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Judgment
Anand Byrareddy
The facts of the case are as follows: The petitioner after having practised as an Advocate at Tumkur for over eleven years, had applied for the post of Civil Judge (Junior Division), pursuant to a Notification inviting applications for the post. The petitioner was selected under the Karnataka Judicial Service (Recruitment) Rules. 1983 (hereinafter referred to as ''the KJS Rules'' for brevity) as per Notification dated 3.3.2001. He was directed to report for duty before the Principal District and Sessions Judge, Kolar. He was thereafter directed to take charge of the Court of the II Additional Civil Judge (Junior Division), Kolar Gold Fields, from 26.3.2001. He had worked in that post till 15.2.2003, He war transferred to Chikodi in Belgaum District on 3.2.2003.
It transpires that the petitioner was intimated or, 15.4.2004 and 16.4.2004 by separate communications that certain remarks were recorded in his Confidential Report pertaining to the period 1.1.2003 to 25.5.2003, to the effect that though the petitioner''s knowledge of the law was satisfactory, it required improvement and further that the supervision and control of the staff required greater control and his outlook towards the members of the bar required correction and in the other Confidential Report, which was for the period 1.6.2002 to 15.9.2002, he was informed that the quality of his judgments though satisfactory, there was scope for improvement and that he ought to bestow more attention towards disposal of old cases. Apart from this, the petitioner claims that he was not aware of any other complaint or blemish as regards his services. Therefore, the petitioner was taken by shock and surprise when the Principal District and Sessions Judge, Belgaum, by an order dated 24.5.2004, informed the petitioner that he was discharged from service with immediate effect on the ground of non-suitability to hold the post. Incidentally, by then, the petitioner had put in more than three years of service, in that, he had completed two years of probation. But, no formal order declaring satisfactory completion of probation was issued either to the petitioner or to persons who were appointed as Civil Judges alongwith the petitioner.
It is the belief of the petitioner that when he was first posted at Kolar Gold Fields, in Kolar District, there were some allegations made by some members of the bar against the petitioner and other judicial officers. This had prompted a formal inquiry by the Administrative Judge for Kolar District and the petitioner had been called upon to explain certain circumstances. Beyond that, the petitioner was not informed of any further action having been taken. In any event, those allegations wereapparently made by some members of the bar who were not satisfied with the judgments rendered adversely in cases, in which they had appeared. It is hence the petitioner''s contention that the petitioner is sought to be discharged based on the allegations which were not tenable without holding any formal inquiry.
it is also contended that the petitioner having been transferred to Chikodi, there were several disgruntled members of the Bar who were averse to the long pending cases being disposed of, whereas the petitioner was duty-bound to meet the prescribed quota of disposals and it left him with no choice, but to adjudicate the matters and dispose of the same, in accordance with law, which lead to friction and baseless allegations being made against the petitioner of rude behaviour with the members of the bar. The petitioner was placed on notice of the allegations and the petitioner had replied to the same. The petitioner would hence contend that even if these allegations were found to be with any substance, in the absence of an inquiry and the petitioner being given an opportunity of contesting the same, the discharge is punitive in nature and cannot be construed as a discharge simpliciter. The glaring circumstance that immediately preceding the order of discharge, the Confidential Reports pertaining to the petitioner''s service had declared that his performance was satisfactory would render the order discharging him as having been found unsuitable or his performance not being up to the mark as being inconsistent and wholly unacceptable. It is in this background that the present petition is filed.
The learned counsel for the petitioner would contend that the probationary period prescribed is of two years duration, which may be extended by an order in writing and in the instant case, there was no such order extending the period of probation. Therefore, after completion of the period of probation successfully, any order of discharge simplicitor is impermissible especially, in the face of a specific declaration that his performance was satisfactory. The discharge casts a stigma and a permanent slur on the character and the reputation of the petitioner and therefore, causes a permanent disadvantage in the petitioner leading a honourable life in society.
It is further contended that Rule 5(1) of the Karnataka Civil Services (Probation) Rules, 1977 (hereinafter referred to as the ''Probation Rules'' for brevity), gives a discretion to the employer to consider the suitability of the probationer at the end of the prescribed period of probation and if it considers that the probationer is not suitable to hold the post or if he has not passed the prescribed examination within that period, he may be discharged on the ground that, he has not successfully completed the period of probation. Sub-Rule (2) of Rule 5 declares that unless a specific order is passed by the employer declaring successful completion of the period of probation, a probationer will not be considered to have completed the probation. Further, Rule 5(2) makes it further clear that if there is any delay in issuing an order under Sub-Rule (1), it shall not entitle the probationer to assume that he is deemed to have satisfactorily completed his probation, in other words, that there must be a specific order declaring the completion of probation. No period as such is fixed though Rules 3 and 4 specifically mention about the duration of probation. Rule 3 prescribes the period of probation as a minimum of two years, Rule 4 requires that, if, probation is extended, it has to be for reasons to be recorded in writing by the Governor and which period shall not exceed half of the prescribed period of probation, which means that the period of probation can only suffer one extension and that too for a period of one year.
Proviso to Rule 4 stipulates further that extension only in case of probationers, who are required to pass some examination or test till he passes. In other words, the further extension beyond the period of 2 years of probation is possible and is confined only till the declaration of the result of the departmental examination or test, and there will not be any extension if the probationer fails in the examination.
It is further contended that a reading of Rules 3 and Rule 4 cumulatively, gives a definite impression that the period of probation of a probationer can never be more than 3 years or in special cases, till the departmental results are announced. Sub-Rule (2) of Rule 5 does not stipulate any time for declaring the successful completion of the probationary period. When there is no period prescribed, there cannot be any delay in issuing such an order. But, the Rule further stipulates that, if there is any delay in issuing an order, it would not result in automatic declaration of probation, which gives an indication that the period prescribed in Sub-Rule (2) of Rule 5 is referrable to the period of 3 years. If Sub-rule (2) of Rule 5 is literally interpreted and allowed free implementation, it results in following anomalous situation.
It is contended that the probationer cannot for ever be a probationer which is contrary to the very meaning of the word probation. The period of probation is fixed only to examine and test the conduct and performance, virtually on a trial basis and to find out his suitability and capacity to discharge his functions in the post which he is selected. The period of probation is always fixed, keeping in view the reasonable period within which his performance or suitability can be successfully assessed.
In case of any doubt or inability of the employer to decide the suitability of the probationer on one ground or the other, there is a provision for extension during which, a probationer needs to be finally assessed upon, failing which, he shall be deemed to have been confirmed. It is based on the simple principle that a person discharges his function as a probationer, should know whether he would continue in the same job or not and in case if he is going to be discharged, he has to be discharged immediately just before or soon after the period of probation, without any stigma on his functioning so that he can employ himself in any other alternative avocation. Though Rules 3 and 4 prescribe the period of probation and the circumstances under which it has to be extended and the manner in which it has to be extended. Sub-Rule (2) of Rule 5 conferring a wide unbridled power to keep a probationer on probation is contrary to the mandate of Rules 3 and 4. It is further contended that the said Rule is highly arbitrary and leads to an unreasonable exercise of power which would be protected under Rule 2 of Sub-Rule (5). Such a Rule cannot stand the test of Article 14 of the Constitution of India. The said Rule is also violative of Article 19(1)(g) of the Constitution of India where it toys with freedom of an individual to carry on his avocation.
It is contended that a probationer can never be kept on probation for ever, to be discharged later, after a decade or two, virtually rendering him useless for any kind of employment which would destroy his freedom guaranteed under Article 19(1)(g) of the Constitution of India. The said Rule is also violative of Article 21 of the Constitution of India, where a probationer would be constantly in the sphere of fear and anxiety of his future. When a probationer completes his probationary period successfully and is continued beyond the period of 2 years without in writing extending the period of probation, gives a definite impression that for all practical purposes, his probation is confirmed, and if no adverse remarks are passed about his suitability in his confidential reports for the first period of 2 years, will definitely create not only an impression but also raise a legitimate expectation in the mind of the petitioner that he is suitable for the post and that he can mould his future in the same line of employment. When after all these years, if a probationer is discharged as discharge simpliciter iter taking recourse under Sub-Rule (2) of Rule 5, it leads to abuse of power by the employer.
Rule 7 of the Rules specifically prescribes that if the services of the probationer are to be terminated on the ground of misconduct, it has got to be necessarily done in accordance with the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, (hereinafter referred to as ''the CCA Rules'' for brevity) which means that an enquiry as contemplated under the Rules has to be necessarily held. The Counsel, therefore, seeks that the petition be allowed.
On the other hand, the learned Government Pleader would submit that the writ petition is not maintainable. That as per the Probation Rules, the period of probation is 2 years. In terms of Rule 5 of the Probation Rules, the declaration of probation after satisfactory completion of the same is a must. The appointing authority deciding that the probationer is not suitable to hold the post to which he was appointed or has not passed the special examination and special tests required to be passed during the period of probation, he could be discharged from service. It is after a perusal of the Confidential Reports, the report of the Administrative Committee and the Full Court, that a conclusion is arrived at that the petitioner was not suitable to hold the post and on a recommendation of the court, the Governor, who is the appointing authority has issued the Notification.
It is further asserted that a probationer shall not be considered to have satisfactorily completed the probation unless a specific order to that effect is passed. Delay, if any, in the issuance of an order, would not entitle the probationer to be deemed to have satisfactorily completed his probation. An order discharging a probationer under Rule 6 of the Probation Rules, shall indicate the grounds for discharge, but no formal proceedings under the Rules are necessary. Hence, the impugned order is in accordance with law.
In this regard, reliance is placed on a judgment of the apex Court in H.G. Sangati vs. Registrar General High Court of Karnataka, AIR 2001 SC 1148 and the following Passage from the said judgment is extracted hereunder:
It is well settled by a series of decisions of this Hon''ble Court including the Constitution Bench decision in Parshotam Lal Dhingra Vs. Union of India (UOI), and Seven Judge Bench decision in Samsher Singh Vs. State of Punjab and Another, that Services of an appointee to a permanent past or probation can be terminated or dispensed with during or at the end of a period of probation, because the appointee to a permanent post or probation can be terminated or dispensed with during or at the end of the period of probation because the appointee does not acquire any right to hold or continue to hold such 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 Prakash Banerjee Vs. Satyendra Nath Base National Center for Basic Services AIR 1999 SCW 605, AIR 1990 SC 983 having reviewed the entire available case law on the issue, this court has held that termination of a probationer''s services., if held that termination of a probationer''s services, if motivated by certain allegations tantamounting of 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. and another, , the petitioner appointed on probation as a Civil Judge and not confirmed \\vas discharged from service in view of the turn-satisfactory nature of his service. This court held that the High Court was justified in discharging the Petitioner from, service during the period of probation and it was not necessary that there should have been a charge and an inquiry on his conduct since the petitioner was only on probation and it was opened to the High Court to consider whether he was suitable for confirmation or should be discharged from service.
At the request of the Counsel for the petitioner, the record was called for to ascertain whether the recommendation not to declare the probationary period of the petitioner as having been successfully completed, was on the basis of the findings of misconduct arrived at, without an opportunity of hearing to the petitioner.
The learned counsel, after perusal of the same, would seek to point out that insofar as the allegations pertaining to his tenure at Kolar Gold Fields is concerned, that the record would disclose that the Registrar - Vigilance has inquired into the allegations and that there was no evidence forthcoming to substantiate the allegations and on the other hand, the same were found to be baseless as there was material to indicate otherwise, especially, insofar as the petitioner having received a Colour Television set as bribe, when, in fact, it had been purchased by him under instalments. That insofar as the petitioner and other Judicial Officers posted at Kolar Gold Fields having had truck with a local merchant, who was alleged to have acted as a conduit to influence litigation and the petitioner along with other Judicial Officers having travelled with him in his car to attend yet another Judicial Officers wedding in Virajpet are all allegations, which could at best have been the subject matter of a full-fledged inquiry, having regard to the seriousness of the allegations and could not have been the ground on which the petitioner could have been castigated and punished without an opportunity of hearing.
Insofar as the petitioner''s tenure at Chikodi is concerned, the record would disclose that there was an elaborate exercise carried out by the District Judge into the correctness or otherwise of the judicial pronouncements of the petitioner and the procedural infirmities, in respect of which, the petitioner was never called upon to furnish his explanation and the opinion expressed by the learned District and Sessions Judge, in his Confidential letter dated 11.3.2004, addressed to the Registrar (Vigilance) are subjective opinions gathered on hearsay and could not be the reason for the extreme step of discharging the petitioner, without affording an opportunity of hearing to the petitioner. The Counsel for the petitioner has taken this court through a large body of case law in support of this contentions.
In the above background, the points that would arise for consideration are as follows:
(a) Even though the Notification, under which the petitioner has been discharged from service, discloses that he was found unsuitable, but as the record indicates that there were several complaints and allegations against the petitioner while he was posted at Kolar Gold Fields and then at Chikodi, whether it could be said that it is, in fact, an order of termination by way of punishment?
(b) Whether the petitioner having completed two years of the probationary period and in the absence of extension of the period of probation, whether it could be said that there was deemed confirmation of service?
In answering the above issues, it is unnecessary to examine every single decision that has been cited at the bar as each case would depend on its facts and circumstances. The apex Court in the case of Rajesh Kohli Vs. High Court of J. and K. and Another, has held that during the period of probation, an employee remains under watch and his service and his conduct is under scrutiny. Around the time of completion of the probationary period, an assessment is made of his work and conduct during the period of probation and on such assessment a decision, is taken as to whether or not his service is satisfactory and also whether or not on the basis of his service and track record, his service could be confirmed or extended for further scrutiny of his service if such extension is permissible or whether his service should be dispensed with and terminated. The services rendered by a Judicial Officer during probation are assessed not solely on the basis of judicial performance, but also on the probity as to how one has conducted himself. If examined in this vein, the record would indicate that there were innumerable complaints and allegations against the petitioner, many of which have been found to be baseless on a preliminary investigation conducted either through the Registrar (Vigilance) of the High Court or through the District Judge in other circumstances. What has emerged, however, is that the petitioner''s performance and conduct were not up to the mark. In respect of the allegations, no detailed inquiry has been conducted. It is on all occasions perfunctory prima facie findings that are furnished. Even without which, the Full Court, which is assisted by the Administrative Committee would have no clue as to the ground realities. It is depending on that minimum material to be gathered to form a prima facie opinion on the basis of complaints and allegation that such "discreet inquiries" are made and it is that which has been the motive for the order of discharge being issued. It can neither be said that it is based on findings arrived at an inquiry or inquiries conducted behind the back of the petitioner nor can it be said that the same is stigmatic in nature. As held by the apex Court in Dipti Prakash Banerjee Vs. Satvendra Nath Bose National center for Basic Sciences, Calcutta and Others, whether an order of termination of a probationer can be said to be punitive or not, depends on whether the allegations which are the cause of the termination are the motive or foundation and if findings were arrived at in an inquiry as to misconduct behind the back of an officer or without a regular departmental inquiry, a simple order of termination is to be treated as founded on the allegations and would be bad. But if the inquiry was not held and no findings were arrived at and the employer was not inclined to conduct an inquiry, but at the same time he did not want to continue the employee''s services, it would only be a case of motive and the order of termination of the employee would not be bad.
Applying this test in the present case on hand, the material on record would indicate that there are observations based on material gathered not only with regard to the petitioner''s performance, but also as regards his conduct which did not require any detailed findings in deciding whether the petitioner''s performance was satisfactory and hence, it cannot be said that the order of discharge is punitive in nature or that it is stigmatic.
Insofar as the challenge to the Rules and the claim that there is a deemed confirmation and hence the discharge of the petitioner was not permissible, is also not tenable in the light of the judgment in Khazia Mohammed Muzammil Vs. The State of Karnataka and Another, wherein the apex Court has examined and reviewed the entire case-law while addressing the very Rules which are involved in the present case on hand and which was also questioned in the very same manner as the petitioner seeks to do. The Supreme Court has held as follows: 19. Having discussed in some elaboration the conduct of the appellant as well as his antecedents, now we proceed to examine the merits of the legal controversy raised in the present case on behalf of the appellant in relation to "deemed confirmation". The "deemed confirmation" is an aspect which is known to the service jurisprudence now for a considerable time. Both the views has been taken by the Court. Firstly, there can be "deemed confirmation" after an employee has completed the maximum period of probation there can be " deemed confirmation" after an employee has completed the maximum probation period provided under the rules whereafter, his entitlement and conditions of service are placed at parity with a confirmed employee. Secondly, that there would be no "deemed confirmation" and at best, after completion of maximum probation period provided under the rules governing the employee, the employee, becomes eligible for being confirmed in his post. His period of probation remains in force till a written document of successful completion of probation is issued by the competent authority.
Having examined the various judgments cited at the Bar including that of all larger Benches, it is not possible for this Bench to state which of the views is the correct enunciation of law or otherwise. We are of the considered opinion, as to what, view has to be taken, would depend, upon the facts of a given case and the relevant rules in force. It will be cumulative effect of these two basics that would determine the 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 the 1977 Rules provides that the probation period cannot be extended beyond 3 yean; 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 the 1977 Rules and Entry 2 of the Schedule under Rule 2 of the 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 under these Rides has expired the officer will stand automatically confirmed and thus is incapable of being discharged under Rule 5(1)(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 present case. While examining the cited judgments this Court has to keep in mind the specific rules relating to alleged automatic confirmation of the appellant and the fact that the appellant failed to satisfactorily complete the period of probation or extended period of probation in terms of Rule 5(1)(b) of 1977 Rules The 1983 Rule., ought to be read in conjunction with the 1977 Rules as they nave duly been adopted by the High Court The 1977 Rules are specific rules on the subject in question while the 1983 Rules are general rules end in any case there is no conflict between the two as they seek to achieve the same object in relation to probation and effects there of in relation to different matters.
Not only the rules but even the principles of service jurisprudence fully recognise the status of an employee as a probationer and a confirmed employee. "Probationer" in terms of Rule 2(2) of the 1977 Rules means a government servant on probation. Rule 3 to 6 are the relevant rules which specifically deal with the period of probation, extension respondent or reduction of period of probation, satisfactory completion of the probation period and discharge of a probationer during the period of probation. The relevant rules read as under.
Period of probation:- The period of probation shall be as may be provided for in the rules of recruitment specially made for any service or post, which shall not he less than two years, excluding the period if any, during which the probationer was on extraordinary leave.
Extension or reduction of period of probation;-
(1) The period of probation may, for reasons to be recorded, in writing, be extended-
(i) by the Governor or the Government by such period as he or it deems fit;
(ii) by any other appointing authority by such period not exceeding half the prescribed period of probation;
provided that if within the prescribed or extended period of probation, a probationer has appeared for any examinations or tests required to be passed during the period of probation and the results thereof are not known before the expiry of such period, then the period of probation shall be deemed to have been extended until the publication of the results of such examinations or tests or of the first of them in which he fails to pass.
The Government may, by order, reduce, the period of probation of a probationer by such period not exceeding the period during 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.
Declaration of satisfactory completion of probation, etc., - (1) At the end of the prescribed or, 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 held the post, to which he was appointed and has passed the special examinations or tests, 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 effect from the date of the expiry of the prescribed, reduced or extended period of probation:
(b) if the appointing authority decides that the probationer is not suitable to hole 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 probation is extended under Rule 4, by order, discharge him from service.
(2) A probationer shall not be considered to have satisfactorily completed the probation unless a specific order-to that effect is passed. Any delay in the issue of an order under sub-Rule (1) shall not entitle the probationer to be deemed to have satisfactorily completed his probation.
Note:- In this Rule and rule 6 ''discharge'' in the case of a probationer appointed from another service or post, means reversion, to that service or post.
Discharge of probationer during the period of probation:- (1) - Notwithstanding anything in Rule 5, the appointing authority may, at any time during the period of probation, discharge from service a probationer on grounds arising out of the conditions, if any, imposed by the Rules or in the order of appointment, or on account of his unsuitability for the service or post; but the order of discharge except when passed by the Government shall not be given effect to, till it has been sub-rutted to and confirmed by the next higher authority.
(2) An order discharging a probationer under this Rule shall indicate the grounds for the discharge but no formal proceedings under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, shall be necessary.
Now, let us analyse these Rules. No doubt Rule 3 states that the period of probation shall be, as may be, provided for in the rules of recruitment specially made for any service, or post, which shall not be less than two years, (emphasis supplied) Out of which period extraordinary leave will have to be excluded. Thus the Rules contemplate that every service provides rules relating to probation. But the probation period should not be less than two years. The emphasis of the Rules is that minimum period of probation has to be two years. The period of probation can be extended for reason to be recorded by the competent authority by such period not exceeding half of the prescribed period of probation. Interestingly, to this Rule the framers of the Rules have introduced a proviso, which gives discretion to the authorities and, in fact, introduced deemed extension in the event the probationer has appeared for any exam or result thereof has not been declared within the period of probation and extended period. The Rule, therefore, contemplates deemed extension of probation 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.
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, brother 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 completed his probation period or pass an order extending the period of probation etc., Rule 5(1)(b) empowers that authority that in the event it is of the view that the period, of probation has not been satisfactorily completed or the probationer has not passed the special examinations, it may discharge him service unless the period of probation is extended.
Rule 5(2) has been coveted with negative language, It specifically prescribes that a probationer shall not be considered to have satisfactorily completed the probation unless a specific order to that effect is passed. The Rule further clarifies that if there is a delay in issuance of an order under the rule (1), it shall not entitle the probationer to be deemed to have satisfactorily completed his probation, in other words, the primers of the Rules have introduced a double restriction to the concept of automatic confirmation or deemed satisfactory completion of the probation period. Firstly, the specific order is required to be issued in that regard and secondly, delay in issuance of such orders does not tilt the balance in favour of the employee.
Rule 6(1) states that the competent authority may, at any time, during the period of probation, discharge from service, a probationer on grounds arising out of the conditions, if any imposed by the Rules in the order of appointment, or on account of his unsuitability for the service of post. However, the said order of discharge would take effect only after it is confirmed by the next higher authority. Rule 6(2) specifically excludes the application or holding of formal proceedings under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. It says that such course will not be necessary.
In the light of this statutory provision, Let us also examine the probation period referred to under Item 2 of Rule 2 of the 1983 Rules. The Rule states that probation period will be of 2 years and further mandates during that period of probation, the officer must undergo a training, as may be specified by the High court. This itself has been indicated under the head "minimum qualifications''''. It, therefore, clearly shows then it is not the provision dealing with the probation period, extension and discharge of a qualifications, which are to be essentially satisfied by the officer concerned before he takes over his appointment as a regular judge.
The reference to the probation period has to be examined and interpreted with reference to and in conjunction with the 1977 Rules which are 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 officer concerned undergoes training during the period of probation. While the significance under the 1983 Rules is on training, under the 1977 Rules, all matters relating to probation are specifically dealt with, it would not be permissible to read the relevant part of the 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 the 1977 Rules will become redundant and ineffective. In fact it would frustrate the very purpose of framing the 1977 Rules.
What will he the period of probation, the circumstances under which it can be extended or reduced and discharge 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 the 1977 Rules to achieve the real purpose and timely training of Judicial Officers on the one hand and appropriate control over the matters relating to probation of the officers on the other. "That, in fact, is the precise reason as to why the 1983 Rules do not deal specifically with any of the aspects of probation. In view of this discussion the contention of the appellants has to be rejected.
Having referred to the specific rules on the subject and the entire scheme under the relevant provisions relating to different aspects of probation, let us examine the law and the pronouncements of this court in some detail.
We have already noticed that two views are prevalent. Primarily, the court has taken the diametrical opposite view. One which accepts the application of the deemed confirmation after the expiry of the prescribed period of probation, while the other taking the view that it will not be appropriate to apply the concept of deemed confirmation to the officers on probation as that is not the intent of law. In our opinion, the rules and regulations governing a particular service are bound to have greater impact on determining such question and that is the precise reason that we have discussed Rules 3 to 6 of the 1977 Rules in the earlier part of the judgment.
Thereafter, the apex Court after discussing the reasoning, in each of the several judgments rendered by the apex Court with reference to other Rules, which were the subject matter of those decisions, has held as follows:
On a dear analysis of the above enunciated law, particularly, the seven-Judge bench judgment of this court in Samsher Singh and the three-Judge Bench judgments, which are certainly the larger Benches and are binding on us, the courts have taken the view with reference to the facts and relevant rules involved in those cases that the principle of "automatic" and "deemed confirmation" would not he attracted. The pith and substance of the stated principle 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 cases aforenoticed.
There can be cases where the rules require a definite act on the part of the employer before an officer on probation can be confirmed. In other words, there may a rule or regulation requairing 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 out not to keep issuance of such order in abeyance without any reasons or justification. While 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 not 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 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 or probation or even specifically provide that upon expiry of then period, he shall attain the status of a 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 prescribed a straitjacket formula 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.
Reverting back to the Rules'' of the present case it is clear that Rule 3, unlike other rides 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 the 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 the Schedule under Rule 2 of the 1983 Rules would come into ploy as it is a mandatory requirement that the probationer should, 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 the alternative to discharge him from service. The option is to be exercised by the authorities bin 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 frarners that, the concept of deeming confirmation could not be attracted in the 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 furthermore specifically states that any delay in issuance or order shall not entitle the probationer to he 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 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 or post. That discharge has to be simpliciter without causing a stigma upon the probationer concerned. In our view, it is difficult for the court 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 from the rules in some of the other mentioned cases. The 1977 Rules do not contain any provision which places a ceiling to 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 distinction is visible in these Rules as it is stated that probation period shall not be less than two years and can he 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 requirements 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 satisfactory completion of probation period. The Rules, being specific and admit ting 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.
Another aspect, which would further substantiate the view that we have expressed, is that the proviso to Rule 4 shows that where during the period of probation the results of an. examination 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 term of this Rule.
Hence, the question stands answered against the petitioner. The petitioner having completed the prescribed period of probation, it is not in dispute that there was no letter of extension of the probation or any order stating that the petitioner had completed the period of probation successfully in terms of Rule 5(1) and hence Rule 5(2) would come into play and till the issuance of such an order and certificate of satisfactory completion of probation, the petitioner could not claim to be a confirmed employee by virtue of principle of ''''automatic'''' or "''deemed'''' confirmation. The order of termination was a discharge from service simpliciter, without casting any stigma on the appellant. In that view of the matter, there is no merit in this petition and the same stands dismissed.