Research › Search › Judgment

Karnataka High Court · body

2004 DIGILAW 341 (KAR)

KHAZIA MOHAMMED MUZZAMMIL v. STATE OF KARNATAKA

2004-06-09

AJIT J.GUNJAL, N.K.JAIN

body2004
( 1 ) THIS writ petition is filed against the notification (Annexure-A) dated 24-3-2000 passed by the 1st respondent. ( 2 ) THE necessary facts are that the petitioner, under the provisions of rule 2 of the Karnataka Judicial Services (Recruitment) Rules, 1983 (for short, 'the 1983 Rules'), was appointed as District Judge on 9-5-1996. He was posted as District Judge, Leave Reserve, High Court of Karnataka on 15-5-1996, on probation for a period of two years. Thereafter, the petitioner was transferred as the 1st Additional City Civil and Sessions judge, Bangalore City by Notification No. GOB (I)4 (1)/1996, dated 20-5-1996. The petitioner worked for a period of 3 years 10 months and 10 days. However, the petitioner was discharged from his services, as he was unsuitable to hold the post of District Judge, vide Annexure-A. The same is challenged in this petition. ( 3 ) SRI KK. Mani for Sri Mohammed Usman Shaikh, learned Counsel for the petitioner submits that Rule 6 (1) of the Kamataka Civil Services (Probation) Rules, 1977 (for short, 'the KCSRs') could not be invoked as the petitioner had completed the probationary period and he could not be discharged. He submits that the petitioner's case falls under Rule 7 of the KCSRs and without considering the same, the order at Annexure-A was passed and it is liable to be set aside. He relied on the Supreme court decision in Karnataka State Road Transport Corporation and another v S. Manjunath. ( 4 ) A statement of objections has been filed on behalf of the respondents denying the averments made in the petition. It is stated that the provisions of the 1983 Rules prescribe the period of probation and under the provisions of the KCSRs, until there is a declaration of satisfactory completion of probation, a person continues to be on probation. It is also stated that Rule 7 of the KCSRs deals with the termination for misconduct and has no application to the present case inasmuch as the petitioner's services have not been terminated for any misconduct but he has been discharged on the ground of unsuitability to hold the post It is further stated that no stigma is attached to that order; that the impugned order requires no interference and the writ petition is liable to be dismissed. ( 5 ) SRI M. N. Seshadri, learned Government Advocate for the respondents submits that the petitioner was still on probation when he was discharged from his services; that the petitioner's case does not fall under Rule 7 of the KCSRs, as he has been discharged from service on the ground of unsuitability and not on the ground of misconduct, and therefore, the writ petition is liable to be dismissed. He relied on the decisions of the Supreme Court in (1) High Court of Madhya Pradesh through Registrar and Others v Satya Narayan Jhavar; (2) Sangram singh v Election Tribunal, Kotah and Another; (3) H. F. Sangati v registrar General, High Court of Karnataka and Others; and (4) Wasim beg v State of Uttar Pradesh and Others. ( 6 ) WE have heard the learned Counsel for the petitioner and perused the material on record, the relevant provisions and the case-law relied on by the learned Counsels for the parties. ( 7 ) IT is well-settled that on completion of probationary period, an order of confirmation is necessary. There will be no automatic confirmation of service on the expiry of probation period, unless otherwise provided in the Rules. If the probationer is found unsuitable his services can be terminated and it will attach no stigma and the principles of natural justice are not required to be followed in such cases. ( 8 ) THE main contention of the learned Counsel for the petitioner is that the petitioner has completed the probation period though not satisfactorily, and therefore Rule 5 (2) will not be attracted but Rule 7 of the KCSRs is attracted, which point has not been considered in any of the decisions referred to above. The cases relied on are not helpful and therefore, an enquiry was necessary before terminating the petitioner's service. ( 9 ) IT will be relevant to refer to the following Rules of the KCSRs:"3. Period of probation. The period of probation shall be as may be provided for in the rules of recruitment specially made for any service or post, which shall not be less than two years, excluding the period if any during which the probationer was on extraordinary leave. 4. Extension or reduction of period of probation. (1) The period of probation may, for reasons to be recorded, in writing, be extended. 4. Extension or reduction of period of probation. (1) The period of probation may, for reasons to be recorded, in writing, be extended. (1) by the Governor or the Government by such period as he or it deems fit; (ii) by any other Appointing Authority by such period not exceeding half the prescribed period of probation: provided that if within the prescribed or extended period of probation, a probationer has appeared for any examinations or tests required to be passed during the period of probation and the results thereof are not known before the expiry of such period, then the period of probation shall be deemed to have been extended until the publication of the results of such examinations or tests or of the first of them in which he fails to pass. (2) The Government may, by order, reduce the period of probation of a probationer by such period not exceeding the period during which he discharged the duties of the post to which he was appointed or of a post the duties of which are, in the opinion of the government, similar and equivalent to those of such post. 5. Declaration of satisfactory completion of probation etc. (1) At the end of the prescribed or, as the case may be, the reduced or extended period of probation, the Appointing Authority shall consider the suitability of the probationer to hold the post to which he was appointed, and. (a) xxx xxx xxx; (b) if the Appointing Authority decides that the probationer is not suitable to hold the post to which he was appointed or has not passed the special examinations or special tests, if any, required to be passed during the period of probation, it shall, unless the period of probation is extended under Rule 4, by order, discharge him from service. (2) A probationer shall not be considered to have satisfactorily completed the probation unless a specific order to that effect is passed. Any delay in the issue of an order under sub-rule (1) shall not entitle the probationer to be deemed to have satisfactorily completed his probation. 6. Discharge of probationer during the period of probation. (2) A probationer shall not be considered to have satisfactorily completed the probation unless a specific order to that effect is passed. Any delay in the issue of an order under sub-rule (1) shall not entitle the probationer to be deemed to have satisfactorily completed his probation. 6. Discharge of probationer during the period of probation. (1) Notwithstanding anything in Rule 5, the appointing Authority may, at any time during the period of probation, discharge from service a probationer on grounds arising out of the conditions, if any, imposed by the rules or in the order of appointment, or on account of his unsuitability for the service or post; but the order of discharge except when passed by the government, shall not be given effect to, till it has been submitted to and confirmed by the next higher authority. 7. Termination for misconduct. No order terminating the services of a probationer, whether during or at the end of the period of probation for any misconduct, shall be passed except in accordance with the Karnataka Civil Services (Classification, control and Appeal) Rules, 1957". A bare reading of Rule 3 makes it clear that the period of probation shall be fixed as per the rules of recruitment specially made for any service and also that the minimum period of probation shall be two years. Rule 4 deals with the extension or reduction of period of probation. Rule 5 deals with declaration of satisfactory completion of probationary period. Sub-rule (l) (b) of Rule 5 states that if the appointing authority decides that the probationer is not suitable to hold the post, it may discharge him from service, if the probationary period is not extended. Rule 5 (2) makes it clear that there has to be an order declaring the probationer to have completed the probationary period and if there is a delay in issuing such an order, the probationer will not be deemed to have completed the probationary period. Rule 6 (1) provides for discharge of a probationer during the probationary period under the circumstances like the grounds arising out of the conditions, if any, imposed in the rules or in the order of appointment or unsuitability to hold the post. Rule 6 (1) provides for discharge of a probationer during the probationary period under the circumstances like the grounds arising out of the conditions, if any, imposed in the rules or in the order of appointment or unsuitability to hold the post. Rule 7 states that when a probationer, whether during or at the end of probation period, is terminated for any misconduct, the termination shall be in accordance with the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (for short, 'the 1957 Rules' ). ( 10 ) IN the instant case, the petitioner, who was appointed on probation, though he had worked for 3 years 10 months and 10 days, was not found suitable to hold the post and no order has been passed that he has satisfactorily completed the probationary period. Under the circumstances, the argument that Rule 6 (1) of the KCSRs cannot be invoked and the petitioner's case falls under Rule 7 of the KCSRs is not sustainable. It is seen that the petitioner has not been removed on misconduct pending probation. So the argument that Rule 7 of the kcsrs has not been considered by this Court and the decisions referred to above are not applicable, is not acceptable in the facts of the given case as Rule 7 deals with termination for misconduct during or at the end of probation period, whereas as stated in the present case on hand, the probationer has been discharged from his services as he is found unsuitable to hold the post and there is no violation of the provisions of the 1957 Rules. ( 11 ) NOW, we refer to the case-laws relied upon by the learned Counsel for the petitioner. In Manjunath's case, supra, wherein their Lordships held that on expiry of the period of probation, the probationer gets automatic confirmation, in view of Regulation 11 of. the Karnataka State Road transport Corporation Service Regulations dealing with the probation and its confirmation, is not helpful to the facts of the present case. As stated, no order has been passed declaring the probationer to have satisfactorily completed the probationary period and the probationer cannot be deemed to have been confirmed in service because of expiry of probation period. ( 12 ) ON the other hand, learned Government Advocate relied on the following decisions. As stated, no order has been passed declaring the probationer to have satisfactorily completed the probationary period and the probationer cannot be deemed to have been confirmed in service because of expiry of probation period. ( 12 ) ON the other hand, learned Government Advocate relied on the following decisions. In the case of Satya Narayan Jhavar, supra, their Lordships were considering number of cases and in one case the respondents were appointed as Civil Judges (Trainee), Class II, who were required to undergo six months' training and to be appointed on probation thereafter; the respondents were given several opportunities from time to time to improve themselves so as to consider them for confirmation, but they could not improve and ultimately, their services were terminated. Their Lordships while considering the question of confirmation and deemed confirmation of an appointee on probation, held that though a maximum period of probation is prescribed, the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired. In H. F. Sangati's case, supra, the appellants who had been appointed as Munsifs on probation, were discharged from service on the ground of unsuitability. The Supreme Court, on consideration, found that the administrative Committee of the High Court taking into consideration all the relevant material formed an opinion as to the unsuitability of the two appellants to hold the post of Munsifs, which opinion was communicated to and upheld and accepted by the Full Bench of the High court; that pursuant thereto, the State Government issued the impugned order of discharge from service. The Supreme Court held that:"10. In our opinion that the impugned order does not cast any stigma on the appellants. All that has been said in the impugned order is that the appellants were unsuitable to hold the post of munsifs. The Supreme Court held that:"10. In our opinion that the impugned order does not cast any stigma on the appellants. All that has been said in the impugned order is that the appellants were unsuitable to hold the post of munsifs. It is pertinent to note that Rule 6 contemplates a probationer being discharged from service on one or more of the following grounds: (i) in terms of a condition imposed by the rules, (ii) in terms of the order of appointment, or (iii) on account of unsuitability of the appointee for the service or post. Sub-rule (2) of Rule 6 requires an order discharging the probationer to indicate the grounds for the discharge. It also provides that such indicating of the grounds for the discharge in the order would not require any formal proceedings under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 being held. The impugned order of discharge has been passed in strict compliance with the requirements of Rule 6. It does not cast any stigma on the appellants nor is it punitive. There was thus, no requirement to comply with the principles of natural justice much less to be preceded by any formal proceedings of enquiry before making the order". ( 13 ) IN view of the above settled position of law and in the facts of the given case, the discharge of the petitioner during the probationary period, vide Annexure-A, needs no interference. It is not necessary to deal with the other cases cited by the learned Government Advocate. In view of what we have discussed above, we find no error or illegality in the issuance of the notification dated 24-3-2000 and to interfere with it. The petition is dismissed accordingly. --- *** --- .