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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: VEERAPPA R. SABOJI AND ANR.

DATE OF JUDGMENT06/09/1979

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. PATHAK, R.S.

CITATION:  1980 AIR   42            1980 SCR  (1) 551  1979 SCC  (4) 466  CITATOR INFO :  RF         1980 SC1242  (13)  RF         1980 SC1459  (6)  RF         1981 SC 965  (5)

ACT:      Termination   simpliciter-Appointment   purely   on   a temporary basis  with a  probation for a period of two years during which  the appointee  would be  terminated  with  one month’s notice-Two  years’ probationary period expired on 6- 12-1962-Respondent No. 1 was allowed to continue in the post only in  an officiating  capacity  and  was  not  confirmed- Services terminated  by a  simple order of termination dated 15-12-1971 w.e.f.  1-2-1972-Whether the  order was passed by way of  punishment in  violation of  Article 311(2)  of  the Constitution.      Deemed cofirmation-Whether  spelt out  from  Rule  4(2) (iv) of the Bombay Judicial Service Recruitment Rules, 1956.      Right to  information from the relevant official record forming the  basis of the order terminating the service-When can the Court call for the records.

HEADNOTE:      Respondent 1  joined the  judicial service  Class II in the State  of Maharashtra  on the  7th December, 1960 as per his order  of appointment  which clearly  states (i) that he would be  on probation  for a  period of  two years from the date of  his joining,  (ii) that  during  that  period,  his appointment would be liable to be terminated without notice, (iii) that  after the period of probation his services would be liable  to be terminated on one month’s notice as long as his appointment  was temporary.  The two years’ probationary period originally fixed expired on 6th December of 1962 even so he  was allowed  to continue  in  the  post  only  in  an officiating capacity  and was  not confirmed.  His  services were terminated  with effect from 1-2-1972 by a simple order of  termination  dated  15th  December  1971.  Respondent  1 challenged the  order of  his termination  by filing  a writ petition. The  High Court  of Bombay  allowed  the  petition holding (1)  that Respondent  1 would be deemed to have been confirmed in  his post because his work was satisfactory and a  vacancy   in  the  permanent  cadre  was  available.  The Government had  no discretion in the matter and it was bound

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to confirm him under Rule 4(2)(iv) of the Rules (2) that the appointment  of   respondent  1,  therefore,  could  not  be terminated by  a simple  notice of  termination and  it  was passed by  way of  punishment in violation of Article 311(2) of the Constitution.      Allowing the appeal by special leave, the Court ^      HELD: Per Untwalia J.      1. Sub  rule (2)  of Rule  4  of  the  Bombay  Judicial Service Rules,  1956 deals with the method of recruitment to the Junior  Branch Class  II. Clause (iv) of Sub-rule (2) of Rule 4  deals with probation and confirmation. There are two parts of  clause (iv)-(a) that it is imperative to put every person appointed  under sub-rule  (2)  on  probation  for  a minimum period of two years "unless 552 otherwise expressly  directed" and  (b) on the expiry of the said period  of  two  years  the  eprson  appointed  may  be confirmed, if there is a vacancy and if his work is found to be satisfactory. [557H, 558 B-C]      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,  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 (iv) and not the second part. Therefore the  rule in question 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 in State of Punjab v. Dharam Singh, [1968] 3 S.C.R. 1. [558C-F]      State of Punjab v. Dharam  Singh, [1968] 3 SCR 1, Kedar Nath Bahl  v. State  of Punjab and Ors., A.I.R. 1972 SC 873; referred to.      2. Rule  4(2)  (iv)  of  the  Bombay  Judicial  Service Recruitment Rules,  1956 does not violate Articles 14 and 16 of the  Constitution;  there  being  several  other  reasons administrative   or   otherwise,   which   may   delay   the confirmation of  an officer.  The confirmation can surely be delayed if the suitability of the Government servant has got to be  watched  further  to  decide  whether  he  should  be confirmed in the post or not. [560 B, G-H]      S.  B.  Patwardhan  and  Ors.  etc.,  etc  v  State  of Maharashtra, [1977] 3 SCR 775; distinguished.      3. The  Government Resolution  dated 19-4-1963  and the Gazette Notification  dated 11-5-1963  do not  give a deemed confirmation status. Two inferences are possible to be drawn from them......  (1) that  the  period  of  probation  stood extended beyond  two years until and unless he was confirmed and (2)  that in  any event  be continued in the post in his temporary or officiating capacity.                                                    [561A, D- E]      4. Termination  of services  by a notice of termination simpliciter will  be violative of the requirement of Article 311(2) of  the Constitution,  if the  Government servant  be

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held either as confirmed or deemed to have been conformed in the post  to which  he has  been initially appointed. In the instant case  Respondent 1  was continuing in the post in an officiating capacity.  His services  could be  terminated by one month’s notice simpliciter. [561E-G]      5. If  the termination  was by  way of punishment, then also Article  311(2) would be attracted. Even in the case of a temporary  or officiating  Government servant his services cannot be  terminated by  way of punishment casting a stigma on him  in violation  of the  requirement of Article 311(2). [561 G-H]      6. Ordinarily  and generally, any of the three courses, namely, compulsory  retirement, reversion  to  parent  cadre from a higher officiating post; dispensing 553 with the  services of an officiating or temporary Government servant with  an  order of termination simpliciter, is taken recourse to only, if there are some valid reasons for taking the action against the Government servant. If a probe in the matter is allowed to be made in all such cases, then curious results are  likely to  follow. In a given case there may be valid reasons,  may be of a very serious kind, which led the authorities concerned  to adopt  one course  or the other as the facts  of the  particular case  demanded. If reasons are disclosed in the order, then it could be said that the order of the  Government was  passed by  way of punishment. If not disclosed then  it would  be said as arbitrary and violative of Article  16 of  the Constitution.  Only a  practical  and reasonable  approach   to  the   problem  would   solve  it. Ordinarily and  generally the  rule laid down in most of the cases by  this Court,  is that  the Court should look to the order on the face of it and find whether it casts any stigma on the  Government servant.  In such  a case,  there  is  no presumption that the order is arbitrary or malafide unless a very strong  case is  made out  and proved by the Government servant, who challenges such an order. [562B-E]      S. P. Vasudeva v. State of Haryana & Ors., [1976] 2 SCR 184; State of U.P. v. Ram Chandra Trivedi, [1977] 1 SCR 462; Parshotam Lal  Dhingra v.  Union of  India [1958]  SCR  828; Shamsher Singh  v. State  of Punjab,  [1975] 1  SCR 814  and Manager Govt. Branch Press & Anr. v. D. P. Belliappa, [1979] 2 SCR 458; referred to.      7. Malafide  should be pleaded by specific allegations. Merely to  say that  the action was not justified and it was out of  bias that the impugned action was taken, was not, in the least, any allegation of malafide. [565 E]      In the  instant case,  in the  absence of  any specific allegation against  any  of  the  respondents  in  the  Writ Petition, the  conclusion would be that when the orders were passed  against  Respondent  1  the  High  Court  must  have examined the  matter carefully  and found  that it  was  not desirable to  allow him  to continue in the service and must have further found that the facts did not warrant or make it expedient to  hold any  regular enquiry  against him  and to remove him  from service  by way of punishment. The order of termination against  Respondent 1  was not  passed by way of punishment contravening  the requirement  of Article 311 (2) of the Constitution. [565H, 566A-B, G]      8. The  State  counsel  rightly  refused  to  show  the records of  the case to Respondent 1. Obviously it could not be shown  to him.  Otherwise he  would have  come out with a plea, right or wrong, that the order was made against him by way of punishment. [566B-C] Per Pathak J.      1. Where the services of a temporary Government servant

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or a  probationer Government  servant are  terminated by  an order which  does not  ex facie disclose any stigma or penal consequences against  the Government servant and is merely a termination order  simpliciter, there  is no case ordinarily for assuming that it is anything but what it purports to be. Where however,  the order discloses on the face of it that a stigma is  cast on  the Government servant or that it visits him with penal consequences, then plainly the case is one of punishment. There  may still  be another kind of case, where although the termination of services is intended 554 by way  of punishment,  the order is framed as a termination simpliciter. In  such a  case, if  the Government servant is able to  establish by  material on the record that the order is in fact passed by way of punishment, the innocence of the language in which the order is framed will not protect it if the procedural  safeguards contemplated by Article 311(2) of the Constitution have not been satisfied. [567 B-D]      2. The  jurisdiction of  the Court extends to examining and scrutinising  the  official  records  in  the  following circumstances:      (a) The official records may be called for by the Court generally in  a given case, for the purpose of determination the truth;  where the  Government servant succeeds in making out a  prima facie  case  that  the  order  was  by  way  of punishment, but  an attempt to rebut the case is made by the authorities. [567D-E]      (b) It  is not  open to  the  Court  to  send  for  the official records  on a  mere allegation  by  the  Government servant that  the order  is by way of punishment. For unless there is  material on the record before the Court in support of that allegation, an attempt by the Court to find out from the record  whether the  termination of  service is based on the unsuitability  of the  Government servant in relation to the post  held by  him or  is in  reality an order by way of punishment will in effect be an unwarranted attempt to delve into the official records for the purpose of determining the nature of the order on the basis of a mere allegation of the Government servant.  On a  sufficient case being made out on the merits  before the Court by the Government servant it is open to  the Court  to resort  to scrutiny  of the  official records for the purpose of verifying the truth. [567E-G]      (c) Courts  should not  decline to  peruse the official records in  an appropriate  case.  Where  considerations  of privilege and confidentiality do not suffer, the information set forth  in the  records should  be made  available to the Government servant.  The mere  possibility that the official records could  confirm what  the Government  servant had set out to  prove, and prima facie had indeed proved, should not shut out disclosure of the information. [567G-H, 568A]      (d) There  is no  absolute rule  that where  the  order terminating the  services of  a temporary  or a  probationer Government servant  is ex  facie  an  order  of  termination simpliciter,  the   Government  servant   is   barred   from establishing  that  it  is  in  fact  an  order  by  way  of punishment and  on  the  Government  servant  succeeding  in establishing it  to be  so  the  Court  is  prohibited  from examining the  official records for the purpose of verifying the true position. [568D-E]      (e) The  question of  scrutinising the official records arises where  a Government  servant is entitled to show that although the  order impugned  by him purports to be an order of termination  simpliciter it  is in  fact an order made by way of punishment. [568E-F]      (f) If  a Government servant is able to establish that,

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although the impugned order is innocent ex facie it was made on  the  ground  that  he  was  guilty  of  misconduct  and, therefore, the  order was intended by way of punishment, the law still  is that  an order, although framed in terms which do not cast an aspersion against the character and integrity of  the   Government  servant   or  visit   him  with   evil consequences, may  still be  proved to be in fact one by way of punishment. [569E-F] 555      (g) In  the present case, the reason for the High Court refusing to  examine   the official  records  was  that  the respondent Government  servant had  failed to  make out  any case whatever that the order was by way of punishment. There being no  doubt in  the mind of the High Court on the point, it was  justified in  declining to  look into  the  official records. [570C-D]      State of U.P. v. Ram Chandra Trivedi, [1977] 1 SCR 462, Union of  India v. R. S. Dhaba, [1969] 3 SCC 603, R. S. Sial v. The  State of  U.P. &  Ors., [1974]  3 SCR  754, Shamsher Singh & Anr. v. State of Punjab, [1975] 1 SCR 814; applied.      S. P.  Vasudeva v.  State of Haryana and Ors., [1976] 2 SCR 184; explained and relied on

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 628 of 1976.      Appeal by  special leave  from the  Judgment and  Order dated 4-3-1976 of the Bombay High Court in Spl. Civil Appeal No. 138 of 1972.      M. N.  Phadke, S.  K. Mehta  and M.  N. Shroff  for the Appellant.      G. L.  Sanghi, F.  S. Nariman  and K.  R. Nagaraja  for Respondent No. 1.      The following Judgments were delivered:      UNTWALIA J.  This appeal  by  special  leave  has  been preferred by  the State  of Maharashtra from the judgment of the Bombay  High Court  given in  a Writ  Petition filed  by respondent no.  1 for  quashing the  order of termination of his service.  The High  Court has  allowed the Writ Petition and quashed the order.      Respondent No.  1 was  appointed a  Civil Judge (Junior Division) and Judicial Magistrate, First Class, on probation in accordance  with the  Bombay Judicial Service Recruitment Rules,  1956-hereinafter   referred  to  as  the  Rules.  In paragraph 3  of the  appointment letter  dated 31st October, 1960 it was clearly stated:-           "You will  be on  probation for  a period  of  two      years from  the date  on which  you take charge of your      appointment, and during this period your appointment is      liable to  be  terminated  without  notice.  After  the      period of  probation your  services are  liable  to  be      terminated on  one  month’s  notice  as  long  as  your      appointment  is   temporary.  It   should  be   clearly      understood that  your appointment  at present is purely      temporary." Respondent No.1  pursuant to  the said letter of appointment joined the  Judicial Service,  Class II,  in  the  State  of Maharashtra on the 7th 556 December,  1960.   The  two   years’   probationary   period originally fixed  expired on  6th December,  1962 even so he was allowed  to continue  in the post only in an officiating capacity and was not confirmed. His services were terminated

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by a  simple order  of termination  dated the 15th December, 1971 which ran as follows:-           "The  Government   is  pleased  to  terminate  the      services of  Shri V. R. Saboji, Officiating Civil Judge      (Junior Division) and Judicial Magistrate, First Class,      Kalamnuri,  District  Parbhani  with  effect  from  1st      February, 1972." A copy  of the  above order was forwarded to and served upon the first  respondent alongwith  a covering  letter of  that date expressly stating therein:-           "Your appointment  is  still  temporary  and  your      services are  liable to  be terminated  on one  month’s      notice. I  am to  state that  Government has decided to      terminate your  services with effect from 1st February,      1972 and  that you  will, therefore,  cease  to  be  in      service with effect (from) that date. A formal order is      enclosed herewith."      The  first  respondent  challenged  the  order  of  his termination in  the High  Court by  filing a  Writ  Petition impleading the  then Law  Secretary  to  the  Government  of Maharashtra as  respondent  No.  1,  State  of  Maharashtra, respondent No.  2 and  S/Shri K. N. Wahi and P. G. Karnik as respondents 3  and 4  respectively. To  put it  briefly, the case made  out by  the first respondent in his Writ Petition was that  he had  become a  confirmed Government servant and the order terminating his services simpliciter was by way of punishment. Respondents  3 and  4 were respectively District and  Inspecting   District  Judges  in  the  District  where respondent No. 1 happened to work under them. They bore some ill-feeling and  ill-will against  him and  had made certain enquiries and  reported the  matter to  the High  Court as a result of  which,  according  to  the  belief  of  the  said respondent, some  adverse remarks  were given to him and his services were  terminated at the insinuation of the said two officers. Affidavits  were filed  on behalf  of the State of Maharashtra and  respondents 3 and 4 as well. The latter two in their  counters denied  the  allegations  of  mala  fides against them.      In the  High Court the following five points were urged on behalf of respondent No. 1:-           "(1) That the order of termination has been passed                as by  way of  punishment which  amounts,  in                fact, to dis- 557                missal and  since the  provisions of  Article                311(2) have not been complied with, the order                is void;           (2)   That the  petitioner has  been  purposefully                picked for discharge when many of his juniors                were allowed  to be  retained. Therefore, the                order is  violative  of  Article  16  of  the                Constitution;           (3)   The order  has been  passed mala fide with a                view to  circumvent the provisions of Article                311 of the Constitution;           (4)   The petitioner  had, in fact, at the time of                termination of  his services become permanent                employee in  accordance with Rule 4(2)(iv) of                the  Bombay   Judicial  Service   Recruitment                Rules, 1956; and           (5)  The order is bad as it is passed in violation                of the  provisions  of  Article  235  of  the                Constitution." Point No.  5 was  decided against  respondent No. 1. Apropos the other  four points  the High Court has held-(1) that the

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respondent No.  1 will  be deemed  to have been confirmed in his post  because his work was satisfactory and a vacancy in the permanent  cadre was  available. The  Government had  no discretion in  the matter  and it  was bound  to confirm the said respondent  under Rule 4(2) (iv) of the Rules; (2) that the appointment of respondent No. 1, therefore, could not be terminated by  a simple  notice of  termination and  it  was passed by  way of  punishment in violation of Article 311(2) of the Constitution. The High Court did not hear the counsel on either  side on  the point  of mala  fides and  they also agreed not  to  advance  any  argument  on  that  point,  as mentioned in the High Court judgment. Before us also, except in passing,  no argument  of any  substance was  advanced to press the  point of  mala  fides.  The  correctness  of  the decision of  the High Court was assailed before us by Mr. M. N. Phadke,  appearing for the appellant, while it was sought to  be   sustained  by  Mr.  F.  S.  Nariman  appearing  for respondent No.  1.  I  now  proceed  to  examine  the  rival contentions of the parties.      In the  High Court  judgment there is a reference to an undertaking  given   by  respondent   No.  1   showing   his willingness to  accept the  employment on a temporary basis. But  that  apart,  the  letter  of  appointment  itself  had indicated that  he was being appointed on probation and in a temporary capacity.  It is  necessary at  this stage to read the relevant provisions of the Rules. Sub-rule (2) of Rule 4 deals with method of recruitment to the Junior Branch, Class II and clause (iv) of sub-rule (2) states:- 558           "Unless otherwise expressly directed, every person      appointed under the last foregoing sub-rule 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 satisfactory." There was  sub-clause (c) also which was deleted in 1961 and we are not concerned with that sub-clause.      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)  & (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 (iv)  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 v. Dharam Singh(1).

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    In Kedar Nath Bahl v. The State of Punjab and others(2) Palekar J.  delivering the  judgment on behalf of this Court said at page 876 column 2:-           "The law on the point is now well settled. Where a      person is  appointed as a probationer in any post and a      period of  probation is  specified, it  does not follow      that at the end of 559      the said  specified  period  of  probation  he  obtains      confirmation automatically  even if  no order is passed      in that behalf. Unless the terms of appointment clearly      indicate that  confirmation would  automatically follow      at the  end of  the specified  period, or  there  is  a      specific service rule to that effect, the expiration of      the probationary  period does  not necessarily  lead to      confirmation. At  the end of the period of probation an      order confirming  the officer  is required to be passed      and if  no such  order is passed and he is not reverted      to his  substantive post,  the result merely is that he      continues in his post as a probationer." I am  aware that  a review against this judgment was allowed and the  appeal was re-heard recently by a Division Bench of this Court  to which  I was  a party.  The appeal  was again dismissed and no different view of law was expressed therein than  the  one  extracted  above.  Bachawat  J.  also  while delivering the judgment on behalf of a Constitution Bench of this Court in Dharam Singh’s case (supra) has said at page 4 thus:-           "This Court  has consistently  held  that  when  a      first appointment or promotion is made on probation for      a specific  period  and  the  employee  is  allowed  to      continue in  the post  after the  expiry of  the period      without any  specific order  of confirmation, he should      be deemed  to continue  in his  post as  a  probationer      only, in  the absence of any indication to the contrary      in the  original order  of appointment  or promotion or      the service  rules. In such a case, an express order of      confirmation  is  necessary  to  give  the  employee  a      substantive right  to the  post, and from the mere fact      that he  is allowed  to continue  in the post after the      expiry of  the specified  period of probation it is not      possible to  hold that he should be deemed to have been      confirmed." In   Rule    6(3)   of   he   Punjab   Educational   Service (Provincialised) Cadre)  Class III,  Rules, 1961  a  certain period had  been fixed  beyond which the probationary period could not  be extended.  It was  because of that it was held that when  the Government servant was allowed to continue in the post after completion of the maximum period of probation without an  express order  of confirmation  he could  not be deemed  to  continue  in  that  post  as  a  probationer  by implication. In other words because of the express provision in the  rule vis-a-vis  the maximum  period of probation the confirmation was  automatic. There is nothing of the kind to be found in the rules in the 560 present case.  The view of the High Court to the contrary is erroneous and cannot be sustained.      Mr. Nariman submitted that if an interpretation were to be given  to Rule  4(2) (iv) that it depended upon the sweet will of  the appointing  authority to  confirm a  Government servant as  and when  it  liked,  then  the  rule  would  be violative of  Articles 14  and 16  of the  Constitution.  He placed reliance  upon a  decision of  this Court  in  S.  B. Patwardhan &  others etc.  etc. v.  State of  Maharashtra  &

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others(1) in  support of  his contention I find no substance in the argument. The question for consideration in that case related to  the competition  of seniority between the direct recruits and the promotees in the Engineering cadre. In that connection it was said at page 796 thus:-           "Confirmation   is    one   of    the   inglorious      uncertainities of  government service depending neither      on efficiency  of the incumbent nor on the availability      of substantive  vacancies. A  glaring  instance  widely      known in  a part  of our  country is of a distinguished      member of the judiciary who was confirmed as a District      Judge years  after he  was confirmed  as a Judge of the      High Court. It is on the record of those writ petitions      that officiating  Deputy Engineers  were not  confirmed      even though  substantive vacancies  were  available  in      which they  could have  been confirmed.  It shows  that      confirmation does  not have to conform to any set rules      and whether  an employee  should be  confirmed  or  not      depends  on   the  sweet   will  and  pleasure  of  the      government." These observations  were made  with  reference  to  apparent discriminatory results  which followed by applying different standards to  the members  of the two groups for determining their seniority,  one the  direct  recruits  and  the  other promotees. I  am not  concerned with such a situation in the present  case.  It  was  not  suggested  on  behalf  of  the Government that  the confirmation depended on the sweet will and the  pleasure of  the  Government.  What  was,  however, argued was  that on  the fulfillment  of the  two conditions mentioned in  sub-clauses (a) and (b) of clause (iv) of sub- rule (2)  of rule  4 of  the Rules  the  Government  servant became eligible  but there  may be  several  other  reasons, administrative   of   otherwise,   which   may   delay   the confirmation. The  confirmation can surely be delayed if the suitability of  the Government servant has got to be watched further to decide whether he should be confirmed in the post or not. 561      Mr. Nariman  pointed out that the High Court in support of its  view has  relied upon a resolution of the Government dated the  19th April,  1963 and  the  Gazette  Notification dated the  11th May, 1963. It is not necessary to quote both in my judgment. It would suffice to refer to the wordings of the notification only. It reads as follows:-           "On satisfactory  completion of  the  probationary      period of  two years,  Shri V.  R. Saboji  is appointed      with effect  from 6th  December,  1962  (afternoon)  as      officiating Civil  Judge (Junior Division) and Judicial      Magistrate, First Class." The submission  was that respondent No. 1 had satisfactorily completed  his   probationary  period   of  two  years  and, therefore, he should be deemed to have been confirmed on the strength of  this notification.  But such  an argument is in the teeth  of the  language of the notification itself as it says that  he was  appointed  from  6th  December,  1962  as "officiating Civil  Judge  (Junior  Division)  and  Judicial Magistrate, First  Class." In  other words  even  after  the completion  of   the  two   years  period  he  continued  in officiating capacity  and was not confirmed in the post. Two inferences are  possible to  be drawn from this-(1) that the period of  probation in  case  of  respondent  No.  1  stood extended beyond  two years until and unless he was confirmed and (2)  that in  any event  he continued in the post in his temporary or  officiating capacity.   No order was ever made confirming respondent  No. 1 in the post and without such an

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order it  is difficult to sustain the view of the High Court that he was confirmed.      The question  of violation  of Article 311(2) has to be examined in  two perspectives.  Firstly, if it could be held in agreement with the High Court that he should be deemed to have been  confirmed in  the post  to which he was initially appointed, it  is plain  that terminating  his services by a notice of termination simpliciter like the one given in this case, will  be  violative  of  the  requirement  of  Article 311(2). On  my finding  it is manifest that it is not so. He was continuing  in the  post in an officiating capacity. His services  could   be  terminated   by  one   month’s  notice simpliciter  according  to  the  terms  of  the  employment. Secondly  the   question  to  be  examined  is  whether  the termination was  by way of punishment. Even in the case of a temporary or  officiating Government  servant  his  services cannot be  terminated by  way of punishment casting a stigma on him  in violation  of the  requirement of Article 311(2). This principle  is beyond  any dispute  but  the  difficulty comes in  the application of the said principle from case to case. If a Government servant is compulsorily retired or one who is  officiating in  a higher  post is  reverted  to  his parent cadre, or when the services 562 of  an  officiating  or  temporary  Government  servant  are dispensed with  by an order of termination simpliciter, then problems arise  in finding  out whether  it  is  by  way  of punishment. In different kinds of situation, different views have been  expressed. Yet  the underlying  principle remains the same.  One should  not forget a practical and reasonable approach to  the  problem  in  such  cases.  Ordinarily  and generally, and  there may  be a  few exceptions,  any of the three courses  indicated above  is taken recourse to only if there are  some valid  reasons for taking the action against the Government  servant. If a probe in the matter is allowed to be made in all such cases then curious results are likely to follow.  In a  given case there may be valid reasons, may be of a serious kind, which led the authorities concerned to adopt one  course or  the other as the facts of a particular case demanded. If one were to say in all such cases that the action has  been taken by way of punishment then the natural corollary to  this would  be that such action could be taken if there was no such reason in the background of the action. Then the  argument advanced  is that  the action  was wholly arbitrary, mala  fide and  capricious and, therefore, it was violative of  Article 16  of the Constitution. Where to draw the line  in such  cases? Ordinarily  and generally the rule laid down  in most  of the  cases by  this Court is that you have to look to the order on the face of it and find whether it casts  any stigma  on the  Government servant.  In such a case there  is no presumption that the order is arbitrary or mala fide  unless a  very strong case is made out and proved by the  Government servant who challenges such an order. The Government is  on  the  horns  of  the  dilemma  in  such  a situation. If  the reasons  are disclosed,  then it  is said that the  order of  the Government  was  passed  by  way  of punishment. If  it does  not disclose  the reasons, then the argument is  that it  is arbitrary  and violative of Article 16. What  the Government is to do in such a situation? In my opinion, therefore,  the correct  and normal principle which can be  pulled out  from the earlier decisions of this Court is the one which I have indicated above.      I shall  now proceed  to refer  to  only  three  recent decisions of  this Court,  two relied  upon by the appellant and the  one  by  the  respondent.  I  do  not  consider  it

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necessary to refer to others.      In S.  P. Vasudeva  v. State  of Haryana  & Ors.  (1) a Bench of  this Court to which I was a harty, Alagiriswami J. delivering the judgment of this Court said at page 187 :-           "In cases  where enquiries  have been  held before      orders of  reversion of  a probationer  to  his  former      lower post  or discharge  of a probationer or discharge      from service of a 563      temporary servant  were passed,  certain decisions have      taken the view that where the enquiry was held in order      to find  out the  suitability of the official concerned      the order would not be vitiated. In certain other cases      it has  been held that the enquiry was held with a view      to punish  and as  the  enquiry  did  not  satisfy  the      requirements of  Article 311 the punishment was bad. It      appears to  us that  this  theory  as  to  whether  the      reversion to  a lower post of a probationer in a higher      post,  or  the  discharge  of  a  probationer,  or  the      discharge from service of a temporary servant was meant      as a  punishment leads  to a  very peculiar  situation.      After ali,  if such an order gives no reasons the Court      will not  normally interfere  because ex-facie there is      nothing to  show that  the  order  was  intended  as  a      punishment." Jaswant Singh  J., delivering  the judgment of this Court in State of  U.P. v.  Ram Chandra  Trivedi(1) on  behalf  of  a Division Bench of this Court, the other two members of which were Khanna and Sarkaria JJ., reviewed all the earlier cases of this  Court very  elaborately  including  the  well-known judgment of  Das C.J.,  in Parshotam Lal Dhingra v. Union of India(2) and the comparatively recent decision of a Bench of 7 Judges  in Shamsher  Singh &  Anr. v.  State of  Punjab(3) Relevant extracts in extenso have been quoted from those two decisions as well as from others. It would be of use to very briefly state  the facts of Ram Chandra Trivedi (supra). The respondent was  appointed as  a temporary  clerk in  a Canal Division in  the  year  1954.  Seven  years  later,  he  was required to  appear in  a departmental examination and there it was  found that  another clerk  of another Canal Division was attempting  to personate  and appear for the respondent. The  Executive  Engineer  detected  this  and  obtained  the explanation of  both the  clerks and  reported the matter to the  Superintending   Engineer.  Finding   the  explanations tendered  by   the  clerks   to   be   unsatisfactory,   the Superintending Engineer  brought the matter to the notice of the Chief  Engineer. The  latter asked him to award suitable punishment to  the two  clerks. The  Superintending Engineer thereafter issued  the orders  terminating the  services  of both  the   clerks.  Eventually  Ram  Chandra  Trivedi,  the respondent,  filed   a  suit   challenging  the   order   of termination of  his service  as having  been made  by way of punishment in  disregard of  Article 311(2).  The  suit  was dismissed. The dismissal 564 was maintained by the First Appellate Court. The High Court, however, allowed  the second  appeal filed by the respondent and decreed his suit. The State came to this Court in such a situation. This  Court reviewed  all the  previous decisions and finally said at page 475 :-           "Keeping in  view the  principles extracted above,      the respondent’s  suit could  not  be  decreed  in  his      favour. He was a temporary hand and had no right to the      post. It  is  also  not  denied  that  both  under  the      contract of service and the service rules governing the

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    respondent, the  State had  a right  to  terminate  his      services by giving him one month’s notice. The order to      which exception  is taken  is  ex  facie  an  order  of      termination of  service simpliciter.  It does  not cast      any stigma on the respondent nor does it visit him with      evil consequences,  nor is it founded on misconduct. In      the circumstances,  the respondent could not invite the      Court to  go into the motive behind the order and claim      the protection of Article 311(2) of the Constitution."      The case  relied upon  for the  respondent  is  Manager Govt. Branch  Press &  Anr. v.  D. P. Belliappa(1). Speaking for the  Court,  Sarkaria,  J.,  found  that  the  order  of termination was wholly arbitrary and had been passed because of some  hostile motive  which the authority terminating the services had  against the  Government servant  concerned. On the facts of this case it was found that the decision of the High Court  allowing the  Writ Petition  of  the  Government servant  was   correct  and  was  covered  by  some  earlier decisions of this Court. I may briefly refer to the facts of this case  also from  the judgment.  The  appellant  in  the appeal was  the  Manager  of  a  Government  Press  who  had terminated the  services of  Belliappa by the impugned order without assigning  any reason, albeit in accordance with the conditions of  his service, while three employees, similarly situated, junior  to Belliappa  in the  same cadre  had been retained. A  charge of  hostile discrimination  was levelled with sufficient particularity against the appellant. Hostile animus was also attributed by Belliappa in his writ petition to his  superior officers.  He  asserted  that  his  service record was  good. This  fact was  not  controverted  by  the appellant by  filing  any  counter-affidavit.  The  impugned order was  preceded  by  a  show-cause  notice  of  proposed disciplinary action  against Belliappa.  In such a situation it was observed in the judgment :-           "Of course,  there is  always some reason or cause      for terminating  the services  of a temporary employee.      It is not 565      necessary  to   state  that  reason  in  the  order  of      termination communicated to the employee concerned. But      where  there   is  a   specific  charge   of  arbitrary      discrimination or some hostile motive is imputed to the      authority terminating  the service.  It is incumbent on      the authority  making the impugned order to explain the      same by disclosing the reason for the impugned action."      (Emphasis supplied). It would also be seen from the judgment that sufficient time was given  to learned  counsel for  the appellant to show to the Court  as to  whether the services of the respondent had been terminated  on the ground of unsuitability. Yet learned counsel failed to produce any such material in the Court. In that view  of the  matter the  order of  the High  Court was upheld.      Now coming  to the  facts of  the instant  case, I find that the  allegations of  mala fides  were made  in the Writ Petition only  against respondents  2 and  3  who  were  the immediate superior  officers of  respondent  no.  1  at  the relevant time.  No specific allegation was made against them that they  made reports against him to the High Court due to any ulterior  motive or  to  feed  fat  any  grudge  against respondent no.  1. Merely  to say, as was said by him in his Writ Petition,  that their  action was  not justified and it was out  of bias  that they took the action, was not, in the least, any  allegation of  mala  fide.  If  it  were  to  be permitted in  such cases  to examine  all these  reports  in

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detail to find out whether the reports were justified or not and then  to draw  an inference of mala fide, on that basis, where will  it lead  to? Then  in every case the reasons for termination of  service will  have to be scrutinised thread- bare to arrive at a conclusion that the order passed was not mala fide.  On his  own showing  respondent no. 1 had earned adverse remarks  before his  service  was  terminated  which clearly showed  that his  record was  not satisfactory.  The High Court,  therefore, recommended  to the  Government that the  services   of  respondent  no.  1  be  terminated.  The Government accepted the recommendation of the High Court and terminated his  services. No  allegation whatsoever  of  any hostile discrimination was made in the Writ Petition against the High Court or the Government, not even against the Chief Justice or  any Judge of the High Court who might have dealt with this  matter. Nor  was any such allegation made against the Law  Secretary or the Chief Secretary or any Minister of the Government.  After  all  when  the  orders  were  passed against respondent  no. 1  the High Court must have examined the 566 matter carefully  and found  that it  was not  desirable  to allow respondent  no. 1  to continue in the service and must have found further that the facts did not warrant or make it expedient to hold any regular enquiry against respondent no. 1 and to remove him from service by way of punishment. I may add that  the High  Court file containing the recommendation in case  of respondent  no. 1 was ready in the High Court to be  shown  to  the  Division  Bench  which  heard  the  Writ Petition. But  the learned  Judges refused to see it because the State  Counsel was not prepared to show it to respondent no. 1.  Obviously it could not be shown to him. Otherwise he would have  come out  with a  plea, right or wrong, that the order was made against him by way of punishment. This is the delicate area  where the  Government and  the State  Counsel find themselves  in a  peculiar and  delicate position.  Mr. Phadke also  informed us  that the High Court file was ready with him  and if we liked we may see it. On the facts and in the circumstances of this case we did not think it necessary to see and, therefore, we did not see.      It was  also argued  on behalf of respondent no. 1 that 162 officers  had been  appointed when  respondent no. 1 was appointed to  the Judicial Service of Maharashtra along with them. The  service of none else was terminated and, perhaps, others, junior  to him  were confirmed.  Mr. Phadke informed that till  1971 none of the 162 officers had been confirmed. Some of  them might  have been  or must  have been confirmed later. No occasion arose for terminating the services of any other out  of those  162 officers except respondent no. 1 by the year  1971. It  is not  quite correct  to say  that  his service record  was all  through satisfactory, and this fact was not  controverted in  the counter filed on behalf of the State. Having  examined all  the relevant  paragraphs I find that apart  from the  denial being  there  in  the  counter, respondent no.  1 himself, as I have stated above, disclosed in his  Writ Petition  acts of  commissions and omissions on his part  which which  led respondents  3 and  4  to  submit adverse reports  against him  to the  High Court. That being so,  in   my  opinion,  the  order  of  termination  against respondent no.  1  was  not  passed  by  way  of  punishment contravening the  requirement of  Article 311(2)  nor was it arbitrary or mala fide.      For the  reasons stated above, I allow this appeal, set aside the  judgment and  order of the High Court and dismiss the Writ  Petition filed  by respondent  No. 1. In regard to

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costs, already  an order  was passed that costs will be paid by the appellant in any event. Accordingly, the costs or any balance thereof, will be paid by the appellant. 567      PATHAK, J. I agree with the judgment and order proposed by my  learned  brother.  There  are  certain  observations, however, in  his judgment  on the point whether a Government servant petitioner  is  entitled  to  information  from  the relevant official  records forming  the basis  of the  order terminating  his  services.  Unfortunately,  I  find  myself unable to subscribe to these observations.      The law,  it seems to me, is that where the services of a temporary  Government servant  or a probationer Government servant are  terminated by  an order which does not ex facie disclose  any  stigma  or  penal  consequences  against  the Government  servant   and  is  merely  a  termination  order simpliciter, there  is no  case ordinarily for assuming that it is  anything but  what it purports to be. Where, however, the order  discloses on the face of it that a stigma is cast on the  Government servant  or that it visits him with penal consequences, then  plainly the  case is  one of punishment. There may  still be  another kind of case where although the termination of service is intended by way of punishment, the order is  framed as  a termination  simpliciter. In  such  a case, if  the Government  servant is  able to  establish  by material on  the record  that the order is in fact passed by way of  punishment, the  innocence of  the language in which the order  is framed  will not  protect it if the procedural safeguards   contemplated   by   Article   311(2)   of   the Constitution have  not been  satisfied. In a given case, the Government servant  may succeed  in making out a prima facie case that  the order was by way of punishment but an attempt to rebut the case by the authorities may necessitate sending for the  official records for the purpose of determining the truth. It  is in  such a  case generally  that the  official records may  be called  for by  the Court. It is not open to the Court  to send  for  the  official  records  on  a  mere allegation by  the Government  servant that  the order is by way of  punishment. For  unless there  is  material  on  the record before  the Court  in support  of that allegation, an attempt by the Court to find out from the record whether the termination of  service is based on the unsuitability of the Government servant in relation to the post held by him or is in reality  an order  by way of punishment will in effect be an unwarranted  attempt to  delve into  the official records for the  purpose of  determining the  nature of the order on the basis of a mere allegation of the Government servant. On a sufficient  case being  made out  on the merits before the Court by  the Government  servant it is open to the Court to resort to  scrutiny of  the official records for the purpose of verifying  the truth.  I am  unable to  see why the Court should  decline   to  peruse  the  official  records  in  an appropriate case  and why, where considerations of privilege and confidentiality do not suffer, the information set forth in the records should 568 not be  made available  to the  Government servant. The mere possibility that the official records could confirm what the Government servant had set out to prove and prima facie had, indeed,  proved  should  not  shut  out  disclosure  of  the information.      What I say here in no way detracts from what this Court has laid  down in  State of  U.P. v. Ram Chandra Trivadi.(1) The Court  did deprecate  there the act of the High Court in probing into  the departmental  correspondence  that  passed

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between the  superiors of  the Government  servant  for  the purpose of determining whether the impugned order was passed by way  of punishment. But it does not appear from the facts recited in  that case  that the  Government servant had made out any case that the impugned order had been made by way of punishment and that on the claim being disputed by the State it was  necessary to ascertain whether the case sought to be proved by the Government servant stood rebutted or confirmed by the departmental correspondence. I am unable to spell out from the judgment any absolute rule enunciated by this Court that where the order terminating the services of a temporary or a  probationer Government servant is ex facie an order of termination simpliciter,  the Government  servant is  barred from establishing  that it  is in  fact an  order by  way of punishment, and that on the Government servant succeeding in establishing it  to be  so  the  court  is  prohibited  from examining the  official records for the purpose of verifying the true position.      The  question  of  scrutinising  the  official  records arises where  a government  servant is entitled to show that although the  order impugned  by him purports to be an order of termination  simpliciter it  is in  fact an order made by way of  punishment. In  regard  to  that  right  this  Court specifically referred  in Ram Chandra Trivedi (supra) to the decisions in  Union of India & Ors. v. R. S. Dhaba and R. S. Sial v.  The State  of U.P.  &  Ors.(2)  with  approval  and observed :-           "The form of the order, however, is not conclusive      to its  true  nature.  The  entirety  of  circumstances      preceding or  attendant on  the impugned  order must be      examined by  the court  and the  overriding  test  will      always be whether the misconduct is a mere motive or is      the very foundation of the order." 569 And it  proceeded to  quote from  Shamsher Singh  & Anr.  v. State of  Punjab(1), decided  by a  Bench of seven Judges of this Court, 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 than  that the  services are  terminated it      can never  amount to  a punishment  in  the  facts  and      circumstances  of   the  case.   If  a  probationer  is      discharged on the ground of misconduct, or inefficiency      or for  similar reason  without a  proper  enquiry  and      without his getting a reasonable opportunity of showing      cause against  his discharge  it may  in a  given  case      amount to  removal from  service within  the meaning of      Article 311(2) of the Constitution." In the same case, it was observed further :-           "Where a  departmental enquiry is contemplated and      if an enquiry is not in fact proceeded with Article 311      will not  be attracted  unless it can be shown that the      order though  unexceptionable in form is made following      a report based on misconduct." It seems  clear that  if a  Government servant  is  able  to establish that,  although the  impugned order is innocent ex facie, it  was made  on the  ground that  he was  guilty  of misconduct and  therefore, the  order was intended by way of punishment. The  law still is that an order, although framed in  terms  which  do  not  cast  an  aspersion  against  the character and  integrity of  the Government servant or visit him with  evil consequences,  may still  be proved  to be in fact one  by way  of punishment.  It is  true that  in S. P. Vasudeva v.  State of Haryana & Ors.(2) this Court laid down

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that ordinarily  the courts should not go behind an order of reversion of  a person  who had  no right  to the post if ex facie it  did not  disclose that  he was being reverted as a measure of  punishment and  did not  cast any stigma on him. But the words advisedly used were :-           "......The courts will not normally go behind that      order to  see, if  there were  any  motivating  factors      behind that order." No definite  principle as a rule of law appears to have been laid down in that case on the point and the Court has merely suggested that 570 the question whether it should be open to the courts in such cases to go behind the order should be examined de novo, and it recommended  that an order reverting a probationer from a higher to  a lower  post, or  discharging a  probationer, or discharging a  temporary servant  from service should not be questioned except  on the  basis of mala fides in making the order. From  the further  comments of  the Court, it appears that the  observation was made with a view to lightening the burden of  the Court having regard to the heavy load of work presently   occupying   it.   Until   the   day   that   the recommendation is accepted, I believe it to be true that the jurisdiction  of   the  courts   extends  to  examining  and scrutinising the  official records  in the  circumstances to which I have specifically adverted.      In the  present case  if  the  High  Court  refused  to examine the  official records, I presume that the reason was that the  respondent Government  servant had  failed to make out  any  case  whatever  that  the  order  was  by  way  of punishment, and there being no doubt in the mind of the High Court on  the point  it was  justified in  declining to look into the  official records.  That the  respondent Government servant has been unable to make out any case at all that the impugned order  is by  way of  punishment is clearly evident from the  material before  us. No  occasion arises in such a case for scrutinising the official records.      The appeal  is allowed,  the judgment  and order of the High Court  are set aside and the Writ Petition filed by the first respondent  is dismissed. In view of the order already made by  this Court  that the respondent will be entitled to his costs  from the  appellant in  any event, the respondent will be paid his costs accordingly. S. R.                                        Appeal allowed. 571