KHAZIA MOHAMMED MUZAMMIL 'A .. v. THE STATE OF KARNATAKA AND ANR.

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KARNATAKA AND ANR. [SWATANTER KUMAR, J.]

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 remai.ns a probationer unless he has been confirmed on the basis of the work evaluation. Under the relevant Rules · under,which the respondent was appointed as a Civil Judge, there is no provision for automatic or deemed confirmation and/or deemed appointment on regular c establishment or post, and in that view of the matter, the contentions of the respondent that the respondent's services were deemed to have been continued on the expiry of the probation period, are misconceived."

18Copy pinpoint18. On a clear analysis of the above enunciated law, particularly, the Seven Judge Bench ,judgment of this Court in the case of Samsher Singh (supra) and three Judge Bench judgments, which are i;ertainly the larger Benches and are binding on us, the Courts have taken the view with reference tothe facts and relevant Rules involved in those cases that the principle of 'automatic' or 'deemed confirmation' would not be attracted. The pith and substance of the stated principles of law is that it will be the facts and the Rules, which will have to be examined by the Courts as a condition precedent to the application of the dictum stated in any of the line of the cases afore noticed. There can be cases where the Rules require a definite act on the part of the employer before officer on probation can be confirmed. In other words, there may a Rule or Regulation requiring the competent authority to examine the suitability of the probationer and then upon recording its satisfaction issue an order of confirmation. Where the Rules are of this nature the question of automatic confirmation would not even arise. Of course, every authority is expected to act properly and expeditiously. It cannot and ought not to keep issuance of such order in abeyance without any reason or justification. While H

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A there could be some other cases where the Rules do not contemplate issuance of such a specific order in writing but merely require that there will noi be any automatic confirmation or some acts, other than issuance of specific orders, are required to be performed by the parties, even in those cases s it is difficult to attract the application of this doctrine. However, there will be cases where not only such specific Rules, as noticed above, are absent but the Rules specifically prohibit extension of the period of probation or even specifically provide that upon expiry of that period he shall attain the status of a c temporary or a confirmed employee. In such cases, again, two situations would 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 0 for all cases involving such questions. It will always depend upon the facts of a case and the relevant Rules applicable to that service.

19Copy pinpoint19. 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 period is passed by the competent authority in exercise of its power under Rule 4, then it shall discharge the probationer from service in terms of Rule 5 (1 )(b). At this juncture Entry 2 of schedule under Rule 2 of 1983 Rules would come into play as it is a mandatory requirement that the probationer should

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KARNATAKA AND ANR. [SWATANTER KUMAR, J.] complete his judicial training. Unless such training was completed no certificate of satisfactory completion of probation period could be issued. Obviously, power is vested with the appropriate authority to extend thE. probation period and in alternative to discharge him from service. The option is to be exercised by the authorities but emphasis has been applied by the framers on the expression 'as soon as possible' they should pass the order and not keep the matters in abeyance for indefinite period or for years together. The language of Rule 5(2) is a clear indication of the intent of the framers that the concept of deeming confirmation could not be attracted in the c present case. This Rule is preceded by the powers vested with the authorities under Rules 4 and 5(1) respectively. This Rule mandates that a probationer shall not be deemed to have satisfactorily completed the probation unless a specific order to that effect is passed. The Rule does not stop at that but 0 further more specifically states that any delay in issuance of order shall not entitle the probationer to be deemed to have satisfactorily completed his probation. Thus, use of unambiguous language clearly demonstrates that the fiction of deeming confirmation, if permitted to operate, it would entirely E frustrate the very purpose of these Rules. On the ground of unsuitability, despite what is contained in Rule 5, the competent authority is empowered to discharge the probationer at any time on account of his unsuitability for the service post. That discharge has to be simplicitor without causing a stigma upon the concerned probationer. In our view, it is difficult for the Court F to bring the present case within the class of cases, where 'deemed confirmation' or principle of 'automatic confirmation' can be judiciously applied. The 1977 Rules are quite different to the Rules in some of the other mentioned cases. The 1977 Rules do not contain any provision which places a ceiling to G the maximum period of probation, for example, the probation period shall not be extended beyond a period of two years. On the contrary, a clear dist.inction is visible in these Rules as it is stated that probation period shall not be less than two years H

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A 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 B 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 c 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 0 admitting no ambiguity , must be construed on their plain language to mean that the concept of 'deemed confirmation' or 'automatic confirmation' cannot be applied in the present case.

20Copy pinpoint20. Another aspect, which would further substantiate the view that we have expressed, is that proviso to Rule 4 shows that where during thi period of probation the results of an e~~nation have not been declared which the probationer was required ,to take, in that event the period of probation shall be deemed to have extended till completion of the act i.e. declaration of result. Applying this analogy to the provisions of Rule 5 unless certificate is issued by the competent authority the probation period would be expected to have been extended as it is a statutory condition precedent to successful completion of the period of probation and confirmation of the probationer in terms of this Rule.

21Copy pinpoint21. In the present case, the appellant was appointed to the post vide letter dated 9/10th May, 1996 and he reported for his duty on 15th May, 1996. He was on probation for a period of

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KARNATAKA AND ANR. [SWATANTER KUMAR, J.]

two years. Thereafter, as it appears from the record, no letter of extension of probation or order stating that the appellant has completed the period of probation successfully in terms of Rule 5(1) was ever issued. Rule 5 (2), therefore, would come into play and till the issuance of such an order and certificate of satisfactory completion of probation period, the appellant cannot claim to be a confirmed employee by virtue of principle of automatic or deemed confirmation. His services were terminated vide order dated 24th March, 2000. It was discharge from service simplicitor without causing any stigma on the appellant. We have already discussed in some detail the c conduct of the appellant as well as the fact that even prior to his selection as a member of the Higher Judicial Services of State of Karnataka, his name had been placed for surveillance on the of Police Station, Karwar. The original service record of the appellant also does not reflect that he was an officer of outstanding caliber or had done extraordinary judicial work. He is an officer who is not aware of his date of birth and mentioned his age as per his convenience. In these circumstances, we do not feel that, it is a case where in exercise of jurisdiction of this Court under Article 136 of the Constitution of India, we should interfere with the judgment of the High Court as the same does not suffer from any factual or legal infirmity.

22Copy pinpoint22. 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 G 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 Vs. Haryana H

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A 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 under: B "While there is some necessity for appointing a person in government service on probation for a particular period, there may not be any need for confirmation of that officer after the completion of the probationary period. If during the period a government servant is found to be unsuitable, c his services may be terminated. On the other hand, if he is found to be suitable, he would be allowed to continue in service. The archaic rule of confirmation, still in force, gives a scope to the executive authorities to act arbitrarily or mala fide giving rise to unnecessary litigations. It is high time that the Government and other authorities should think over the matter and relieve the government servants of becoming victims of arbitrary actions."

We reiterate this principle with respect and approval and hope that all the authorities concerned should take care that timely actions are taken in comity to the Rules governing the service and every attempt is made to avoid prejudicial results against the employee/probationer. It is expected of the Courts to pass orders which would help in minimizing the litigation arising from such similar cases. Timely action by the authority concerned would ensure implementation of rule of fair play on the one hand and serve greater ends of justice on the other. It would also boost the element of greater understanding and improving the employer employee relationship in all branches of the States G and its instrumentalities. The Courts, while pronouncing judgments, should also take into consideration the issuance of direction which would remove the very cause of litigation. Boni judicis est causes litium dirimere.

23Copy pinpoint23. It will be really unfortunate that a person, who is· involved H

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KARNATAKA AND ANR. [SWATANTER KUMAR, J.]

in the process of judicial dispensation, is dealt with in a manner that for years neither his confidential reports are written nor the competent authority issues an order of satisfactory completion of probation period or otherwise. Another very important aspect is that in the present days of high competition and absolute integrity and even to satisfy the requirements of out of turn promotions by competition it is expected of the High Court to inform the concerned judicial officer of his draw backs so as to provide him a fair opportunity to improve. We c~rtainly notice it with some sense of regret that the High Court has not maintained the expected standards of proper administration. c 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. 0 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 E the appellant was stated to be on the rowdy list at the relevant time.

24Copy pinpoint24. 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: F

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 G of the judicial officers by appropriate authority (which in terms of Chapter VI with particular reference to the provisions of Article 235 of the Constitution is the High Court) and in an elaborate format depicting performance of the judicial officers in all relevant fields, so as to ensure that every judicial officer H

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A in the State will not be denied what is due to him in accordance with law and on the basis of his performance;

2. We direct the Secretary of the Union of India, Ministry of Personnel, Public Grievances and Pension as well as all the Chief Secretaries of the States to issue appropriate guidelines, 8 in the light of this judgment, within eight weeks from the date of the pronouncement of this judgment;

3. We further direct that all the High Courts would ensure that 'police verification reports', conducted in accordance with C law, are received by the concerned authority before an order of appointmenUposting in the State Judicial Service is issued by the said authority.

With the above directions, the appeal is dismis~ed. 0 However, the parties are left to bear their own costs.

D.G. Appeal dismissed.