REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 95 OF 2004

RAJESH KOHLI               …. Petitioner

Versus

HIGH COURT OF J. & K. & ANR.        ....  Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.

1. The  present  Writ  Petition  has  been  filed  by  the  

petitioner under Article 32 of the Constitution of  

India against the impugned administrative order of  

the High Court of Jammu & Kashmir [Respondent  

No. 1] recommending the termination of service of  

the petitioner who was working as a probationary  

Judicial Officer, and also against the order issued  

by the  State  of  Jammu & Kashmir  [Respondent  

No. 2] on the basis of such recommendation, on

03.07.2003,  dispensing  with  the  services  of  the  

petitioner as a District & Sessions Judge.  

2. The  petitioner  herein  was  recommended  by  the  

High Court of Jammu & Kashmir for appointment  

as the District and Sessions Judge on a temporary  

basis. This aforesaid recommendation of the High  

Court was accepted by the Government of Jammu  

&  Kashmir  and  an  order  of  appointment  was  

issued to him appointing him as the District and  

Sessions  Judge  on  a  temporary  basis.  It  was  

clearly mentioned in the said order of appointment  

issued by the State Government that the petitioner  

would  remain  on  probation  for  a  period  of  two  

years as provided under  the Jammu & Kashmir  

Higher  Judicial  Service  Rules.  Consequent  upon  

the  aforesaid  temporary  appointment,  the  

petitioner was appointed as 3rd Additional District  

Sessions  Judge,  Srinagar  by  order  dated  

28.08.2000.  Thereafter  he  was  transferred  and

posted as Additional District and Sessions Judge,  

Jammu by issuing an order dated 05.06.2001.

3. At this stage, it is required to be mentioned that in  

terms of the Jammu & Kashmir Higher Judicial  

Service Rules, the total period of probation for a  

Judicial Officer after his initial appointment could  

be  for  three  years  for  when  he  is  initially  

appointed,  at  the  first  instance  his  probation  

period  is  given  as  two  years  and  thereafter  the  

same could be extended by another one year. In  

this connection, reference could be made to Rule  

15  of  the  Jammu  &  Kashmir  Higher  Judicial  

Service Rules which provides as follows: -

“15.  Probation  –  (1)  All  persons  shall  on  appointment to the service in the substantive   vacancies be placed on probation. The period  of probation shall, in each case, be two years;   provided that  the period for which an officer  has been continuously officiating immediately  prior  to  his  appointment  may  be  taken  into   account,  for  the  purpose  of  computing  the  period of probation.  

(2) The Governor may in consultation with the   Court,  at  any  time  extend  the  period  of   probation;  provided  that  the  total  period  of  

probation  shall  not  ordinarily  exceed  three  years. An order sanctioning such extension of  probation  shall  specify  whether  or  not  such  extension  shall  count  for  increment  in  the  time-scale.

(3) If it appears to the appointing authority at   any time during or at the end of the period of   probation or extended period of probation, as  the case may be, that a probationer has not   made sufficient use of his opportunities or has  otherwise  failed  to  give  satisfaction,  his  service may be dispensed with immediately.  

(4)  A  person  whose  services  are  dispensed  with  shall  not  be  entitled  to  any  compensation.”

4. The  petitioner  was  also  given  his  increments  in  

terms of the rules. However, while the petitioner  

was  so  serving  as  an  Additional  District  and  

Sessions Judge, a complaint was received against  

him, filed by one Mr. Babu Ram, which was duly  

supported  by  an  affidavit  dated  06.08.2001,  

contending  inter  alia that  the  petitioner  while  

acting as a counsel for him fraudulently withdrew  

an  amount  of  Rs.  2.6  lacs  deposited  with  the  

Registrar  [Judicial],  High  Court  of  Jammu  &

Kashmir which was payable to the complainant –  

Babu Ram.  

5. The aforesaid complaint was enquired into by the  

Chief  Justice  of  the  High  Court  through  the  

Registrar  [Vigilance]  of  the  High  Court.  On  

conclusion of the enquiry, a report was submitted  

stating  inter  alia that  Mr.  Rajesh  Kohli,  the  

petitioner herein, who was engaged by Mr. Narain  

Dutt – the attorney holder of Babu Ram, identified  

someone  else  as  Babu  Ram  before  Registrar  

[Judicial],  Jammu  &  Kashmir  High  Court  and  

received an account payee cheque in the name of  

Babu Ram.  In the said report, it was also alleged  

that  the  petitioner  besides  identifying  the  

impersonator as Babu Ram, also introduced him  

to Vijay Bank at the time of opening of the Bank  

account  and  thereby  managed  to  unlawfully  

receive an amount of Rs. 2.6 lacs, while the real  

beneficiary  -  Babu Ram neither  appeared before  

the Registrar [Judicial] or before Vijaya bank nor

did  he  receive  the  said  amount.  The  aforesaid  

report  of  the  Registrar  [Vigilance]  dated  

24.12.2001 was placed before the Chief Justice of  

the Jammu & Kashmir High Court who directed  

that  the  matter  be  referred  to  the  Chairman,  

Disciplinary Committee for necessary action. The  

Registrar [Judicial] of the High Court was asked to  

file  a  criminal  complaint  against  the  petitioner  

before the SHO of the concerned police station.  

6. Further, during the period when the petitioner was  

posted to District – Kargil as Principal District &  

Sessions  Judge,  he  did  not  join  there,  w.e.f.,  

24.12.2001 to 18.01.2002 and an explanation was  

sought from him in that regard.  Even thereafter, a  

complaint  from  a  judicial  employee  of  District  

Kargil was received wherein it was alleged that the  

petitioner  had  been  abusing  the  employees  and  

had created lot of problems at the District Kargil.  

These  matters  are  recorded  in  the  personal  

records of the petitioner.   After completion of the

initial  two  years  of  his  probationary  period,  his  

records and his case were required to be placed  

before Full Court for consideration of his case for  

confirmation or extension of period of probation or  

otherwise.    Consequently  his  records  were  

considered  by  the  High  Court  in  its  full  court  

meeting held on 26.04.2003 at Jammu, wherein it  

was resolved as under: -

“…………………….. resolved that services of Shri Rajesh Kohli, District   and Sessions Judge are not found satisfactory and  thus the probation of the officer is not extended…… …………  His services are dispensed with………… …”

The aforesaid resolution of the full court meeting  

with  the  recommendation  was  forwarded  to  the  

State  Government  and  the  State  Government  

passed  an  order  on  03.07.2003,  whereby  the  

services of  the  petitioner  was dispensed with as  

recommended  by  the  Hon’ble  High  Court.  This  

action was taken in exercise of the powers vested

on the competent authority under sub Rules 3 and  

4 of Rule 15 of the Judicial Service Rules.

7. Being aggrieved by the issuance of the aforesaid  

order  dated  03.07.2003  dispensing  with  his  

service,  the  petitioner  filed  the  present  Writ  

Petition on which notice was issued. On service of  

notice,  the  High  Court  has  entered  appearance  

and also filed the counter affidavit explaining the  

circumstances  under  which  the  service  of  the  

petitioner came to be terminated.  

8. The petitioner appeared in person before us and  

submitted that the aforesaid order issued by the  

Government of Jammu & Kashmir of 03.07.2003  

is illegal and without jurisdiction as the said order  

was not issued by the Governor but was issued by  

the  Government  of  Jammu & Kashmir.  He  also  

submitted  that  the  recommendation  of  the  High  

Court  as  communicated  under  letter  dated  

05.05.2003 is also illegal and liable to be set aside  

as the  High Court  terminated the  service  of  the

petitioner under the aforesaid order for which no  

power is vested on the High Court to dispense with  

the  service  under  its  own  order.  It  was  also  

submitted by him that he had completed his two  

years’  probation period on 23.08.2002 and since  

there was no order of extension of his probation  

period prior to and immediately after 23.08.2002,  

he should be deemed to have been confirmed in  

the judicial service and therefore his service could  

not have been terminated on the ground that he  

was on probation.  

9. The petitioner also submitted that his service was  

terminated  on  the  ground  of  an  alleged  

misconduct,  namely,  pendency  of  a  criminal  

complaint  and  his  alleged  behaviour  with  

subordinate staff and, therefore, the said order of  

termination  of  service  was  in  the  nature  of  a  

punishment by casting a stigma on the petitioner  

and therefore illegal and without jurisdiction as no  

opportunity of hearing was given to the petitioner

prior to passing of the order of his termination. He  

also  submitted  that  since  he  was  granted  

increments by the respondent, it is proved that the  

Respondents were satisfied with his service and,  

therefore,  the  order  terminating  his  service  is  

without jurisdiction.  

10.Counsel  appearing for the respondent,  the High  

Court of Jammu & Kashmir, however, refuted the  

aforesaid  submissions  and  placed  before  us  the  

records of High Court connected with the service  

of  petitioner  and also the records leading to his  

termination from service.  He submitted  that  the  

petitioner continued to be on probation even after  

two  years  as  no  order  of  his  confirmation  was  

issued or passed by the respondent and that his  

service  was  terminated  within  the  three  years  

period  of  his  probation  on  the  ground  of  

unsatisfactory  service.   He  denied  that  the  

impugned order is stigmatic or in any way punitive  

or that there was any violation of the principles of

natural  justice.   He  submitted  that  since  the  

service  of  the  petitioner  was  terminated  on  the  

ground  of  unsatisfactory  service,  there  was  no  

question  of  drawing  up  of  any  departmental  

proceedings against him.  

11.In the light  of  the aforesaid submissions of  the  

counsel appearing for the parties we have perused  

the records. The petitioner was recommended by  

the  High  Court  of  Jammu  &  Kashmir  for  

appointment as a District and Sessions Judge on  

temporary basis. The appointment letter placed on  

record  clearly  indicates  that  his  initial  

appointment was not only on temporary basis but  

he was also kept on probation for a period of two  

years. Rule 15 of the Jammu & Kashmir Higher  

Judicial Service Rules permits an officer to be kept  

on  probation  ordinarily  for  a  period  of  at  least  

three years.  

12.The  petitioner  was  temporarily  appointed  as  

District  &  Sessions  Judge  on  24.08.2000  and

therefore completed his initial period of probation  

of two years on 23.08.2002. Thereafter his matter  

was placed on the administrative side before the  

full court of the High Court in its meeting held on  

26.04.2003 for the purpose of confirmation of his  

service  or  otherwise  or  for  extension  of  

probationary  period.  The  full  court  on  

consideration of the records of the petitioner held  

that his service was not found to be satisfactory  

and therefore, his probation period would not be  

extended  and  accordingly  the  full  court  

recommended that the services of the petitioner be  

dispensed with. At this stage, it may also be noted  

that  when  by  the  order  dated  03.07.2003  the  

service of the petitioner was terminated, the period  

of probation of the petitioner was extended for the  

period from 24.08.2000 to 05.05.2003, the date on  

which a follow-up order was issued by the High  

Court to the State Government recommending his  

case  for  termination.  Finally  by  the  order  dated

03.07.2003,  the  service  of  the  petitioner  was  

terminated.

13.Since the rule permits probation to be extended  

for another one year and since there was no order  

of  confirmation  passed  by  the  respondents  

confirming  his  service,  the  petitioner  would  be  

deemed to be continuing on probation immediately  

after  his  expiry  of  the  initial  two  years  of  

probation. In this regard, we may refer to the case  

of  Satya  Narayan  Athya  v.  High  Court  of  M.P.  

reported in (1996) 1 SCC 560 in which a judicial  

officer was not given any confirmation letter even  

after the completion of his two years’ of probation  

period. The rules in the said case provided for the  

extension of initial two years of probation period  

for  a  further  period of  two years.  This  Court  in  

that case held at Paragraphs 3 & 5 that : -

“3.  ………………….A  reading  thereof  would  clearly  indicate  that  every  candidate   appointed to the cadre shall undergo training   initially for a period of six months before he is  

appointed  on  probation  for  a  period  of  two   years.  On  his  completion  of  two  years  of   probation,  it  may be open to the High Court  either  to  confirm or extend the  probation.  At   the  end of  the  probation  period, if  he is  not   confirmed  on  being  found  unfit,  it  may  be  extended  for  a  further  period  not  exceeding  two years. It  is seen that though there is no  order of extension, it must be deemed that he  was continued on probation for an extended  period  of  two  years.  On  completion  of  two   years, he must not be deemed to be confirmed  automatically.  There  is  no  order  of   confirmation.  Until  the  order  is  passed,  he  must be deemed to continue on probation.

5. Under these circumstances, the High Court  was  justified  in  discharging  the  petitioner   from  service  during  the  period  of  his  probation.  It  is  not  necessary  that  there   should  be  a  charge  and  an  enquiry  on  his  conduct  since  the  petitioner  is  only  on  probation and during the period of probation,   it would be open to the High Court to consider  whether  he  is  suitable  for  confirmation  or  should be discharged from service.”

14.During  the  period  of  probation  an  employee  

remains  under  watch  and  his  service  and  his  

conduct  is  under  scrutiny.  Around  the  time  of  

completion  of  the  probationary  period,  an  

assessment  is  made  of  his  work  and  conduct  

during  the  period  of  probation  and  on  such

assessment a decision is taken as to whether or  

not his service is satisfactory and also whether or  

not on the basis of his service and track record his  

service  should  be  confirmed  or  extended  for  

further scrutiny of his service if such extension is  

permissible  or  whether  his  service  should  be  

dispensed  with  and  terminated.  The  services  

rendered by a judicial officer during probation are  

assessed  not  solely  on  the  basis  of  judicial  

performance,  but  also  on the  probity  as to  how  

one has conducted himself.  

15.The aforesaid resolution taken by the full court on  

its  administrative  side  clearly  indicates  that  the  

matter regarding his confirmation or otherwise or  

extension of his probation period for another one  

year was considered by the full court but since his  

service  was  not  found  to  be  satisfactory  on  

consideration  of  the  records,  therefore,  the  full  

court decided not to confirm him in service and to  

dispense  with  his  service  and  accordingly

recommended for dispensation of his service. On  

the basis of the aforesaid recommendation of the  

High  Court,  an  order  was  passed  by  the  

Government of Jammu & Kashmir dispensing with  

the service of the petitioner.  

16.These facts clearly prove and establish that the  

order  of  termination  of  service  of  the  petitioner  

was not  issued by the  Jammu & Kashmir  High  

Court but it only recommended his termination as  

his service was not found to be satisfactory. The  

aforesaid  recommendation  was  accepted  by  the  

Government which finally ordered the termination  

of his service. The aforesaid order was an order of  

the  competent  authority  and  issued  by  the  

Government  of  Jammu & Kashmir.    Since  the  

said order was issued by the competent authority,  

it was a valid order and should be treated as such,  

although it was specifically not issued in the name  

of the Governor.

17.In the  present  case,  two orders  are  challenged,  

one, which was the order of the High Court based  

on the basis of the resolution of the full court and  

the other one issued by the Government of Jammu  

& Kashmir on the ground that they were stigmatic  

orders.  

18.In our considered opinion, none of the aforesaid  

two orders could be said to be a stigmatic order as  

no stigma is attached. Of course, aforesaid letters  

were issued in view of  the  resolution of  the full  

court  meeting  where  the  full  court  of  the  High  

Court  held  that  the  service  of  the  petitioner  is  

unsatisfactory.  Whether  or  not  the  probation  

period  could  be  or  should  be  extended  or  his  

service  should  be  confirmed  is  required  to  be  

considered by the full court of the High Court and  

while doing so necessarily  the service records of  

the petitioner are required to be considered and if  

from the  service  records  it  is  disclosed that  the  

service  of  the  petitioner  is  not  satisfactory  it  is

open  for  the  respondents  to  record  such  

satisfaction  regarding  his  unsatisfactory  service  

and even mentioning the same in the order would  

not  amount  to  casting  any  aspersion  on  the  

petitioner nor it could be said that stating in the  

order that his service is unsatisfactory amounts to  

a stigmatic order.  

19.This position is no longer res integra and it is well-

settled that even if an order of termination refers  

to unsatisfactory service of the person concerned,  

the  same  cannot  be  said  to  be  stigmatic.   In  

Pavanendra Narayan Verma v. Sanjay Gandhi PGI  

Of Medical Sciences reported in (2002) 1 SCC 520,  

this Court has explained at length the tests that  

would apply to determine if an order terminating  

the services of a probationer is stigmatic. On the  

facts  of  that  case  it  was  held  that  the  opinion  

expressed  in  the  termination  order  that  the  

probationer’s  “work  and  conduct  has  not  been  

found satisfactory” was not ex facie stigmatic and

in such circumstances the question of having to  

comply  with  the  principles  of  natural  justice  do  

not arise. In this case court  had the occasion to  

determine  as  to  whether  the  impugned  order  

therein  was  a  letter  of  termination  of  services  

simpliciter or  stigmatic  termination.  After  

considering various earlier decisions of this Court  

in para 21 of the aforesaid decision it was stated  

by this Court thus: (SCC p. 528)

“21.  One  of  the  judicially  evolved  tests  to   determine whether  in substance  an  order  of   termination is punitive is to see whether prior   to  the  termination  there  was  (a)  a  full-scale  formal  enquiry  (b)  into  allegations  involving  moral  turpitude  or  misconduct  which  (c)   culminated  in  a  finding  of  guilt.  If  all  three   factors are present the termination has been  held to be punitive irrespective of the form of   the termination order. Conversely if anyone of  the  three  factors  is  missing,  the  termination   has been upheld.”

In para 29 of the judgment, it further held thus:  

(SCC, p.529)

“29. Before considering the facts of  the case  before  us  one  further,  seemingly  intractable,   area  relating  to  the  first  test  needs  to  be  cleared  viz.  what  language  in  a  termination   order  would  amount  to  a  stigma?  Generally  speaking when a probationer’s appointment is

terminated  it  means  that  the  probationer  is  unfit  for  the  job,  whether  by  reason  of  misconduct  or  ineptitude,  whatever  the   language  used in the  termination  order  may  be.  Although  strictly  speaking,  the  stigma is  implicit  in  the  termination,  a  simple  termination  is  not  stigmatic.  A  termination  order which explicitly states what is implicit in  every order  of  termination  of  a probationer’s  appointment,  is  also  not  stigmatic.  The  decisions cited by the parties and noted by us  earlier, also do not hold so. In order to amount  to a stigma, the order must be in a language   which  imputes  something  over  and  above   mere unsuitability for the job.”

20.In the case of Krishnadevaraya Education Trust v.  

L.A.  Balakrishna reported in  (2001)  9 SCC 319,  

the  services  of  respondent-Assistant  Professor  

were terminated on the ground that his on the job  

proficiency  was  not  upto  the  mark.  This  Court  

held  that  merely  a  mention in  the  order  by  the  

employer that the services of the employee are not  

found to be satisfactory would not tantamount to  

the order being a stigmatic one.  This Court held  

in para 5 thus: -

“5. There can be no manner of doubt that the  employer is entitled to engage the services of a

person  on  probation.  During  the  period  of   probation,  the  suitability  of  the  recruit/appointee  has  to  be  seen.  If  his  services are not satisfactory which means that   he  is  not  suitable  for  the  job,  then  the  employer has a right to terminate the services  as a reason thereof. If the termination during  probationary  period  is  without  any  reason,   perhaps such an order would be sought to be  challenged on the  ground of  being arbitrary.   Therefore,  normally  services  of  an  employee  on probation would be terminated, when he is  found not to be suitable for the job for which   he  was  engaged,  without  assigning  any  reason. If the order on the face of it states that   his services are being terminated because his  performance is not satisfactory, the employer  runs the risk of the allegation being made that   the order itself casts a stigma. We do not say   that such a contention will succeed. Normally,   therefore,  it  is  preferred that  the  order  itself   does not mention the reason why the services  are being terminated.”

6. If such an order is challenged, the employer  will have to indicate the grounds on which the   services  of  a  probationer  were  terminated.   Mere fact that in response to the challenge the   employer  states  that  the  services  were  not  satisfactory  would  not  ipso  facto  mean  that   the  services  of  the  probationer  were  being  terminated  by  way  of  punishment.  The  probationer is on test and if the services are   found  not  to  be  satisfactory,  the  employer  has, in terms of the letter of appointment, the   right to terminate the services.”

21.In the case of Chaitanya Prakash v. H. Omkarappa  

reported  in  (2010)  2  SCC  623,  the  services  of  

respondent  were  terminated  by  the  appellant  

company.  During  the  period  of  probation,  his  

services were not found to be satisfactory and he  

was  also  given  letters  for  improvement  of  his  

services  and  his  period  of  service  was  also  

extended and ultimately company terminated him.  

Court after referring to a series of cases held that  

the impugned order of termination of respondent  

is not stigmatic.

22.In the case of State of Punjab v. Bhagwan Singh  

reported  in  (2002)  9  SCC  636  this  Court  at  

paragraphs 4 & 5 held as follows: -

“4. ………………………..  In  our view,  when a  probationer is discharged during the period of   probation and if for the purpose of discharge,   a particular assessment of his work is to be  made, and the authorities referred to such an  assessment  of  his  work,  while  passing  the   order  of  discharge,  that  cannot  be  held  to   amount to stigma.

5. The other sentence in the impugned order   is, that the performance of the officer on the   whole was “not satisfactory”. Even that does  not amount to any stigma.”

23.In the present case, the order of termination is a  

fall out of his unsatisfactory service adjudged on  

the  basis  of  his  overall  performance  and  the  

manner  in  which  he  conducted  himself.   Such  

satisfaction  even  if  recorded  that  his  service  is  

unsatisfactory would not make the order stigmatic  

or  punitive  as  sought  to  be  submitted  by  the  

petitioner. On the basis of the aforesaid resolution,  

the matter was referred to the State Government  

for issuing necessary orders.

24.One  of  the  issues  that  were  raised  by  the  

petitioner was that he was granted two increments  

during the period of two and a half years of his  

service.  Therefore  the  stand  taken  by  the  

respondents that his service was unsatisfactory is  

belied according to the petitioner because of the  

aforesaid  action  even  on  the  part  of  the  

respondents impliedly accepting the position that  

his service was satisfactory.

25.The  aforesaid  submission  of  the  petitioner  is  

devoid of any merit in view of the fact that since  

the petitioner was continuing in service, therefore,  

the case for granting increment was required to be  

considered  which  was  so  granted.  The  mere  

granting  of  yearly  increments  would  not  in  any  

manner  indicate  that  after  completion  of  the  

probation period the full court of the High Court  

was not competent to scrutinize his records and  

on the basis thereof take a decision as to whether  

or  not  his  service  should  be  confirmed  or  

dispensed  with  or  whether  his  probation  period  

should be extended. The High Court has a solemn  

duty to consider and appreciate the service of a  

judicial  officer  before  confirming  him in  service.  

The district judiciary is the bedrock of our judicial  

system and is positioned at the primary level  of  

entry  to  the  doors  of  justice.  In  providing  the  

opportunity of access to justice to the people of the  

country,  the  judicial  officers  who  are  entrusted

with the task of adjudication must officiate in a  

manner  that  is  becoming  of  their  position  and  

responsibility towards society.

26.Upright  and  honest  judicial  officers  are  needed  

not only to bolster the image of the judiciary in the  

eyes of litigants, but also to sustain the culture of  

integrity,  virtue  and  ethics  among  judges.  The  

public’s perception of the judiciary matters just as  

much  as  its  role  in  dispute  resolution.  The  

credibility  of  the  entire  judiciary  is  often  

undermined by isolated acts of transgression by a  

few  members  of  the  Bench,  and  therefore  it  is  

imperative  to  maintain  a  high  benchmark  of  

honesty, accountability and good conduct.

27.In  the  light  of  the  aforesaid  discussion,  the  

contentions raised by the petitioner are found to  

be without any merit and consequently they are  

rejected.

28.As a result, there is no merit in this Writ Petition,  

which is hereby dismissed, leaving parties to bear  

their own costs.

..........………………........J.          [ Dr. Mukundakam Sharma ]

       .....…………………… …........J.

          [Anil R. Dave] New Delhi, September 21, 2010.