IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 596 of 2007

Khazia Mohammed Muzammil …Appellant

Versus

The State of Karnataka & Anr. …Respondents

JUDGMENT

Swatanter Kumar, J.

1.      The appellant, who was a practicing advocate, was appointed  

as  District  Judge  under  the  Karnataka  Judicial  Services  

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(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  

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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  

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(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  

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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  

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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 misconduct, the  termination  shall  be  in  accordance  with  Karnataka  Civil  Services  (Classifications,  Control  and  Appeal)  Rules,  1957  (for  short  ‘the 1957 Rules’)

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In the instant  case, the petitioner,  who  was appointed on probation,  though he had  worked for 3 years 10 months and 10 days,  was not found suitable to hold the post and no  order  has  been  passed  that  he  has  satisfactory  completed  the  probationary  period.   Under  the  circumstances,  the  argument that Rule 6 (1) of KCSRs cannot be  invoked and the petitioner’s case falls under  Rule 7 of the KCSRs is not sustainable.  It is  seen that the petitioner has not been removed  

on  misconduct  pending  probation.   So  the  argument that Rule 7 of the KCSRs has not  been  considered  by  this  Court  and  the  decisions  referred  to  above  are  not  applicable, it not acceptable in the facts of the  given case as Rule 7 deals with termination  for  misconduct  during  or  at  the  end  of  probation  period,  whereas  as  stated  in  the  present  case  on  hand,  the  probationer  has  been discharged  from his  services as  he is  found unsuitable to hold the post and there is  

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no  violation  of  the  provisions  of  the  1957  Rules.”

2. Aggrieved from the judgment of the High Court, the appellant  

has preferred the present appeal to this Court under Article 136 of  

the Constitution of India.  The challenge to the judgment of the High  

Court  as  well  as  notification,  dated 24th of  March  2000,  is  on the  

ground  that  the  appellant  could  not  have  remained  probationer  

beyond the period of probation.  He had held the office for a period of  

more than 3 years.   After this period, the appellant will be deemed to  

have been confirmed and thus his discharge from service is contrary  

to  the  rules.   A  confirmed  employee  cannot  be  discharged  as  

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probationer  and  if  there  is  anything  against  the  appellant,  the  

department i.e. High Court/Government, on that plea ought to have  

conducted departmental enquiry in accordance with rules.  Further, it  

is  contended  that  the  action  of  the  High  Court  and  the  State  

Government is arbitrary and  without any basis.  The service record  

of the appellant was excellent and there was nothing on the record to  

justify that the appellant had become ‘unsuitable for the post’.   On  

the  contrary,  the  submission  on behalf  of  the  respondents  is  that  

there cannot be a deemed confirmation.  The High Court, in exercise  

of its power of superintendence as well as under the rules found that  

the appellant was entirely unsuitable for his retention in service.  The  

service record of the appellant is also such that it does not justify his  

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retention in service being a person under surveillance of Police prior  

to joining the service.  The appellant, being a probationer, has rightly  

been discharged from service and the Writ Petition has rightly been  

dismissed by the High Court for valid reasons and judgment of the  

High Court does not call for any interference.  Before we proceed to  

discuss the merit or otherwise of the rival contention raised before  

us,  at  the  very outset,  we may refer  to  the  impugned  notification  

which reads as under:

“CONFIRM EDIT OF KARNATAKA

No. PPAR 69 SHO 99.  … Karnataka  Government  Secretariat,  Vidhan Soudha, Bangalore,  

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Dated 24.3.2000

NOTIFICATION

In exercise of the powers conferred by  Rule  6  (1)  of  the  Karnataka  Civil  Services  (Probation) Rules, 1977, I, V.S. RAMA DEVI,  Governor of Karnataka, hereby order that Sri.  Kazia  Mohammed Muzzammil,  Ist  Additional  City Civil and Sessions Judge, Bangalore City  

be  discharged  from  service  with  immediate  effect as he is unsuitable to hold the post of  District Judge.

         Sd/-         (V.S. RANA DEVI)

     GOVERNOR OF KARNATAKA   BY ORDER AND IN THE

   NAME OF THE GOVERNOR OF           KARNATAKA,

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                (V.R. TLKAL)

            UNDER SECRETARY TO THE                GOVERNMENT DEPARTMENT OF  

                          PERSONNEL AND ADMINISTRATIVE        REFORMS (SERVICES .3)

xxx           xxx          xxx          xxx    

3.        The bare reading of the above impugned notification shows  

that it is  ex-facie not stigmatic.  It simply discharges  the appellant  

from service  as  having been found unsuitable  to  hold the  post  of  

District  Judge.   Until  and  unless,  the  appellant  is  able  to  show  

circumstances supported by cogent material on record that this order  

is stigmatic and is intended to over reach the process of law provided  

under the rules,  there is no occasion for this Court to interfere on  

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facts.  As far as law is concerned, the question raised is with regard  

to the applicability of  the concept  of  ‘deemed confirmation’,  to the  

present case under the service jurisprudence.  

4.      We may also notice that conduct of the appellant, who is a  

Judicial Officer, belonging to the Higher Judicial Services of the State  

is  matter  of  some  concern.   Contradictory  statements  have  been  

made in  the  Writ  Petition  before  the High Court,  memorandum of  

appeal  before  this  Court  and  even  in  the  rejoinder  and  further  

affidavit filed before this Court.  Strangely, the High Court has neither  

contested this case nor pursued it in its correct perspective.  As it  

appears,  even  appearance  on  behalf  of  the  High  Court  was  not  

entered upon.   Despite specific orders of this Court the High Court  

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had failed to produce the records and even no responsible officer  

was  present.    This  attitude  of  the  respondents  in  this  court  

compelled the Bench to pass an order dated 20th  May, 2010 which  

reads as under:-   

“This  case  was  heard  at  some  length  yesterday and was part-heard for today.   At  the very outset, we must notice that from the  

record before us, ex-facie, it appears that the  appellant  before  this  Court  has  sworn  the  false  and/or  incorrect  affidavits.   In  order  to  demonstrate our above observation, we must  refer to the following details which have been  given  by  the  appellant  in  various  affidavits  and/or  pleadings of  the present  case,  which  are as follows:

Date    Age Page (s)

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29.3.2000        46 28/37 23.2.2001      46 51 20.9.2004      50 18 14.10.2006      54 52

22.10.2009      57 4/5 (Appln. for        Early Hearing)

30.6.2010     60 -

-------------------------------------------------------------

9.5.1996 Joined Service E 20.3.2000 WP 34 15.5.95     )

25.3.2000 ) Counter Affidavit 44 By the High Court

As would be evident  that  if  one of  the  dates  given by the  appellant  is  taken  to  be  correct, he would superannuate on 30th June,  2010, and if another date is taken, he would  be only 57 years of age as on 22nd October,  

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2009.  Besides this, he had joined service as  per  the  letter  of  appointment  of  9th  may,  1996, but at page 34 of the paper book, he  claimed to have joined service on 15th May,  1995, which on the face of it, is not a correct  statement of facts.  We further note that the  case of the appellant is that during the period  of  his  service,  no adverse entries  had been  made in his service record,  which has been  seriously  disputed  by  the  respondents  who  state  that  even  complaints  were  received  

against the appellant.

With some amount of anguish, we must  also notice that the High Court appears to be  callous  about  the  whole  matter.   The  reply  filed  on  behalf  of  the  High  Court  does  not  specifically  dispute  any  of  the  averments  made  by  the  appellant.   The  reply  besides  being  vague,  is  intended  to  benefit  the  appellant, which is entirely uncalled for.  It has  become necessary for us to know the correct  

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position of  facts  before we dwell  upon legal  submissions raised on behalf of the appellant.  This  Court  vide  its  order  dated   28th  April,  2006,  had  expressed  certain  doubts  and  directed that the records should be produced  before the Court and records should be made  available  before  this  Court  at  the  time  of  hearing.  Despite the fact that this case has  been on Board for this entire week and was  heard  for  considerable  time  yesterday  and  was part-heard for today, still records are not  

available.  We are unable to appreciate this  attitude of the High Court towards this case,  pending in the highest Court of the land.  We  may also notice that yesterday some papers  had been shown to us showing that the name  of the appellant was placed in the “rowdy” list  of  the  police  maintained  by  the  concerned  police  station  and  his  local  activities  were  being watched.   The appellant  has filed the  writ petition praying for quashing and deletion  of his name from the said list.  This fact does  

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not find mention either in the reply filed by the  appellant  before  the  High  Court.   Learned  counsel  for  the appellant  submitted that  this  event was subsequent to the filing of the writ  petition.  Whatever be the merit or otherwise  of that Writ Petition, we fail to understand why  this fact was not taken note of and brought to  the notice of the High Court when the police  gave a verification report about the appellant  which was monitored prior to the appointment  of  the Higher Judicial  Services of  the State.  

We find that we are unable to appreciate the  conduct of the appellant as well as that of the  High Court in the present proceedings and in  our view certain directions need to be issued  in  this  regard.   Before  we  issue  any  such  orders  or  consider  the  conduct  of  either  of  them in accordance with law, we consider  it  appropriate to require the appellant to file an  affidavit  explaining  the  above-mentioned  events.  The High Court is also at liberty to file  affidavit,  if  any, but the Registrar General of  

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the High Court shall be present in Court with  complete records.  We are compelled to pass  such directions but are left with no alternative  in  view of  the  conduct  of  the  parties  in  the  present appeal.

List  for  further  hearing  on  28th  may,  2010.

Copy  of  this  order  be  sent  to  the  Registrar  General  of  the  High  Court  of  Karnataka by the Registry.”

5. Besides  the  conduct  of  the  parties  which is  reflected  in  our  

above order, it is also very important to notice another facet of this  

case.  It is not in dispute that the appellant had filed a Writ Petition  

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being Writ No. WP No. 16244 of 2000 in the High Court praying for  

issuance of mandamus to the Superintendent  of Police,  Karwar to  

strike off the entries against the name of the appellant, in the  ‘rowdy  

and  goonda  register’  prior  to  his  selection  as  the  District  Judge,  

maintained by the concerned Police Station.  The Police has sought  

to justify before the Court the inclusion of the appellant’s name in the  

list  and for  the reasons  declared  in  the reply affidavit  filed  by the  

State in that case.  The stand of the Government in that case was  

that while keeping in view  the antecedents and past activities of the  

appellant,  his  name was  entered  in  the  Form No.  100  being  the  

Communal Goonda Sheet on 8th January, 1993 under order No. 9/93  

dated  2.1.1993  of  the  then  Superintenent  of  Police,  Uttaraka  

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Kannada.  The appellant was General Secretary of an organization  

called  Majlis-Isa-o-Tanzim  and  was  in  the  habit  of  harbouring  

criminals,  who  were  involved  in  serious  crimes  like  murder  and  

communal  riots  etc.   There  was  a  specific  charge  against  the  

appellant  for his delivering provocative communal speeches, which  

contributed  to  aggravate  communal  disturbance  in  Bhatkal  in  the  

year 1993.  He was president of the Bar Association, Bhatkal and still  

used to provoke young people in that institution.   Nineteen people  

were killed and many injured in a group clash.  With this background  

under Rules 65 and 66 of State Interchange Manual the name of the  

appellant  was  inducted  on  the  sheet  of  Register  of  Rowdies  

maintained by the Karnataka Police in Form No. 100 in terms of Rule  

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1059 of the Karnataka Police Manual which is normally treated as  

confidential.  Keeping all these averments in mind and the judgment  

of  the Supreme Court,  the  High Court  vide its  order  dated 3rd of  

November 2000 dismissed the Writ Petition and declined to declare  

the entries as being without basis or arbitrary. The ancillary  but an  

important issue that flows from these facts is as to how and what the  

Police  Verification  Report  was  submitted  to  the  Government/High  

Court  before  the  appellant  was permitted  to  join  his  duties  as  an  

Additional  District  Judge?   Normally,  the  person,  with  such  

antecedents,  will  hardly  be  permitted  to  join  service  of  the  

Government and, particularly, the post of a Judge.  The High Court  

on the administrative side also appears to have dealt with the matter  

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in a very casual manner.  The averments made in the Writ Petition  

16244 of 2000, if it were true, it was a matter of serious concern for  

the High Court as he was being appointed as an Additional District  

and Sessions Judge and would have remained as such for a number  

of years.  It  was expected of the Government as well as the High  

Court to have the character verification report before the appointment  

letter  was  issued.   The  cumulative  effect  of  the  conduct  of  the  

appellant in making incorrect averments in the Court proceedings as  

well  as  the  fact  that  his  name  was  in  the  ‘Rowdie  list’  of  the  

concerned Police Station are specific grounds for the Courts not to  

exercise its discretionary and inherent jurisdiction under Articles 136  

and 226 of the Constitution of India in favour of the appellant.  These  

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reasons have to be given definite significance, particularly when the  

High Court has declined to quash the entries against the appellant  

and inclusion of his name in the ‘Rowdie list’.  Another aspect of this  

case, to which our attention has been invited, is that for the first time,  

the  High  Court  has  filed  the  detailed  affidavit  in  this  Court  after  

passing of the order dated 20th  May, 2010.  We failed to understand  

why appropriate and detailed affidavit was not even filed before the  

Court.   During the course of  hearing,  we have also called for  the  

original Confidential  Reports of the appellant,  copies whereof have  

been  filed.   The  Confidential  Reports,  which  could  have  been  

recorded  in  the  case  of  the  appellant  as  per  the  rules  and  

regulations,  or  resolutions  of  the  Full  Court  of  High  Court  of  

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Karnataka,  will  be  for  the  years  1996-97,  1997-98  and  1998-99.  

There is only one Confidential  Report  on record for the year 1997  

wherein  the  appellant  has  been  graded  as  ‘Satisfactory’.   This  

falsifies his claim that he had outstanding service record in regard to  

disposal of cases and other service related matters.   

6. With some regret and anxiety, we must notice that for all the  

remaining years no Confidential  Report  of  this  officer,  and in fact,  

many others, as the record now reflects, have been recorded by the  

High Court.  We are unable to overlook this aspect, as it is just not a  

simplicitor  question  of  writing  the  Confidential  Report  of  a  given  

officer but adversely affects the administration of justice on the one  

hand  and  dilutes  the   constitutional  power  &  functions  of  

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Superintendence of the High court, on the other.  A note was put up  

by the Registrar General before the then Hon’ble Acting Chief Justice  

that Confidential Report was put up before Hon’ble Chief Justice for  

recording remarks but that were not recorded and orders were being  

obtained now in that behalf.  However, even thereafter no confidential  

remarks  were recorded.   We  may also  notice  that  reference  was  

made to the resolution of the Full Court passed in its meeting dated  

15th March,1988 which has been referred to in the office note, reads  

as under:-

“Resolved  that  Judicial  Officers  Annual  Confidential Reports shall be recorded in the  Proforma at Annexure – ‘A’ for the period from  1.1.1988 onwards.”

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7. Even thereafter, the records were submitted to the concerned  

Judge of the High court and no Confidential Reports were recorded.  

All this demonstrates not a very healthy state of affairs in relation to  

the recording of Confidential  Reports  of the officers in the Judicial  

Services of the State of Karnataka.  The Confidential Report of an  

officer  is a proper document,  which is expected to be prepared in  

accordance with the  Rules  and practice  of  the Court,  to  form the  

basis while considering the officer for promotion to higher post and all  

other  service  related  matters,  in  future.   Non-writing  of  the  

Confidential  Reports  is  bound to  have unfair  results.   It  affect  the  

morale of the members of the service.  The timely written Confidential  

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Reports would help in putting an officer at notice, if he is expected to  

improve in discharging of his duties and in the present days where  

25% (now 10%) of the vacancies in Higher Judicial Service cadre are  

expected  to  be filled,  from out  of  turn  promotions  after  holding of  

written  examination  and interview.   Highly competitive  standard  of  

service discipline and values are expected to be maintained by the  

Judicial Officers as that alone can help them for better advancement  

of their  service career.   In such circumstances,  the significance of  

proper Superintendence of the High Court over the Judicial Officers  

has a much greater significance than what it was in the past years. In  

fact,  in  our  view,  it  is  mandatory  that  such  Confidential  Reports  

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should be elaborate and written timely to avoid any prejudice to the  

Administration as well as to the officer concerned.

8. We do express a pious hope that Hon’ble Chief Justice of the  

Karnataka High Court would examine this aspect and take corrective  

steps.  We also do hope that appropriate decisions of the High Court  

are in place to  ensure writing of  Annual  Confidential  Reports  in a  

comprehensive manner at regular intervals and timely. It is a matter  

which should invite the attention of all concerned without any further  

delay.  We direct  the Registry to send a copy of this Judgment to  

Hon’ble Chief Justice of the Karnataka High Court to invite his kind  

attention to these aspects.

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9. 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 have  

been taken by the Court.  Firstly, there can be ‘deemed confirmation’  

after  an  employee  has  completed  the  maximum probation  period  

provided under the Rules where after, his entitlement and conditions  

of  service  are  placed  at  parity  with  the  confirmed  employee.  

Secondly, that there would be no ‘deemed confirmation’ and at best  

after  completion  of  maximum probation  period provided under  the  

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Rules governing the employee,  the employee becomes eligible  for  

being confirmed in his post.  His period of probation remains in force  

till 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 view is 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 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  

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language of Rule 3 of 1977 Rules provides that the probation period  

can not be extended beyond 3 years 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 1977 Rules and Entry 2 of schedule under Rule 2 of 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 provided under these Rules  

has expired the officer will stand automatically confirmed and thus is  

incapable of being discharged under Rule 5(B) of the 1977 Rules.  

We shall  now proceed to discuss the judgments which have been  

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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(B) of the 1977 Rules.  The 1983 Rules ought to be  

read  in  conjunction  with  the  1977  Rules  as  they have  duly  been  

adopted by the High Court.  The 1977 Rules are specific Rules on  

the subject in question while 1983 Rules are general Rules and in  

any case there is no conflict between the two as they seek to achieve  

33

the same object in relation to probation and effects thereof in relation  

to different matters.

10. Not  only  the  Rules  but  even  the  principles  of  service  

jurisprudence fully recognizes the status of employee as probationer  

and a confirmed employee.   Probationer  in terms of  Rule 2 (ii)  of  

1977 Rules means a Government servant on probation.  Rules 3 to  

6 are the relevant  Rules which specifically deal  with the period of  

probation, extension or reduction of period of probation, satisfactorily  

completion  of  the probation  period and discharge of  a probationer  

during the period of probation.  The relevant Rules read  as under:

“3.  Period  of  Probation:-  The  period  of  probation shall be as may be provided for in  

34

the  Rules  of  recruitment  specially  made for  any service or post,  which shall  not be less  than  two  year,  excluding  the  period  if  any,  during  which  the  probationer  was  on  extraordinary leave. 4. Extension or reduction of period:- (1) The  period  of  probation  may,  for  reason  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  examination  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  

35

the results of such examinations or tests or of  the first of them in which he fails to pass. (2)  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. 5.  Declaration  of  satisfactory  completion  of  

probation  etc.:-  (1)  At  the  end  of  the  prescribed or as 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 hold the post  to  which he was appointed  and has passed the special  examinations or  test, if any, required to be passed during the  period  of  probation  it  shall,  as  soon  as  

36

possible,  issue  an  order  declaring  the  probationer  to  have  satisfactorily  completed  his  probation  and  such  an order  shall  have  effect  from  the  date  of  expiry  of  the  prescribed,  reduced  or  extended  period  of  probation; (b) if the appointing authority decides that the  probationer is not suitable to hold 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-Rules (1)  shall  not  entitle  the  probationer  to  be  deemed to have satisfactorily  completed  his  probation.

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Note:- In this Rules and Rules 6’discharge’ in  the  case  of  a  probationer  appointed  from  another  service or  post,  means reversion to  that service or post. 6.  Discharge  of  a  probationer  during  the  period  of  probation:-  (1)  Notwithstanding  anything in Rules 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  of  post;  but  the  order of discharge except when passed by the  Government shall not be given effect to till it  has been submitted 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,  

38

Control  and  Appeal)  Rules,  1957,  shall  be  necessary.

11.      Now, let us analyze 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  provide 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  

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half of the prescribed period of probation.  Interestingly, to this Rule  

the  framers  of  the  Rules  have   introduced  proviso,  which  gives  

discretion  to  the  Authorities  and,  in  fact,  introduced  deemed  

extension in the event of 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.

12. The  purpose  of  any  probation  is  to  ensure  that  before  the  

employee  attains  the  status  of  confirmed  regular  employee,  he  

40

should satisfactorily perform his duties and functions to enable the  

Authorities to pass appropriate orders.  In other 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  competed  his  period  or  pass  an order  extending  the  

period of probation etc.  Rule 5(b) empowers the Authority that in the  

41

event  it  is  of  the  view that  the  period  of  probation  has  not  been  

satisfactorily completed or has not passed the special examinations,  

it may discharge him from 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.  This Rule further clarifies that if there is a delay  

in issuance of  an order under sub-Rule (1),  it  shall  not entitle  the  

probationer  to  be  deemed  to  have  satisfactorily  completed  his  

probation.  In other words, the framers of the Rules have introduced  

a  double  restriction  to  the  concept  of  automatic  confirmation  or  

deemed satisfactorily completion of the probation period.  Firstly, the  

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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 or 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 light of this statutory provision, let us  

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also examine the probation period referred to under item No. 2 of  

Rule 2 of 1983 Rules.  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 that it is not the provision  

dealing  with  the  probation  period,  extension  and  discharge  of  a  

probationer  during  that  period  but  is  primarily  relatable  to  the  

minimum 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 1977 Rules  

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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 concerned officer undergoes training during  

the period of probation.  While the significance under the 1983 Rules  

is on training, under 1977 Rules, all matters relating to probation are  

specifically  dealt  with.   It  would  not  be  permissible  to  read  the  

relevant part  of  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  1977  Rules  will  

become redundant and ineffective.  In fact, it would frustrate the very  

45

purpose  of  framing  the  1977  Rules.   What  will  be  the  period  of  

probation,  the  circumstances  under  which  it  can  be  extended  or  

reduces  and discharge  of  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  1977  Rules  to  

achieve the  real  purpose  of  proper  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 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.  

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13.     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 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  

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that we have discussed Rules 3 to 6 of 1977 Rules in the earlier part  

of  the judgment.   What view out of the two views indicated above  

should  be followed in  the  facts  of  the  present  case  can  be fairly  

stated only after we have discussed the earlier judgment of the larger  

as well as equi benches on this aspect.  Let us, at the very outset,  

refer to the Constitution Bench Judgment of this Court in the case of  

State of Punjab v. Dharam Singh, [AIR 1968 SC 1210] In that case  

the Court was concerned with Rule 6(3) of the Punjab Educational  

Service  (Provincialised  Cadre)  Class  III  Rules,  1961  which  fixed  

certain period beyond which the probation period cannot be extended  

and an employee appointed or promoted to a post on probation is  

allowed to  continue  in  that  post  after  completion  of  the  maximum  

48

period of  probation.   The view taken by the  Court  was that  there  

would be confirmation of the employee in the post by implication.  We  

may refer to the following paragraphs of the judgment of this Court:

“8.  The  initial  period  of  probation  of  the  respondents  ended on October  1,  1958.  By  allowing the respondents to continue in their  posts thereafter without any express order of  confirmation, the competent authority must be  

taken  to  have  extended  the  period  of  probation  up  to  October  1,  1960  by  implication.  But  under  the  proviso  to  Rule  6(3), the probationary period could not extend  beyond  October  1,  1960.  In  view  of  the  proviso  to  Rule  6(3),  it  is  not  possible  to  presume  that  the  competent  authority  extended  the  probationary  period  after  October  1,  1960,  or  that  thereafter  the  respondents continued to hold their posts as  probationers.

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9. Immediately  upon  completion  of  the  extended  period  of  probation  on October  1,  1960, the appointing authority could dispense  with  the  services of  the  respondents  if  their  work or conduct during the period of probation  was  in  the  opinion  of  the  authority  unsatisfactory. Instead of dispensing with their  services on completion of the extended period  of probation, the authority continued them in  their  posts  until  sometime  in  1963,  and  allowed them to  draw annual  increments  of  

salary including the increment which fell  due  on October 1, 1962. The rules did not require  them to  pass  any test  or  to  fulfil  any other  condition  before  confirmation.  There was no  compelling  reason  for  dispensing  with  their  services and re-employing them as temporary  employees on October 1, 1960, and the High  Court  rightly  refused  to  draw  the  inference  that  they  were so  discharged  from services  and re-employed. In these circumstances, the  High Court  rightly held that  the respondents  

50

must be deemed to have been confirmed in  their  posts.  Though  the  appointing  authority  did not pass formal orders of confirmation in  writing, it should be presumed to have passed  orders of confirmation by so allowing them to  continue in their posts after October 1, 1960.  After such confirmation, the authority had no  power to  dispense  with  their  services under  Rule  6(3)  on  the  ground  that  their  work  or  conduct  during  the  period  of  probation  was  unsatisfactory. It follows that on the dates of  

the  impugned  orders,  the  respondents  had  the  right  to  hold  their  posts.  The impugned  orders  deprived  them  of  this  right  and  amounted to removal from service by way of  punishment.  The removal from service could  not be made without following the procedure  laid  down  in  the  Punjab  Civil  Services  (Punishment  and  Appeal)  Rules,  1952  and  without  conforming  to  the  constitutional  requirements  of  Article  311  of  the  Constitution.  As  the  procedure  laid  down in  

51

the  Punjab  Civil  Services  (Punishment  and  Appeal) Rules, 1952 was not followed and as  the constitutional protection of Article 311 was  violated, the impugned orders were rightly set  aside by the High Court.”

Seven Judge Bench  of this  Court,  in the case of Shamsher  vs.  

State of Punjab  [(1974) 2 SCC 834], was  concerned primarily, with  

the  question whether termination during probation could be viewed  

as a punitive action in some case or always  has to be as discharge  

simplicitor  during the  said period.  The Court expressed the view  

that no abstract proposition can be laid down  that where the services  

of a probationer are terminated without saying anything more in the  

order of termination, it can never amount to punishment. In the facts  

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and circumstances of the case if the probationer is discharged on the  

ground  of insufficiecy or for similar reasons without a proper enquiry  

and  without  his  getting  a  reasonable  opportunity  to  show  cause  

against his discharge it may in a given case amount to  removal from  

service within Article 311 (2) of the Constitution of India.  But while  

dealing  with  this  principle  question  the  Bench  even discussed,  at  

some length,  whether a probationer can automatically be confirmed  

on the expiry of period of probation.  The Court considered the earlier  

judgment  of this Court in  Dharam Singh’s case (supra) discussing  

the case of  appellant,  who had completed his  initial  period of  two  

years’ probation on 11th November, 1967 and the maximum period of  

three years’ probation on 11th November, 1968 and by reason of the  

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fact  that  he continued in  service  after  the  expiry of  the  maximum  

period of probation he became confirmed, was the contention raised  

before the Bench.  In that case the relevant Rule 7 (1) provided  that  

every  subordinate  Judge,  in  the  first  instance,  be  appointed  on  

probation for two years but this period may be extended from time to  

time expressly or impliedly so that the total period of probation does  

not exceed three years.  Explanation to Rule  5 (1) further provided  

that period of probation shall be deemed to have been extended if a  

Subordinate  Judge is  not  confirmed on the expiry of  his period of  

probation.  The appellant had also placed reliance on Dharam Singh’  

case  (supra)  to  contend  that  the  only  view possible  was  that  he  

54

would be deemed to have been confirmed.   However, on the facts of  

the case before the Bench the Court held as under:

 “Any confirmation by implication is negatived  in  the  present  case  because  before  the  completion  of  three  years  the  High  Court  found prima facie that the work as well as the  conduct  of  the  appellant  was  unsatisfactory  and a  notice  was given to  the  appellant  on  October 4, 1968 to show cause as to why his  

services  should  not  be  terminated.  Furthermore,  Rule  9  shows  that  the  employment of a probationer can be proposed  to be terminated whether during or at the end  of the period of probation. This indicates that  where the notice  is  given at  the end of  the  probation  the  period  of  probation  gets  extended  till  the  inquiry  proceedings  commenced by the notice under Rule 9 come  to an end. In this background the explanation  to  Rule  7(1)  shows  that  the  period  of  probation  shall  be  deemed  to  have  been  extended impliedly if  a Subordinate Judge is  not confirmed on the expiry of this period of  

55

probation.  This  implied  extension  where  a  Subordinate  Judge  is  not  confirmed  on  the  expiry of the period of probation is not found  in Dharam Singh’s case. (AIR 1968 SC 1210)  This explanation in the present case does not  mean  that  the  implied  extension  of  the  probationary period is only between two and  three years. The explanation on the contrary  means  that  the  provision  regarding  the  maximum period of probation for three years  is  directory  and  not  mandatory  unlike  in  Dharam Singh case and that a probationer is  not  in  fact  confirmed  till  an  order  of  confirmation is made.

In this context reference may be made to the  proviso to Rule 7(3). The proviso to the rule  states  that  the  completion  of  the  maximum  period  of  three  years’  probation  would  not  confer  on  him  the  right  to  be  confirmed  till  there  is  a permanent  vacancy in  the  cadre.  Rule  7(3)  states  that  an  express  order  of  confirmation  is  necessary.  The  proviso  to  Rule  7(3)  is  in  the  negative  form  that  the  completion  of  the  maximum period  of  three  years would not confer a right of confirmation  till there is a permanent vacancy in the cadre.  The period of probation is therefore extended  by  implication  until  the  proceedings  

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commenced  against  a  probationer  like  the  appellant  are  concluded  to  enable  the  Government to decide whether a probationer  should be confirmed or his services should be  terminated.  No  confirmation  by  implication  can arise in the present case in the facts and  circumstances  as  also  by  the  meaning  and  operation of Rules 7(1) and 7(3) as aforesaid. It  is  necessary  at  this  stage  to  refer  to  the  second proviso to Rule 7(3) which came into  existence  on  November  19,  1970.  That  proviso of course does not apply to the facts  of the present case. That proviso states that if  

the  report  of  the  High  Court  regarding  the  unsatisfactory  work  or  conduct  of  the  probationer  is  made to  the  Governor  before  the  expiry  of  the  maximum  period  of  probation,  further  proceedings  in  the  matter  may be taken and orders  passed by  the  Governor  of  Punjab  dispensing  with  his  services  or  reverting  him  to  his  substantive  post  even  after  the  expiry  of  the  maximum  period  of  probation.  The  second  proviso  makes  explicit  which is  implicit  in  Rule  7(1)  and Rule 7(3) that the period of probation gets  extended till  the proceedings commenced by  

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the  notice  come  to  an  end  either  by  confirmation or discharge of the probationer. In  the  present  case,  no  confirmation  by  implication can arise by reason of the notice  to show cause given on October 4, 1968 the  enquiry by the Director of Vigilance to enquire  into allegations and the operation of Rule 7 of  the Service Rules that the probation shall be  extended impliedly if  a Subordinate Judge is  not confirmed before the expiry of the period  of  probation.  Inasmuch  as  Ishwar  Chand  Agarwal was not confirmed at the end of the  period of probation confirmation by implication  

is nullified.”

  14.             Before we discuss the subsequent judgment to these  

landmark judgments of this Court it will be quite appropriate to notice  

that the divergent views  by different Benches of this Court and, more  

so, by different High Courts have been the subject matter of concern  

and have been noticed again by different Benches of this Court. In  

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the case of Dayaram Dayal vs. State of M.P. [(1997) 7 SCC 443].  

The Court specifically noticed the two line of rulings pronounced by  

this Court in its different judgments.  At the cost of some repetition,  

we may notice that one line of judgments held that mere continuation  

of  service  beyond  the  period  of  probation  does  not  amount  to  

confirmation unless it was so specifically provided.  The other line,  

though in very few cases, but, has been taken by this Court is that  

where  there  is  provision  in  the  Rules  for  initial  probation  and  

extension  thereof,  a  maximum  period  of  such  extension  is  also  

provided  beyond  which  it  is  not  permissible  to  extend  probation.  

However, the Bench dealing with the case of Dayaram Dayal’s case  

(supra)  did  demonstrate  that  there  was  not  any  serious  conflict  

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between the  two sets of decisions and it depends on the conditions  

contained  in  the  order  of  appointment  and  the  relevant  rules  

applicable.    Though the  Bench  in  that  case  held  that  there  was  

confirmation  of  the employee and while setting  aside the order  of  

termination,   granted  liberty  to  hold  departmental  enquiry  in  

accordance with law.   In order to analyze the reasoning  recorded by  

the Bench  we may refer to the following paragraphs as they would  

throw proper insight into the discussion:

“9.     The other line of cases are those where  while there is a provision in the rules for initial  probation and extension thereof,  a maximum  period  for  such  extension  is  also  provided  beyond which it  is not permissible to extend  probation.  A  question  as  to  its  effect  arose  before  the  Constitution  Bench  in  State  of   Punjab v. Dharam Singh [AIR 1968 SC 1210].  

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The relevant rule there provided initially for a  one-year  probation  and  then  for  extension  thereof subject to a maximum of three years.  The petitioner in that case was on probation  from  1-10-1957  for  one  year  and  was  continued  beyond  the  extended  period  of  three years (in all four years) and terminated  in  1963 without  any departmental  inquiry.  A  Constitution  Bench  of  this  Court  referred  Sukhbans Singh v. State of Punjab [AIR 1962  SC  1711], G.S.  Ramaswamy  v.  Inspector   General  of  Police  [AIR  1966  SC  175] and  State of U.P. v. Akbar Ali Khan [AIR1966 SC  1842] cases  and distinguished  the  same as  

cases where the rules did not  provide for  a  maximum period of  probation  but  that  if  the  rule, as in the case before them provided for a  maximum,  then that  was an implication  that  the  officer  was  not  in  the  position  of  a  probationer  after  the expiry of  the maximum  period. The presumption of his continuing as  a probationer was negatived by the fixation of  a  maximum  time-limit  for  the  extension  of  probation. The termination after expiry of four  years,  that  is  after  the  maximum period  for  which probation could be extended, was held  to be invalid. This view has been consistently  followed  in  Om  Parkash  Maurya v.  U.P.  

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Coop. Sugar  Factories’  Federation  [(1986)  Supp.  SCC  95];  M.K.  Agarwal v.  Gurgaon  Gramin  Bank  [{1987)  Supp  SCC  643] and  State  of  Gujarat v.  Akhilesh  C.  Bhargav   [(1987)  4  SCC 482] which are all  cases  in  which  a  maximum  period  for  extension  of  probation  was  prescribed  and  termination after expiry of the said period was  held  to  be  invalid  inasmuch  as  the  officer  must be deemed to have been confirmed.

10.    The decision of the Constitution Bench  in State of Punjab v. Dharam Singh [AIR 1968  

SC 1210] was accepted by the seven-Judge  Bench in  Samsher Singh v.  State of Punjab  [(1974)  2  SCC  831].  However  it  was  distinguished on account of a further special  provision  in  the  relevant  rules  applicable  in  Samsher Singh case. The rule there provided  for an initial period of 2 years of probation and  for  a  further  period  of  one  year  as  the  maximum. One of the officers, Ishwar Chand  Agarwal  in  that  case  completed  the  initial  period  of  2  years  on  11-11-1967  and  the  maximum  on  11-11-1968,  and  after  completion of total 3 years his services were  terminated  on  15-12-1969.  But  still  Dharam  

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Singh  case was  not  applied  because  the  Rules  contained  a  special  provision  for  continuation of the probation even beyond the  maximum of 3 years. The Explanation to Rule  7(1)  stated  (see p. 852)  that  the  period  of  probation  shall  be  deemed  extended if  a  Subordinate  Judge  is  not  confirmed on  the  expiry of  his  period  of  probation.  The Court  held (p. 853) that this provision applied to  the extended period of probation. It observed:  (SCC para 71)

“71.  ...  This explanation in the present  case  

does not mean that the implied extension of  the probationary period is only between  two  and  three  years. The  explanation  on  the  contrary  means  that  the  provision  regarding  the  maximum  period  of  probation  for  three  years is directory and not mandatory unlike in  Dharam Singh case and that a probationer is  not  in  fact  confirmed  till  an  order  of  confirmation is made.

                             (emphasis supplied)”                                                                    

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Thus  Samsher Singh case while it  accepted  Dharam Singh case is still not covered by that  case  because  of  the  special  Explanation  which  clearly  deemed  the  probation  as  continuing  beyond  the  maximum  period  of  probation  as  long  as  no  confirmation  order  was passed.

11.     Similarly, the case in Municipal Corpn.  v.  Ashok  Kumar  Misra  [(1991)  3  SCC  325  accepted  Dharam Singh case and the cases  which followed it but distinguished that line of  cases on account of another special provision  

in the rules. There the relevant rule provided  for a maximum of one year for the extended  period  of  probation  but  there  was  a  Note  under  Rule  8(2)  of  the  Madhya  Pradesh  Government  Servants  General  Conditions  of  Service Rules,  1961. Rule 8(2) of the Rules  and the Note read: “8.  (2)  The  appointing  authority  may,  for  sufficient  reasons,  extend  the  period  of  probation  by a  further  period  not  exceeding  one year. Note.—A  probationer  whose  period  of  probation is not extended under this sub-rule,  

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but  who  has  neither  been  confirmed  nor  discharged  from  service  at  the  end  of  the  period of probation shall be deemed to have  been  continued  in  service,  subject  to  the  condition  of  his  service  being terminable  on  the expiry of a notice of one calendar month  given in writing by either side.” It was held by this Court as follows: (SCC p.  

328, para 4)

“4.  ...  Under  the  Note  to  sub-rule  (2)  if  the  probationer  is  neither  confirmed  nor  

discharged  from  service  at  the  end  of  the  period  of  probation,  he  shall  be  deemed  to  have been continued in service as probationer  subject  to  the condition of  his  service being  terminated  on the  expiry of  a  notice  of  one  calendar  month  given  in  writing  by  either  side.”  The  consequence  of  the  Note  was  explained further as follows: (pp. 328-29)

“As  per  sub-rule  (6),  on  passing  the  prescribed departmental  examination and on  successful  completion  of  the  period  of  probation, the probationer shall be confirmed  

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in the service or post to which he has been  appointed.  Then  he  becomes  an  approved  probationer.  Therefore, after the expiry of the  period  of  probation  and  before  its   confirmation,  he  would  be  deemed  to  have  been continued  in  service  as  a probationer.  Confirmation of probation would be subject to  satisfactory completion of the probation and to  pass in the prescribed examinations. Expiry of  the  period  of  probation,  therefore,  does  not  entitle  him  with a  right  of  deemed  confirmation.  The rule  contemplates  to  pass  an  express  order  of  confirmation  in  that  regard.  By  issue  of  notice  of  one  calendar  

month  in  writing  by  either  side,  the  tenure  could be put to an end, which was done in this  case.”

  (emphasis supplied)

It is clear that the Court distinguished Dharam  Singh,  Om  Parkash  Maurya,  M.K.  Agarwal,  and  Akhilesh Bhargava because of the  Note  under  Rule 8(2),  even though the rule  itself  provided  a  maximum  of  one  year  for  extension of probation.

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12.  Thus,  even though the maximum period  for extension could lead to an indication that  the  officer  is  deemed  to  be  confirmed,  still  special  provisions  in  such  rules  could  negative such an intention. 13. It is, therefore, clear that the present case  is one where the rule has prescribed an initial  period of probation and then for the extension  of  probation  subject  to  a  maximum,  and  therefore  the  case  squarely  falls  within  the  second line of cases, namely,  Dharam Singh  case and the provision for a maximum is an  

indication  of  an  intention  not  to  treat  the  officer  as  being  under  probation  after  the  expiry of the maximum period of probation. It  is also significant  that  in the case before us  the effect of the rule fixing a maximum period  of probation is not whittled down by any other  provision  in  the  rules  such  as  the  one  contained in Samsher Singh case or in Ashok  Kumar Misra case. Though a plea was raised  that  termination of  service could be effected  by  serving  one  month’s  notice  or  paying  salary  in  lieu  thereof,  there  is  no  such  provision in the order of appointment nor was  

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any  rule  relied  upon  for  supporting  such  a  contention.”

   15.       Similar view was also taken by another Bench of this Court  

in the case of Karnataka State Road Transport Corporation vs.  S.  

Manjunath  [(2000)  5 SCC 250].   In  that  case  the  employees had  

claimed  that after the expiry of prescribed period of probation they  

would be deemed to be  confirmed employees and their  services  

were not liable to be terminated simplicitor.  Regulation  11 (8), which  

was pressed into service by the Corporation,   provided that a person  

should not be considered to have satisfactorily completed the period  

of probation unless specific order to that effect is made and the delay  

in issuance of certificate would not entitle the person  to be deemed  

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to have satisfactorily completed the period of    probation. This Court,  

while noticing  that Rule 11(8) was applicable to promotees   alone  

because of  the expression   of  ‘officiating’   having been used,  the  

appellants, before the Court were direct recruits, therefore, covered  

under Regulation 11 (1)   which provides that  the probation  period  

shall be for two  years extendable by one year and that the period of  

probation shall not be further extended.   In this view of the matter  

and while referring to the case of Dharam Singh  (supra) and  Wasim  

Beg  vs. State of U.P. [(1998) 3 SCC 321] the Court further noticed  

that the two view theory expressed in the case of Dayaram (supra)  

was further  extended in the case of Wasim Beg (supra) and after  

discussing  the entire gamut of law such cases were classified into  

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three categories.  After detailed discussion on the subject the Court  

held as under:

“10.   This Court had an occasion to review,  analyse critically and clarify the principles on  an  exhaustive  consideration  of  the  entire  case-law in two recent  decisions reported in  Dayaram  Dayalv.  State  of  M.P.  [(1997)  7  SCC 443]  and  Wasim Beg v.  State  of  U.P.   [(1998)  3 SCC 321].  One line of  cases has  

held that if in the rule or order of appointment,  a period of probation is specified and a power  to extend probation is also conferred and the  officer  is  allowed  to  continue  beyond  the  prescribed period of probation, he cannot be  deemed to be confirmed and there is no bar  on the power of termination of the officer after  the expiry of the initial or extended period of  probation.  This  is  because  at  the  end  of  probation  he  becomes  merely  qualified  or  eligible  for  substantive  permanent  appointment.  The  other  line  of  cases  are  those where even though there is a provision  in the rules for initial probation and extension  

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thereof, a maximum period for such extension  is  also  provided  beyond  which  it  is  not  permissible  to  extend  probation.  The  Constitution Bench which dealt with the case  reported  in  State  of  Punjab v.  Dharam  Singh[AIR 1968 SC 1210] while distinguishing  the  other  line  of  cases  held  that  the  presumption  about  continuation,  beyond  the  period  of  probation,  as  a  probationer  stood  negatived by the fixation of a maximum time- limit  for  the  extension  of  probation.  Consequently, in such cases the termination  after  expiry  of  the  maximum  period  up  to  which probation could be extended was held  

to  be  invalid,  inasmuch  as  the  officer  concerned  must  be  deemed  to  have  been  confirmed.

11.    The  principles  laid  down  in  Dharam  Singh case though were accepted in another  Constitution Bench of a larger composition in  the case reported in  Samsher Singh v.  State  of  Punjab  [(1974)2SCC831] the  special  provisions  contained  in  the  relevant  Rules  taken up for consideration therein were held  to indicate an intention not to treat the officer  as  deemed  to  have  been  confirmed,  in  the  

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light of the specific stipulation that the period  of probation shall be deemed to be extended  if the officer concerned was not confirmed on  the expiry of his period of probation. Despite  the  indication  of  a  maximum  period  of  probation,  the implied extension was held to  render  the  maximum  period  of  probation  a  directory  one  and  not  mandatory.  Hence,  it  was held that a probationer in such class of  cases is not to be considered confirmed,  till  an order of confirmation is actually made. The  further  question  for  consideration  in  such  category of cases where the maximum period  of probation has been fixed would be, as to  

whether there are anything else in the rules  which had the effect of whittling down the right  to  deemed  confirmation  on  account  of  the  prescription of a maximum period of probation  beyond  which  there  is  an  embargo  upon  further  extension  being  made,  and  such  stipulation  was  found  wanting  in  Dayaram  Dayal case.

xxx                       xxx                       xxx  

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14.   As indicated by us, the Regulation deals  with two different categories of cases — one  about  the  “probation”  of  an  appointee  other  than  by  way  of  promotion  and  the  other  relating to “officiation” of a person appointed  on promotion.  The similarity of  purpose and  identity  of  object  apart,  of  such  provision,  there  is  an  obvious  difference  and  positive  distinction disclosed in the manner they have  to be actually dealt with. The deliberate use of  two  different  phraseology  “probation”  and  “officiation”  cannot  be  so  lightly  ignored  obliterating  the  substantial  variation  in  the  method  of  handling  such  categories  of  

persons  envisaged  by  the  Regulations.  The  mere  fact  that  a  reference  is  made to  sub- regulation  (3)  also  in  the  later  part  of  sub- regulation (8) of the Regulation could not be  used to apply all the provisions relating to the  category of appointees on “officiation” to the  other  category of  appointees  on “probation”.  The  stipulation  in  sub-regulation  (8)  of  the  Regulation  when  making  the  passing  of  an  order,  a  condition  precedent  for  satisfactory  completion  specifically  refers  only  to  the  completion of “period of officiation”. Similarly,  notwithstanding  a  reference  made  to  sub- regulation (3) along side sub-regulation (4), in  

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stipulating the consequences of any delay in  making  an  order  declaring  satisfactory  completion, the reference is confined only to  deemed  satisfaction  and  completion  of  “the  period  of  officiation”,  and  not  of  probation.  Sub-regulation (9) of the Regulation insofar as  it  provides  for  confirmation  as  a  sequel  to  declaration, only deals with a promotee to a  temporary post and not of the other category.  While  dealing  with  the  termination  of  a  candidate,  not  found  suitable  for  the  post,  sub-regulation (3) of the Regulation envisages  such  termination  being  made  at  any  time  “within the period of probation”, and not at any  

time  after  the  completion  of  such  maximum  period of probation. Consequently, the cases  on hand also would fall within the category of  cases dealt with in  Dayaram Dayal case and  Wasim  Beg  case and  the  services  of  the  respondents  could  not  be  put  an  end  to  except by means of departmental disciplinary  proceedings,  after  following  the  mandatory  requirements  of  law.  Therefore,  the  High  Court cannot be faulted for interfering with the  orders  of  termination  of  the  services  of  the  respondents.”

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Therefore,  the  appeals  referred   by  the  Corporation  came  to  be  

dismissed as the  employee  had attained the status of confirmed  

employee.

16. Now let  us  examine  the  other  view where  the  Courts  have  

declined to accept the contention that the employees were entitled to  

automatic  confirmation after  expiry of the probation period.   In the  

case of High Court of Madhya Pradesh  vs. Satya Narayan Jhavar  

[(2001) 7 SCC 161] a three Judge Bench of this Court reiterated the  

three  line  of  cases  while  referring  to  Rule  24(1)  which  provided  

maximum period of probation, examined the question of confirmation  

of  such  a  probationer  depending  upon  his  fitness  for  such  

confirmation and his passing of the departmental examination by the  

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higher standards.  Thus declined to accept the principle of automatic  

or deemed confirmation  the Court held as under:

“11.     The question of deemed confirmation  in service jurisprudence, which is dependent  upon  the  language  of  the  relevant  service  rules,  has  been  the  subject-matter  of  consideration before this Court, times without  number  in  various  decisions  and  there  are  three lines of cases on this point. One line of  cases is where in the service rules or in the  letter of appointment a period of probation is  

specified  and  power  to  extend  the  same  is  also  conferred  upon  the  authority  without  prescribing any maximum period of probation  and  if  the  officer  is  continued  beyond  the  prescribed or extended period, he cannot be  deemed to be confirmed. In such cases there  is no bar against termination at any point of  time  after  expiry  of  the  period  of  probation.  The other  line  of  cases  is  that  where while  there  is  a  provision  in  the  rules  for  initial  probation and extension thereof,  a maximum  period  for  such  extension  is  also  provided  beyond which it  is not permissible to extend  probation. The inference in such cases is that  

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the officer concerned is deemed to have been  confirmed upon expiry of the maximum period  of probation in case before its expiry the order  of termination has not been passed. The last  line of cases is where, though under the rules  maximum period  of  probation  is  prescribed,  but  the  same requires  a specific  act  on the  part  of  the  employer by issuing  an order  of  confirmation  and  of  passing  a  test  for  the  purposes of confirmation. In such cases, even  if  the  maximum  period  of  probation  has  expired and neither any order of confirmation  has  been  passed  nor  has  the  person  concerned  passed  the  requisite  test,  he  

cannot  be  deemed to  have been  confirmed  merely because the said period has expired.

xxx                 xxx                xxx                 xxx

35     In the case on hand, correctness of the  interpretation given by this Court to Rule 24 of  the Rules in  the case of  Dayaram Dayal  v.   State of M.P. [(1997) 7 SCC 443] is the bone  of contention. In the aforesaid case, no doubt,  this Court has held that a maximum period of  probation  having  been  provided  under  sub-

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rule (1) of Rule 24, if a probationer’s service is  not terminated and he is allowed to continue  thereafter  it  will  be  a  case  of  deemed  confirmation  and  the  sheet  anchor  of  the  aforesaid  conclusion  is  the  Constitution  Bench  decision  of  this  Court  in  the  case  of  State of Punjab v. Dharam Singh [AIR 1968  SC 1210].  But,  in  our  considered  opinion in  the case of  Dayaram Dayal. Rule 24 of  the  Rules has not been interpreted in its  proper  perspective. A plain reading of different sub- rules  of  Rule  24  would  indicate  that  every  candidate  appointed to the cadre will  go for  initial  training  for  six  months  whereafter  he  would be appointed on probation for a period  of  2  years  and the  said  period of  probation  

would  be  extended  for  a  further  period  not  exceeding 2 years.  Thus, under sub-rule (1)  of  Rule  24  a  maximum  period  of  4  years’  probation  has  been provided.  The aforesaid  sub-rule also stipulates that at the end of the  probation  period  the  appointee  could  be  confirmed  subject  to  his  fitness  for  confirmation  and  to  his  having  passed  the  departmental  examination,  as  may  be  prescribed.  In  the  very  sub-rule,  therefore,  while  a  maximum  period  of  probation  has  been  indicated,  yet  the  question  of  confirmation  of  such  a  probationer  is  dependent  upon  his  fitness  for  such  confirmation  and  his  passing  of  the  departmental  examination  by  the  higher  

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standard,  as  prescribed.  It  necessarily  stipulates  that  the  question  of  confirmation  can be considered at the end of the period of  probation,  and  on  such  consideration  if  the  probationer is found suitable by the appointing  authority and he is found to have passed the  prescribed departmental examination then the  appointing  authority  may  issue  an  order  of  confirmation. It is too well settled that an order  of confirmation is a positive act on the part of  the employer which the employer is required  to  pass  in  accordance  with  the  Rules  governing the question of confirmation subject  to a finding that the probationer is in fact fit for  confirmation.  This  being  the  position  under  sub-rule (1) of Rule 24, it is difficult for us to  

accept  the proposition,  broadly laid  down in  the case of  Dayaram Dayal and to hold that  since  a  maximum  period  of  probation  has  been provided thereunder, at the end of that  period  the  probationer  must  be  held  to  be  deemed to be confirmed on the basis of the  judgment of this Court in the case of Dharam  Singh.”  

 17.            This  view was followed by another two Judge Bench  of  

this  Court  in  a subsequent  judgment  relating  to  judicial  officers  in  

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Registrar,   High Court of Gujarat  vs. C.G. Sharma [(2005) 1 SCC  

132] holding that termination was proper, no opportunity ought need  

to be granted because it was a matter of pure subjective satisfaction  

relating  to  overall  performance.   Referring to  Rule 5(4)  of  Gujarat  

Judicial Service Recruitment Rules, 1961 the Court held as under:

“26.  A large number of authorities were cited  before us by both the parties.  However, it  is  

not  necessary  to  go  into  the  details  of  all  those cases for  the simple reason that  sub- rule  (4)  of  Rule  5  of  the  Rules  is  in  pari  materia  with  the  Rule  which  was  under  consideration  in  the  case  of  State  of   Maharashtra   v.  Veerappa R  Saboji [(1979) 4 SCC 466]  and we find that  even if the period of two years expires and the  probationer  is  allowed  to  continue  after  a  period  of  two  years,  automatic  confirmation  cannot  be  claimed  as  a  matter  of  right  because in terms of the Rules, work has to be  satisfactory  which  is  a  prerequisite  or  precondition  for  confirmation  and,  therefore,  even if the probationer is allowed to continue  beyond the period of two years as mentioned  

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in the Rule, there is no question of deemed  confirmation. The language of the Rule itself  excludes  any  chance  of  giving  deemed  or  automatic  confirmation  because  the  confirmation  is  to  be  ordered  if  there  is  a  vacancy  and  if  the  work  is  found  to  be  satisfactory.  There  is  no  question  of  confirmation  and,  therefore,  deemed  confirmation,  in  the  light  of  the  language of  this Rule, is ruled out.  We are, therefore,  of  the  opinion  that  the  argument  advanced  by  learned  counsel  for  the  respondent  on  this  aspect has no merits and no leg to stand. The  learned Single Judge and the learned Judges  of the Division Bench have rightly come to the  conclusion  that  there  is  no  automatic  

confirmation on the expiry of the period of two  years and on the expiry of the said period of  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.

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xxx   xxx        xxx          xxx    

 43.    But the facts and circumstances in the  case  on  hand  are  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  simpliciter  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 termination simpliciter cannot  be said to be violative of Articles 14, 16 and  

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311 of the Constitution. The law on the point  is crystallised that the probationer remains 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 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.”

18. 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 certainly the larger Benches and are binding on us, the Courts  

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have taken the view with reference to the 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  

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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 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 of  

probation or even specifically provide that upon expiry of that period  

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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  prescribe  a  straight  jacket  formulae  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.

19. 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  

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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  

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come into play 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 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 present case.  This Rule is preceded by the powers  

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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 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 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  

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discharge has to be simplicitor without causing a stigma  upon the  

concerned probationer.  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 to 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 be extended by the authority by such  

period not exceeding half the period.  The negative expression is for  

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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 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  

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satisfactorily  completion  of  probation  period.   The  Rules,  being  

specific and 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.

20. Another aspect, which would further substantiate the view that  

we have expressed, is that 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  

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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.

21. 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  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 satisfactorily completion  

of  probation  period,  the  appellant  cannot  claim to  be a confirmed  

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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  

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  

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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.

22. 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 be, strictly speaking, this may not be  

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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 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:  

“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  

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during  the  period  a  government  servant  is  found to be unsuitable, 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  

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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  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.   

 23.       It will be really unfortunate that a person, who is involved in  

the process of judicial dispensation, is dealt with in a manner that  for  

years neither  his confidential reports are written nor the competent  

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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 as  

of his draw backs so as to provide him a fair opportunity to improve.  

We certainly notice it with some sense of regret that the High Court  

has not maintained the expected standards of proper administration.  

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  

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contact with these members of the judicial hierarchy.  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 the appellant was stated  to be on  

the rowdy list   at the relevant time.

24. 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:  

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  

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express  a  pious  hope  that  steps   will  be  taken  to  ensure  timely  

recording  of  the  confidential  reports  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 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, in the light  

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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 law, are received  

by the concerned authority before an order of appointment/posting in  

the State Judicial Service is issued by the said authority.  

With the above directions, the appeal is dismissed.  However,  

the parties are left to bear their own costs.    

….…..................................J.  [ DR. B.S. CHAUHAN ]

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………................................J.       [ SWATANTER KUMAR ]

New Delhi July 8,  2010.  

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