Supreme Court of India
KHAZIA MOHAMMED MUZAMMILversusTHE STATE OF KARNATAKA AND ANR.
- Citation
- 2010 INSC 378
- Decided
- 8 July 2010
- Disposal
- Dismissed
- Bench
- B S CHAUHAN
Holding
Under Rule 5(2) of the Karnataka Civil Service (Probation) Rules, 1977, a probationer is not deemed to have satisfactorily completed probation or to be confirmed without a specific order, making the discharge valid and the appeal dismissed.
Summary
The appellant, Khazia Mohammed Muzammil, was appointed as a District Judge on probation under the Karnataka Judicial Services (Recruitment) Rules, 1983 and served for 3 years 10 months before being discharged on the ground of unsuitability. He claimed that, having completed the probation period without a specific extension order, he was automatically confirmed and therefore could not be dismissed. The Supreme Court examined the language of Rule 5(2) of the Karnataka Civil Service (Probation) Rules, 1977, which requires a specific order of confirmation and states that any delay does not deem the probation completed. The Court held that no deemed or automatic confirmation arose, the discharge order was non‑stigmatic and did not require formal proceedings under the 1957 Rules, and the High Court’s decision was not liable to interference under Article 136. Consequently, the appeal was dismissed and directions were issued regarding confidential reports and police verification procedures.
Issues considered
- The applicability of the doctrine of 'deemed confirmation' after the expiry of the probation period without a specific confirmation order.
- Whether the discharge order under Rule 6(1) is stigmatic and requires formal proceedings under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957.
- The propriety of exercising Article 136 jurisdiction to interfere with the High Court’s dismissal of the writ petition.
- The impact of the appellant’s inclusion in the police 'rowdy' list on his suitability for the judicial post.
- The failure to record confidential reports and its effect on the administration of justice.
Legislation cited
- Constitution of Indias. Article 136, s. Article 14, s. Article 16, s. Article 235, s. Article 311
- Karnataka Civil Service (Probation) Rules, 1977s. Rule 3, s. Rule 4, s. Rule 5(1), s. Rule 5(2), s. Rule 6(1), s. Rule 6(2)
- Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957
- Karnataka Judicial Services (Recruitment) Rules, 1983s. Rule 2 (Item 2)
Subjects
probationdeemed confirmationservice lawjudicial servicedischarge orderconfidential reportrowdy listadministrative lawArticle 136Karnataka
Judgment
[2010) 7 S.C.R. 1061
KHAZIA MOHAMMED MUZAMMIL 'A ..
.v.
THE STATE OF KARNATAKA AND ANR.
(Civil Appeal Nos. 596 of 2007)
JULY 08, 2010
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
Kamataka Civil Service (Probation) Rules, 1977:
Rule 5(2) - Deemed confirmation - Held· Rule 5(2) c
provides that competent authority has to examine the
suitability of the probationer and upon recording satisfaction
issue an order of confirmation - ·Thus in the absence of
specific order, there is no deemed/automatic confirmation -
Delay in issuance of order would ndt·entitfe tfrEf propationer D
to be deemed to have satisfactorily completed his prObation
- On facts, Probation period of 2 years and the Probatib.ner-
Judicial officer discharged from service after 3 years and 10
months of service on the ground that he was not found
suitable for the post - He cannot claim that he is deemed to
be confirmed - His service record also did not reflect that he E
was an officer of outstanding caliber - He had made
contradictory statements in his writ petition and mentioned his
age as per his convenience - Not a fit case for exercising
jurisdiction under Article 136 of the Constitution - Karnataka
Judicial Services (Recruitment) Rules, 1983 - Rule 2, item F
no. 2 - Constitution of India, 1950 - Article 136.
rule 5(2) - Discharge order of probationer showed that it
was not stigmatic - Held: Since the discha(ge was simplicitor
without causing stigma upon the concem'ed probationer, G
holding of formal proceedings under the Karnataka Civil
Services (Classification, Control and Appeal) Rules 1957 was
not necessary - Service law.
1061 H
1062 SUPREME COURT REPORTS [2010] 7 S.C.R.
A Service law:
Confidential report - Necessity of recording - Discussed.
Judicial service - Appointment - Police verification report
- High Courts directed to ensure that the police verification
B report conducted in accordance with law should be received
by the concerned authority, before the order of appointment
in the State Judicial Service is issued by the said authority -
On facts, name of concerned judicial officer on rowdy list prior
to his appointment - Normally a person which such
C antecedents would not be permitted to join service of the
government and particularly the post of a judicial officer -
High Court on the administrative side dealt with the matter in
a very causal manner and issued appointment order to the
concerned judicial officer.
D
Probation - Purpose of.
High Court:
Non-recording of confidential report of judicial officer -
E Held: Adversely affects the administration of justice and
dilutes the constitutional power and functions of
superintendence of High Court - It is constitutional obligation
on the High Court to ensure that the members of judicial
service of the State are treated appropriately with dignity and
F without undue delay - Directions passed - Administration of
justice - Judiciary - Constitution of India, 1950 - Article 235
- Service law.
The appellant was appointed as District Judge under
the Karnataka Judicial Services (Recruitment) Rules,
G 1983. By Notification dated 24.3.2000, he was discharged
from service. The appellant challenged the said
Notification by filing writ petition before High Court on the
ground that he had put in 3 years, 10 months of service
and thus had completed the probation period and that
H since there was no specific communication Issued to him
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1063
KARNATAKA AND ANR.
by the authority extending his probation period, he A
should be deemed to be confirmed. Appellant also prayed
for issuance of mandamus to the Superintendent of
Police to strike off his name in the 'rowdy and goonda
register' prior to his selection as District Judge
maintained by the concerned police station. The High B
Court dismissed the writ petition holding that the
appellant was found not suitable to hold the post and
there was no specific order to the effect that he had
satisfactory completed the probationary period. It also
declined to declare the entries as being without basis. c
Hence the appeal.
Dismissing the appeal, the Court
HELD: 1. A bare reading of the notification dated
24.3.2000 showed ttfat it was ex-facie not stigmatic. It D
simply discharged the appellant from service as having
been found unsuitable to hold the post of District Judge.
Until and unless, the appellant is able to show
circumstances supported by cogent material that the said
order was stigmatic and was intended to overreach the E
process of law provided under the rules, there is no
occasion to interfere on facts. [Para 3] [1079-E-F]
I
2. The conduct of the appellant, who is a Judicial
Officer, belonging to the Higher Judicial Services of the
State is a matter of some concern. Co~tradictory . F
statements were made in the Writ Petition before the High
Court, memorandum of appeal before this Court and
even in the rejoinder and further affidavit filed before this
Court. Strangely, the High Court had neither contested
this case nor pursued it in its correct perspective. Even G
appearance on behalf of the High Court' was not entered
, upon. Despite specific orders of this Court, the High
' Court had failed to produce the records and even no
responsible officer was present. [Para 4] [1079-G-H; 1080·
A·B] H
1064 SUPREME COURT REPORTS [2010] 7 S.C.R.
A 3. Normally, the person, with antecedents such as
appellants', would not be permitted to join service of the
G·overnment and, particularly, the post of a Judge. The
High Court on the administrative side also appeared to
have dealt with the matter in a very casual manner. It was
B expected of the Government as well as the High Court to
have the character verification report before the
appointment letter was issued. The cumulative effect of
the conduct of the appellant in making incorrect
averments in the Court proceedings as well as the fact
c that his name was in the 'Rowdie list' of the concerned
Police Station were specific grounds for the Courts not
to exercise its discretionary and inherent jurisdiction
under Articles 136 and 226 of the Constitution of India in
favour of the appellant. These reasons were to be given
definite significance, particularly when the High Court
0
had declined to quash the entries against the appellant
and inclusion of his name in the 'Rowdie list'. During the
course of hearing, the original Confidential Reports of the
appellant were filed. There was only one Confidential
Report on record for the year 1997 wherein the appellant
E was graded as 'Satisfactory'. This falsified his claim that
he had outstanding service record in regard to disposal
of cases and other service related matters. Surprisingly,
for all the remaining years, no Confidential Report of this
officer, and in fact, many others, as the record reflected
F were recorded by the High Court. This aspect cannot be
overlooked as it was just not a simplicitor question of
writing the Confidential Report of a given officer but
adversely affected the administration of justice on the one
hand and dilutes the constitutional power and functions
G of Superintendence of the High court, on the other. The
records were submitted to the concerned Judge of the
High court and no Confidential Reports were recorded.
All this demonstrated not a very healthy state of affairs
in relation to the recording of Confidential Reports of the
H officers in the Judicial Services of the State of Karnataka.
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1065
KARNATAKA AND ANR.
The Confidential Report of an officer is a proper A
document, which is expeded to be prepared in
accordance with the Rules and practice of the Court, to
form the basis while considering the officer for promotion
to higher post and all other service related matters, in
future. Non-writing of the Confidential Reports is bound B
to have unfair results. It affects the morale of the members
of the service. The timely written Confidential Reports
would help in putting an officer at notice, if he is expected
to improve in discharging of his duties and in the present
days where 25% (now 10%) of the vacancies in Higher c
Judicial Service cadre are expected to be filled, from out
of turn promotions after holding of written examination
and interview. Highly competitive standard of service
discipline and values are expected to be maintained by
the Judicial Officers as that alone can help them for better D
advancement of their service career. In such
circumstances, the significance of proper
Superintendence of the High Court over the Judicial
Officers has a much greater significance than what it was
in the past years. In fact, it is mandatory that such
E
Confidential Reports should be elaborate and written
timely to avoid any prejudice to the Administration as well
as to the officer concerned. [Paras 5 to 7] [1083-G-H;
1084-A-H; 1085-A-H; 1086-A]
4.1. There can be 'deemed confirmation' after an F
employee completes the maximum probation period
provided under the Rules whereafter, his entitlement and
conditions of service are placed at parity with the
confirmed employee. Secondly, there can be no 'deemed
confirmation' and at best after completion of maximum G
probation period provided under the Rules governing the
employee, the employee becomes eligible for being
confirmed in his post. His period of probation remains in
force till written document of successful completion of
probation is issued by the Competent Authority. What H
1066 SUPREME COURT REPORTS [2010) 7 S.C.R.
A view has to be taken, would depend upon the facts of a
given case and the relevant Rules in force. It will be
cumulative effect of these two basics that would
determine application of the principle of law to the facts
of that case. The specific rules relating to alleged
B automatic confirmation of the appellant are relevant and
the fact that the appellant failed to satisfactorily complete
the period of probation or extended period of probation
in terms of Rule 5(8) of the Karnataka Civil Service
(Probation) Rules, 1977. The Karnataka Judicial Services
c (Recruitment) Rules, 1983 ought to be read in
conjunction with the 1977 Rules as they have duly been
adopted by the High Court. The 1977 Rules are specific
Rules on the subject in question while 1983 Rules are
general Rules and in any case there is no conflict
between the two as they seek to achieve the same object
0
in relation to probation and effects thereof in relation to
different matters. [Para 9] [1086-E-H; 1087-A-F]
4.2. Not only the Rules but even the principles of
service jurisprudence fully recognizes the status of
E employee as probationer and a confirmed employee.
Probationer in terms of Rule 2 (ii) of 1977 Rules means a
Government servant on probation. Rules 3 to 6 are the
relevant Rules which specifically deal with the period of
probation, extension or reduction of period of probation,
F satisfactory completion of the probation period and
discharge of a probationer during the period of
probation. No doubt Rule 3 of 1977 Rules states that the
period of probation shall be, as may be, provided for in
the Rules of recruitment specially made for any service
G or post, which shall not be less than two years, out of
which period extraordinary leave will have to be
excluded. The framers of the Rules have introduced
proviso to Rule 3, which gives discretion to the
Authorities and, in fact, introduced deemed extension in
H the event, the probationer has appeared for any
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1067
KARNATAKA AND ANR.
examination or result thereof has not been declared A
within the period of probation and extended period. The
Rule, therefore, contemplates deemed extension of
probation period where the Authorities have not passed
any order for extending or declining to extend the period
of probation provided the circumstances stated therein B
are satisfied. [Paras 10, 11] [1087-G-H; 1088-A~E; 1089-A-
H; 1090-D-G]
5. The purpose of any probation is to ensure that
before the employee attains the status of confirmed
regular employee, he should satisfactorily perform his C
duties and functions to enable the Authorities to pass
appropriate orders. In other words, the scheme of
probation is to j.udge the ability, suitability and
performance of an officer under probation. Once these
ingredients are satisfied, the Competent Authority may D
confirm the employee under Rule 5 of the 1977 Rules.
Rule 5(b) empowers the Authority that in the event it is.
of the. view that the period of probation has not been
satisfactorily completed or has not passed the special
examinations, it may discharge him from service unle$S E
the period of probation is extended. Rule 5(2) has been
coveted with negative language. It specifically prescribes
that a probationer shall not be considered to have
satisfactorily completed the probation unless a specific
order to that effect is passed. This Rule further clarifies F
that if there is a delay in issuance of an order under sub-
Rule (1 ), it shall not entitle the probationer to be deemed
to have satisfactorily completed his probation. Rule 6 (1)
states that the Competent Authority may, at any time,
during the period of probation, discharge from service, G
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 of post. However, the said order of discharge
would take effect only after it is confirmed by the next H
1068 SUPREME COURT REPORTS [2010] 7 S.C.R.
A higher authority. Rule 6(2) specifically excludes the
application or holding of formal proceedings under the
Karnataka Civil Services (Classification, Control and
Appeal) Rules 1957. It says that such course will not be
necessary. Item No. 2 of Rule 2 of 1983 Rules states that
B probation period will be of 2 years and further mandates
that during that period of probation, the officer must
undergo a training, as may be specified by the High
Court. That itself is indicated under the head 'minimum
qualifications'. It, therefore, clearly shows that it is not the
c provision dealing with the probation period, extension
and discharge of a probationer during that period but is
primarily relatable to the minimum qualifications, which
are to be essentially satisfied by the officer concerned
before he takes over his appointment as a regular judge.
D The reference to the probation period has to be examined
and interpreted with reference to and in conjunction with
1977 Rules which are the primary Rules dealing with
probation. These Rules have admittedly been adopted by
the High Court. Under the 1983 Rules, the emphasis is
on performance and training during the period of
E probation. While the significance under the 1983 Rules
is on training, under 1977 Rules, all matters relating to
probation are specifically dealt with. It would not be
permissible to read the relevant part of 1983 Rules to say
that it mandates that probation period shall be only for
F two years and not more. If that was to be accepted, all
provisions under Rules 3 to 6 of 1977 Rules will become
redundant and ineffective. In fact, it would frustrate the
very purpose of framing the 1977 Rules. What will be the
period of probation, the circumstances under which it can
G be extended or reduces and discharge of the Probationer
Officer in the event of unsuitability etc. are only dealt with
under the 1977 Rules. The 1983 Rules would have to be
read harmoniously with 1977 Rules to achieve the real
purpose of proper and timely training of Judicial Officers
H on the one hand and appropriate control over the matters
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1069
KARNATAKA AND ANR.
relating to probation of the officers on the other. [Para 12] A
[1090-H; 1091-A-G]
State of Punjab v. Dharam Singh AIR 1968 SC 1210;
Shamsher v. State of Punjab (1974) 2 SCC 834; State of
Punjab v. Dharam Singh AIR 1968 SC 1210; Dayaram Dayal
8
v. State of M.P. (1997) 7 SCC 443; Karnataka State Road
Transport Corporation v. S. Manjunath (2000) 5 SCC 250;
High Court of Madhya Pradesh v. Satya Narayan Jhavar
I
1(2001) 7 SCC 161; Registrar, High Court of Gujarat v. C. G.
Sharma (2005) 1 SCC 132 - referred to.
c
6.1. If Rule or Regulation require the competent
authority to examine the suitability of the probationer and
then upon recording its satisfaction issue an order of
confirmation, then the question of automatic confirmation
would not even arise. Of course, every authoricy is o
, expected to act properly and expeditiously. It cannot and
ought not to keep issuance of such order in abeyance
without any reason or justification. While there could be
some other cases where the Rules do not contemplate
issuance of such a specific order in writing but merely E
require that there will not be any automatic confirmation
or some acts, other than issuance of specific orders, are,
required to be performed by the parties, even in those
cases it is difficult to attract the application of this
doctrine. However, there will be cases where not only
F
such specific Rules, are absent but the Rules specifically
prohibit extension of the period of probation or even
specifically provide that upon expiry of that period he
shall attain the status of a temporary or a confirmed
employee. In such cases, again, two situations would
rise: one, that he would attain the status of an employee G
being eligible for confirmation and second, that actually
he will attain the status of a confirmed employee. It may
not be possible to prescribe a straight jacket formulae of
universal implementation for all cases involving such
questions. It will always de-pend upon the facts of a case 1-t
1070 SUPREME COURT REPORTS [2010) 7 S.C.R. _
A and the relevant Rules applicable to that service. [Para
18] [1111-D-H; 1112-A-B]
6.2. The language of Rule 5(2) is a clear indication of
the intent of the framers that the concept of deeming
confirmation could not be attracted in the present case.
8 This Rule is preceded by the powers vested with the
authorities under Rules 4 and 5(1) respectively. This Rule
mandates that a probationer shall not be deemed to have
satisfactorily completed the probation unless a specific
order to that effect is passed. The Rule does not stop at
C that but further more specifically states that any delay in
issuance of order shall not entitle the probationer to be
deemed to have satisfactorily completed his probation.
Thus, use of unambiguous language clearly
demonstrates that the fiction of deeming confirmation, if
D permitted to operate, it would entirely frustrate the very
purpose of these Rules. On the ground of unsuitability,
despite what is contained in Rule 5, the competent
authority is empowered to discharge, the probationer at
any time on account of his unsuitability for the service
E post. Such discharge has to be simplicitor without
causing a stigma up.on the concerned probationer. It is
difficult for the Court to bring the present case within the
class of cases, where 'deemed confirmation' or principle
of 'autome1tic confirmation' can be judiciously applied.
F The 1977 Rules co not contain any provision which
places a ceiling to the maximum period of probation, for
example, the probation period shall not be extended
beyond a period of two years. On the contrary, a clear
distinction is visible in these Rules as it is stated that
G probation period shall not be less than two years and can
be extended by the authority by such period not
exceeding half the period. The negative expression is for
half the period and not the maximum period totally to be
put together by adding to the initial period of probation
H and to extended period. Even assuming that this period
/'
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1071
KARNATAKA AND ANR.
is of three years, then in view of the language of Rules 5 A
(1) and 5(2) there cannot be automatic confirmation, a
definite act on the part of the authority is contemplated.
The act is not a mere formality but a mandatory
requirement which has to be completed by due
application of mind. The suitability or unsuitability, as the B
case may be, has to be recorded by the authority after
due application of mind and once it comes to such a
decision the other requirement is that a specific order in
that behalf has to be issued and unless such an order is
issued it will be presumed that there shall not be· c
satisfactorily completion of probation period. The Rules,
being specific and admitting no ambiguity, must be
construed on their plain language to mean that the
concept of 'deemed confirmation' or 'automatic
confirmation' cannot be applied in the present case. D
Proviso to Rule 4 shows that where during the period of
probation the results of an examination have not been
declared which the probationer was required to take, in
that event the period of probation shall be deemed to
have extended till completion of the act i.e. declaration of
result. Applying this analogy to the provisions of Rule 5 E
unless certificate is issued by the competent authority the
probation period would be expected to have been
extended as it is a statutory condition precedent to
successful completion of the period of probation and
confirmation of the probationer in terms of this Rule. F
[Paras 19, 20] [1113-8-H; 1114-A-G]
7. In the present case, the appellant was appointed
to the post by letter dated 9/10th May, 1996 and he
reported for his duty on 15th May, 1996. He was on G
probation for a period of two years. Thereafter, no letter
of extension of probation or order stating that the
appellant has completed the period of probation
successfully in terms of Rule 5(1) was ever issued. Rule
5 (2), therefore, would come into play and till the issuance H
1072 SUPREME COURT REPORTS [2010] 7 S.C.R.
A of such an order and certificate of satisfactory
completion of probation period, the appellant cannot
claim to be a confirmed employee by virtue of principle
of automatic or deemed confirmation. His services were
terminated by order dated 24th March, 2000. It was
B discharge from service simplicitor without causing any
stigma on the appellant. Even prior to his selection as a
member of the Higher Judicial Services of State of
Karnataka, his name was placed for surveillance in the
police records. The original service record of the
C appellant also did not reflect that he was an officer of
outstanding caliber or had done extraordinary judicial
work. He was an officer who was not even aware of his
date of birth and mentioned his age as per his
convenience. In these circumstances, it is a case where
in exercise of jurisdiction of this Court under Article 136
0
of the Constitution of India, interference with the
judgment of the High Court is not called for as the same
does not suffer from any tactual or legal infirmity. [Para
21] [1114-G-H; 1115-A-E]
E 8. The concerned authorities failed to act
expeditiously and in accordance with the spirit of the
relevant Rules. Rule 5 (2) of 1977 Rules has used the
expression 'as soon as possible' which clearly shows
the intent of the rule framers explicitly implying urgency
F and in any case applicability of the concept of reasonable
time which would help in minimizing the litigation arising
from such similar cases. It is hoped that all the authorities
concerned would take care that timely actions are taken
in comity to the Rules governing the service and every
G attempt is made to avoid prejudicial results against the
employee/probationer. It is expected of the Courts to pass
orders which would help in minimizing the litigation
arising from such similar cases. Timely action by the
authority concerned would ensure implementation of rule
H of fair play on the one hand and serve greater ends of
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1073
KARNATAKA AND ANR.
justice on the other. It would also boost the element of A
greater understanding and improving the employer
employee relationship in all branches of the States and
its instrumentalities. The Courts, while pronouncing
judgments, should also take into consideration the
issuance of direction which would remove the very cause B
of litigation. Boni judicis est causes litium dirimere. [Para
22) [1115-E-G; 1116-D-G]
Shiv Kumar Sharma v. Haryana State Electricity Board
(1988) Supp. SCC 669, affirmed.
c
9. It is really unfortunate that a person, who is
involved in the process of judicial dispensation, is dealt
with in a manner that for years neither his confidential
reports were written nor the competent authority issued
an order of satisfactory completion of probation period D
or otherwise. Another very important aspect is that in the
present days of high competition and absolute integrity
and even to satisfy the requirements of out of turn
promotions by competition it is expected of the High
Court to inform the concerned judicial officer as of his E
drawbacks so as to provide him a fair opportunity to
improve. Unfortunately High Court did not maintain the
expected standards of proper administration. There is a
constitutional obligation on the High Court to ensure that
the members of the judicial services of the State are
F
treated appropriately, with dignity and without undue
delay. They are the face of the judiciary inasmuch as a
common man, primarily, comes in contact with these
members of the judicial hierarchy. It is a matter of
concern, that timely action on behalf of the High Court
would have avoided this uncalled for litigation as it would G
have been a matter of great doubt whether the appellant
could at all be inducted into the service in face of the
admitted position that the name of the appellant was
stated to be on the rowdy list at the relevant time. [Para
23) [1116-H; 1117-A-E] H
1074 SUPREME COURT REPORTS [2010] 7 S.C.R.
A 10. The judgment of this Court should be placed
before the Hon'ble the Chief Justice of Karnataka High
Court for appropriate action. It is hoped that steps would
be taken to ensure timely recording of the confidential
reports of the judicial officers by appropriate authority
B (which in terms of Chapter VI with particular reference to
the provisions of Article 235 of the Constitution is the
High Court) and in an elaborate format depicting
performance of the judicial officers in all relevant fields,
so as to ensure that every judicial officer in the State
c would not be denied what is due to him in accordance
with law and on the basis of his performance; the
Secretary of the Union of India, Ministry of Personnel,
Public Grievances and Pension as well as all the Chief
Secretaries of the States are directed to issue appropriate
guidelines, in the light of this judgment, within eight
0
weeks from the date of the pronouncement of this
judgment. Further all the High Courts are dfrected to
ensure that 'police verification reports', conducted in
accordance with law, are received by the concerned
authority before an order of appointment/posting in the
E State Judicial Service is issued by the said authority.
[Para 24] [1117 -F-H; 1118-A-C]
Case Law Reference:
AIR 1968 SC 1210 referred to Para 13
F
(1974) 2 sec 834 referred to Para 13
AIR 1968 SC 1210 referred to Para 14
(1997) 1 sec 443· referred to Para 15
G
(2000) 5 sec 250 referred to Para 15
(2001) 1 sec 161 referred to Para 16
(2005) 1 sec 132 referred to Para 17
H (1988) Supp. sec 669 affirmed Para 22
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1075
KARNATAKA AND ANR.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 596 A
of2007.
From the Judgment & Order dated 09.07.2004 of the High
Court of Karnataka at Banglore in W.P. No.11965 of 2000.
Guru Krishna Kumar, Abhay Kumar, S.R. Setia for the B
Appellant.
Anil Kr. Mishra, A. Rohen Singh, Sanjay R. Hegde, R.B.
Budihal, RG, Karnataka HC for the Respondent.
The Judgment of the Court was delivered by
c
SWATANTER KUMAR, J. 1. The appellant, who was a
practicing advocate, was appointed as. District Judge under the
Karnataka Judicial Services (Recruitment) Rules 1983 (for •"
short 'the 1983 Rules') vide Notification No. DPAR 37 SHC 96 D
dated 9.5.1996. In furtherance to this notification letter of
appointment dated 14th May 1996 was issued where after the.
appellant joined the service on 15th May, 1996. However, vide
order dated 2oth of May, 1996, the appellant was transferred
and posted as 1st Additional City Civil & Sessions Judge, E
Bangalore City. It is the case of the appellant that he performed
his duties with utmost diligence and had ,an excellent track
record. His rate of disposal of the cases was very good. The
High Court had scrutinized his performance and neither any
adverse remarks were communicated to him nor any memo or F
show-cause notice was served upon him during the entire
period of his service. Initially in terms of the notification/letter
of appointment, he was appointed on probation for two years.
According to the appellant, he had completed the probation
period St1CCessfully and there was no specific communication G
issued to him by the authority extending his probation period.
Thus, the appellant would be deemed to be a confirmed judge
as per the rules. A Sub-Committee of the Hon'ble Judges
constituted by the High Court had recommended to the Full
Court in its meetings held on 11th Feburary, 1999 and 15~h H
1076 SUPREME COURT REPORTS [2010] 7 S.C.R.
A October, 1999 for discharge of the appellant from service. It
appear that in October 1999, the Registrar General of the High
Cou1i addressed a communication to the Chief Secretary of the
State seeking the discharge of the appellant in terms of Rule
6 (1) Karnataka Civil Service (Probation) Rules, 1977 on the
ground that appellant was not 'suitable for the post'. Pursuant
8
to this recommendation, the Government issued a notification
on 24th March, 2000 discharging the appellant from service.
According to the appellant, the notification dated 24th March,
2000 was arbitrary, contrary to rules andwas unsustainable in
law. The appellant had put in 3 years 10 months and 10 days
C in service as on that date and therefore the appellant was
entitled to confirmation. Aggrieved from the said notification
dated 24th March, 2000, the appellant filed the Writ Petition in
the High Court of Karnataka, Bangalore which came to be
registered as Writ Petition No. 11965/2000 and raised various
D issues including the legal submissions referable to the relevant
rules. The High Court vide its judgment dated 9th July, 2004
dismissed the Writ Petition holding that the notification dated
24th March, 2000 did not suffer from any error or illegality &
no interference was called for. It will be useful to reproduce the
E reasoning given by the High Court which reads as follows:-
" 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
F period of probation shall be two years. Rule 4 deals with
the extension of reduction of period of probation. Rule 5
deals with declaration of satisfactory completion of
probationary period. Sub-rule (1) (b) of Rule 5 states that
the if the appointing authority decides that the probationer
is not suitable to hold the post, it may discharge him from
G
service, if the probationary period if 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 wiil not be deemed to have completed the
H
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1077
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
probationary period. Rule 6(1) provides for discharge of A
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 B
probation period, is terminated for any misconduct, the
termination shall be in accordance with Karnataka Civil
Services (Classifications, Control and Appeal) Rules, 1957
(for short 'the 1957 Rules')
In the instant case, the petitioner, who was appointed
c
on probation, though he had worked for 3 years 10 months
and 1O days, was not found suitable to hold the post and
no order has been passed that he has satisfactory
completed the probationary period. Under the
circun:_istances, the argument that Rule 6 (1) of KCSRs . D
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 E
referred to above are not applicable, it 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 F
is found unsuitable to hold the post and there is no violation
of the provisions of the 1957 Rules."
2. Aggrieved from the judgment of the High Court, the
appellant has preferred the present appeal to this Court under G
Article 136 of the Constitution of India. The challenge to the
judgment of the High Court as well as notification, dated 24th
of March 2000, is on the ground that the appellant could not
have remained probationer beyond the period of probation. He
had held the office for a period of more than 3 years. After this H
1078 SUPREME COURT REPORTS [2010] 7 S.C.R.
A period, the appellant will be deemed to have been confirmed
and thus his discharge from service is contrary to the rules. A
confirmed employee cannot be discharged as probationer and
if there is anything against the appellant, the department i.e.
High Court/Government, on that plea ought to have conducted
B departmental enquiry in accordance with rules. Further, it is
contended that the action of the High Court and the State
Government is arbitrary and without any basis. The service
record of the appellant was excellent and there was nothing on
the record to justify that the appellant had become 'unsuitable
c for the post'. On the contrary, the submission on behalf of the
respondents is that there cannot be a deemed confirmation.
The High Court, in exercise of its power of superintendence as
well as under the rules found that the appellant was entirely
unsuitable for his retention in service. The service record of the
0 appellant is also such that it does not justify his retention in
service being a person under surveillance of Police prior to
joining the service. The appellant, being a probationer, has
rightly been discharged from service and the Writ Petition has
rightly been dismissed by the High Court for valid reasons and
judgment of the High Court does not call for any interference.
E Before we proceed to discuss the merit or otherwise of the rival
contention raised before us, at the very outset, we may refer to
the impugned notification which reads as under:
"CONFIRM EDIT OF KARNATAKA
F
No. PPAR 69 SHO 99 .... Karnataka
Government
Secretariat,
Vidhan Soudha,
Bangalore,
G
Dated 24.3.2000
NOTIFICATION
In exercise of the powers conferred by Rule 6 (1) of
H the Karnataka Civil Services (Probation) Rules, 1977, I,
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1079
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
V.S. RAMA DEVI, Governor of Karnataka, hereby order A
that Sri. Kazia Mohammed Muzzammil, 1st Additional City
Civil and Sessions Judge, Bangalore City be discharged
from service with immediate effect as he is unsuitable to
hold the post of District Judge.
Sd/- B
(V.S. RANA DEVI)
GOVERNOR OF KARNATAKA
BY ORDER AND IN THE
NAME OF THE GOVERNOR OF
KARNATAKA, C
(V.R. TLKAL)
UNDER SECRETARY TO THE
GOVERNMENT DEPARTMENT OF
PERSONNEL AND ADMINISTRATIVE D
REFORMS (SERVICES .3)
xxx xxx xxx xxx
· 3. The bare reading of the above impugned notification
shows that it is ex-facie not stigmatic. It simply discharges the E
appellant from service as having been found unsuitable to hold
the post of District Judge. Until and unless, the appellant is able
to show circumstances supported by cogent material on record
that this order is stigmatic and is intended to over reach the
process of law provided under the rules, there is no occasion
for this Court to interfere on facts. As far as law is concerned, F
the question raised is with regard to the applicability of the
concept of 'deemed confirmation', to the present case under
the service jurisprudence.
4. We may also notice that conduct of the appellant, who G \
'
is a Judicial Officer, belonging to the Higher Judicial Services
of the State is matter of some concern. Contradictory
statements have been made in the Writ Petition before the High
Court, memorandum of appeal before this Court and even in
the rejoinder and further affidavit filed before this Court. H
1080 SUPREME COURT REPORTS [2010] 7 S.C.R.
A Strangely, the High Court has neither contested this case nor
pursued it in its correct perspective. As it appears, even
appearance on behalf of the High Court was not entered upon.
Despite specific orders of this Court the High Court had failed
to produce the records and even no responsible officer was
B present. This attitude of the respondents in this court compelled
the Bench to pass an order dated 20th May, 2010 which reads
as under:-
"This case was heard at some length yesterday and was
part-heard for today. At the very outset, we must notice that
c from the record before us, ex-facie, it appears that the
appellant before this Court has sworn the false and/or
incorrect affidavit.s. In order to demonstrate our above
observation, we must refer to the following details which
have been given by the appellant in various affidavits and/
D or pleadings of the present case, which are as follows:
Date Age Page (s)
29.3.2000 46 28/37
23.2.2001 46 51
E
20.9.2004 50 18
14.10.2006 54 52
22.10.2009 57 4/5 (Appln.
for Early Hearing)
F 30.6.2010 60
9.5.1996 Joined Service E
20.3.2000 WP 34 15.5.95)
G 25.3.2000)
Counter Affidavit 44
By the High Court
As would be evident that if one· of the dates given
H
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1081
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
by the appellant is taken to be correct, he would A
superannuate on 30th June, 2010, and if another date is
taken, he would be only 57 years of age as on 22nd
October, 2009. Besides this, he had joined service as per
the letter of appointment of 9th may, 1996, but at page 34
of the paper book, he claimed to have joined service on B
15th May, 1995, which on the face of it, is not a correct
statement of facts. We further note that the cas~ of the
appellant is that during the period of his service, no
adverse entries had been made in his service record,
which has been seriously disputed by the respondents who c
state that even complaints were received against the
appellant.
With some amount of anguish, we must also notice
that the High Court appears to be callous about the whole
matter. The reply filed on behalf of the High Court does not D
specifically dispute any of the averments made by the
appellant. The reply besides being vague, is intended to
benefit the appellant, which is entirely uncalled for. It has
become necessary for us to know the correct position of
facts before we dwell upon legal submissions raised on E
behalf of the appellant. This Court vide its order dated 28th
April, 2006, had expressed certain doubts and directed
that the records should be produced before the Court and
records should be made available before this Court at the
time of hearing. Despite the fact that this case has been F
on Board for this entire week and was heard for
considerable time yesterday and was part-heard for today,
still records are not available. We are unable to appreciate
this attitude of the High Court towards this case, pending
in the highest Court of the land. We may also notice that G
yesterday some papers had been shown to us showing
that the name of the appellant was placed in the "rowdy"
list of the police maintained by the concerned police station
and his local activities were being watched. The appellant
has filed the writ petition praying for quashing and deletion H
1082 SUPREME COURT REPORTS [2010] 7 S.C.R.
A of his name from the said list. This fact does not find
mention either in the reply filed by the appellant before the
High Court. Learned counsel for the appellant submitted
that this event was subsequent to the filing of the writ
petition. Whatever be the merit or otherwise of that Writ
B Petition, we fail to understand why this fact was not taken
note of and brought to the notice of the High Court when
the police gave a verification report about the appellant
which was monitored prior to the appointment of the
Higher Judicial Services of the State. We find that we are
c unable to appreciate the conduct of the appellant as well
as that of the High Court in the present proceedings and
in our view certain directions need to be issued in this
regard. Before we issue any such orders or consider the
conduct of either of them in accordance with law, we
consider it appropriate to require the appellant to file an
D
affidavit explaining the above-mentioned events. The High
Court is also at liberty to file affidavit, if any, but the
Registrar General of the High Court shall be present in
Court with complete records. We are compelled to pass
such directions but are left with no alternative in view of
E the conduct of the parties in the present appeal.
List for further hearing on 28th may, 2010.
Copy of this order be sent to the Registrar General of the
F High Court of Karnataka by the Registry".
5. Besides the conduct of the parties which is reflected in
our above order, it is also very important to notice another facet
of this case. It is not in dispute that the appellant had filed a
Writ Petition being Writ No. WP No. 16244 of 2000 in the High
G Court praying for issuance of mandamus to the Superintendent
of Police, Karwar to strike off the entries against the name of
the appellant, in the 'rowdy and goonda register' prior to tlis
selection as the District Judge, maintained by the concerned
Police Station. The Police has sought to justify before the Court
H the inclusion of the appellant's name in the list and for the
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1083
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
reasons declared in the reply affidavit filed by the State in that A
case. The stand of the Government in that case was that while
keeping in view the antecedents and past activities of the
appellant, his name was entered in the Form No. 100 being
the Communal Goonda Sheet on 8th January, 1993 under order
No. 9/93 dated 2.1.1993 of the then Superintenent of Poiice, B
Uttaraka Kannada. The appellant was General Secretary of an
organization called Majlis-lsa-o-Tanzim and was in the habit of
harbouring cMminals, who were involved in serious crimes like
murder and communal riots etc. There was a specific charge
against the appellant for his delivering provocative communal c
speeches, which contributed to aggravate communal
disturbance in Bhatkal
\
in the year 1993. He was president of
the Bar Association, Bhatkal and still used to provoke young
people in that institution. Nineteen people were killed and many
injured in a group clash. With this background under Rules 65
0
and 66 of State Interchange Manual the name of the appellant
was inducted on the sheet of Register of Rowdies maintained
by the Karnataka Police in Form No. 100 in terms of Rule 1059
of the Karnataka Police Manual which is normally treated as
confidential. Keeping all these averments in mind and the E
judgment of the Supreme Court, the High Court vide its order
·dated 3rd of November 2000 dismissed the Writ Petition and
declined to declare the entries as being without basis or
arbitrary. The ancillary but an important issue that flows from
these facts is as to how and what the Police Verification Report
was submitted to the Government/High Court before the F
appellant was permitted to join his duties as an Additional
District Judge? Normally, the person, with such antecedents,
will hardly be permitted to join service of the Government and,
particularly, the post of a Judge. The High Court on the
administrative side also appears to have dealt with the matter G
in a very casual manner. The averments made in the Writ
Petition 16244 of 2000, if it were true, it was a matter of serious
concern for the High Court as he was being appointed as an
Additional District and Sessions Judge and would have
remained as such for a number of years. It was expected of H
1084 SUPREME COURT REPORTS [2010] 7 S.C.R.
A the Government as well as the High Court to have the character
verification report before the appointment letter was issued. The
cumulative effect of the conduct of the appellant in making
incorrect averments in the Court proceedings as well as the
fact that his name was in the 'Rowdie list' of the concerned
B Police Station are specific grounds for the Courts not to
exercise its discretionary and inherent jurisdiction under Articles
136 and 226 of the Constitution of India in favour of the
appellant. These reasons have to be given definite significance,
particularly when the High Court has declined to quash the
c entries against the appellant and inclusion of his name in the
'Rowdie list'. Another aspect of this case, to which our attention
has been invited, is that for the first time, the High Court has
filed the detailed affidavit in this Court after passing of the order
dated 20th May, 2010. We failed to understand why appropriate
and detailed affidavit was not even filed before the Court.
0
During the course of hearing, we have also called for the
original Confidential Reports of the appellant, copies whereof
have been filed. The Confidential Reports, which could have
been recorded in the case of the appellant as per the rules and
regulations, or resolutions of the Full Court of High Court of
E Karnataka, will be for the years 1996-97, 1997-98 and 1998-
99. There is only one Confidential Report on record for the year
1997 wherein the appellant has been graded as 'Satisfactory'.
This falsifies his claim that he had outstanding service record
in regard to disposal of cases and other service related
F matters.
6. with some regret and anxiety, we must notice that for
all the remaining years no Confidential Report of this officer,
and in fact, many others, as the record now reflects, have been
G recorded by the High Court. We are unable to overlook this
aspect, as it is just not a simplicitor question of writing the
Confidential Report of a given officer but adversely affects the
administration of justice on the one hand and dilutes the
constitutional power & functions of Superintendence of the High
H court, on the other. A note was put up by the Registrar General
KHAZIA MOHAMMED MUZAjvlMIL v. STATE OF 1085
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
before the then Hon'ble Acting Chief Justice that Confidential A
Report was put up before Hon'ble Chief Justice for recording
remarks but that were not recorded and orders were being
obtained now in that behalf. However, even thereafter no
confidential remarks were recorded. We may also notice that
reference was made to the resolution of the Full Court passed B
in its meeting dated 15th March,1988 which has been referred
to in the office note, reads as under:-
"Resolved that Judicial Officers Annual Confidential
Reports shall be recorded in the Proforma at Annexure - C
'A' for the period from 1.1.1988 onwards."
7. Even thereafter, the records were submitted to the
concerned Judge of the High court and no Confidential Reports
were recorded. All this demonstrates not a very healthy state
of affairs in relation to the recording of Confidential Reports of D
the officers in the Judicial Services of the State of Karnataka.
The Confidential Report of an officer is a proper document,
which is expected to be prepared in accordance with the Rules
and practice of the Court, to form the basis while considering
the officer for promotion to higher post and all other service E
related matters, in future. Non-writing of the Confidential
Reports is bound to have unfair results. It affect the morale of
the members of the service. The timely written Confidential
Reports would help in putting an officer at notice, if he is
expected to improve in discharging of his duties and in the F
present days where 25% (now 10%) of the vacancies in Higher
Judicial Service cadre are expected to be filled, from out of turn
promotions after holding of written examination and interview.
Highly competitive standard of service discipline and values are
expected to be maintained by the Judicial Officers as that alone G
"/
can help them for better advancement of their service career.
In such circumstances, the significance of proper
Superintendence of the High Court over the Judicial Officers
has a much greater significance than what it was in the past
years. In fact, in our view, it is mandatory that such Confidential H
1086 SUPREME COURT REPORTS [2010) 7 S.C.R.
A Reports should be elaborate and written timely to avoid any
prejudice to the Administration as well as to the officer
concerned.
8. We do express a pious hope that Hon'ble Chief Justice
of the Karnataka High Court would examine this aspect and
8
take corrective steps. We also do hope that appropriate
decisions of the High Court are in place to ensure writing of
Annual Confidential Reports in a comprehensive manner at
regular intervals and timely. It is a matter which should invite
C the attention of all concerned without any further delay. We direct
the Registry to send a copy of this Judgment to Hon'ble Chief
Justice of the Karnataka High Court to invite his kind attention
to these aspects.
9. Having discussed in some elaboration the conduct of
D the appellant as well as his antecedents, now we proceed to
examine the merits of the legal controversy raised in the present
case on behalf of the appellant in relation to 'deemed
confirmation'. The 'deemed confirmation' is an aspect which
is known to the service jurisprudence now for a considerable
E time. Both the views have been taken by the Court. Firstly, there
can be 'deemed confirmation' after an employee has
completed the maximum probation period provided under the
Rules where after, his entitlement and conditions of service are
placed at parity with the confirmed employee. Secondly, that
F there would be no 'deemed confirmation' and at best after
completion of maximum probation period provided under the
Rules governing the employee, the employee becomes eligible
for being confirmed in his post. His period of probation remains
in force till written document of successful completion of
G probation is issued by the Competent Authority. Having
examined the various judgments cited at the bar, including that
of all larger Benches, it is not possible for this Bench to state
which of the view is correct enunciation of law or otherwise. We
are of the considered opinion, as to what view has to be taken,
H would depend upon the facts of a given case and the relevant
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1087
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
Rules in force. It will be cumulative effect of these two basics A
that would determine application of the principle of law to the
facts of that case. Thus, it will be necessary for us to refer to
this legal contention in some elucidation. According to the
appellant the language of Rule 3 of 1977 Rules provides that
the probation period can not be extended beyond 3 years and B
upon expiry of such period the appellant would be deemed to
have been confirmed. To substantiate this contention, the
appellant relied upon Rules 3 and 4 of 1977 Rules and Entry 2
of schedule under Rule 2 of 1983 Rules which provide that
there shall be two year probation during which period, the officer c
was to undergo such training, as may be specified by the High
Court of Karnataka. Therefore, the submission is that once the
maximum period of probation provided under these Rules has
expired the officer will stand automatically confirmed and thus
is incapable of being discharged under Rule 5(8) of the 1977
0
Rules. We shall now proceed to discuss the judgments which
have been relied upon by the appellant in support of his
contentions. On merits these judgments are hardly applicable
to the facts of the present case. While examining the cited
judgments this Court has to keep in mind the specific rules
relating to alleged automatic confirmation of the appellant and, E
the fact that the appellant failed to satisfactorily complete the
period of probation or extended period of probation in terms
of Rule 5(8) of the 1977 Rules. The 1983 Rules ought to be
reCjd in conjunction with the 1977 Rules as they have duly been
adopted by the High Court. The 1977 Rules are specific Rules F
on the subject in question· while 1983 Rules are general Rules
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.
G
10. Not only the Rules but even the principles of service
jurisprudence fully recognizes the status of employee as
probationer and a confirmed employee: Probationer in terms
of Rule 2 (ii) of 1977 Rules means a Government servant on
probation. Rules 3 to 6 are the relevant Rules which specifically H
1088 SUPREME COURT REPORTS [2010] 7 S.C.R.
A deal with the period of probation, extension or reduction of
period of probation, satisfactory completion of the probation
period and discharge of a probationer during the period of
probation. The relevant Rules read as under:
"3. Period of Probation:- The period of probation shall be
8
as may be provided for in the Rules of recruitment specially
made for any service or post, which shall not be less than
two year, excluding the period if any, during which the
probationer was on extraordinary leave.
c 4. Extension or reduction of period:- (1) The period of
probation may, for reason to be recorded, in writing, be
extended-
(i) by the Governor or the Government by such period as
D 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
E of probation, a probationer has appeared for any
examination 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
F publication of the results of such examinations or tests or
of the first of them in which he fails to pass.
(~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
G post f.1 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.:-
H (1) At the end of the prescribed or as the case may be
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1089
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
the reduced or extended period of probation the appointing A
authority shall consider the suitability of the probationer to
hold the post to which he was appointed, and-
(a) if it decides that the probationer is suitable to hold the
post to which he was appointed and has passed the 8
special examinations or test, if any, required to be passed
during the period of probation it shall, as soon as possible,
issue an order declaring the probationer to have
satisfactorily completed his probation and such an order
shall have effect from the date of expiry of the prescribed, C
reduced or extended period of probation;
(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 D
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 E
satisfactorily completed the probation unless a specific
order to that effect is passed. Any delay in the issue of an
order under sub-Rules
(1) shall not entitle the probationer to be deemed to have
satisfactorily completed his probation. F
Note:- In this Rules and Rules 6'discharge' in the case of
a probationer appointed from another service or post,
means reversion to that service or post.
6. Discharge of a probationer during the period of G
probation:- (1) Notwithstanding anything in Rules 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
H
1090 SUPREME COURT REPORTS [2010) 7 S.C.R.
A the Rules or in the order of appointment, or on account of
his unsuitability for the service of 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.
B
(2) An order discharging a probationer under this Rule shall
indicate the grounds for the discharge but no formal
proceedings under the Karnataka Civil Services
(Classification, Control and Appeal) Rules, 1957, shall be
•
necessary.
c
11. Now, let us analyze these Rules. No doubt Rule 3 states
that 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 (emphasis
D supplied). Out of which period extraordinary leave will have to
be excluded. Thus the Rules contemplate that every service
provide Rules relating to probation. But the probation period
should not be less than two years. The emphasis of the Rules
is that minimum period of probation has to be two years. The
E period of probation can be extended for reason to be recorded
by the Competent Authority by such period not exceeding half
of the prescribed period of probation. Interestingly, to this Rule
the framers of the Rules have introduced proviso, which gives
discretion to the Authorities and, in fact, introduced deemed
F extension in the event of the probationer has appeared for any
exam or result thereof has not been declared within the period
of probation and extended period. The Rule, therefore,
contemplates deemed extension of probation period where the
Authorities have not passed any order for extending or
G declining to extend the period of probation provided the
circumstances stated therein are satisfied.
12. The purpose of any probation is to ensure that before
the employee attains the status of confirmed regular employee,
he should satisfactorily perform his duties and functions to
H enable the Authorities to pass appropriate orders. In other
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1091
KARNATAKA AND ANR. [SWATANTER KUMAR, J.)
words, the scheme of probation is to judge the ability, suitability A
and performance of an officer under probation. Once these
ingredients are satisfied the Competent Authority may confirm
the employee under Rule 5 of the 1977 Rules. Rule 5(2) places
an obligation upon the Authority that at the end of the prescribed
period of probation, the Authority shall consider the suitability B
of the probationer to the post to which he is appointed and take
a conscious decision whether he is suitable to hold the post
and issue an order declaring that the probationer has
- SC!Jjsfactorily competed his period or pass an order extending
the per1oCI of probation etc. Rule 5(b) empowers the Authority c
that in thE. event it is of the view that the period of probation
has not been satisfactorily completed or has not passed the
special examinations, it may discharge him from service unless
the period of probation is extended. Rule 5(2) has been coveted
with negative language. It specifically prescribes that a
0
probationer shall not be considered to have satisfactorily
completed the probation unless a specific order to that effect
is passed. This Rule further clarifies that if there is a delay in
issuance of an order under sub-Rule ( 1), it shall not entitle the
probationer to be deemed to have satisfactorily completed his E
probation. In other words, the framers of the Rules have
introduced a double restriction to the concept of automatic
confirmation or deemed satisfactorily completion of the
probation period. Firstly, the specific order is required to be
issued in that regard and secondly, delay in issuance of such
orders does not tilt the balance in favour of the employee. Rule F
6 (1) states that the Competent 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 of post.However, the G
said order of disr.harge wouia-take effect only after it is
-CQflftfmEfd-by the next higher authority. Rule 6(2) specifically
excludes the application or holding of formal proceedings under
the Karnataka Civil Services (Classification, Control and
Appeal) Rules 1957. It says that such course will not be H
1092 SUPREME COURT REPORTS [2010) 7 S.C.R.
A necessary. In light of this statutory provision, let us also examine
the probation period referred to under item No. 2 of Rule 2 of
1983 Rules. Rule states that probation period will be of 2 years
and further mandates during that period of probation, the officer
must undergo a training, as may be specified by the High
B Court. This itself has been indicated under the head 'minimum
qualifications'. It, therefore, clearly shows that it is not the
provision dealing with the probation period, extension and
discharge of a probationer during that period but is primarily
relatable to the minimum qualifications, which are to be
C essentially satisfied by the officer concerned before he takes
over his appointment as a regularI
judge. The reference to the
probation period has to be examined and interpreted with
reference to and in conjunction with 1977 Rules which are the
primary Rules dealing with probation. These Rules have
admittedly been adopted by the High Court. Under the 1983
0
Rules, the emphasis is on performance and training during the
period of probation. In other words, the primary purpose of these
Rules is only to ensure that the concerned officer undergoes
training during the period of probation. While the significance
under the 1983 Rules is on training, under 1977 Rules, all
E matters relating to probation are specifically dealt with. It would
not be permissible to read the relevant part of 1983 Rules to
say that it mandates that probation period shall be only for two
years and not more. If that was to be accepted, all provisions
under Rules 3 to 6 of 1977 Rules will become redundant and
F ineffective. In fact, it would frustrate the very purpose of framing
the 1977 Rules. What will be the period of probation, the
circumstances under which it can be extended or reduces and
discharge of the Probationer Officer in the event of unsuitability
etc. are only dealt with under the 1977 Rules. The 1983 Rules
G would have to be read harmoniously with 1977 Rules to achieve
the real purpose of proper and timely training of Judicial Officers
on the one hand and ap_propriate-con_trol ~v~r_ the m~tters
relating to probation of the officers on the other. That, in fact,
is the precise reason as to why 1983 Rules do not deal
H specifically with any of the aspects of probation. In view of this
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1093
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
discussion the contention of the appellants has to be rejected. A
13. Having referred to the specific Rules on the subject and
the entire scheme under the relevant provisions relating to
different aspects of probation, let us examine the law and the
pronouncements of this Court in some detail. We have already B
noticed that two views are prevalent. Primarily, the Court has ·
taken the diametrical opposite view. One which accepts the
application of the deemed confirmation after the expiry of the
prescribed period of probation, while other taking the view that
it will not be appropriate to apply the concept of deemed C
confirmation to the officers on probation as that is not the intent
of law. In our opinion, the rules and regulations governing a
particular service are bound to have greater impact on
determining such question and that is the precise reason that
we have discussed Rules 3 to 6 of 1977 Rules in the earlier
part of the judgment. What view out of the two views indicated I)
above should be followed in the facts of the present case can
be fairly stated only after we have discussed the earlier
judgment of the larger as well as equi benches on this aspect.
Let us, at the very outset; refer to the Constitution Bench
Judgment of this Court in the case of State of Punjab v. E
Dharam Singh, [AIR 1968 SC 1210) In that case the Court was
concerned with Rule 6(3) of the Punjab Educational Service
(Provincialised Cadre) Class Ill Rules, 1961 which fixed certain
period beyond which the probation period cannot be extended
and an employee appointed or promoted to a post on probation F
is allowed to continue in that post after completion of the
maximum period of probation. The view taken by the Court was
that there would be confirmation of the employee in the post
by implication. We may refer to the following paragraphs of the
judgment of this Court: F
"8. The initial period of probation of the respondents ended
on October 1, 1958. ·By allowing the respondents to
continue in their posts thereafter without any express order
of confirmation, the competent authority must be taken to H
1094 SUPREME COURT REPORTS [2010) 7 S.C.R.
A have extended the period of probation up to October 1,
1960 by implication. But under the proviso to Rule 6(3),
the probationary period could not extend beyond October
1, 1960. In view of the proviso to Rule 6(3), it is not possible
to presume that the competent authority extended the
B probationary period after October 1, 1960, or that
thereafter the respondents continued to hold their posts as
probationers.
9. Immediately upon completion of the extended
period of probation on October 1, 1960, the appointing
c authority could dispense with the services of the
respondents if their work or conduct during the period of
probation was in the opinion of the authority unsatisfactory.
Instead of dispensing with their services on completion of
the extended period of probation, the authority continued
D them in their posts until sometime in 1963, and allowed
them to draw annual increments of salary including the
increment which fell due on October 1, 1962. The rules did
not require them to pass any test or to fulfil any other
condition before confirmation. There was no compelling
E reason for dispensing with their services and re-employing
them as temporary employees on October ·1, 1960, and
the High Court rightly refused to draw the inference that
they were so discharged from services and re-employed.
In these circumstances, the High Court rightly held that the
F respondents must be deemed to have been confirmed in
their posts. Though the appointing authority did not pass
formal orders of confirmation in writing, it should be
presumed to have passed orders of confirmation by so
allowing them to continue in their posts after October 1,
G 1960. After such confirmation, the authority had no power
to dispense with their services under Rule 6(3) on the
ground that their work or conduct during the period of
probation was unsatisfactory. It follows that on the dates
of the impugned orders, the respondents had the right to
H hold their posts. The impugned orders deprived them of
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1095
KARNATAKA AND ANR. [SWATANTER KUMAR, J:]
this right and amounted to removal from service by way of A
punishment. The removal from service could not be made
without following the procedure laid down in the Punjab
Civil Services (Punishment and Appeal) Rules, 1952 and
without conforming to the constitutional requirements of
Article 311 of the Constitution. As the procedure laid down B
in the Punjab Civil Services (Punishment and Appeal)
Rules, 1952 was not followed and as the constitutional
protection of Article 311 was violated, the impugned orders
were rightly set aside by the High Court."
Seven Judge Bench of this Court, in the case of Shamshervs.
·c
State of Punjab [(1974) 2 sec 834], was concerned primarily,
with the question whether termination during probation could be
viewed as a punitive action in some case or always has to be
as discharge simplicitor during the said period. The Court
expressed the view that no abstract proposition can be laid 0
down that where the services of a probationer are terminated
without saying anything more in the order of termination, it can
never amount to punishment. In the facts and circumstances of
the case if the probationer is discharged on the ground of
insufficiecy or for similar reasons without a proper enquiry and E
without his getting a reasonable opportunity to show cause
against his discharge it may in a given case amount to removal
from service within Article 311 (2) of the Constitution of India.
B.ut while dealing with this pcinciple question the Bench even
discussed, at some length, whether a probationer can F
automatically be confirmed on the expiry of period of probation.
The Court considered the earlier judgment of this Court in
Dharam Singh's case (supra) discussing the case of appellant,
who had. completed his initial period of two years' probation
on 11th November, 1967 and the maximum period of three G
years' probation on 11th November, 1968 and by reason of the
fact that he continued in service after the expiry of the maximum
period of probation he became confirmed, was the contention
raised before the Bench. In that case the relevant Rule 7 (1)
provided that every subordinate Judge, in the first instance, be H.
1096 SUPREME COURT REPORTS [2010] 7 S.C.R.
A appointed on probation for two years but this period may be
extended from time to time expressly or impliedly so that the
total period of probation does not exceed three years.
Explanation to Rule 5 (1) further provided that period of
probation shall be deemed to have been extended if a
B Subordinate Judge is not confirmed on the expiry of his period
of probation. The appellant had also placed reliance on
Dharam Singh' case (supra) to contend that the only view
possible was that he would be deemed to have been
confirmed. However, on the facts of the case before the Bench
c the Court held as under:
"Any confirmation by implication is negatived in the present
case because before the completion of three years the
High Court found prima facie that the work as well as the
conduct of the appellant was unsatisfactory and a notice
D was given to the appellant on October 4, 1968 to show
cause as to why his services should not be terminated.
Furthermore, Rule 9 shows that the employment of a
probationer can be proposed to be terminated whether
during or at the end of the period of probation. This
E indicates that where the notice is given at the end of the
probation the period of probation gets extended till the
inquiry proceedings commenced by the notice under Rule
9 come to an end. In this background the explanation to
Rule 7(1) shows that the period of probation shall be
F deemed to have been extended impliedly if a Subordinate
Judge is not confirmed on the expiry of this period of
probation. This implied extension where a Subordinate· ·
Judge is not confirmed on the expiry of the period of
probation is not found in Dharam Singh's case. (AIR 1968
G SC 1210) This explanation iii the present case does not
mean that the implied extension of the probationary period·
is only between two and three years. The explanation on
the contrary means that the provision regarding the
maximum period of probation for three years is directory
and not mandatory unlike in Dharam Singh case and that
11-i
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1097
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
a probationer is not in fact confirmed till an order of A
confirmation is made.
In this context reference may be made to the proviso to
Rule 7(3). The proviso to the rule states that the completion
of the maximum period of three years' probation would not 8
confer on him the right to be confirmed till there is a
permanent vacancy in the cadre. Rule 7(3) states that an
express order of confirmation is necessary. The proviso
to Rule 7(3) is in the negative form that the completion of
the maximum period of three years would not confer a right C
of confirmation till there is a permanent vacancy in the
cadre. The period of probation is therefore extended by
implication until the proceedings commenced against a
probationer like the appellant are concluded to enable the
Government to decide whether a probationer should be
confirmed or his services should be terminated. No D
confirmation by implication can arise in the present case
in the facts and circumstances as also by the meaning and
operation of Rules 7(1) and 7(3) as aforesaid.
It is necessary at this stage to refer to the second proviso E
to Rule 7(3) which came into existence on November 19,
1970. That proviso of course does not apply to the facts
of the present case. That proviso states that if the report
of the High Court regarding the unsatisfactory work or
conduct of the probationer is made to the Governor before F
the expiry of the maximum period of probation, further
proceedings in the matter may be taken and orders
passed by the Governor of Punjab dispensing with his
services or reverting him to his substantive post even after
the expiry of the maximum period of probation. The second G
proviso makes explicit which is implicit in Rule 7(1) and
Rule 7(3) that the period of probation gets extended1till the
proceedings commenced by the notice come to an end
either by confirmation or discharge of the probationer.
H
1098 SUPREME COURT REPORTS [2010] 7 S.C.R.
A In the present case, no confirmation by implication can
arise by reason of the notice to show cause given on
October 4, 1968 the enquiry by the Director of Vigilance
to enquire into allegations and the operation of Rule 7 of
the Service Rules that the probation shall be extended
B impliedly if a Subordinate Judge is not confirmed before
the expiry of the period of probation. Inasmuch as lshwar
Chand Agarwal was not confirmed at the end of the period
of probation confirmation by implication is nullified."
14. Before we discuss the subsequent judgment to these
C landmark judgments of this Court it will be quite appropriate to
notice that the divergent views by different Benches of this
Court and, more so, by different High Courts have been the
subject matter of concern and have been noticed again by
different Benches of this Court. In the case of Dayaram Dayal
D vs. State of M.P. ((1997) 7 SCC 443]. The Court specifically
noticed the two line of rulings pronounced by this Court in its
different judgments. At the cost of some repetition, we may
notice that one line of judgments held that mere continuation
of service beyond the period of probation does not amount to
E confirmation unless it was so specifically provided. The other
line, though in very few cases, but, has been taken by this Court
is that where there is provision in the Rules for initial probation
and extension thereof, a maximum period of such extension is
also provided beyond which it is not permissible to extend
F probation. However, the Bench dealing with the case of
Dayaram Dayal's case (supra) did demonstrate that there was
not any serious conflict between the two sets of decisions and
it depends on the conditions contained in the order of
appointment and the relevant rules applicable. Though the
G Bench in that case held that there was confirmation of the
employee and while setting aside the order of termination,
granted liberty to hold departmental enquiry in accordance with
law. In order to analyze the reasoning recorded by the Bench
we may refer to the following paragraphs as they would throw
H proper insight into the discussion:
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1099
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
"9. The other line of cases are those where while there is A
a provision in the rules for initial probation and extension
thereof, a maximum period for such extension is also
provided beyond which it is not permissible to extend
probation. A question as to its effect arose before the
Constitution Bench in State of Punjab v. Dharam Singh B
[AIR 1968 SC 1210). The relevant rule there provided
initially for a one-year probation and then for ·extension
thereof subject to a maximum of three years. The petitioner
in that case was on probation from 1-10-1957 for one year
and was continued beyond the extended period of three c
years (in all four years) and terminated in 1963 without any
departmental inquiry. A Constitution Bench of this Court
referred Sukhbans Singh v. State of Punjab [AIR 1962
SC 1711), G.S. Ramaswamy v. Inspector General of
Police [AIR 1966 SC 175) and State of U.P. v. Akbar Ali D
Khan [AIR1966 SC 1842) cases and distinguished the
same as cases where the rules did not provide for a
maximum period of probation but that if the rule, as in the
case before them provided for a maximum, then that was
an implication that the officer was not in the position of a E .
probationer after the expiry of the maximum period. The
presumption of his continuing as a probationer was
negatived by the fixation of a maximum time-limit for the
extension of probation. The termination after expiry of four
years, that is after the maximum period for which probation
could be extended, was held to be invalid. This view has F
been consistently followed in Om Parkash Maurya v. U.P.
Coop. Sugar Factories' Federation [(1986) Supp. SCC
95]; M.K. Agarwal v. Gurgaon Gramin Bank [{1987) Supp
SCC 643] and State of Gujarat v. Akhilesh C. Bhargav
[(1987) 4 sec 482] which are all cases in which a G
maximum period for extension of probation was prescribed
and termination after expiry of the said period was held to
be ·invalid inasmuch as the officer must be deemed to
have been confirmed.
H
1100 SUPREME COURT REPORTS [2010] 7 S.C.R.
A 10. The decision of the Constitution Bench in State of
Punjab v. Dharam Singh [AIR 1968 SC 1210] was
accepted by the seven-Judge Bench in Samsher Singh
v. State of Punjab [(1974) 2 SCC 831]. However it was
distinguished on account of a further special provision in
B the relevant rules applicable in Samsher Singh case. The
rule there provided for an initial period of 2 years of
probation and for a further period of one year as the
maximum. One of the officers, lshwar Chand Agarwal in
that case completed the initial period of 2 years on 11-11-
c 1967 and the maximum on 11-11-1968, and after
completion of total 3 years his services were terminated
on 15-12-1969. But still Dharam Singh case was not
applied because the Rules contained a special provision
for continuation of the probation even beyond the maximum
of 3 years. The Explanation to Rule 7(1) stated (see
D
p. 852) that the period of probation shall be deemed
extended if a Subordinate Judge is not confirmed on the
expiry of his period of probation. The Court held (p.
853) that this provision applied to the extended period of
probation. It observed: (SCC para 71)
E
"71 .... This explanation in the present case does not mean
that the implied extension of the probationary period is only
between two and three years. The explanation on the
contrary means that the provision regarding the maximum
F period of probation for three years is directory and not
mandatory unlike in Dharam Singh case and that a
probationer is not in fact confirmed till an order of
confirmation is made.
(emphasis supplied)"
G
Thus Samsher Singh case while it accepted Dharam
Singh case is still not covered by that case because of
the special Explanation which clearly deemed the probation
as continuing beyond the maximum period of probation as
H long as no confirmation order was passed.
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1101
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
11. Similarly, the case in Municipal Corpn. v. Ashok A
Kumar Misra [(1991) 3 SCC 325 accepted Dharam
·Singh case and the cases which followed it but
distinguished that line of cases on account of another
special provision in the rules. There the relevant rule
provided for a maximum of one year for the extended B
period of probation but there was a Note under Rule 8(2)
of the Madhya Pradesh Government Servants General
Conditions of Service Rules, 1961. Rule 8(2) of the Rules
and the Note read:
"8. (2) The appointing authority may, for sufficient reasons,
c
extend the period of probation by a further period not
exceeding one year.
Note.-A probationer whose period of probation is not
extended under this sub-rule, but who has neither been D
confirmed nor discharged from service at the end of the
period of probation shall be deemed to have been
continued in service, subject to the condition of his service
being terminable on the expiry of a notice of one calendar
month given in writing by either side." E
It was held by this Court as follows: (SCC p. 328, para 4)
"4 .... Under the Note to sub-rule (2) if the probationer is
neither confirmed nor discharged from service at the end
of the period of probation, he shall be deemed to have F
been continued in service as probationer subject to the
condition of his service being terminated on the expiry of
a notice of one calendar month given in writing by either
side." The consequence of the Note was explained further
as follows: (pp. 328-29) G
"As per sub-rule (6), on passing the prescribed
departmental examination and on successful completion
of the period of probation, the probationer shall be
H
1102 SUPREME COURT REPORTS [2010) 7 S.C.R.
A confirmed in the service or post to which he has been
appointed. Then he becomes an approved probationer.
Therefore, after the expiry of the period of probation and
before its confirmation, he would be deemed to have
been continued in service as a probationer. Confirmation
B of probation would be subject to satisfactory completion
of the probation and to pass in the prescribed
examinations. Expiry of the period of probation, therefore,
does not entitle him with a right of deemed confirmation.
The rule contemplates to pass an express order of
c confirmation in that regard. By issue of notice of one
calendar month in writing by either side, the tenure could
be put to an end, which was done in this case."
(emphasis supplied)
D It is clear that the Court distinguished Dharam Singh, Om
Parkash Maurya, M.K. Agarwal, and Akhilesh Bhargava
because of the Note under Rule 8(2), even though the rule
itself provided a maximum of one year for extension of
probation.
E
12. l'hus, even though the maximum period for extension
could lead to an indication that the officer is deemed to
be confirmed, still special provisions in such rules could
negative such an intention.
F 13. It is, therefore, clear that the present case is one where
the rule has prescribed an initial period of probation and
then for the extension of probation subject to a maximum,
and therefore the case squarely falls within the second line
of cases, namely, Dharam Singh case and the provision
G for a maximum is an indication of an intention not to treat
the officer as being under probation after the expiry of the
maximum period of probation. It is also significant that in
the case before us the effect of the rule fixing a maximum
period of probation is not whittled down by any other
H provision in the rules such as the one contained in
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1103
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
Samsher Singh case or in Ashok Kumar Misra case. A
Though a plea was raised that termination of service could
be effected by serving one month's notice or paying salary
in lieu thereof, there is no such provision in the order of
appointment nor was any rule relied upon for supporting
such a contention." B
15. Similar view was also taken by another Bench of this
Court in the case of Karnataka State Road Transport
Corporation vs. S. Manjunath [(2000) 5 SCC 250]. In that case
the employees had claimed that after the expiry of prescribed C
period of probation they would be deemed to be confirmed
employees and their services were not liable to be terminated
simplicitor. Regulation 11 (8), which was pressed into service
by the Corporation, provided that a person should not be
considered to have satisfactorily completed the period of
probation unless specific order to that effect is made and the D ·
delay in issuance of certificate would not entitle the person to
be deemed to have satisfactorily completed the period of
probation. This Court, while noticing that Rule 11 (8) was
applicable to promotees alone because of the expression of
'officiating' having been used, the appellants, before the Court E
were direct recruits, therefore, covered under Regulation 11 (1)
which provides that the probation period shall be for two years
extendable by one year and that the period of probation shall
not be further extended. In this view of the matter and while
referring to the case of D1:1aram Singh (supra) and Wasim Beg F
vs. State of U.P. [(1998) 3 SCC 321] the Court further noticed
that the two view theory expressed in the case of Dayaram
(supra) was further extended in the case of Wasim Beg (supra)
and after discussing the entire gamut of law such cases were
classified into three categories. After detailed discussion on the G
subject the Court held as under:
"10. This Court had an occasion to review; analyse
critically and clarify the principles on an exhaustive
consideration of the entire case-law ih two recent decisions
H
1104 SUPREME COURT REPORTS [2010] 7 S.C.R.
A reported in Dayaram Dayalv. State of MP. [(1997) 7 SCC
443] and Wasim Beg v. State of U.P. ((1998) 3 SCC 321].
One line of cases has held that if in the rule or order of
appointment, a period of probation is specified and a
power to extend probation is also conferred and the officer
B is allowed to continue beyond the prescribed period of
probation, he cannot be deemed to be confirmed and there
is no bar on the power of termination of the officer after
the expiry of the initial or extended period of probation. This
is because at the end of probation he becomes merely
c qualified or eligible for substantive· permanent
appointment. The other line of cases are those where
even though there is a provision in the rules for initial
probation and extension thereof, a maximum period for
such extension is also provided beyond which it is not
permissible to extend probation. The Constitution Bench
D
which dealt with the case reported in State of Punjab v.
Dharam Singh(AIR 1968 SC 1210] while distinguishing
the other line of cases held that the presumption about
continuation, beyond the period of probation, as a
probationer stood negatived by the fixation of a maximum
E time-limit for the extension of probation. Consequently, in
such cases the termination after expiry of the maximum
period up to which probation could be extended was held
to be invalid, inasmuch as the officer concerned must be
deemed to have been confirmed.
F
11. The principles laid down in Dharam Singh case though
were accepted in another Constitution Bench of a larger
composition in the case reported in Samsher Singh v.
State of Punjab [(1974)2SCC831fthe special provisions
G contained in the relevant Rules taken up for consideration
therein were held to indicate an intention not to treat the
officer as deemed to have been confirmed, in the light of
the specific stipulation that the period of probation shall be
deemed to be extended if the officer concerned was not
confirmed on the expiry of his period of probation. Despite
H
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1105
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
the indication of a maximum period of probation, the A
implied extension was held to render the maximum period
of probation a directory one and not mandatory. Hence, it
was held that a probationer in such class of cases is not
to be considered confirmed, till an order of confirmation
is actually made. The further question for consideration in B
such category of cases where the maximum period of
probation has been fixed would be, as to whether there are
anything else in the rules which had the effect of whittling
down the right to deemed confirmation on account of the
prescription of a maximum period of probation beyond c
which there is an embargo upon further extension being
made, and such stipulation was found wanting in Dayaram
Dayal case.
xxx xxx xxx
D
14. As indicated by us, the Regulation deals with two
different categories of cases - one about the "probation"
of an appointee other than by way of promotion and the
other relating to "officiation" of a person appointed on
promotion. The similarity of purpose and identity of object E
apart, of such provision, there is an obvious difference and
positive distinction disclosed in the manner they have to
be actually dealt with. The deliberate use of two different
phraseology "probation" and "officiation" cannot be so
lightly ignored obliterating the substantial variation in the F
method of handling such categories of persons envisaged
by the Regulations. The mere fact that a reference is made
to sub-regulation (3) also in the later part of sub-regulation
(8) of the Regulation could not be used to apply all the
provisions relating to the category of appointees on G
"officiation" to the other category of appointees on
"probation''. The stipulation in sub-regulation (8) of the
Regulation when making the passing of an order, a
condition precedent for satisfactory completion specifically
refers only to the completion of "period of officiation''.
H
1106 SUPREME COURT REPORTS [2010] 7 S.C.R.
A Similarly, notwithstanding a reference made to sub-
regulation (3) along side sub-regulation (4), in stipulating
the consequences of any delay in making an order
declaring satisfc.ctory completion, the reference is confined
only to deemed satisfaction and completion of "the period
B of officiation", and not of probation. Sub-regulation (9) of
the Regulation insofar as it provides for confirmation as a
sequel to declaration, only deals with a promotee to a
temporary post and not of the other category. While
dealing with the termination of a candidate, not found
c suitable for the post, sub-regulation (3) of the Regulation
envisages such termination being made at any time ''within
the period of probation", and not at any time after the
completion of such maximum period of probation.
Consequently, the cases on hand also would fall within the
category of cases dealt with in Dayaram Dayal case and
D
Wasim Beg case and the services of the respondents
could not be put an end to except by means of
departmental disciplinary proceedings, after following the
mandatory requirements of law. Therefore, the High Court
cannot be faulted for interfering with the orders of
E
termination of the services of the respondent."
Therefore, the appeals referred by the Corporation came to be
dismissed as the employee had attained the status of
confirmed employee.
F
16. Now let us examine the other view where the Courts
have declined to accept the contention that the employees were
entitled to automatic confirmation after expiry of the probation
period. In the case of High Court of Madhya Pradesh vs. Satya
G Narayan Jhavar [(2001) 7 SCC 161) a three Judge Bench of
this Court reiterated the three line of cases while referring to
Rule 24(1) which provided maximum period of probation,
examined the question of confirmation of such a probationer
depending upon his fitness for such confirmation and his
H passing of the departmental examination by the higher
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1107-
KARNATf.KA AND ANR. [SW~TANTER KUMAR, J.]
standards. Thus declined to accept the principle of automatic A
or deemed confirmation the Court held as under:
"11. The question of deemed confirmation in service
jurjsprudence, which is dependent upon the language of
the relevant service rules, has been the subject-matter of
8
consideration before this Court, times without number in
various decisions and there are three lines of cases on
this point. One line of cases is where.in the service rules
or in the letter of appointment a period of probation is
specified and power to extend the same is also conferred
upon the authority without prescribing any maximum period C
of probation and if the officer is continued beyond the
prescribed or extended period, he cannot be deemed to
be confirmed. In such cases there is no bar against
termination at any point of time after expiry of the period
of probation. The other line of cases is that where while D
there is a provision in the rules for initial probation and
extension thereof, a maximum period for such extension
is also provided beyond which it is not permissible to
extend probation. The inference in such cases is that the
officer concerned is deemed to have been confirmed upon E
expiry of the maximum period of probation in case before
its expiry the order of termination has not been passed.
The last line of cases is where, though under the rules
maximum period of probation is prescribed, but the same
requires a specific act on the part of the employer by F
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 G
deemed to have been confirmed merely because the said
period has expired.
xxx xxx xxx xxx
H
1108 SUPREME COURT REPORTS [2010] 7 S.C.R.
A 35 In the case on hand, correctness of the interpretation
given by this Court to Rule 24 of the Rules in the case of
Dayaram Dayal v. State of M.P. [(1997) 7 SCC 443] is
the bone of contention. In the aforesaid case, no doubt, this
Court has held that a maximum period of probation having
B been provided under sub-rule (1) of Rule 24, if a
probationer's service is not terminated and he is allowed
to continue thereafter it will be a case of deemed
confirmation and the sheet anchor of the aforesaid
conclusion is the Constitution Bench decision of this Court
c in the case of State of Punjab v. Dharam Singh [AIR 1968
SC 1210]. But, in our considered opinion in the case of
Dayaram Dayal. Rule 24 of the Rules has not been
interpreted in its proper perspective. A plain reading of
different sub-rules of Rule 24 would indicate that every
candidate appointed to the cadre will go for initial training
D
for six months whereafter he would be appointed on
probation for a period of 2 years and the said period of
probation would be extended for a further period not
exceeding 2 years. Thus, under sub-rule (1) of Rule 24 a
maximum period of 4 years' probation has been provided.
E The aforesaid sub-rule also stipulates that at the end of the
probation period the appointee could be confirmed subject
to his fitness for confirmation and to his having passed the
departmental examination, as may be prescribed. In the
very sub-rule, therefore, while a maximum period of
F probation has been indicated, yet the question of
confirmation of such a probationer is dependent upon his
fitness for such confirmation and his passing of the
departmental examination by the higher standard, as
prescribed. It necessarily stipulates that the question of
G confirmation can be considered at the end of the period
of probation, and on such consideration if the probationer
is found suitable by the appointing authority and he is
found to have passed the prescribed departmental
examination then the appointing authority may issue an
H order of confirmation. It is too well settled that an order of
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1109
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
confirmation is a positive act on the part of the employer A
which the employer is required to pass in accordance with
the Rules governing the question of confirmation subject
to a finding that the probationer is in fact fit for confirmation.
This being the position under sub-rule (1) of Rule 24, it is
difficult for us to accept the proposition, broadly laid down B
in the case of Dayaram Dayal and to hold that since a
maximum period of probation has been provided
thereunder, at the end of that period the probationer must
be held to be deemed to be confirmed on the basis of the
judgment of this Court in the case of Dharam Singh." c
17. This view was followed by another two Judge Bench
of this Court in a subsequent judgment relating to judicial
officers in Registrar, High Court of Gujarat vs. C.G. Sharma
[(2005) 1 sec 132) holding that termination was proper, no
opportunity ought need to be granted because it was a matter D
of pure subjective satisfaction relating to overall performance.
Referring to Rule 5(4) of Gujarat Judicial Service Recruitment
Rules, 1961 the Court held as under:
"26. A large number of authorities were cited before us by E
both the parties. However, it is not necessary to go into
the details of all those cases for the simple reason that sub-
rule (4) of Rule 5 of the Rules is in pari materia with the
Rule which was under consideration in the case of State
of Maharashtra v. Veerappa R Saboji [(1979) 4 SCC 466) F
and we find that even if the period of two years expires
and the probationer is allowed to continue after a period
of two years, automatic confirmation cannot be claimed as
a matter of right because in terms of the Rules, work has
to be satisfactory which is a prerequisite or precondition G
for confirmation and, therefore, even if the probationer is
allowed to continue beyond the period of two years as
mentioned in the Rule, there is no question of deemed
confirmation. The language of the Rule itself excludes any
chance of giving deemed or automatic confirmation
H
1110 SUPREME COURT REPORTS [2010] 7 S.C.R.
A because the confirmation is to be ordered if there is a
vacancy and if the work is found to be satisfactory. There
is no question of confirmation and, therefore, deemed
confirmation, in the light of the language of this Rule, is
ruled out. We are, therefore, of the opinion that the
B argument advanced by learned counsel for the respondent
on this aspect has no merits and no leg to stand. The
learned Single Judge and the learned Judges of the
Division Bench have rightly come to the conclusion that
there is no automatic confirmation on the expiry of the
c period of two years and on the expiry of the said period
of two years, the confirmation order can be passed only if
there is vacancy and the work is found to be satisfactory.
The Rule also does not say that the two years' period of
probation, as mentioned in the Rule, is the maximum
period of probation and the probation cannot be extended
D
beyond the period of two years. We are, therefore, of the
opinion that there is no question of automatic or deemed
confirmation, as contended by the learned counsel for the
respondent. We, therefore, answer this issue in the
negative and against the respondent.
E
xxx xxx xxx xxx
43. But the facts and circumstances in the case on hand
are entirely different and the administrative side of the High
F Court and the Full Court were right in taking the decision
to terminate the services of the respondent, rightly so, on
the basis of the records placed before them. We are also
satisfied, after perusing the confidential reports and other
relevant vigilance files, etc. that the respondent is not
entitled to continue as a judicial officer. The order of
G
termination is termination simpliciter and not punitive in
nature and, therefore, no opportunity needs to be given to
the respondent herein. Since the overall performance of
the respondent was found to be unsatisfactory by the High
Court during the period of probation, it was decided by the
H
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1111
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
High Court that the services of the respondent during the A
period of probation of the respondent be terminated
because of his unsuitability for the post. In this view of the
matter, order of termination simpliciter cannot be said to
be violative of Articles 14, 16 and 311 of the Constitution.
The law on the point is crystallised that the probationer B
remai.ns a probationer unless he has been confirmed on
the basis of the work evaluation. Under the relevant Rules ·
under,which the respondent was appointed as a Civil
Judge, there is no provision for automatic or deemed
confirmation and/or deemed appointment on regular c
establishment or post, and in that view of the matter, the
contentions of the respondent that the respondent's
services were deemed to have been continued on the
expiry of the probation period, are misconceived."
18. On a clear analysis of the above enunciated law, D
particularly, the Seven Judge Bench ,judgment of this Court in
the case of Samsher Singh (supra) and three Judge Bench
judgments, which are i;ertainly the larger Benches and are
binding on us, the Courts have taken the view with reference
tothe facts and relevant Rules involved in those cases that the E
principle of 'automatic' or 'deemed confirmation' would not be
attracted. The pith and substance of the stated principles of law
is that it will be the facts and the Rules, which will have to be
examined by the Courts as a condition precedent to the
application of the dictum stated in any of the line of the cases F
afore noticed. There can be cases where the Rules require a
definite act on the part of the employer before officer on
probation can be confirmed. In other words, there may a Rule
or Regulation requiring the competent authority to examine the
suitability of the probationer and then upon recording its G
satisfaction issue an order of confirmation. Where the Rules are
of this nature the question of automatic confirmation would not
even arise. Of course, every authority is expected to act properly
and expeditiously. It cannot and ought not to keep issuance of
such order in abeyance without any reason or justification. While H
1112 SUPREME COURT REPORTS [2010] 7 S.C.R.
A there could be some other cases where the Rules do not
contemplate issuance of such a specific order in writing but
merely require that there will noi be any automatic confirmation
or some acts, other than issuance of specific orders, are
required to be performed by the parties, even in those cases
s it is difficult to attract the application of this doctrine. However,
there will be cases where not only such specific Rules, as
noticed above, are absent but the Rules specifically prohibit
extension of the period of probation or even specifically provide
that upon expiry of that period he shall attain the status of a
c temporary or a confirmed employee. In such cases, again, two
situations would rise: one, that he would attain the status of an
employee being eligible for confirmation and second, that
actually he will attain the status of a confirmed employee. The
Courts have repeatedly held that it may not be possible to
prescribe a straight jacket formulae of universal implementation
0
for all cases involving such questions. It will always depend upon
the facts of a case and the relevant Rules applicable to that
service.
19. Reverting back to the Rules of the present case it is
E clear that Rule 3, unlike other Rules which have been referred
in different cases, contains negative command that the period
of probation shall not be less than two years. This period could
be extended by the competent authority for half of the period
of probation by a specific order. But on satisfactory completion
F of the probation period, the authorities shall have to consider
suitability of the probationer to hold the post to which he was
appointed. If he is found to be suitable then as soon as possible
order is to be issued in terms of Rule 5(1)(a). On the other hand,
if he is found to be unsuitable or has not passed the requisite
G examination and unless an order of extension of probation
period is passed by the competent authority in exercise of its
power under Rule 4, then it shall discharge the probationer from
service in terms of Rule 5 (1 )(b). At this juncture Entry 2 of
schedule under Rule 2 of 1983 Rules would come into play as
H it is a mandatory requirement that the probationer should
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1113
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
complete his judicial training. Unless such training was A
completed no certificate of satisfactory completion of probation
period could be issued. Obviously, power is vested with the
appropriate authority to extend thE. probation period and in
alternative to discharge him from service. The option is to be
exercised by the authorities but emphasis has been applied by B
the framers on the expression 'as soon as possible' they should
pass the order and not keep the matters in abeyance for
indefinite period or for years together. The language of Rule
5(2) is a clear indication of the intent of the framers that the
concept of deeming confirmation could not be attracted in the c
present case. This Rule is preceded by the powers vested with
the authorities under Rules 4 and 5(1) respectively. This Rule
mandates that a probationer shall not be deemed to have
satisfactorily completed the probation unless a specific order
to that effect is passed. The Rule does not stop at that but
0
further more specifically states that any delay in issuance of
order shall not entitle the probationer to be deemed to have
satisfactorily completed his probation. Thus, use of
unambiguous language clearly demonstrates that the fiction of
deeming confirmation, if permitted to operate, it would entirely E
frustrate the very purpose of these Rules. On the ground of
unsuitability, despite what is contained in Rule 5, the competent
authority is empowered to discharge the probationer at any
time on account of his unsuitability for the service post. That
discharge has to be simplicitor without causing a stigma upon
the concerned probationer. In our view, it is difficult for the Court F
to bring the present case within the class of cases, where
'deemed confirmation' or principle of 'automatic confirmation'
can be judiciously applied. The 1977 Rules are quite different
to the Rules in some of the other mentioned cases. The 1977
Rules do not contain any provision which places a ceiling to G
the maximum period of probation, for example, the probation
period shall not be extended beyond a period of two years. On
the contrary, a clear dist.inction is visible in these Rules as it is
stated that probation period shall not be less than two years
H
1114 SUPREME COURT REPORTS [2010] 7 S.C.R.
A and can be extended by the authority by such period not
exceeding half the period. The negative expression is for half
the period and not the maximum period totally to be put together
by adding to the initial period of probation and to extended
period. Even if, for the sake of argument, we assume that this
B period is of three years, then in view of the language of Rules
5 (1) and 5(2) there cannot be automatic confirmation, a definite
act on the part of the authority is contemplated. The act is not
a mere formality but a mandatory requirement which has to be
completed by due application of mind. The suitability or
c unsuitability, as the case may be, has to be recorded by the
authority after due application of mind and once it comes to
such a decision the other requirement is that a specific order
in that behalf has to be issued and unless such an order is
issued it will be presumed that there shall not be satisfactorily
completion of probation period. The Rules, being specific and
0
admitting no ambiguity , must be construed on their plain
language to mean that the concept of 'deemed confirmation'
or 'automatic confirmation' cannot be applied in the present
case.
E 20. Another aspect, which would further substantiate the
view that we have expressed, is that proviso to Rule 4 shows
that where during thi period of probation the results of an
e~~nation have not been declared which the probationer was
required ,to take, in that event the period of probation shall be
F deemed to have extended till completion of the act i.e.
declaration of result. Applying this analogy to the provisions of
Rule 5 unless certificate is issued by the competent authority
the probation period would be expected to have been extended
as it is a statutory condition precedent to successful completion
G of the period of probation and confirmation of the probationer
in terms of this Rule.
21. In the present case, the appellant was appointed to the
post vide letter dated 9/10th May, 1996 and he reported for his
H duty on 15th May, 1996. He was on probation for a period of
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1115
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
two years. Thereafter, as it appears from the record, no letter A
of extension of probation or order stating that the appellant has
completed the period of probation successfully in terms of Rule
5(1) was ever issued. Rule 5 (2), therefore, would come into
play and till the issuance of such an order and certificate of
satisfactory completion of probation period, the appellant cannot B
claim to be a confirmed employee by virtue of principle of
automatic or deemed confirmation. His services were
terminated vide order dated 24th March, 2000. It was discharge
from service simplicitor without causing any stigma on the
appellant. We have already discussed in some detail the c
conduct of the appellant as well as the fact that even prior to
his selection as a member of the Higher Judicial Services of
State of Karnataka, his name had been placed for surveillance
on the of Police Station, Karwar. The original service record
of the appellant also does not reflect that he was an officer of D
outstanding caliber or had done extraordinary judicial work. He
is an officer who is not aware of his date of birth and mentioned
his age as per his convenience. In these circumstances, we do
not feel that, it is a case where in exercise of jurisdiction of this
Court under Article 136 of the Constitution of India, we should E
interfere with the judgment of the High Court as the same does
not suffer from any factual or legal infirmity.
22. Before we part with this file, it is required of this Court
to notice and declare that the concerned authorities have failed
to act expeditiously and in accordance with the spirit of the F
relevant Rules. Rule 5 (2) of 1977 Rules has used the
expression 'as soon as possible' which clearly shows the intent
of the rule framers explicitly implying urgency and in any case
applicability of the concept of reasonable time which would help
in minimizing the litigation arising from such similar cases. May G
be, strictly speaking, this may not be true in the case of the
appellant but generally every step should be taken which would
avoid bias or arbitrariness in administrative matters, no matter,
which is the authority concerned including the High Court itself.
Long back in the case of Shiv Kumar Sharma Vs. Haryana H
1116 SUPREME COURT REPORTS [2010) 7 S.C.R.
A State Electricity Board (1988) Supp. SCC 669) this Court had
the occasion to notice that due to delay in recording satisfactory
completion of probation period where juniors were promoted,
the action of the authority was arbitrary and it resulted in
infliction of even double punishment. The Court held as under:
B
"While there is some necessity for appointing a person in
government service on probation for a particular period,
there may not be any need for confirmation of that officer
after the completion of the probationary period. If during
the period a government servant is found to be unsuitable,
c his services may be terminated. On the other hand, if he
is found to be suitable, he would be allowed to continue in
service. The archaic rule of confirmation, still in force, gives
a scope to the executive authorities to act arbitrarily or
mala fide giving rise to unnecessary litigations. It is high
D time that the Government and other authorities should think
over the matter and relieve the government servants of
becoming victims of arbitrary actions."
We reiterate this principle with respect and approval and hope
E that all the authorities concerned should take care that timely
actions are taken in comity to the Rules governing the service
and every attempt is made to avoid prejudicial results against
the employee/probationer. It is expected of the Courts to pass
orders which would help in minimizing the litigation arising from
F such similar cases. Timely action by the authority concerned
would ensure implementation of rule of fair play on the one hand
and serve greater ends of justice on the other. It would also
boost the element of greater understanding and improving the
employer employee relationship in all branches of the States
G and its instrumentalities. The Courts, while pronouncing
judgments, should also take into consideration the issuance of
direction which would remove the very cause of litigation. Boni
judicis est causes litium dirimere.
23. It will be really unfortunate that a person, who is· involved
H
KHAZIA MOHAMMED MUZAMMIL v. STATE OF 1117
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
in the process of judicial dispensation, is dealt with in a manner A
that for years neither his confidential reports are written nor the
competent authority issues an order of satisfactory completion
of probation period or otherwise. Another very important aspect
is that in the present days of high competition and absolute
integrity and even to satisfy the requirements of out of turn B
promotions by competition it is expected of the High Court to
inform the concerned judicial officer of his draw backs so as
to provide him a fair opportunity to improve. We c~rtainly notice
it with some sense of regret that the High Court has not
maintained the expected standards of proper administration. c
There is a constitutional obligation on the High Court to ensure
that the members of the judicial services of the State are treated
appropriately, with dignity and without undue delay. They are
the face of the judiciary inasmuch as a common man, primarily,
comes in contact with these members of the judicial hierarchy.
0
It is a matter of concern, as we are of the considered view, that
timely action on behalf of the High Court would have avoided
this uncalled for litigation as it would have been a matter of
great doubt whether the appellant could at all be inducted into
the service in face of the admitted position that the name of E
the appellant was stated to be on the rowdy list at the relevant
time.
24. Although for the reasons afore recorded we find no
merit in this appeal and dismiss the same. While dismissing
the appeal we feel constrained to issue the following directions: F
1. The judgment of this Court shall be placed before the
Hon'ble the Chief Justice of Karnataka High Court for
appropriate action. We do express a pious hope that steps will
be taken to ensure timely recording of the confidential reports G
of the judicial officers by appropriate authority (which in terms
of Chapter VI with particular reference to the provisions of
Article 235 of the Constitution is the High Court) and in an
elaborate format depicting performance of the judicial officers
in all relevant fields, so as to ensure that every judicial officer H
1118 SUPREME COURT REPORTS [2010) 7 S.C.R
A in the State will not be denied what is due to him in accordance
with law and on the basis of his performance;
2. We direct the Secretary of the Union of India, Ministry
of Personnel, Public Grievances and Pension as well as all the
Chief Secretaries of the States to issue appropriate guidelines,
8
in the light of this judgment, within eight weeks from the date
of the pronouncement of this judgment;
3. We further direct that all the High Courts would ensure
that 'police verification reports', conducted in accordance with
C law, are received by the concerned authority before an order
of appointmenUposting in the State Judicial Service is issued
by the said authority.
With the above directions, the appeal is dismis~ed.
0 However, the parties are left to bear their own costs.
D.G. Appeal dismissed.
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