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CASE NO.: Appeal (civil)  4019 of 2002

PETITIONER: Registrar,High Court of Gujarat & Anr.                              

RESPONDENT: C.G.Sharma                                                                  

DATE OF JUDGMENT: 17/11/2004

BENCH: K.G.Balakrishnan & Dr. AR. Lakshmanan  

JUDGMENT: J U D G M E N T WITH CIVIL APPEAL NO.575 OF 2003

Dr. AR. Lakshmanan, J.

       The above two appeals were filed by the  Registrar of the High Court of Gujarat  and Mr. C.G. Sharma respectively against the final judgment and order dated 5.9.2001  passed by the High Court of Gujarat at Ahmedabad in Letters Patent Appeal  No.1721/1999 in Special Civil Application No.11218/1994 whereby the High Court  allowed the Letters Patent Appeal filed by Mr. C.G. Sharma- respondent in  C.A.No.4019/2002 and appellant in C.A.No.575/2003 and directed that Mr. C.G.Sharma  Shall be entitled to all the consequential benefits as if the termination order had never  been passed.  Aggrieved by the findings of the Division Bench in regard to his  contention of deemed confirmation,  Mr. C.G. Sharma filed Civil Appeal No. 575/2003.           Both these appeals raised common question of law about the interpretation of  the provisions of sub-rule (4) of Rule 5 of the Gujarat Judicial Service Recruitment  Rules, 1961 (hereinafter referred to as "the Rules") regarding the power of the  Government to extend the period of probation.  Hence both these appeals have been  heard together and are being disposed of by a common judgment. Mr. C.G. Sharma, respondent in C.A.No.4019/2002 was appointed as Civil  Judge (Junior Division) and Judicial Magistrate, First Class on probation for a period of  two years vide Government Notification dated 7.6.1991.  He joined his duties on  29.6.1991.  By the order dated 22.9.1994, the respondent’s services were terminated  with immediate effect on account of unsuitability for the post held by him under the  recommendations of the High Court.  The said order was challenged in Special Civil  Application No. 11218 of 1994 on various grounds, more particularly, on the ground that  two years’ period of probation having expired, the respondent must be deemed to have  been confirmed on the post of Civil Judge (Junior Division) and, therefore, the  respondent’s services could not have been terminated without holding a departmental  enquiry.  The respondent also invoked the principles of natural justice by contending  that opportunity of hearing should have been afforded to him before terminating his  services.  It was also contended before the learned single Judge that the respondent  had tried to the best of his capacity to dispose of the cases and that many others who  had no disposal as per the norms were confirmed in the post but because of the pick  and choose approach the respondent’s services came to be terminated.   The petition was resisted by the Registrar of the High Court pointing out that the  respondent’s case was examined by the High Court and having regard to the fact that  the overall performance of the respondent was not satisfactory, the High Court  recommended to the State Government on 12.9.1994 to terminate the respondent’s  services with immediate effect on account of unsuitability for the post held by him and  accordingly the State Government issued a Notification terminating the respondent’s  services.  It was further contended that the respondent was originally serving as an  Assistant in the Establishment of the High Court and upon termination of his services as  a Civil Judge (Junior Division) and Judicial Magistrate, First Class, he has been taken  back by the establishment of the High Court with effect from 27.9.1994.  It was also  submitted that there were adverse remarks in the Confidential Reports which were  communicated to the respondent and that the period of probation was extended by one

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year w.e.f. 17.6.1993.  During the subsequent period also, the respondent was  communicated the adverse remarks for the quarters between 15.6.1993 and 15.5.1994  and that the High Court considered the respondent’s overall performance and on  12.9.1994 recommended to the State Government to terminate the respondent’s  services on the ground of unsuitability for the post. Though various grounds have been taken in the writ petition, learned counsel  appearing for Mr. C.G. Sharma before the High Court have concentrated on the legal  contention regarding the interpretation of the relevant rule and the consequential  question about the status of Mr. C.G. Sharma as probationer or officer deemed to have  been confirmed on the post of Civil Judge.  There was no effective challenge on the  merits of the decision of the High Court to the effect that Mr. C.G. Sharma was found  unsuitable for the post in question.  The learned single Judge of the High Court, on a  consideration of the arguments advanced, came to the conclusion that there is no  automatic confirmation on the expiry of the probation period of two years in the first  instance and that on the expiry of the said period and on the fulfillment of the  requirement of sub-clauses (a) and (b) a Government servant becomes eligible for  being confirmed.  Holding so, the petition filed by Mr. C.G. Sharma was dismissed. Being aggrieved, Mr. C.G. Sharma preferred Letters Patent Appeal assailing the  judgment of the learned single Judge on three grounds: 1)      The first ground was that with the expiry of the period of two years of  probation in 1993 when the respondent was allowed to continue, he  stood automatically confirmed and that there was no question of  termination of his services without holding any enquiry. 2)      The judgment of the learned single Judge suffers from the vice of the  non-adjudication of the plea that the respondent had been subjected  to pick and choose inasmuch as the other officers, who had no  disposal as per the norms, were confirmed whereas Mr. C.G. Sharma  had been terminated and this point was not considered by the learned  single Judge. 3)      That except the case of less disposal in civil cases, which was also the  basis for the communication of remarks, there was nothing against Mr.  C.G. Sharma so as to warrant his termination and the assessment of  the work of Mr. C.G. Sharma, as mentioned in two charts produced by  the Registrar of the High Court of Gujarat and sifting of the  assessment of disposal of cases qua the assessment of disposal of  cases for the other officers who are included in these charts would  show that it is a clear cut case of pick and choose.             So far as the first point is concerned, the learned Judges of the Division Bench,  interpreting the Rule, found that the point has been fully dealt with by the learned single  Judge in the context of sub-rule(4) of Rule 5 of the Rules.  The Division Bench held that  even if the two years’ period 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, the work has to be satisfactory, which is a pre-requisite  or pre-condition for confirmation.  The Division Bench held that there is no question of  deemed confirmation.           So far as the second point is concerned, the Division Bench held that there has  been no adjudication of this grievance by the learned single Judge and the impugned  judgment suffers from the vice of non-adjudication.         Coming to the third point, the Division Bench, on a perusal of two charts filed by  the Registrar of the High Court of Gujarat, held that it is a clear and transparent case of  arbitrary exercise of the power and the respondent’s contention is right that he had  been subjected to pick and choose.  According to the Division Bench, the work of the  respondent was never assessed to be inadequate or poor in any quarter and was  assessed to be very good for two quarters and adequate for nine quarters out of eleven  quarters, in all, for which he was assessed.  The Division Bench also observed that it is  a fool proof case in which the respondent has been wronged and wrongly picked up for  termination and that different yardsticks have been applied insofar as the respondent is  concerned.         In the result, the Division Bench allowed the appeal filed by the respondent-Mr.  C.G. Sharma and set aside the order passed by the learned single Judge by holding  that the respondent shall be entitled to all consequential benefits as if the termination  order had never been passed subject to the adjustment of the emoluments drawn by  him as an employee of the High Court Staff.  Aggrieved by the above judgment and final order,  the Registrar of the High

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Court of Gujarat and the State of Gujarat preferred S.L.P.(C)No.22808/2001.  Leave  was granted on 12.7.2002.  Hence, Civil Appeal No.4019/2002.  This Court, after  issuing notice, ordered to maintain the status quo. We heard Mr. L.Nageswara Rao, learned senior counsel, assisted by Mrs.  H.Wahi, learned counsel, appearing for the Registrar of the High Court of Gujarat & for  the State of Gujarat and Mr. Colin Gonsalves, learned senior counsel, assisted by Mr.  Vikram and Mr. Rajesh Pandey, learned counsel appearing for Mr. C.G. Sharma. We have been taken though the entire pleadings and annexures filed by both  sides and the judgments of the learned single Judge and of the Division Bench.   It is to be noticed here that though various grounds have been raised in the writ  petition, the learned counsel appearing for Mr. C.G. Sharma concentrated only on the  legal contention on the interpretation of the relevant Rule and the consequential  question about the status of Mr. C.G. Sharma as probationer or officer deemed to have  been confirmed on the post in question.  No argument was addressed before the  learned single Judge on other grounds raised.  However, before the Division Bench,  three contentions were raised by the respondent herein as narrated above and the  judgment was delivered on that basis.  It is seen from the judgment that the Division  Bench after holding that there is no question of automatic or deemed confirmation,  however, was concentrated on the other points namely, the adequacy of the disposal of  the cases in Civil and Criminal matters which was not even argued before the learned  single Judge.  The Division Bench found fault that the respondent has been wronged  and wrongly picked up for termination.  However, the Division Bench failed to note that  the adequacy or inadequacy of disposal is not the only consideration for passing the  impugned order when the respondent herein was appointed on probation for a period of  two years.  The Division Bench also found fault with the learned single Judge that there  had been no adjudication of the grievance of the respondent in regard to the disposal of  the cases, set aside the judgment of the learned single Judge on the ground of vice of  non-adjudication.   When the hearing of the case was half way through, we felt that we should  summon the original records from the High Court, namely, the ACRs and the Vigilance  Reports so that the overall performance of the respondent can be analysed and a  decision could be taken.  Accordingly, we summoned the records and the same was  placed before us.  We perused the same also.   Mr. L.N. Rao, learned senior counsel, contended before us that the Division  Bench of the High Court was not justified in permitting the respondent herein to agitate  the question of standard of assessment of satisfactory performance of the work done by  him in comparison to his colleagues, when this point was not argued before the learned  single Judge or raised in the memorandum of L.P.A.  He also submitted that the whole  approach by the Division Bench is incorrect and that the Division Bench was not  justified in permitting the respondent to agitate the question of assessment of  satisfactory performance of the work done by him as a Civil Judge.  Mr. L.N.Rao,  however, submitted that while exercising the power under Letters Patent Appeal, the  Court is exercising the power under Section 226 of the Constitution of India.  It is not  sitting in appeal over the decision of the High Court on the administrative side.  The  High Court was exercising power of judicial review when the conclusion reached by the  High Court, on the administrative side, is based on evidence, the High Court on the  judicial side is devoid of power to re-appreciate the evidence and came to a different  conclusion.  He would further submit that the Division Bench erred in picking up one of  the aspects of the assessment in allowing of the L.P.A.  The order of termination was  passed by the High Court on administrative side after examining all aspects and his  overall performance which was found not satisfactory. Concluding his arguments, Mr. L.N. Rao, submitted that the Division erred in  law in applying the concept of equality as envisaged in articles of the Constitution in  negative manner.  When any authority shows to have committed illegality or irregularity  in favour of any individual or group of individuals others cannot claim the same illegality  or irregularity on ground of denial thereof.  Mr. L.N. Rao further submitted that the  impugned judgment of the High Court is ex facie wrong and, therefore, the said  judgment is liable to be set aside. Mr. L.N. Rao cited the following decisions of this Court in support of his  contentions : 1.      Wasim Beg vs. State of U.P. & Ors., (1998) 3 SCC 321  2.      H.F. Sangati vs. Registrar General, High Court of Karanataka &  Ors. etc. , (2001) 3 SCC 117 3.      Dipti Prakash Banerjee vs. Satyendra Nath Bose National  Center for basic Sciences, Calcutta & Ors.,  (1999) 3 SCC 60

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4.      State of Maharashtra vs. Veerappa R. Saboji & Anr., (1979) 4  SCC 466 5.      Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical  Sciences & Anr., (2002) 1 SCC 520 Mr. Colin Gonsalves, learned senior counsel appearing for Mr. C.G.Sharma,  submitted that the High Court was not right in concluding that in the absence of express  provision for extension of probation, there would be no deemed confirmation.  It was  further contended that the fact when the maximum period of probation of two years  under the Rules in the absence of anything to the contrary continuance in service would  mean confirmation.                 He further submitted that the learned single Judge failed to examine and  consider all the arguments and contentions advanced at the time of hearing and failed  to record the same and to deal with the same in the impugned judgment.  He would  further submit that since the respondent was in service after the completion of the  probation period, it was a case of deemed confirmation.  According to him, the High  Court committed an error by mis-reading sub-rule (4) of Rule 5 of the Rules and thereby  coming to entirely on a erroneous conclusion that Rule 5(4) of the Rules was in pari  materia with the Rule which was considered by this Court in the case of State of  Maharashtra vs. Veerappa Saboji  & Anr.(supra).    It was further argued by the  learned senior counsel that the High Court committed an error in law by holding that  condition(a) of a vacancy existing and (b) the work being found satisfactory, by itself  excludes any chance of giving deemed or automatic confirmation.  He would further add  that the High Court failed to appreciate that in the facts and circumstances of the case,  since the respondent’s services were deemed to be confirmed, the question of mere  dismissal or withdrawal of appointment does not arise without conducting proper  departmental enquiry.   Concluding his arguments, learned senior counsel appearing for Mr. C.G.  Sharma, submitted that the impugned judgment of the Division Bench insofar as it  relates to deemed confirmation is wrong and is, therefore, liable to be set aside. Mr. Colin Gonsalves cited the following decisions of this Court in support of his  contentions: 1.      Ishwar Chand Jain vs. High Court of Punjab & Haryana & Anr.,       (1988) 3 SCC 370 2.      P.C. Joshi vs. State of U.P. & Ors., (2001) 6 SCC 491 3.      M.S. Bindra vs. Union of India & Ors. . (1998) 7 SCC 310 4.      Chandra Prakash Shahi vs. State of U.P. & Ors., (2000)5 SCC 152 5.      Nepal Singh vs. State of U.P. & Ors., (1985) 1 SCC 56 6.      State of Gujarat vs. Akhilesh C. Bhargav & Ors., (1987) 4 SCC 482 7.      Om Parkash Maurya vs. U.P., Cooperative Sugar Factories Federation,  Lucknow & Ors., 1986(Supp) SCC 95 8.      State of Punjab vs. Dharam Singh,  (1968) 3 SCR 1 9.      Dayaram Dayal vs. State of M.P. & Anr., (1997) 7 SCC 443     

Before considering the rival submissions, it is beneficial  to reproduce sub-rule  (4) of Rule 5 of the Rules: "(4) Unless otherwise expressly provided every person  appointed under the preceding sub-rules shall be on probation for a  period of two years and on the expiry of such period, he may be  confirmed if :- (a)     there is a vacancy; and (b)     his work is found to be satisfactory."    According to Mr. L.N. Rao, the Rule in question does not provide for any  maximum period of probation and, therefore, the ordinary and general Rule would apply  and that in any view of the matter, the Rule itself contains an indication that the services   could not be treated as confirmed unless a specific order is passed after the enquiry of  probationary period if there is a vacancy and if the officer’s work is found to be  satisfactory.   According to Mr. Colin Gonssalves, the aforesaid Rule provides the maximum  period of probation of two years and since the services of the respondent were  continued for more than two years, the respondent must be deemed to have been  confirmed in service and, therefore, the termination of his service after more than three  years without holding any departmental enquiry under Art. 311 (2) of the Constitution of  India was illegal.

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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 vs. Veerappa Saboji & Anr.  (Supra)  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 pre-requisite or pre-condition for confirmation and, therefore, even if the  probationer is allowed to continue beyond the period of two years as mentioned 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 if 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 arguments advanced by learned counsel for the respondent on this aspect has  no merits and no legs 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. In this context, it is useful to reproduce paragraph 6 of the judgment of this  Court in the case of State of Maharashtra vs. Veerappa R. Saboji & Anr. (Supra) on  the question of deemed confirmation which reads as under: "There are two parts of clause (iv): (1) that it is  imperative to put every person appointed under sub-rule (2) on  probation for a minimum period of two years "unless otherwise  expressly directed", and (2) on the expiry of the said period of  two years the person appointed may be confirmed if there is a  vacancy and if his work is found to be satisfactory.  The plain  meaning of the rule is that there is no automatic confirmation on  the expiry of the probationary period of two years in the first  instance.  On the expiry of the said period and on the fulfillment  of the requirement of sub-clauses (a) and (b) a Government  servant becomes eligible for being confirmed and normally he  is likely to be confirmed.  But it is a matter of common  knowledge in many branches of government service including  the judiciary that for administrative reasons or otherwise the  confirmation is delayed and is made at a subsequent time.  It  may also be delayed for watching the work of the government  servant for a further period.  The expression "unless otherwise  expressly directed" governs only the first part of clause (4) and  not the second as was attempted to be argued by Mr. Nariman.   In my opinion the rule in question, therefore, comes under the  ordinary and normal rule that without an express order of  confirmation the government servant will not be taken to have  been confirmed in the post to which he was appointed  temporarily and/or on probation.  It is not covered by the  exceptional rule like the one which was the subject matter of  consideration of this court in State of Punjab vs. Dharam Singh,  1968(3) SCR 1."

In view of our above findings on the question of deemed confirmation, Civil  Appeal No. 575/2003 filed by Mr. C.G. Sharma shall stand dismissed. Learned counsel appearing for the respondent claimed parity by placing a  submission to the effect that though the disposal in civil matters, the case of the  respondent was the main basis for discharge but other similarly situated persons have  been allowed to continue in service and this petitioner was given discriminatory  treatment.  This contention, in our opinion, is misconceived in law and facts.  It is seen  from the record that the overall performance of the respondent was considered while  assessing the suitability and continuing the respondent and that there is no similarity of

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the situation and/or facts of the case of the respondent and eleven others named in the  chart.  In our view, each officer’s case has been evaluated on its own merits and  decision has been taken in conformity with the norms settled.  We are of the opinion  that the contention put forward by the learned counsel for the respondent claiming  parity with others co-officers has no merits and, therefore, the same is rejected.  The argument of the learned senior counsel for the respondent that there is no  finding on the fact either by the Vigilance or by any unit Judge that would cast any  doubt regarding the integrity and nothing has been placed on record by the authority  before any of the Courts to even remotedly suggest that the respondent had indulged to  any practice that would cast doubts about his integrity.   Since the learned single Judge  and the learned Judges of the Division Bench have not adverted to this fact, we, in  order to see the record by ourselves, and in order to shorten the litigation, summoned  the original records and perused the same.           We have closely perused the confidential register of the respondent and it  contains series of adverse entries and it is abundantly clear that respondent was not  having good reputation as judicial officer and his service was far from satisfactory.  The District Judges concerned, in view of his unsatisfactory performance and  questionable integrity, have also recommended for extension of probation from time  and time and ultimately the District Judge was of the opinion that no further extension of  probation was called for. We have also perused the original correspondence in connection with the  probation of the respondent.  It is seen from the above records that the Vigilance Cell of  the High Court also investigated some matters regarding his integrity.  The District  Judge was of the opinion that though there would be no proof about integrity but it is a  fact that his integrity was doubtful and the representations made by the officer were  also filed on many occasions.  The representation made by the respondent in regard to  the communication of adverse remarks was ordered to be filed before the Chief Justice  and the other portfolio Judges. It is useful to reproduce the remarks made by Mr. Justice R.K. Abichandani while  considering the note put up by the Office on 8.8.1994.  The remarks reads as under: "As per the office note at points 1,4,13,17, the reports of  the D.J. against Mr. C.G. Sharma contain following remarks :   "Not industrious" "less diligent", "Below average" "Inadequate  disposals", "His conduct was suspicious and he is a dull  Judge", "Complete judicial aloofness is lacking", "No clarity of  thought and expression", "knowledge of law upto the mark",  "poor in civil work" "Average in diligence".  Since his extended  probation has come to an end, the period of probation is  required to be extended for six months in view of his  unsatisfactory performance so far.  The D.J. be asked to  closely watch the officer for his performance and conduct."

However, the Chief Justice ordered the matter to be placed before the Standing  Committee.  The Standing Committee took the following decision: "Considering un-suitability of Mr. C.G. Sharma, Civil  Judge(Junior Division), and Judicial Magistrate, First Class,  Dabhoi, for the post he is holding at present, it was decided to  place the matter before the Chamber Meeting for consideration  and appropriate decision."

Decision was taken at the Chamber Meeting on 5.9.1994 which is reproduced as  under: "Having regard to the fact that the overall performance  of Mr. C.G. Sharma, Civil Judge(Junior Division) and Judicial  Magistrate, First Class, Dabhoi is not at all satisfactory, it was  decided that, his probation be terminated on the ground of  unsuitability for the post he holds and Government be moved to  pass necessary orders in the matter with immediate effect. It was further decided that since extended period of  probation of Mr. C.G. Sharma is over on 28.6.1994 (A.O.H.), it  will stand extended till Government issue orders terminating his  probation."

Thus, it is seen that the respondent is not industrious, less diligent, below  average and inadequate disposals and that the conduct was suspicious and complete

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aloofness is lacking and no clarity of thought and expression, poor in civil work and fair  in criminal work and average in diligence.   In our opinion, such an officer should not be  allowed to continue in service in public interest and in the interest of the judicial  administration. In our opinion, the Division Bench was not justified in permitting the respondent  herein to agitate the question of standard of assessment of satisfactory performance of  the work done by him in comparison to his other colleagues when this point was not  argued before the learned single Judge or even raised in the memorandum of the  Letters Patent appeal.  The learned single Judge has expressly indicated in his  judgment that no other points were urged save and except about the interpretation of  the relevant Rule.  The Division Bench was, therefore, not right in law in permitting the  respondent on second thought to address the Court on merits about the standard of  assessment of his performance.  Even in the memorandum of the Letters Patent  appeal, the point that the High Court had not applied the correct standard of  assessment of the performance was not raised.  The reasoning assigned by the  Division Bench is, therefore, not justified. In our opinion, the judicial review is not an appeal from a decision but a review  of the manner in which the decision is made.  It is meant to ensure that the delinquent  receives fair treatment and not to ensure that the conclusion which the authority  reaches is necessarily correct in the view of the Court or the Tribunal.  When the  conclusion reached by the authority is based on the evidence, the Tribunal is devoid of  power to re-appreciate the evidence and would come to its own conclusion on proving  of the charge.  The perusal of the entire record including the record summoned from the  Gujarat High Court would only go to show that the order of termination was passed by  the High Court on administrative side after examining all aspect and his overall  performance which was found "not satisfactory".  It is also seen from the file that Unit  Judge, in-charge of Mahesana District  when the respondent was working as a Civil  Judge at Mahesana and  Unit Judge of Vadodara as also the Chief Justice  recommended that   the probation of the respondent should not be extended.   The  recommendations were considered by the Standing Committee and also referred to the  Full Court.  An affidavit was filed by the Registrar in the High Court on 9.10.2000   and  the High Court has not referred to the said affidavit.  In the Affidavit, the Registrar  emphasized that performance and extension on the basis of the work on the overall  assessment does not indicate any room for confirmation of the probation period as  Judicial Officer.  However, the Division Bench picked up one aspect of the assessment  and allowed the appeal.  As rightly pointed out by Mr. L.N. Rao, learned senior counsel  appearing for the Registrar of the High Court of Gujarat & the State of Gujarat that the  Division Bench applied the concept of equality as envisaged in Articles of the  Constitution in negative manner.  In our opinion, Art.14 cannot be extended to legalise  illegal orders that the others have wrongly got the benefit of the orders.  A wrong order  cannot be the foundation for claim of equality.  It is also seen from the further affidavit  filed on behalf of the Registrar of the High Court of Gujarat that on receiving instructions   from the advocate-on-record, it was proposed to reconsider the matter on  administrative side.  The matter was placed before the Standing Committee for further  consideration with the office note dated 25.2.2002. On further study of the relevant file  of the respondent, the Standing Committee was of the opinion that the decision of the  Full Court of the High Court, on administrative side, proposing to terminate the services  of the respondent/probationer by the impugned order dated 22.9.1994 was taken in the  interest of the judicial administration of the State and was bona fide. It is also seen from other records that the Standing Committee of the High court  while proposing termination of the respondent, considered not only periodical  confidential reports received from the District Judge, Mehsana but also considered his  overall performance including the complaints raising doubts about his integrity.  As  already stated, the Standing Committee considered the respondent herein to be "not  industrious", "less diligent", "a dull judge" as also the fact that he was "lacking in  complete judicial aloofness" and that "his conduct was suspicious".  We have already  perused the endorsement made by the Administrative Judge dated 10.8.1994 as also  the subsequent decision taken in the Standing Committee meeting on 25.8.1994 and of  the Full Court on 5.9.1994 which approved the recommendation of the Standing  Committee.   Mr. Colin Gonsalves, learned senior counsel appearing for the respondent,  submitted that the termination order is void inasmuch as the order of termination would  be punitive and also amount to a stigmatic order.  He would further submit that  questioning the integrity of a Judge is perhaps the most serious charge against judicial

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officer and no person can be terminated on such a serious charge without affording the  employee a reasonable opportunity to rebut such serious and stigmatic allegations.  It  was submitted that the respondent was neither given any show cause notice leveling  any charge questioning the integrity nor any opportunity, whatsoever has been given to  such an officer against such a serious allegation. Therefore, he would submit that the  termination order is liable to be struck down on the ground that the action of termination  is punitive without following the principles of natural justice and, therefore, void and als o  in contravention of Article 311(2) of the Constitution of India. It is true that an honest judicial officer is likely to have adversaries in the  mofussil Courts and if complaints are entertained on trifling matters relating to judicial  orders, which may have been upheld by the High Court on the judicial side, no judicial  officer would feel protected  and it would be difficult for him to discharge his duties in a n  honest and independent manner.  It is also true that if judicial officers are under  constant threat of complaint and enquiry on trailing matter and if High Court encourages  anonymous complaints to hold the field the subordinate judiciary will not be able to  administer justice in an independent and honest manner.  It is, therefore, imperative  that the High court should also take steps to protect its honest officer by ignoring ill- conceived or motivated complaints made by the unscrupulous lawyers and litigants.  It  is also true that the judicial officers have also to face some times quarrelsome,  unscrupulous and cantankerous litigations but they have to face them boldly without  deviating from the right path and that they are not expected to be overawed by such  litigants or fall to their evil designs.  This ratio was laid down in several judgments of  this Court.   But the facts and circumstances in the case on hand is 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 simplicitor 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 simplicitor cannot   be said to be violative of Arts. 14, 16 and 311 of the  Constitution of India.  The law on the point  is crystalised that the probationer remains  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.   This Court, in the judgment in the case of Wasim Beg vs. State of U.P. & Ors.  (supra), while considering  the confirmation and its scope held as under: "Whether an employee at the end of the probationary  period automatically gets confirmation in the post or whether an  order of confirmation or any specific act on the part of the  employer confirming the employee is necessary, will depend  upon the provisions in the relevant Service Rules relating to  probation and confirmation.  There are broadly two sets of  authorities  of this Court dealing with this question.  In those  cases, where the Rules provide for a maximum period of  probation beyond which probation cannot be extended, this  court has held that at the end of the maximum probationary  period there will be a deemed confirmation of the employee  unless Rules provide to the contrary.  This is the line of cases  starting with State of Punjab vs. Dharam Singh, AIR 1968 SC  1210, N.K. Agarwal vs. Gurgaon Gramin Bank, 1987 Supp  SCC 643, Om Parkash Maurya vs. U.P. Cooperative Sugar  Factories Federation, 1986 Supp SCC 95 and State of  Gujarat vs. Akhilesh C. Bhargav, 1987 (4) SCC 482. "

This Court in the case of H.F. Sangati vs. Registrar

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General, High Court of Karnataka & Ors. etc. (supra), held  as under:  "It is well settled by a series of decisions of this court  including the Constitution Bench decision in Parshotam Lal  Dhingra vs. Union of India 1958 SCR 828 and seven Judge  Bench decision in Samsher Singh vs State of Punjab 1974  (2) SCC 831 that services of an appointee to a permanent post  on probation can be terminated or dispensed with during or at  the end of the period of probation because the appointee does  not acquire any right to hold to continue to hold such a post  during the period of probation.  In Samsher  Singh case, it was  observed that the period of probation is intended to assess the  work of the probationer whether it is satisfactory and whether  the appointee is suitable for the post; the competent authority  may come to the conclusion that the probationer is unsuitable  for the job and hence must be discharged on account of  inadequacy for the job or for any temperamental or other similar  grounds not involving moral turpitude.  No punishment is  involved in such a situation.  Recently, in Dipti Parkash  Banerjee vs. Satyendra Nath Bose National Centre for  Basic Sciences (supra) having reviewed the entire available  case law on the issue, this Court has held that termination of a  probationer’s services, if motivated by certain allegations  tantamounting to misconduct but not forming foundation of a  simple order of termination cannot be termed punitive and  hence, would be valid.  In Satya Narayan Athya vs. High  Court of M.P., 1996 (1) SCC 560, the petitioner appointed on  probation as a Civil Judge and not confirmed was discharged  from service in view of the non satisfactory nature of his  service.  This Court held that the High Court was justified in  discharging the petitioner from service during the period of  probation and it was not necessary that there should have been  a charge and an inquiry on his conduct since the petitioner was  only on probation and it was opened to the High Court to  consider whether he was suitable for confirmation or should be  discharged from service.   

       In the case of State of U.P. & Anr. vs. Bihari Lal, 1994 Supp (3) SCC  593, the employee was found to be of bad category compulsorily retired for not showing  improvement despite adverse remarks for several years.  The High Court set aside the  compulsory retirement and the employee was reinstated on the same day.  Apepal filed  by the State was allowed.   In paragraph 4 of this judgment, this Court held as under:  "\005\005\005\005It is now settled law that the  entire service  record should be considered before taking a decision to  compulsorily retire of government servant exercising the power  under Rule 56(j) of the fundamental rules.  It is not necessary  that adverse remarks should be communicated or every  remark, which may sometimes be categorized as adverse, be  communicated.  It is on an overall assessment of the record,  the authority would reach a decision whether the Government  servant should be compulsorily retired in public interest.  In an  appropriate case, there may not be tangible material but the  reputation of officer built around him could be such that his  further continuance would imperil the efficiency of the public  service and would breed indiscipline among other public  servants.  Therefore, the Government could legitimately  exercise their power to compulsorily retire a Government  servant.  The Court has to see whether before the exercise of  the power, the authority has taken into consideration the overall  record even including some of the adverse remarks,  though for  technical reasons might be expunged on appeal or revision.   What is needed to be looked into is the bona fide decision  taken in the public interest to augment efficiency in the public  service.  In the absence of any mala fide exercise of power or  arbitrary exercise of power, a possible different conclusion

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would not be a ground for interference by the Court/tribunal in  exercise of its judicial review\005.."

In our opinion, what is to be considered in such matters is the examination of  overall entries of the officer concerned and not the entry here and there.  It may well be  in some cases that in spite of satisfactory performance still the authority may desire to  not to extend the Probation of an employee in public interest, as in the opinion of the  said authority, the post has to be manned by more efficient and dynamic person.  There  is no denying of the fact that in all organizations there is great deal of dead-wood and,  more so in Government and Judicial departments, which has to be replaced in public  interest.  Therefore, as pointed out by many Courts in India and of this Court it is purely  a matter of subjective satisfaction of the High Court.  In such case, the record so  considered would naturally include the entries in the Confidential Reports/Character  Rolls/Vigilance Reports, both favourable and adverse.  There cannot be any justification  for interference by this Court in such cases.      We have decided the case on hand on the facts and circumstances of the case  with reference to the relevant Rules, original records such as Confidential Reports,  Vigilance Reports and other annexures filed along with the writ petitions.  A number of  judgments were cited by the counsel on either side.  We are not inclined to refer to all  those judgment and make this judgment a voluminous one as according to us the  judgments cited by both the parties are distinguishable on facts and on law.   In the result, Civil Appeal No. 4019 of 2002 filed by the Registrar of the High  Court of Gujarat and the State of Gujarat is allowed and Civil appeal No. 575 of 2003  filed by Mr. C.G. Sharma stands dismissed.  However, there will be no order as to  costs.