Judgment S. B. Sanyal, J. 1. The petitioner, a probationary Munsif, having stood sixth in order of merit in the 14th Bihar Judicial Service Examination, joined the service as a Judicial Magistrate, Second Class, at Giridih, on 4-4-1974, pursuant to Government notification dated 15th March, 1974 (Annexure 4 ). He seeks issuance of a writ of certiorari for quashing the order of termination of service dated 29th August, 1986, passed by the State Government, as contained in Annexure 1, as also the orders of rejection of his representation by the High Court dated 14th November, 1986 (Annexures 33 and 33/a) and for commanding the respondents to confirm him on the post of a Munsif with effect from the date of passing of the Departmental Examination and/or on completion of two years of probation. 2. The petitioner, previous to his appointment as a Munsiff on probation for two years, was a Research Assistant of the Harvard University Project on Socio-Cultural aspects of Human Development from August, 1964 to january, 1966, and thereafter for some time he acted as a Lecturer and for some time worked as an Auditor in Defence Accounts Department of the government of India as well. Alter completion of his training, he was posted as a Munsif, Bermo, at Giridih, in May, 1976, and he was transferred to Patna as Munsif in January, 1977. Thereafter, he was posted as Execution munsif, Patna, from January, 1978, to September, 1979. He passed the departmental Examinations on 26-9-1977, one of the conditions for confirmation, as required under Rule 24 of the Bihar Civil Service (Judicial Branch)Recruitment Rules, 1955. 3. The confirmation of the officers appointed as a result of the 14th bihar Judicial Service Examination was taken up, as per petitioners information, by the High Court sometime in 1978, but the petitioner and tew others were not confirmed. The petitioner has averred that the District Judge, patna, recommended his case for confirmation. It is said that the petitioner was communicated about the opinion of the District Judge, Hazaribagh, on his work and conduct for the year 1976-77, which was communicated to him on 5-5-1978 (Annexure-6) to the effect that his outturn was "poor. The petitioner has averred that the District Judge, patna, recommended his case for confirmation. It is said that the petitioner was communicated about the opinion of the District Judge, Hazaribagh, on his work and conduct for the year 1976-77, which was communicated to him on 5-5-1978 (Annexure-6) to the effect that his outturn was "poor. " On 7th July, 197y, the petitioner filed a representation (Annexure-7) mat he was unaware of the reasons for his non-confirmation and denial of his first increment, even though most of his batch-mate have been confirmed, and prayed for re-consideration of his case for confirmation. On 15th April, 1980, the registrar of the High Court intimated the Accountant-General, Bihar, that the petitioner has been granted his first increment from 13-6-1976 (Annexure 8 ). It is said that on 17th January, 1983, the petitioner was communicated the remarks on his work and conduct for the year 19-9-80 to the effect "outturn Poor. So was the quality of his orders" (Annexure-9 ). The petitioner appears to have filed a representation (Annexure-10) for expunction of the adverse remarks for the year 197y-80. On 3rd May, 1984, the Registrar of the High Court, asked the District and Sessions Judge, Sitamarhi, to communicate to the petitioner further remarks for his work and conduct for the year 1979-80 "should improve his image" (Annexure-11 ). On 12th august, 1985, the then District Judge, Hazaribagh, asked the petitioner, in the light of the direction received from the High Court, not to do any judicial work for the said date (Annexure-12 ). The petitioner seems to have filed a representation on 22nd August, 1985 (Annexure 13) through the District Judge, Hazaribagh, contending, inter alia whereas non-confirmed officers of the 15th Bihar Judicial Service Examination batch were asked to show cause in 1984 as to why the date of their confirmation should not be deferred, but the said opportunity was not extended to the petitioner. The result of the petitioners previous representation against his non-confirmation when was being awaited, suddenly on 12 August, 1985, all pending cases before him were withdrawn which caused great humiliation, even though the reasons for the same wore not known to him. The result of the petitioners previous representation against his non-confirmation when was being awaited, suddenly on 12 August, 1985, all pending cases before him were withdrawn which caused great humiliation, even though the reasons for the same wore not known to him. It has also been stated in the said representation that all that the petitioner knew about his service record is the communication dated 17-1-1983 regarding his work and conduct for the year 1979-80 to the effect: "outturn poor, so was the quality of his orders. " and the additional remarks for the year 1979-80 communicated to him on 3-5-1984 to the effect ; "should improve his image. " 4. It is said that till 3-5-1984, the petitioner had only been communicated about his CR for 1976-77 and 1979-80 but on 5th August, 1985 (vide annexure-27) the Court asked the Commissioner and Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, to terminate the service of the petitioner since he was not found fit for confirmation and the order of the Court may be given effect to at an early date. This was immediately followed by withdrawal of all judicial work. On 22nd August, 1985, the petitioner filed a representation (Annexure 14) against the entries in his service records as well as withdrawal of all cases from his Court which appeare to have been rejected on 12th December, 1985 and so communicated on 7th January, 1985, by the District Judge. On 2nd September, 1985, the State government replied to the Courts direction (Annexure 28) expressing doubt whether "he can be thrown out of employment in such a summary manner, without recourse to departmental formalities" having continued in service for elevent years. On 5th March 1986 (vide Annexure 29), the State Government was informed by the Court that the confirmation matter of the petitioner was taken up on several occasions, but it was not found possible to confirm him and also lor the reason : ". . . In course of inspection of Sitamarhi Judgeship in May.1988, by an Hon ble Judge of this Court the conduct and antecedents of Sri sinha at that station were reported to be very much undesirable and unbecoming of a judicial Officer. Apart from the complaints touching his integrity with respect to his judicial work, serious complaints regarding his character and morality were also received. Apart from the complaints touching his integrity with respect to his judicial work, serious complaints regarding his character and morality were also received. It was reported that he used to drink heavily and play flush in the town with different rich perons. " 5. On 3rd April, 1986, the then District and Sessions Judge, Hazaribagh, informed the petitioner that he (the District Judge) had been directed to communicate a copy of the adverse remarks earned by him in his character roll. I would like to quote the entire letter (Annexure-15) of the District an sessions Judge, Hazaribagh, since, it has relevance on the dispute before us : 5_180_BLJ1_1991.htm "further, in course of inspection of Sitamarhi Judgeship in May, 1983, by an Hon ble Judge of this Court, the conduct and antecedents of sri Sinha at that station were reported to be very much undesirable and unbecoming of a Judicial Officer. Apart from the complaints touching his integrity with respect to his judicial work, serious complaints regarding his character and morality were also received. It was reported that he used to drink heavily and play flush in the town with different rich persons. " 6. On 9th of April, 1986 (vide Annexure-30), the State Government queried from the Court whether : " (i) without departmental proceedings and at least giving the petitioner to have his say in the matter, it would be justified and in accordance with law to terminate his service : (ii) whether the adverse remarks have been communicated to the petitioner or not and/or any show cause was asked giving him opportunity to explain ; and (iii) whether on expiration of two years of his probation, there was any order of the Court not to confirm him and/or there is any order for extension of his probationary period. " on 13-6-1986, vide Annexure-31, the Registry wrote back to the Government that time and again, the matter of confirmation of the petitioner was considered by the Court, but the Officer was not found fit for confirmation in view of the adverse remarks on his record "and under Rule 31 (3) of the bihar Civil Service (Judicial Branch) (Training and Departmental Examination)Rules, 1963, the Officer is liable to be discharged from service at any time at the discretion of the State Government in consultation with the high Court". His representation about adverse remarks earned for the year 1979-80 was rejected by the Court and the same was communicated to him in time. The decision to recommend for termination of his service was taken by the Court while again considering the question of his confirmation. "after that decision, the Officer has been communicated the adverse material as obtaining on his service record against which the Officer till now has made no representation. " the very fact that officers junior to him were confirmed "must have indicated him his insuitability for confirmation" and "the Courts recommendation to terminate the services of Sri Pandey Madan Mohan Prasad Sinha should be deemed to be final. " 7. The petitioner filed a detailed representation against the entire adverse remarks extracted in paragraph 5 of the judgment on 28-8-1986 (Annexure-26) running into thirty pages explaining also the delay in filing the representation within two months of the communication of all the adverse remarks because of grave and serious illness. 8. On 29th August, 1986, the State Government passed the impugned order contained in Annexure-1 to the effect that the services of the petitioner were no longer required from the afternoon of the 31st August, 1986, and the High Court was requested to get the order served upon the petitioner. 9. The petitioner again filed a representation against his termination of service on 1st September, 1986 (Annexure-32) explaining the reason why he could not file his representation against the composite adverse materials communicated to him and to reconsider the matter and a personal hearing be given to him. On 14th November the 1986, the Assistant Registrar I wrote back to the petitioner that his representations dated 28th August, 1986, and 1st September, 1986, have been rejected on merits, and on the same date, the registrar informed the District and Sessions Judge, Hazaribagh, that the petitioner be informed that his representation dated 28th August, 1986, has been rejected (Annexures 33/a and 33 respectively), which have been impugned in the present writ petition. 10. Counter-affidavit has been filed on behalf of the Court, wherein it has been asserted that the confirmation matter of the petitioner was taken up by the High Court several times, but in view of the adverse materials against him on the record, it was not found possible by the Court to confirm him in the rank of Munsif. 10. Counter-affidavit has been filed on behalf of the Court, wherein it has been asserted that the confirmation matter of the petitioner was taken up by the High Court several times, but in view of the adverse materials against him on the record, it was not found possible by the Court to confirm him in the rank of Munsif. The petitioner was not found fit for retention in service and such Judicial Officers who are not confirmed are liable to be discharged from service at any time at the discretion of the State Government in consultation with the High Court as required under Rule 31 (3) of the Bihar Civil service (Judicial Branch) Training and Departmental Examination) Rules, 1963. The matter of confirmation of the petitioner was considered on 10-1-1979, 30-8-1979, 5-12-1979, 29-9-1981, 25-8-1982 and 19-6-1985 and every time he was found unfit for confirmation even though officers junior to him were confirmed. In paragraph 5 of the supplementary counter-affidavit, it has been averred that the entire adverse materials on his record were conveyed to the petitioner after the reco nmendation was made to the State government, against which the petitioner filed representations, which were considered by the High Court on merits and the same were rejected. The adverse materials which were considered while recommending dispensation of the service of the petitioner were those which have already been shown in paragraph 5 of this judgment. 11. In reply to the counter-affidavit, on amongst others, the petitioner stated that he was not communicated the adverse materials nor he was allowed any opportunity to show cause against those remarks before the court took a decision to terminate his service, save and except the adverse remarks for the years 1976-77 and 1979-90. It has been further stated that the District Judges from time to time sent favourable report to the High court recommending his confirmation in service while he was posted at Patna and Sitamarhi. 12. It has been further stated that the District Judges from time to time sent favourable report to the High court recommending his confirmation in service while he was posted at Patna and Sitamarhi. 12. There is no denial in the counter-affidavit as to the statement made in paragraph 16 of the writ application, to the effect that while posted at patna, the District Judge, Patna, recommended for the confirmation of the petitioner, nor the averments made in paragraphs 21, 22 and 68 of the writ application that while he was posted at Sitamarhi East in September, 1979, the then District Judge, Sitamarhi, recommended for his confirmation, as also the succeeding District Judge, Mr. Nandkuliyar, sent a special report recommending for his confirmation. The further statement made in paragraph 68 of the writ petition to the effect that Mr. Justice S. Sarwar Ali, who was the Administrative Judge and had inspected Sitamarhi in March/april, 1980, while the petitioner was posted at Sitamarhi, did not report anything adverse against him. The petitioner left Sitamarhi in January, 1982, whereafter mr. Justice H. L. Agrawal (as he then was) during an un-official visit to sitamarhi in the year 1983, heard complaints about the petitioner behind his back and recorded some adverse remarks in his character roll. 13. Mr. The petitioner left Sitamarhi in January, 1982, whereafter mr. Justice H. L. Agrawal (as he then was) during an un-official visit to sitamarhi in the year 1983, heard complaints about the petitioner behind his back and recorded some adverse remarks in his character roll. 13. Mr. Shyama Prasad Makerji, learned Senior Advocate appearing on behalf of the petitioner, contended that: " (i) The petitioner should be deemed to have been confirmed after completion of two years period of probation, i. e , 15-3-1976, or from the date of his passing the departmental examination on 26-9-1977, as no adverse remarks in the meantime was communicated to him ; (ii) In the facts and circumstances of this case, the termination of the petitioner is by way of punishment and, therefore, the petitioner was entitled to the protection of Article 311 of the Constitution of india ; (iii) Rule 24 of the Bihar Civil Service (Judicial Branch) Recruitment rules, 1955, does not provide for extension of the probationary period ; (iv) The action of the High Court in recommendation to the State government adverse materials for termination of the service of the petitioner prior to the communication of the adverse materials against him, which weighed with the Court, is violative of the principles of natural justice ; (v) The consideration of the representation of the petitioner after decision to terminate his service is illegal and unjustified. (vi) If the 15th Bihar Judicial Service Examination appointees, some of whom were not confirmed, were asked to show causa why the date of their confirmation should not be deferred in the year 1984, the Courts failure to do so in the case of the petitioner, is discreminatory ; (vii) The confirmation matter of the matter of the petitioner ought to have been taken up by the High Court in accordance with Rule 24 of the Bihar Civil Service (Judicial Branch) Recruitment Rules, 1955, immediately after the expiration of two years, and not after four years of service. Had it been taken up in time, the petitioner would not have suffered the ordeal ; (viii) In any view of the matter, the decision of the Court to terminate the services of the petitioner was taken (vide Annexure-27) on 5-8-1985 on uncommunicated materials, which communicated to the petitioner only on 3-4-1986 (Annexure-15), and that too, at the instance of the State Government. " 14. " 14. The State was represented by Mr. Rahmani, Standing Counsel no HI and Mrs R. Usha. According to the contention of the learned counsel for the State in view of Rule 24 of the Bihar Civil Service (Judicial Branch)Recruitment Rules 1955 (hereinafter referred to as the Recruitment Rules)and Rule 31 of the Bihar Civil Service (Judicial Branch) Training and departmental Examination) Rules, 1901 (hereinafter referred to as the departmental Examination Rules), there is no bar in extending the period of probation nor there is any question of implied or automatic confirmation. A probationer Munsif, according to learned counsel, is entitled to confirmation on fulfilment of three condition namely ; " (i) Two years of completed service ; (ii) Passing of the Departmental Examination ; and (iii) The recommendation of the High Court for his confirmation. " On non-fulfilment of any one of the conditions, a probationer Munsif is not entitled to confirmation. But there may be automatic extension of his probation till such time the probationer Munsif is confirmed or his probation is terminated. Rule 31 of the Depart. Exam. Rules requires that before recommendation for confirmation of a rrobationer, the District and Sessions Judge under whom he has been traind, must find him fit to be confirmed, having regard to the mastery of law, practice of evidence and procedure and his industry and general efficiency and the District Magistrate and Collector and the Settlement officer under whom he has undergone training in theoretical and practical revenue or Survey Papers, submits a report. The seport of the District Judge will be forwarded to the High Court and the report of the Executive authorities under whom the Officer is trained, should send the same to the State Government and the State Government in its turn will forward the same to the High court. Rule 31 (3) of the Departmental Examination Rules further provides that if an officer is not confirmed for being appointed on permanent basis, he would be liable to be discharged at any time in consultation with the High court. 15. In the instant case, it is said, the service record of the petitioner being found unsatisfactory, the Court, inspile of consideration of the case of the petitioner at several sittings, did not find it possible to confirm him. 15. In the instant case, it is said, the service record of the petitioner being found unsatisfactory, the Court, inspile of consideration of the case of the petitioner at several sittings, did not find it possible to confirm him. It is said that if the petitioner continued for a long period as a probationer, he was allowed to do so to improve himsef and the same cannot weigh against the Court. The rule under consideration, according to the learned counsel for the State, comes under the ordinary normal rules that without an express order of confirmation, the Government servant could not be taken to have been been confirmed in the post to which he is appointed temporarily at the end of probationary period. Learned counsel also submitted that the order of termination did not cast any stigma on the officer and can, by no means, be termed as termination by way of punishment. , entitling him to the procedure contemplated by Ariticle 311 (2) of the Constitution. 16. For proper appreciation of the points involved in this writ petition i would like to quote Rule 24 of the Recrutment Rules and Rule 31 of the departmental Examination Rules, which read as hercunder ; rule 24 : "a candidate appointed to the post of Munsif otherwise than on a temporary basis shall be appointed on probation in the first iustance but will be eligible for confirmation as a Munsif subject to the conditions that (i) he has completed two years of service from the date of his first appointment, (ii) he has passed such tests as may from time to time be prescribed in the Departmental Examination Rules, and, (iii) he is recommended by the High Court for such confirmation. " Rule 31 "31 (1) A probationer will be eligible for confirmation and appointment as a permanent Munsif as provided under Rules 24 and 26 respectively of the Civil Service (Judicial Branch) Recruitment rules, 1955 : provided that before recommending a probationer for confirmation or for appointment, the High Court will obtain and consider reports from : (i) the District and Sessions Judge under whom he has been trained as to his fitness to be so confirmed or appointed having regard to his mastery of law and practice of evidence and procedure, and his industry and general efficiency, and (ii) The District Magistrate and Collector and the Settlement Officer or the Officer Incharge of the training (if the probationer has undergone a theoretical and practical revenue or survey training)under whom he has been trained as to his industry and his proficiency in the work in which ho has been trained by them, (2) The report referred to in sub-rule (1) from the District and Sessions judge shall be sent by him direct to the High Court and the reports from other authorities shall be sent to the State Government which has forward the same to the High Court. (3) An officer who is not confirmed or appointed on a permanent basis as Munsif would be liable to be discharged from service at any time in consultation with the High Court. " 17. On a conjoint reading of the two rules, I have no difficulty to hold that there was no automatic confirmation of the petitioner on expiration of two years completion of probationary period. Under clauses (ii) and (iii) of the Recruitment Rules, it is provided that the candidate has to pass the departmental examination, and it may be possible that the candidate may not pass all the departmental examinations within the said period, and does so in a longer period. Further, there must be a positive recommendation by the high Court for the confirmation ot the Officer. Theory of automatic confirmation is thus wholly excluded by the rule governing the confirmation of a Munsif probationer. Further, if the officer is not confirmed or appointed on permanent basis by the High Court, he would be liable to be discharged by the State Government at any time in consultation with the High Court. This also excludes the theory of implied confirmation. 18. Further, if the officer is not confirmed or appointed on permanent basis by the High Court, he would be liable to be discharged by the State Government at any time in consultation with the High Court. This also excludes the theory of implied confirmation. 18. In the case of State of Punjab V/s. Dharam Singh, AIR 1968 Supreme court 1210, which has been strongly relied upon by Mr. Mukherji, Senior advocate for the petitioner, the concerned rule provided for maximum period of probation, including extension Dharam Singh was allowed to coatinue without an order of confirmation beyond the fixed period of extension,and it was in those circumstances under the concerned rule, it was held that by necessary implication, he must be regarded to have been confirmed. In the case of Shamsher Singh V/s. State of Punjab and another, AIR 1974 Supreme court 2192, it was held that where the total period of probation, including extension, was limited to three years, the explanation to Rule 5 (1) provided that the period of probation shall be taken to have been extended if a subordinate is not confirmed on the expiry of the period of probation, and, as a matter of fact, before the completion of three years, the High Court gave a notice to Shamsher Singh as to why his services snould not be terminated. So far as Bihar Rules concerning service of the petitioner is concerned, it makes it abundantly clear that a probationer cannos be automatically confirmed in absence of a recommendation by the High Court to the said effect. In Bihar Civil Service Judicial Branch, the ordinary and normal rule is that without an express order of confirmation, the Munsif will not be taken to have been confirmed, when appointed on probation. The first submission is thus rejected. 19. The petitioners service record apart from his outturn of works, is smeared with entries relating to his conduct in the discharge of judicial duties and the last straw on the camels back was the observation of one of the Hon ble Judge, who visited Sitamarhi in May, 1983, in absence of the petitioner, to petitioners bad association reflecting on his conduct. The high Court in its administrative side, as would be apparent from the counter-affidavit and Annexure-"27", took decision on 5-8-1985 not to confirm him on the basis of materials available on his service record. The high Court in its administrative side, as would be apparent from the counter-affidavit and Annexure-"27", took decision on 5-8-1985 not to confirm him on the basis of materials available on his service record. Annexure-15 constitutes the entire material which has been reproduced in paragraph 5 ot the judgment. These materials were communicated on 3-4-1986 to the petitioner and also forwarded to the State. Till 5-8-1985, when the Court took the decision not to confirm him, he was only communicated his character roll up to 1979-80, and that too, not in its entirety. On 5-5-1978, he was communicated of the remarks in his character roll tor the period 1976-77 "outturn poor". He was not at all communicated of the remarks earned for the year 1977-78 i. e. , "should improve his image" (uncommunicated ). The entry for the year 1979-80 was communicated to the petitioner in two instalments ; on 5-5-1978 what was intimated to him was "outturn poor", against which the petitioner filed his representation (Annexure-7 ). On the 17th January, 1983, another part ot the remarks of 1979-80 was communicated to him "qutturn poor, so was the quality of his orders" (Annexure-9 ). But the Court did not communicate the other part, namely, "did not enjoy the confidence of the Bar and litigant. Integrity questionable". Extracts ot (Cr.2, of 1981-82 that he passed Injunction order in Title Suit No.81 of 1979 on the basis of extraneous reasons, and the Courts remarks "he did not enjoy good reputation as Execution munsit, Patna, and his conduct was undesirable and unbecoming of a Judicial officer, noted in May, 1983, could be known to him only after the decision not to confirm him had been intimated by the Court to the State. Courts discretion not to confirm the petitioner, therefore, is founded upon both communicated and uncommunicated materials. His representations were rejected not before the final decision of the Court to terminate his service was taken on 13-6-1980 (Annexure-31), but some time only on 14-1-1986 (Annexures-33 and 33-A;. 20. It was the State Government which queried on 2-9-1985 (Annexure-28.)whether after eleven years of service, such a summary measure could be taken against him and whether the materials which formed the basis of the conclusion of the High Court was communicated to him. 20. It was the State Government which queried on 2-9-1985 (Annexure-28.)whether after eleven years of service, such a summary measure could be taken against him and whether the materials which formed the basis of the conclusion of the High Court was communicated to him. The then Registrar high Court wrote back to the Government on 5-3-1986 (Annexure-29) that "apart from the complaints touching his integrity with respect to his Judicial work, serious complaints regarding his character and morality were received". Therefore, the State Government asked to give effect to the Courts recommendations made in their letter dated 5-8-1985. It is unfortunate for the Court that even on that date, the materials which formed the basis of such a decision were not communicated to the petitioner in order to enable him to file an effective representation, what to speak of giving of a show cause notice, as afforded to the candidate of 15th Bihar Judicial Service examination while deferring their confirmation. On 3-4-1986, the Court only performed a ritual and/or formality by communicating the materials which formed the basis of their earlier decision dated 5-8-1985. The petitioners representation as against the composit material was certainly delayed, but the petitioner put forward adequate reasons for such a delay. Even the president of the Bihar Judicial Service Association, Hazaribagh District Unit, communicated resolution dated 7-5-1886 of the Hazaribagh Unit of the association that the petitioner had been shifted to Ranchi Hospital with serious health hazards and is in need of immediate financial help and requested their Association President, Justice S. Wasiuddin, to take up the matter with the High Court and raise funds to help him immediately. This was again repeated by one of the members of the Executive Committee at hazaribagh on 13th May, 1986 (Annexure-24 ). 21. It is not denied in the counter-affidavit that on 11th of June, 1986, the petitioner sent a representation to the Registrar of the High Court (Annexure-25), explaining his serious health condition and further informing that he has been discharged from the Hospital only on 7-6-1986 but has been advised one month completed bed rest. He sought for permission to visit sitamarhi in order to enable him to look into the papers of Title Suit No.81 of 1979, which is stated to be decided on extraneous consideration as mentioned in his confidential report of the year 1981-82. He sought for permission to visit sitamarhi in order to enable him to look into the papers of Title Suit No.81 of 1979, which is stated to be decided on extraneous consideration as mentioned in his confidential report of the year 1981-82. Ultimately he prayed for three months time to file an effective representation after he visits sitamarhi and is afforded opportunity to collect information from there (Annexure-25 ). Unfortunately for the petitioner, on 13th June, 1986, itself (Annexure-3l), the Registry communicated to the State Government that the decision taken by the High Court is final in all respects and the State government must give effect to the decision of the High Court by terminating the service of the petitioner in view of the jurisdiction exercised by the High court under Article 235 of the Constitution of India. This was followed by the impugned order of termination dated 29th August, 1986, passed by the state Government (Annexure-1 ). 22. The Registry ought to have waited to take the stern stance, when a month bafore Bihar Judicial Service Association on 7-5-1986 and 13-5-1986 (Annexure 24) passed a resolution as to his physical condition to give a chance to a file proper representation to the entries in his service record. Curiously, Court rejected the representation of the petitioner (Annexure-26)dated 28-8-1986 and the representation dated 1-9-1966 (Annexure-32) almost after three months of the termination of his service on 14-11-1986 (Annexures-33 and 33/a) but his representation dated 18-6-1986 (Annexure-23) remained undisposed of, even though that was sent two months before his termination of service by the State Government. 23. In the counter-affidavit of the respondents, there is no whisper that pursuant to Annexure-25, the petitioner was granted time to collect information from Sitamarhi, since he was then posted at Hazaribagh, to file an effective representation, as all matters touching his conduct related to his stay at Sitamarhi. There is no denial by the High Court that Mr. Justice s. Sarwar Ali, who was the Inspecting Judge of Sitamarhi, during his inspection sometime in April, 1980, found anything adverse against the petitioner as the confidential report does not bear any adverse remarks for the year 1980-81. Hut it is said that Mr. There is no denial by the High Court that Mr. Justice s. Sarwar Ali, who was the Inspecting Judge of Sitamarhi, during his inspection sometime in April, 1980, found anything adverse against the petitioner as the confidential report does not bear any adverse remarks for the year 1980-81. Hut it is said that Mr. Justice H. L. Agrawal (as he then was) who was on an unofficial visit to Sitamarhi, the adverse comments against the petitioner were brought to his notice sometime in May, 1983, more than one year after the peti tioner was transferred from Sitamarhi to Hazaribagh (his date of transfer from Sitamarhi is said to be January, 1982 ). 24. It was the duty of the Registry to bring all these facts to the notice of the Court exercising administrative jurisdiction and there was time enough to differ the implementation of its decision because any decision take on uncommunicated adverse report and without disposal of the representation preferred and pending, is unwarranted in law 25. It has been held in the case of Gurudial Singh Fijji V/s. State of punjab and others, AIR 1979 Supreme Court 1622 that a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enaole the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. In the said case, the adverse reports were communicated, as against which the explanation oifercd, was undisposed of, when the person was denied the promotion for non-issuance of integrity certificate. 26. In the instant case, there is no only non-communication of the adverse report which weighed with the High Court, but his representations were considered long after the final decision was taken to terminate his services. The principle laid down in Fijjis case (supra) was not followed. 27. 26. In the instant case, there is no only non-communication of the adverse report which weighed with the High Court, but his representations were considered long after the final decision was taken to terminate his services. The principle laid down in Fijjis case (supra) was not followed. 27. Learned counsel for the State is not justified in contending that prior to 5-8-1995, the High Caurts direction to terminate the services of the petitioner, the latter had at least been communicated the adverse remarks of 1976-77 on 5-5-1978, the adverse remarks for the year 1979-80 on 3-5-1984, which entries were enough to justify courts decision. This contention is fallacious for the reasons the order does not purport to rely on those two entries alone, the termination did not immediately follow the said two entries the Courts decision not to confirm him relies heavily upon, what was found of him by one of the Hon ble Judges in the year 1983 at Sitamarhi (Annexure-29 ). Lastly Court arrived at its satisfaction on adverse remarks communicated and uncommunicated. The opinion was thus formed on admissible and inadmissible materials. In administrative law, if the discretionary power has been exercised or even be allowed to be influenced by consideration not lawfully permitted, a Court will conclude that the power has not been validly exercised, and it is so here. 28. Before I part with the question, 1 would like to observe that for various reasons communication of adverse remarks are decayed and many a cause ends up in litigation, I would do no better than to reiterate the observation of the Apex Court in the case of Amar Kant Choudhary V/s. State of Bihar, AIR 1984 Supreme Court 531, which reads as follows: "in order to avoid such a contingency, the Government may consider the introduction of a system in which the officer who has to make entries in the confidential roll may be required to record his remarks in the presence of the Officer against whom remarks are proposed to be made after giving him an opportunity to explain any circumstance that may appear to be against him with the right to make representation to higher authorities against any adverse remarks. This course may obviate many times totally baseless remarks being made in the confidential roll and would minimise the unnecessary suffering to which the officer concerned will be exposed. This course may obviate many times totally baseless remarks being made in the confidential roll and would minimise the unnecessary suffering to which the officer concerned will be exposed. Another system which may be introduced is to ask the officer who records confidential remarks to serve a copy of such remarks on the officer concerned before confidential roll is submitted to the higher authorities so that his representation against the remarks may also reach the higher authority shortly after the confidential roll is received. This would curtail the delay in taking action on the representation. " 29. It is now almost settled law that a probationer is also entitled to the procedural safeguards contemplated under Article 311 (2) of the Constitution of india provided the Government servant is able to establish by materials on record that the order is in fact, passed by way of punishment. The language or the form of the order may be deceptive, therefore, not decisive. In a given case, the Government servant may succeed in making out a prima facie case that the order was by way of punishment. The recommendation, which is the basis or foundation of the order should be read along with the order for the purpose of determining the character of the order. If on reading the two together, the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and but for the incident, it would not have been passed, then it is inevitable that the order ot discharge should fall to the ground when the servant has not been afforded a reasonable opportunity to defend himself, as provided under Article 311 (2) See Anup Jaiswal v. Government of India (AIR 1984 Supreme Court 636 ). 30. In the instant case, the petitioner was allowed to continue for 11 years, when on 5-8-1985, suddenly the cases were withdrawn from his file and steps were taken for termination of his service by refusing confirmation. The court is, therefore, left with an impression that the report about his conduct in the year 1980-81 and his antecedent and morality reported by H. L. Agrawal, J. sometime in May, 1983 must have greatly weighed in arriving at the said decision. The court is, therefore, left with an impression that the report about his conduct in the year 1980-81 and his antecedent and morality reported by H. L. Agrawal, J. sometime in May, 1983 must have greatly weighed in arriving at the said decision. I say so, because in Annexure-29, the letter dated 5-3-1986, the report of May, 1983 by an Hon ble Judge of this Court as to the conduct and antecedent of the petitioner was emphasised reflecting on his character and morality. This would be evident from the aforesaid Annexure. The petitioner had no reasonable opportunity to explain the said materials collected by this Court behind his back. This was disclosed to him after the decision to terminate his service was taken. He applied for three months time in view of his serious illness to file representation after collection of materials to prepare his defence, which opportunity was never provided. His representation was considered after the drop scene of the episode fell. It is, no doubt, true, in certain circumstances negligence and inefficiency may influence the employer to terminate the service of a probationer, under contract of his service. In a given case, even if some preliminary inquiry is held but without further pursuing the same, the contract of service can be resorted to, by simply terminating the service. This may not amount to punishment merely because the employer decides to make some inquiry into those allegations. See Oil and Natural Gas Commission and others V/s. Dr. Md. S. Iskander Ali (AIR 1980 Supreme Court 1242 ). But right from parshotam Lal Dhingra V/s. Union of India (AIR 1958 Supreme Court 36) as also in the case of State of Orissa V/s. Ram Narayan Das (AIR 1961 Supreme court 177) and lately in the case of Shamsher Singh V/s. State of Punjab (supra)it has been left to the Court to determine and discern whether the order of termination and/or non-confirmation is really by way of punishment, since, neither the form of the order not holding of some inquiry is conclusive. If the order of termination is sought to be founded on misconduct, its objective is manifest. If the order of termination is sought to be founded on misconduct, its objective is manifest. In the instant case, till the year 1979-80, the Court did not recommend the termination of service of the petitioner, but his case of confirmation was considered and deferred from time to time and only when materials started pouring in as to his character, morality, integrity and antecedent, the Court rose up in as much as, the cases were withdrawn from his Court and the State government was told after 11 years of continuous service that the petitioner was not fit for confirmation and his service should be terminated. If this is not by way of punishment, what else it is. It has been rightly observed in anup Jaiswals case (supra) that the Court is required to look at the recommendation as well as the materials upon which it is founded for the purpose of determining the character of the order. 31. For all reasons aforesaid, i. e. , the decision to terminate the service of the petitioner on the basis of uncommunicated remarks entered in the character roll, pendency of one of the representations on the date the recommendation for termination of his service was communicated to the State government disposal of representations on merit after the passing of the order of termination, not giving of an opportunity to file effective representation after collection of information at Sitamarhi, where the petitioner met his waterloo treating him not equally with those whose confirmation was deferred and were accorded opportunity to show cause in that regard, entries in the character roll casting serious aspersions as to his integrity and character, which formed the basis of the action taken, entitling him to the protection of Article 311 (2) of the Constitution of India, persuade me to hold that the discretion vested in the Court was improperly exercised. The order of termination of service of the petitioner, as contained in Annexure-1 as well as the order dated 14th November, 1986 (Annexures-33 and 33/a), rejecting the representations of the petitioner dated 28th August, 1986, and 1st September,1986, are quashed. 32. The writ petition is, accordingly, allowed. The order of termination of service of the petitioner, as contained in Annexure-1 as well as the order dated 14th November, 1986 (Annexures-33 and 33/a), rejecting the representations of the petitioner dated 28th August, 1986, and 1st September,1986, are quashed. 32. The writ petition is, accordingly, allowed. It will, however, be open to the respondents, if they are so advised, either to hold departmental inquiry or to proceed for compulsory retirement of the petitioner in accordant with law if in their opinion, he has ceased to be useful : See C. D. Ailawadi Union of India and others (1990 Labour and Industrial Cases 1211 ). 33. In the circumstances of the case, there will be no order as to costs. U. P. Singh, J. I agree. Writ Petition allowed.