Research › Search › Judgment

Karnataka High Court · body

2014 DIGILAW 53 (KAR)

Haleema v. State of Karnataka

2014-01-17

A.N.VENUGOPALA GOWDA

body2014
JUDGMENT 1. The petitioner was appointed as a Civil Judge (Jr.Dn.) on probation as per Government Notification No. LAW 225 LAC 98, dated 02.07.1999 and she joined service on 26.07.1999. On the issue of rural weightate, she was relieved of the post. However, Government having taken a policy decision of absorption of the persons appointed under the rural weightage, by virtue of Karnataka Civil Services (Absorption of the persons appointed to the State Civil Services with the benefit of Rural Weightage) (Special) Rules, 2003 (for short, ‘the Absorption Rules’), petitioner was appointed as Civil Judge (Jr. Dn.) in the Karnataka Judicial Service as per Government Notification No. LAW 175 LAC 2005 dated 17.11.2005 and was posted to take charge as II Addl. Civil Judge (Jr.Dn.) & JMFC-II Court, Gulbarga. 2. In this writ petition the grievance of the petitioner is that though she performed the duty diligently, honestly and sincerely and there was no notice of any query or inquiry, her absorption into service being not as a fresh candidate, she having rendered more than seven years of service, her discharge from service by the respondents, in exercise of the power under Rule 6(1) of the Karnataka Civil Services (Probation) Rules, 1977 (for short, ‘the Probation Rules’) as per the Notification bearing No. LAW 113 LAC 2008, dated 15.05.2008 vide Annexure-B is arbitrary and illegal. 3. Sri Ravi B. Naik, learned Senior Advocate, firstly contended that the impugned Notification is arbitrary. He submitted that the petitioner, who was appointed in the year 1999 had put in more than seven years of service on the date the Notification as at Annexure-B was issued and there being no order served on the petitioner extending the period of probation, which was only for two years, the period having expired in the year 2001 itself and there being also an order of absorption by virtue of the Absorption Rules, the invoking of the Probation Rules in May 2008 and the discharge from service is wholly unjust and illegal. He submitted that in view of expiry of two years’ period, the petitioner should be deemed to have been confirmed in the service and therefore, her service could not have been terminated on the ground that she was on probation. He submitted that in view of expiry of two years’ period, the petitioner should be deemed to have been confirmed in the service and therefore, her service could not have been terminated on the ground that she was on probation. Secondly, the impugned Notification casts ‘stigma’ to the petitioner, who served for more than seven years and there being no enquiry held by giving reasonable opportunity of hearing, there is violation of principles of natural justice. Lastly, there was no deficiency or defect or shortcoming in the work or performance and conduct of the petitioner and on the guise of discharging her from service under Rule 6(1), the respondents have penalised the petitioner, which appears to be on account of the overstayal after expiry of the sanctioned leave period. He submitted that the overstayal was on account of the unforeseen circumstances, narrated in detail in a representation dated 19.09.2007 submitted by the petitioner. 4. Smt. Rafeeunisa, learned HCGP, on the other hand contended that there cannot be a deemed confirmation and the High Court in exercise of its power of superintendence as well as the Government Rules, found the petitioner to be unsuitable for retention in service. She submitted that the discharge of probationer on the ground of unsuitability cannot be termed as punitive and the respondents were not required to issue a notice or grant any opportunity of hearing in the matter of discharge during probation period. She further submitted that the petitioner has rightly been discharged from the service by issue of the Notification, as at Annexure-B and the said action being not stigmatic, no interference in the matter is called for. 5. In the light of the submissions made by the learned advocates, perused the records which have given rise to the impugned notification. The termination of service of a probationer during or at the end of the period of probation will not ordinarily and by itself be a punishment because the person so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to. The termination of service of a probationer during or at the end of the period of probation will not ordinarily and by itself be a punishment because the person so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to. The period of probation, therefore, furnishes a valuable opportunity to the controlling authority/appointing authority to closely observe the work of the probationer and by the time the period of probation expires, to make up the mind, whether to retain the person by absorbing in regular service or dispense with his service. Period of probation may vary from post to post and it is not obligatory on the appointing authority to prescribe a period of probation. It is open to the appointing authority to appoint an official without putting him on probation. Power to put the official on probation for watching the performance and the period during which the performance is to be observed is the prerogative of the controlling authority/appointing authority. 6. On the rival contentions urged, the following points arose for consideration: (i) Whether the petitioner is deemed to have been confirmed in service merely on account of the expiry of the initially stipulated probation period? (ii) Whether the impugned Notification is stigmatic? (iii) Whether the impugned action is arbitrary and illegal? 7. At the cost of repetition, it is to be observed that the petitioner was appointed on probation as per Government Notification No. LAW 225 LAC 98 dated 02.07.1999 and assumed charge on 26.07.1999. She was relieved of the duty on the issue of Rural Weightage. However, she was appointed on 17.11.2005 in terms of the Absorption Rules, at the minimum of time scale of the pay of the post, with a condition that the service rendered prior to the date of the absorption shall not be considered for the purpose of pay and seniority. 8. Petitioner submitted a representation dated 14.09.2007 through the Principal District and Sessions Judge, Gulbarga, for grant of leave for two years’ period w.e.f. 20.09.2007 to 19.09.2009, with permission to leave the country, to go abroad for performing ‘Umrah and Haz’ pilgrimage and visit her husband in Qatar. The requisition having been forwarded to the Hon’ble Administrative Judge, on 18.09.2007, leave was refused. Said decision was conveyed to the petitioner. 9. The requisition having been forwarded to the Hon’ble Administrative Judge, on 18.09.2007, leave was refused. Said decision was conveyed to the petitioner. 9. The Principal District and Sessions Judge, Gulbarga, under a letter dated 20.09.2007, forwarded an application dated 19.09.2007 of the petitioner, wherein, it was stated as follows: “……it is essential for her to perform ‘Umrah and Haj’ pilgrimage and her air ticket was confirmed for 4th October 2007 and as such she requires leave for at least three months from 26.09.2007 to 25.12.2007 (bdi) and requests to reconsider her representation and grant leave for at least three months from 26.09.2007 to 25.12.2007 (bdi) or else in case it is not considered to treat her application as resignation.” (emphasis supplied) Petitioner was granted the said leave by the Hon’ble Administrative Judge on 21.09.2007. The Hon’ble Chief Justice, while considering the request of the petitioner to issue ‘No Objection Certificate’, passed an order on 21.09.2007, cautioning against overstayal. The said order was conveyed to the petitioner on 24.09.2007. 10. On 26.12.2007, the Principal District and Sessions Judge, forwarded a representation of the petitioner seeking extension of leave upto August 2009, so as to enable her to pursue her intentions. The file having been submitted to the Hon’ble Administrative Judge, an order dated 10.01.2008 was passed rejecting the request, in view of the undertaking given earlier. The said decision was immediately conveyed to the petitioner. 11. A report was called for from the Principal District and Sessions Judge, vide letter dated 25.01.2008, with regard to the submission of charge report by the petitioner after returning from leave. The Principal District and Sessions Judge, along with a communication dated 13.02.2008, submitted a report that the petitioner has not joined duty on completion of her leave on 26.12.2007, as per the report submitted to him, by the Principal Civil Judge (Jr.Dn.) and JMFC, Gulbarga. The Hon’ble Administrative Judge having made an order to place the file before the Administrative Committee No.III for appropriate decision, Administrative Committee No.III, on 01.04.2008, after considering the petitioner’s performance, annual confidential reports and the non-reporting to duty, resolved that the petitioner is unsuitable to hold the post and recommended for her discharge. The said resolution having been placed on the administrative side of the Full Court, which met on 08.04.2008, resolution of the Administrative Committee No.III was approved and recommended the Government to discharge the petitioner from service. The said resolution having been placed on the administrative side of the Full Court, which met on 08.04.2008, resolution of the Administrative Committee No.III was approved and recommended the Government to discharge the petitioner from service. Based on the said resolution the Notification as at Annexure-B has been issued by Government. 12. In the case of SATYA NARAYAN ATHYA VS. HIGH COURT OF MADHYA PRADESH AND ANOTHER, (1996) 1 SCC 560 , a Judicial Officer was not given any confirmation letter, even after completion of his two years of probation period. The rules provided for extension of initial two years of probation period for a further period of two years. While examining the contention with regard to deemed confirmation put forth by the officer who was on probation and was discharged, Apex Court has held as follows: “3. The question, therefore, is whether the petitioner has to be deemed to have been confirmed after his completion of two years of probation. Rule 24(1) of the M.P. Judicial Service (Classification, Recruitment and Condition of Services) Rules, 1955, (for short ‘the Rules’), provides thus: “Every candidate appointed to the cadre shall undergo training for a period of six months before he is appointed on probation for a period of two years, which period may be extended for a further period not exceeding two years. The probationers may, at the end of period of their probation, be confirmed subject to their fitness for confirmation and to having passed, by the higher standard, all such departmental examination as may be prescribed.” A reading thereof would clearly indicate that every candidate appointed to the cadre shall undergo training initially for a period of six months before he is appointed on probation for a period of two years. On his completion of two years probation, it may be open to the High Court either to confirm or extend the probation. At the end of the probation period, if he is not confirmed on being found unfit, it may be extended for a further period not exceeding two years. It is seen that though there is no order of extension, it must be deemed that he was continued on probation for an extended period of two years. On completion of two years, he must not be deemed to be confirmed automatically. There is no order of confirmation. It is seen that though there is no order of extension, it must be deemed that he was continued on probation for an extended period of two years. On completion of two years, he must not be deemed to be confirmed automatically. There is no order of confirmation. Until the order is passed, he must be deemed to continue on probation. 5. Under these circumstances, the High Court was justified in discharging the petitioner from service during the period of his probation. It is not necessary that there should be a charge and an enquiry on his conduct since the petitioner is only on probation and during the period of probation, it would be open to the High Court to consider whether he is suitable for confirmation or should be discharged from service.” (emphasis supplied) 13. In KAZIA MOHAMMED MUZZAMMIL VS. STATE OF KARNATAKA AND ANOTHER, (2010) 8 SCC 155 , the appellant, a direct recruit Judicial Officer was discharged from service on the ground that he was unsuitable to hold the post of District Judge. He questioned the order of discharge inter alia contending that he could not be discharged from the service as he is deemed to have been confirmed on completion of probation period. By taking into consideration the relevant provisions of the Karnataka Civil Services (Probation) Rules, 1977 and Karnataka Judicial Services (Recruitment) Rules, 1983, Apex Court has held that 1977 Rules are specific rules on the subject in question while the 1983 Rules are general rules envisaged and in any case there is no conflict between the two as they seek to achieve the same object in relation to probation and effects thereof in relation to different matters. Apex Court has held that the reference to the probation period has to be examined, interpreted with reference to and in conjunction with the 1977 Rules, which are the primary rules dealing with probation and also adopted by the High Court and under the 1983 Rules, the emphasis is on performance and training during the period of probation. Apex Court has further held that what will be the period of probation, the circumstances under which it can be extended or reduced and discharge of the probationer officer in the event of unsuitability, etc., are only dealt with under the 1977 Rules. Apex Court has further held that what will be the period of probation, the circumstances under which it can be extended or reduced and discharge of the probationer officer in the event of unsuitability, etc., are only dealt with under the 1977 Rules. The contention with regard to ‘deemed confirmation merely on account of expiry of two years period from the date of joining of the service was found to be devoid of merit’. The declaration of law by the Apex Court in the decisions noticed supra, is sufficient to negate the first contention urged by Sri Ravi B. Naik. 14. The Notification assailed in this writ petition (Annexure-B) reads as under: GOVERNMENT OF KARNATAKA No. LAW 113 LAC 2008 Karnataka Government Secretariat, Vidhana Soudha, Bangalore, dated: 15.05.2008. NOTIFICATION Whereas, Smt. Haleema, was appointed under Karnataka Civil Service (Absorption of persons appointed to the State Civil Services with the benefit of Rural Weightage) (Special) Rules, 2003, as Civil Judge (Jr.Dn.) under G.O.No.LAW 175 LAC 2005, dated 17.11.2005 and posted as II Addl. Civil Judge (Jr.Dn.) and JMFC II, Gulbarga and working from 15.12.2005. Whereas, during the period of probation her performance was found unsatisfactory and she is unsuitable to hold the post for which she has been appointed. Wherefore, in exercise of the powers conferred under Rule 6(1) of the Karnataka Civil Service (Probation) Rules, 1977, Smt. Haleema, Probationer Civil Judge (Jr.Dn.) presently working as II Addl. Civil Judge (Jr. Dn.) & JMFC, Gulbarga, is hereby discharged from service with immediate effect. By Order and in the name of President of India (E. SHIVANANDA) Under Secretary to Government (Adm.1) Law, Justice & Human Rights Department. A bare reading of the above notification shows that it is ex facie not stigmatic. 15. In the case of STATE OF PUNJAB Vs. BHAGWAN SINGH, (2002) 9 SCC 636, Apex Court has held as follows: “4. This aforesaid order to the extent it stated that the officer was unlikely to prove a good police officer, was in terms of the relevant Rule 12.21 applicable to the respondent. In our view, when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, that cannot be held to amount to stigma. 5. In our view, when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, that cannot be held to amount to stigma. 5. The other sentence in the impugned order is, that the performance of the officer on the whole was “not satisfactory.” Even that does not amount to any stigma.” (emphasis supplied) 16. In H.F. SANGATI Vs. REGISTRAR GENERAL, HIGH COURT OF KARNATAKA AND OTHERS, (2001) 3 SCC 117 , Apex Court has dealt with the question, whether an order terminating the appointment of probationer - Munsif/s could be considered to be punitive. In that case, during the period of probation, several adverse remarks had been made in the confidential records of the probationer officer/s. The Administrative Committee of the High Court considered the confidential records and came to the conclusion that the officers were not fit to be confirmed in the posts. Administrative Committee recommended to the Full Court, accordingly. The High Court, on the administrative side, accepted the recommendation at a Full Court meeting and recommended the matter to the State Government, which accepted the recommendation and discharged the probationer officers from service. The order of termination mentioned that the officer/s was “unsuitable to hold the post of Munsif”. The Apex Court, when approached by the discharged Officers for relief, has held that the order did not cast any stigma and the action was not punitive. Inter alia, Apex Court has held as follows: “6. It was not disputed before the High Court, either before the learned single Judge or before the Division Bench hearing the writ appeals and has also not been disputed before this Court that the two appellants have been discharged from service during the period of probation. It is also an admitted fact that no order was passed declaring the period of probation having been successfully completed and confirming any of the two appellants in service. 7. It is also not disputed that the relevant rules governing the period of probation of the appellants are the Karnataka Civil Services (Probation) Rules, 1977. The controversy centres around Rule 6, which reads as under:- “6. 7. It is also not disputed that the relevant rules governing the period of probation of the appellants are the Karnataka Civil Services (Probation) Rules, 1977. The controversy centres around Rule 6, which reads as under:- “6. Discharge of a 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. (2) An order discharging a probationer under this rule shall indicate the grounds for the discharge but no formal proceeding under the Karnataka Civil Services (Classification Control and Appeal) Rules, 1957, shall be necessary.” It is submitted by the learned counsel appearing for K.M. Hanumanthappa, and H.F. Sangati who appeared in person, that the order of discharge is not an order of discharge simpliciter; it casts a stigma on the appellants inasmuch as it records – “…..they are unsuitable to hold the post of Munsifs” and, therefore, they should have been afforded an opportunity of hearing before passing the impugned orders which having not been done, the impugned order is vitiated for non-compliance with the principles of natural justice. Reliance was placed on a decision of this Court in V.P. Ahuja Vs. State of Punjab & Ors., (2000) 3 SCC 239 . 8. It is well settled by a series of decisions of this Court including the Constitution Bench decision in Parshotam Lal Dhingra Vs. Union of India, AIR 1958 SC 36 , and seven -Judge Bench decision in Samsher Singh Vs. State of Punjab, AIR 1974 SC 2192 , that services of an appointee to a permanent post on probation can be terminated or dispensed with during or at the end of the period of probation because the appointee does not acquire any right to hold or continue to hold such a post during the period of probation. State of Punjab, AIR 1974 SC 2192 , that services of an appointee to a permanent post on probation can be terminated or dispensed with during or at the end of the period of probation because the appointee does not acquire any right to hold or continue to hold such a post during the period of probation. In Samsher Singh case it was observed that the period of probation is intended to assess the work of the probationer whether it is satisfactory and whether the appointee is suitable for the post; the competent authority may come to conclusion that the probationer is unsuitable for the job and hence must be discharged on account of inadequacy for the job or for any temperamental or other similar grounds not involving moral turpitude. No punishment is involved in such a situation. Recently, in Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, (1999) 3 SCC 60 , having reviewed the entire available case law on the issue, this Court has held that termination of a probationer’s services, if motivated by certain allegations tantamounting to misconduct but not forming foundation of a simple order of termination cannot be termed punitive and hence would be valid. In Satya Narayan Athya Vs. High Court of M.P. ( AIR 1996 SC 750 ), the petitioner appointed on probation as a Civil Judge and not confirmed was discharged from service in view of the non- satisfactory nature of his service. This Court held that the High Court was justified in discharging the petitioner from service during the period of probation and it was not necessary that there should have been a charge and an inquiry on his conduct since the petitioner was only on probation and it was open to the High Court to consider whether he was suitable for confirmation or should be discharged from service. 9. In the two cases at hand we find the Administrative Committee of the High Court having took into consideration all the relevant material and thereafter 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 Court of the High Court. Pursuant thereto, the State Government issued the impugned order of discharge from service. 10. In our opinion the impugned order does not cast any stigma on the appellants. Pursuant thereto, the State Government issued the impugned order of discharge from service. 10. In our opinion 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 inquiry before making the order.” (emphasis supplied) 17. In the instant case, Administrative Committee-III having considered the service record of the petitioner resolved that her service was unsatisfactory. The record having been considered by the Full Court, on the administrative side, having found the petitioner’s performance as unsatisfactory and she being unsuitable to hold the post, passed the resolution to discharge her from the service. It is on the said recommendation the Notification as at Annexure-B has been issued. A perusal of the record and the impugned notification does not indicate that there is any stigma attached. Even for confirmation of service of the petitioner, the Full Court of the High Court on the administration side being the controlling authority was required to consider all the service record and related inputs, to form an opinion with regard to the declaration relating to probationary service. Even for confirmation of service of the petitioner, the Full Court of the High Court on the administration side being the controlling authority was required to consider all the service record and related inputs, to form an opinion with regard to the declaration relating to probationary service. The Full Court having perused the service and related records of the petitioner and also there being no dispute that the petitioner had sought two years’ leave to perform pilgrimage and the same having been refused and subsequently having permitted for three months only, the overstay despite the caution shows that her discharge from judicial service is not arbitrary. In view of the above, I find no merit in the second contention advanced on behalf of the petitioner. 18. During the period of probation an officer remains under watch, his service and conduct would be scrutinised. Around the time of completion of the probationary period, an assessment is made on his work and the conduct during the period of probation and on such assessment a decision is taken as to whether or not his service is satisfactory or not, also whether or not on the basis of his service should be confirmed or extended for further scrutiny of his service, if such extension is permissible or whether his service should be dispensed with and terminated. The service rendered by a Judicial Officer during the period of probation should be assessed not only on the basis of the judicial performance, but also on probity as how he has conducted himself. 19. In STATE OF PUNJAB Vs. SUKHWINDER SINGH, (2005) 5 SCC 569 , with regard to the appointing authority’s right of retention in service or otherwise of a probationer, Apex Court has held as follows: “19. … The decision to discharge a probationer during the period of probation or the order to terminate the service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry “for the purpose of imposing punishment” and an order of discharge or termination of service as a result thereof “punitive in character”, the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong.” (emphasis supplied) 20. The very fact of petitioner applying leave of two years for the purpose of performing pilgrimage and the same having been refused and the request made, thereafter, having been considered and she having been granted three months’ leave to perform the pilgrimage, she having overstayed, shows that she is unsuitable to hold the post of Judicial Officer. The District Judiciary, is the bedrock of our judicial system and is positioned at the primary level of entry to the doors of justice. In providing the opportunity of access to justice to the people, a Judicial Officer, who is positioned with the task of adjudication must officiate in a manner i.e., behaving of his position and responsibility towards the Society. Punctual Judicial Officers are the need to sustain the image of the judiciary in the eyes of litigants, since the arrears of cases are mounting. Absence of Judicial Officer presiding a Court, cripples the functioning of the Court, resulting in litigants being subjected to suffering for no fault of theirs. 21. The performance of the petitioner being unsatisfactory and her conduct being unsuitable to the post for which she was appointed, the decision taken by the respondents, resulting in issuance of the Notification, dated 15.05.2008, extracted supra, cannot be termed as either arbitrary or punitive much less illegal. Thus, the last contention is also devoid of merit. Consequently, the writ petition being devoid of merit is dismissed with no order as to costs.