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2010 (5) Supreme 325
SUPREME COURT OF INDIA
Dr. B.S. Chauhan and Swatanter Kumar, JJ.
Khazia Mohammed Muzammil — Appellant
versus
The State of Karnataka & Anr. — Respondents
Civil Appeal No. 596 of 2007
Decided on : 8-7-2010
(b) Constitution of India – Articles 136 and 226 – Appellant making incorrect averments in the Court proceedings – Also suppressing the fact that his name was in the ‘Rowdie list’ of the concerned Police Station – Courts should not exercise discretionary and inherent jurisdiction under Articles 136 and 226 of the Constitution of India in favour of the appellant. (Para 5)
(c) Administration of Justice – High Court not writing confidential report of judicial officers for many years – This adversely affects the administration of justice on the one hand and dilutes the constitutional power & functions of Superintendence of the High court, on the other. (Paras 6 and 7)
(d) Karnataka Civil Service (Probation) Rules, 1977 – Rules 3 and 4 and Rule 2 and Entry 2 of schedule under Rule 2 of Karnataka Judicial Services (Recruitment) Rules 1983 – Rule 3 provides for a minimum period of probation of two years with provision for actual and deemed extension. (Para 11)
(e) Karnataka Civil Service (Probation) Rules, 1977 – Rule 5 – Probation – The scheme of probation is to judge the ability, suitability and performance of an officer under probation – On satisfaction of these ingredients the Competent Authority may confirm the employee – The employee may be discharged on non-completion of the probationary period satisfactorily – Confirmation must be by specific order – There is no deemed completion of probation and consequent confirmation. (Para 12)
(2001) 7 SCC 161; (2005) 1 SCC 132 – Relied upon
(f) Service Law – Probation – When the rules provide that probation cannot be extended beyond prescribed period, and the employee continues then he would be deemed to be confirmed by implication – However if it is found during probation that work/conduct of the employee is unsatisfactory then there would e no confirmation by implication. (Para 13)
AIR 1968 SC 1210; (1974) 2 SCC 834 – Relied upon
(g) Service Law – Probation – There is in fact no conflict between the two views : (1) mere continuation of service beyond the period of probation does not amount to confirmation unless it was so specifically provided; and, (2) if a maximum period of probation is provided, it is not permissible to extend probation beyond that period. (Para 14)
(1997) 7 SCC 443; (2000) 5 SCC 250; (1998) 3 SCC 321 – Relied upon
(h) Karnataka Civil Service (Probation) Rules, 1977 – Rule 3 – The order on probation cannot be kept in abeyance – It has to be passed ‘as soon as possible’. (Para 18)
(i) Karnataka Civil Service (Probation) Rules, 1977 – Rule 5 – No certificate of completion of probation period issued u/s 5(1) – Therefore as per rule 5(2) appellant cannot claim to be a confirmed employee by virtue of principle of automatic or deemed confirmation. (Para 21)
(j) Karnataka Civil Service (Probation) Rules, 1977 – Rule 5(2) – Confirmation orders to be issued ‘as soon as possible’ – Inordinate delay would be arbitrary and may result in double jeopardy. (Para 22)
(1988) Supp. SCC 669 – Relied upon
Facts of the case:
1.The appellant is a judicial officer who completed his probation period of two years.
2.No communication for confirmation of his probation was issued.
3.He was discharged after more than three years of service.
Finding of the Court:
The principle of ‘deemed confirmation’ or ‘automatic confirmation’ is not attracted in the present case.
Result : Appeal dismissed with directions.
Key Points: - A probationer is not deemed confirmed merely on expiry of the maximum probation period if the rules require a specific order of confirmation (!) (!) . - Confirmation requires a positive act by the competent authority; delay in issuing the order does not amount to deemed confirmation (!) (!) . - An ex-facie non-stigmatic discharge order cannot be interfered with unless the appellant shows it is stigmatic and intended to overreach the law (!) (!) .
JUDGMENT
Swatanter Kumar, J. —
1.The appellant, who was a practicing advocate, was appointed as District Judge under the Karnataka Judicial Services (Recruitment) Rules 1983 (for short ‘the 1983 Rules’) vide Notification No. DPAR 37 SHC 96 dated 9.5.1996. In furtherance to this notification letter of appointment dated 14th May 1996 was issued where after the appellant joined the service on 15th May, 1996. However, vide order dated 20th of May, 1996, the appellant was transferred and posted as 1st Additional City Civil & Sessions Judge, Bangalore City. It is the case of the appellant that he performed his duties with utmost diligence and had an excellent track record. His rate of disposal of the cases was very good. The High Court had scrutinized his performance and neither any adverse remarks were communicated to him nor any memo or show-cause notice was served upon him during the entire period of his service. Initially in terms of the notification/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 Feburary, 1999 and 15th October, 1999 for discharge of the appellant from service. It appear 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) Kerala (?) 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 on that date and therefore the appellant was entitled to confirmation. Aggrieved from the said notification dated 24th March, 2000, the appellant filed the Writ Petition in the High Court of Karnataka, Bangalore which came to be registered as Writ Petition No. 11965/2000 and raised various issues including the legal submissions referable to the relevant rules. The High Court vide its judgment dated 9th July, 2004 dismissed the Writ Petition holding that the notification dated 24th March, 2000 did not suffer from any error or illegality & no interference was called for. It will be useful to reproduce the reasoning given by the High Court which reads as follows:-
“A bare reading of Rule 3 makes it clear that the period of probation shall be fixed as per the rules of recruitment specially made for any service and also that the minimum period of probation shall be two years. Rule 4 deals with the extension of reduction of period of probation. Rule 5 deals with declaration of satisfactory completion of probationary period. Sub-rule (1) (b) of Rule 5 states that the if the appointing authority decides that the probationer is not suitable to hold the post, it may discharge him from service, if the probationary period if not extended. Rule 5(2) makes it clear that there has to be an order declaring the probationer to have completed the probationary period and if there is a delay in issuing such an order, the probationer will not be deemed to have completed the probationary period. Rule 6(1) provides for discharge of a probationer during the probationary period under the circumstances like the grounds arising out of the conditions, if any, imposed in the rules or in the order of appointment or unsuitability to hold the post. Rule 7 states that when a probationer, whether during or at the end of probation period, is terminated for any mis
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