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TMI Blog2010 (9) TMI 1203X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order of appointment issued by the State Government that the petitioner would remain on probation for a period of two years as provided under the Jammu Kashmir Higher Judicial Service Rules. Consequent upon the aforesaid temporary appointment, the petitioner was appointed as 3rd Additional District Sessions Judge, Srinagar by order dated 28.08.2000. Thereafter he was transferred and posted as Additional District and Sessions Judge, Jammu by issuing an order dated 05.06.2001. 3. At this stage, it is required to be mentioned that in terms of the Jammu Kashmir Higher Judicial Service Rules, the total period of probation for a Judicial Officer after his initial appointment could be for three years for when he is initially appointed, at the first instance his probation period is given as two years and thereafter the same could be extended by another one year. In this connection, reference could be made to Rule 15 of the Jammu Kashmir Higher Judicial Service Rules which provides as follows: - 15. Probation - (1) All persons shall on appointment to the service in the substantive vacancies be placed on probation. The period of probation shall, in each case, be two yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Vigilance] dated 24.12.2001 was placed before the Chief Justice of the Jammu Kashmir High Court who directed that the matter be referred to the Chairman, Disciplinary Committee for necessary action. The Registrar [Judicial] of the High Court was asked to file a criminal complaint against the petitioner before the SHO of the concerned police station. 6. Further, during the period when the petitioner was posted to District - Kargil as Principal District Sessions Judge, he did not join there, w.e.f., 24.12.2001 to 18.01.2002 and an explanation was sought from him in that regard. Even thereafter, a complaint from a judicial employee of District Kargil was received wherein it was alleged that the petitioner had been abusing the employees and had created lot of problems at the District Kargil. These matters are recorded in the personal records of the petitioner. After completion of the initial two years of his probationary period, his records and his case were required to be placed before Full Court for consideration of his case for confirmation or extension of period of probation or otherwise. Consequently his records were considered by the High Court in its full court meeti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by casting a stigma on the petitioner and therefore illegal and without jurisdiction as no opportunity of hearing was given to the petitioner prior to passing of the order of his termination. He also submitted that since he was granted increments by the respondent, it is proved that the Respondents were satisfied with his service and, therefore, the order terminating his service is without jurisdiction. 10.Counsel appearing for the respondent, the High Court of Jammu Kashmir, however, refuted the aforesaid submissions and placed before us the records of High Court connected with the service of petitioner and also the records leading to his termination from service. He submitted that the petitioner continued to be on probation even after two years as no order of his confirmation was issued or passed by the respondent and that his service was terminated within the three years period of his probation on the ground of unsatisfactory service. He denied that the impugned order is stigmatic or in any way punitive or that there was any violation of the principles of natural justice. He submitted that since the service of the petitioner was terminated on the ground of unsatisfactory se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of initial two years of probation period for a further period of two years. This Court in that case held at Paragraphs 3 5 that : - 3. ......................A reading thereof would clearly indicate that every candidate appointed to the cadre shall undergo training initially for a period of six months before he is appointed on probation for a period of two years. On his completion of two years of probation, it may be open to the High Court either to confirm or extend the probation. At the end of the probation period, if he is not confirmed on being found unfit, it may be extended for a further period not exceeding two years. It is seen that though there is no order of extension, it must be deemed that he was continued on probation for an extended period of two years. On completion of two years, he must not be deemed to be confirmed automatically. There is no order of confirmation. Until the order is passed, he must be deemed to continue on probation. 5. Under these circumstances, the High Court was justified in discharging the petitioner from service during the period of his probation. It is not necessary that there should be a charge and an enquiry on his conduct since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the resolution of the full court and the other one issued by the Government of Jammu Kashmir on the ground that they were stigmatic orders. 18. In our considered opinion, none of the aforesaid two orders could be said to be a stigmatic order as no stigma is attached. Of course, aforesaid letters were issued in view of the resolution of the full court meeting where the full court of the High Court held that the service of the petitioner is unsatisfactory. Whether or not the probation period could be or should be extended or his service should be confirmed is required to be considered by the full court of the High Court and while doing so necessarily the service records of the petitioner are required to be considered and if from the service records it is disclosed that the service of the petitioner is not satisfactory it is open for the respondents to record such satisfaction regarding his unsatisfactory service and even mentioning the same in the order would not amount to casting any aspersion on the petitioner nor it could be said that stating in the order that his service is unsatisfactory amounts to a stigmatic order. 19.This position is no longer res integra and it is we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gma, the order must be in a language which imputes something over and above mere unsuitability for the job. 20.In the case of Krishnadevaraya Education Trust v. L.A. Balakrishna reported in (2001) 9 SCC 319, the services of respondent-Assistant Professor were terminated on the ground that his on the job proficiency was not upto the mark. This Court held that merely a mention in the order by the employer that the services of the employee are not found to be satisfactory would not tantamount to the order being a stigmatic one. This Court held in para 5 thus: - 5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctory would not make the order stigmatic or punitive as sought to be submitted by the petitioner. On the basis of the aforesaid resolution, the matter was referred to the State Government for issuing necessary orders. 24.One of the issues that were raised by the petitioner was that he was granted two increments during the period of two and a half years of his service. Therefore the stand taken by the respondents that his service was unsatisfactory is belied according to the petitioner because of the aforesaid action even on the part of the respondents impliedly accepting the position that his service was satisfactory. 25.The aforesaid submission of the petitioner is devoid of any merit in view of the fact that since the petitioner was continuing in service, therefore, the case for granting increment was required to be considered which was so granted. The mere granting of yearly increments would not in any manner indicate that after completion of the probation period the full court of the High Court was not competent to scrutinize his records and on the basis thereof take a decision as to whether or not his service should be confirmed or dispensed with or whether his probation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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