment of the High Court is ex facie wrong and, therefore, the said judgment is liable to be set aside. Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates to deemed confirmation is wrong and is, therefore, liable to be set aside. Mr. Colin Gonsalves cited the following decisions of this Court in support of his contentions: 1. Ishwar Chand Jain vs. High Court of Punjab & Haryana & Anr., (1988) 3 SCC 370 2. P.C. Joshi vs. State of U.P. & Ors., (2001) 6 SCC 491 3. M.S. Bindra vs. Union of India & Ors. . (1998) 7 SCC 310 4. Chandra Prakash Shahi vs. State of U.P. & Ors., (2000)5 SCC 152 5. Nepal Singh vs. State of U.P. & Ors., (1985) 1 SCC 56 6. State of Gujarat vs. Akhilesh C. Bhargav & Ors., (1987) 4 SCC 482 7. Om Parkash Maurya vs. U.P., Cooperative Sugar Factories Federation, Lucknow & Ors., 1986(Supp) SCC 95 8. State of Punjab vs. Dharam Singh, (1968) 3 SCR 1 9. Dayaram Dayal vs. State of M.P. & Anr., (1997) 7 SCC 443 Before considering the rival submissions, it is beneficial to reproduce sub-rule (4) of Rule 5 of the Rules: "(4) Unless otherwise expressly provided every person appointed under the preceding sub-rules shall be on probation for a period of two years and on the expiry of such period, he may be confirmed if :- (a) there is a vacancy; and (b) his work is found to be satisfactory." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two years, the confirmation order can be passed only if there is vacancy and the work is found to be satisfactory. The rule also does not say that the two years' period of probation, as mentioned in the rule, is the maximum period of probation and the probation cannot be extended beyond the period of two years. We are, therefore, of the opinion that there is no question of automatic or deemed confirmation, as contended by the learned counsel for the respondent. We, therefore, answer this issue in the negative and against the respondent. In this context, it is useful to reproduce paragraph 6 of the judgment of this Court in the case of State of Maharashtra vs. Veerappa R. Saboji & Anr. (Supra) on the question of deemed confirmation which reads as under: "There are two parts of clause (iv): (1) that it is imperative to put every person appointed under sub-rule (2) on probation for a minimum period of two years "unless otherwise expressly directed", and (2) on the expiry of the said period of two years the person appointed may be confirmed if there is a vacancy and if his work is found to be satisfactory. The plain meaning of the rule is that there is no automatic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the respondent that there is no finding on the fact either by the Vigilance or by any unit Judge that would cast any doubt regarding the integrity and nothing has been placed on record by the authority before any of the Courts to even remotedly suggest that the respondent had indulged to any practice that would cast doubts about his integrity. Since the learned single Judge and the learned Judges of the Division Bench have not adverted to this fact, we, in order to see the record by ourselves, and in order to shorten the litigation, summoned the original records and perused the same. We have closely perused the confidential register of the respondent and it contains series of adverse entries and it is abundantly clear that respondent was not having good reputation as judicial officer and his service was far from satisfactory. The District Judges concerned, in view of his unsatisfactory performance and questionable integrity, have also recommended for extension of probation from time and time and ultimately the District Judge was of the opinion that no further extension of probation was called for. We have also perused the original correspondence in connection with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended period of probation of Mr. C.G. Sharma is over on 28.6.1994 (A.O.H.), it will stand extended till Government issue orders terminating his probation." Thus, it is seen that the respondent is not industrious, less diligent, below average and inadequate disposals and that the conduct was suspicious and complete aloofness is lacking and no clarity of thought and expression, poor in civil work and fair in criminal work and average in diligence. In our opinion, such an officer should not be allowed to continue in service in public interest and in the interest of the judicial administration. In our opinion, the Division Bench was not justified in permitting the respondent herein to agitate the question of standard of assessment of satisfactory performance of the work done by him in comparison to his other colleagues when this point was not argued before the learned single Judge or even raised in the memorandum of the Letters Patent appeal. The learned single Judge has expressly indicated in his judgment that no other points were urged save and except about the interpretation of the relevant Rule. The Division Bench was, therefore, not right in law in permitting the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim of equality. It is also seen from the further affidavit filed on behalf of the Registrar of the High Court of Gujarat that on receiving instructions from the advocate-on-record, it was proposed to reconsider the matter on administrative side. The matter was placed before the Standing Committee for further consideration with the office note dated 25.2.2002. On further study of the relevant file of the respondent, the Standing Committee was of the opinion that the decision of the Full Court of the High Court, on administrative side, proposing to terminate the services of the respondent/probationer by the impugned order dated 22.9.1994 was taken in the interest of the judicial administration of the State and was bona fide. It is also seen from other records that the Standing Committee of the High court while proposing termination of the respondent, considered not only periodical confidential reports received from the District Judge, Mehsana but also considered his overall performance including the complaints raising doubts about his integrity. As already stated, the Standing Committee considered the respondent herein to be "not industrious", "less diligent", & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cantankerous litigations but they have to face them boldly without deviating from the right path and that they are not expected to be overawed by such litigants or fall to their evil designs. This ratio was laid down in several judgments of this Court. But the facts and circumstances in the case on hand is 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 simplicitor 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a post during the period of probation. In Samsher Singh case, it was observed that the period of probation is intended to assess the work of the probationer whether it is satisfactory and whether the appointee is suitable for the post; the competent authority may come to the conclusion that the probationer is unsuitable for the job and hence must be discharged on account of inadequacy for the job or for any temperamental or other similar grounds not involving moral turpitude. No punishment is involved in such a situation. Recently, in Dipti Parkash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences (supra) having reviewed the entire available case law on the issue, this Court has held that termination of a probationer's services, if motivated by certain allegations tantamounting to misconduct but not forming foundation of a simple order of termination cannot be termed punitive and hence, would be valid. In Satya Narayan Athya vs. High Court of M.P., 1996 (1) SCC 560, the petitioner appointed on probation as a Civil Judge and not confirmed was discharged from service in view of the non satisfactory nature of his service. This Court held that the High Court was j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may well be in some cases that in spite of satisfactory performance still the authority may desire to not to extend the Probation of an employee in public interest, as in the opinion of the said authority, the post has to be manned by more efficient and dynamic person. There is no denying of the fact that in all organizations there is great deal of dead-wood and, more so in Government and Judicial departments, which has to be replaced in public interest. Therefore, as pointed out by many Courts in India and of this Court it is purely a matter of subjective satisfaction of the High Court. In such case, the record so considered would naturally include the entries in the Confidential Reports/Character Rolls/Vigilance Reports, both favourable and adverse. There cannot be any justification for interference by this Court in such cases. We have decided the case on hand on the facts and circumstances of the case with reference to the relevant Rules, original records such as Confidential Reports, Vigilance Reports and other annexures filed along with the writ petitions. A number of judgments were cited by the counsel on either side. We are not inclined to refer to all those judgment and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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