Holding

No automatic or deemed confirmation arises on the expiry of the two‑year probation; confirmation requires a vacancy and satisfactory work, and the termination of Sharma’s services was a valid administrative order.

Summary

C.G. Sharma was appointed as a Civil Judge on a two‑year probation under the Gujarat Judicial Service Recruitment Rules, 1961. His probation was extended twice and he was terminated for alleged unsatisfactory performance and integrity concerns. Sharma argued that the expiry of the probation period meant automatic confirmation, that termination required a departmental enquiry and that he was discriminated against compared to other officers. The Supreme Court held that Rule 5(4) does not provide for automatic or deemed confirmation; confirmation requires a vacancy and satisfactory work. Consequently, the termination was a simple administrative order, not punitive, and did not violate Articles 14, 16 or 311 of the Constitution. The Court allowed the appeal of the Registrar and the State of Gujarat and dismissed Sharma’s appeal.

Issues considered

The interpretation of sub‑rule (4) of Rule 5 of the Gujarat Judicial Service Recruitment Rules, 1961 regarding automatic or deemed confirmation after the expiry of a two‑year probation.
Whether termination of a probationer without a departmental enquiry violates principles of natural justice and Articles 14, 16 and 311 of the Constitution.
Whether the respondent could claim parity with other officers on the ground of alleged ‘pick‑and‑choose’ treatment.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 311

Subjects

probationconfirmationtermination of servicejudicial service recruitment rulesautomatic confirmationnatural justiceequalityArticle 311administrative law

Judgment

REGISTRAR, HIGH COURT OF GUJARAT AND ANR. A
v.
C.G. SHARMA

NOVEMBER 17, 2004

[K.G. BALAKRISHNAN AND DR. AR. LAKSHMANAN, JJ.] B

Service Law :

Gujarat Judicial Service Recruitment Rules, 1961-Rule 5(4)-Judicial
Officer-Appointment-Probation-Extension of-Termination of service C
thereafter on the ground of unsuitability for the Post-Adverse remarks in
the Confidential Report-Integrity doubtful-Termination challenged on the
ground that termination could not be without holding enquiry as on
completion on probation period the service would be deemed to have been
confirmed-Claim of equality with other judicial officers-Termination
upheld by Single Judge as well as Division Bench of High Court holding D
that service cannot be deemed to be confirmed on completion ofprobation-
However Division Bench held that the Judge was wrongly picked for
termination applying different yardstick-On appeal, held : On completion
of probation, automatic confirmation cannot be claimed as a matter of
right-Satisfactory work is precondition for confirmation-Termination E
rightly ordered on the basis of the record placed before High Court
(Admfnistrative side)-In assessment of his work the Judge cannot claim
parity with other officers as each officer was evaluated on his own merit-
Concept of equality cannot be extended to legalize illegal orders-A wrong
order cannot be the foundation for claim of equality-Constitution of India,
1950-Articles 14, 16 and 311. F
Respondent was appointed as Judicial Officer in Subordinate
Judicial Service on probation for two years. His probation was further
extended for one year and then for 6 months. Thereafter his services
were terminated on account of unsuitability for the post under the
recommendations of High Court (Administrative side). Respondent G
challenged the termination of service on the grounds that the probation
period having been expire~, he must be deemed to have been confirmed
and hence his service could not have been terminated without holding
an enquiry; that opportunity of hearing should have been afforded to
him before terminating his services; that his services came to be H
77
78 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A terminated because of pick and choose approach as services of other
officers, similarly situated, were not terminated. Appellant took the plea
that respondent's termination was recommended because his overall
performance was not satisfactory; that there were adverse remarks
during his probation period and subsequent thereto which were
B communicated to him; that the respondent was originally an employee
of the High Court and upon termination of his service as judicial officer
had been taken back by the establishment. Single Judge of High Court
held that there is no automatic confirmation on the expiry of the probation
period and dismissed the petition. In Letters Patent Appeal, Division
Bench held that even if two years period expires and probationer is
c allowed to continue thereafter, automatic confirmation cannot be claimed
as a matter of right because as per Gujarat Judicial Service Recruitment
Rules, 1961, pre-condition for confirmation is that work has to be
satisfactory; that the impugned judgment suffered from the vice of non-
adjudication; that it was a case of arbitrary exercise; that the work of
D respondent was never assessed to be inadequate or poor and hence
respondent was held entitled to all consequential benefits as if termination
order had never been passed subject to the adjustment of the emoluments
drawn by him as an employee of the High Court.

Appellant-High Court filed appeal before this Court. Respondent-
£ Judge also filed appeal before this Court on the question of automatic
confirmation on expiry of probation period.

Appellant contended that Division Bench of High Court was not
justified in permitting the respondent to agitate the question of assessment
F of satisfactory performance of his work in comparison to his colleagues,
when this point was not raised before Single Judge or raised in the
memorandum of L.P.A.; that High Court in exercise of power of judicial
review is devoid of power to re-appreciate the evidence; Division Bench
erred in picking up one of the aspects of the assessment in allowing the
G L.P.A., while termination was passed by the High Court on administrative
side often examining all the aspects and his overall performance; Division
Bench erred in law in applying the concept of equality in negative
manner; that when any authority shows to have committed illegality or
irregularity in favour o_f any individual or group others cannot claim
the same illegality or irregularity on ground of denial thereof; that Rule
H 4(5), does not provide for any maximum period of probation and hence
REGISTRAR, HIGH COURT OF GUJARAT v. C.G. SHARMA 79

the services could not be treated as confirmed unless a specific order A
is passed after the enquiry of probationary period.

Respondent-Judge contended that as per Rules, when the maximum
period of probation is two years, in absence of anything to the contrary,
continuance in service would mean confirmation; that the termination B
order is void inasmuch as the order would be punitive and also amount
to a stigmatic order.

Allowing the appeal of Registrar, High Court and dismissing that
of the respondent-Judge, the Court
c
HELD: 1. Even ifthe 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 matterofright because in termsofGujaratJudicial
Service Recruitment Rules, 1961, work has to be satisfactory which is a
pre-requisite or pre-condition for confirmation and, therefore, even ifthe D
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 because the confirmation is to be ordered if there
is a vacancy and ifthe work is found to be satisfactory. There is no question
of confirmation and, therefore, deemed confirmation, in the light of the E
language of this Rule, is ruled out. The Rule also does not say that the two
years' period of probation, as mentioned in the Rules, is the maximum
period of probation and the probation cannot be extended beyond the
period of two years. [91-D-G)
F
State of Maharashtra v. Veerappa Saboji & Anr., [1999) 3 SCC 6,
·relied on.

2. The confidential register of the respondent contains series of
adverse entries and it is abundantly clear that respondent was not
having good reputation as judicial officer and his service was far from G
satisfactory. The District Judges concerned, in view of his unsatisfactory
performance and questionable integrity, have also recommended for
extension of probation from time to time and ultimately the District
Judge was of the opinion that no further extension of probation was
called for. The Vigilance Cell of the High Court also investigated some H
80 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A matters regarding his integrity. The respondent is not industrious, less
diligent, below average and inadequate disposals and that the conduct
was suspicious and complete aloofness is lacking and no clarity of
thought and expression, poor in civil work and fair.___in criminal work
and average in diligence. Such an officer should not be allowed to
B continue in service in public interest and in the interest of the judicial
administration. (92-H; 94-A, BJ

3. Judicial review is not an appeal from a decision but a review of
the manner in which the decision is made. It is meant to ensure that the
delinquent receives fair treatment and not to ensure that the conclusion
C which the authority reaches is necessarily correct in the view of the
Court or the Tribunal. When the conclusion reached by the Authority
is based on evidence, the Tribunal is devoid of power to re-appreciate
the evidence and would come to its own conclusion on proving of the
charge. The perusal of the entire record would only go to show that the
D order of termination was passed by the High Court on administrative
side after examining all aspects and his overall performance which was
found ·"not satisfactory". However, the Division Bench picked up one
aspect of the assessment and allowed the appeal. (94-E-H; 95-AJ ·

4.1. Respondent claiming parity with others co-officers has no
E merits. It is seen from the record that the overall performance of the
respondent was considered while assessing the suitability and continuing
the respondent and that there is no similarity of the situation and/or
facts of the case of the respondent and eleven others. Each officer's case
has been evaluated on its own merits and decision has been taken in
F conformity with the norms settled. (91-H; 92-A, BJ

4.2. Division Bench of the High Court was not justified in permitting
the respondent to agitate the question of standard of assessment of
satisfactory performance of the work done by him in comparison to his
other colleagues when this point was not argued before the Single Judge
G or even raised in the memorandum of the Letters Patent appeal. (94-C)

4.3. Division Bench of the High Court applied the concept of equality
as envisaged in Articles of the Constitution in negative manner. Article
14 cannot be extended to legalise illegal orders that the others have
H wrongly got the benefit of the orders. A wrong order cannot be the
REGISTRAR, HIGH COURT OF GUJARAT v. C.G. SHARMA 81

foundation for claim of equality. (95-B, C] A--
5. The administrative side of the High Court and the Full Court
were right in taking the decision to terminate the services of the
respondent on the basis of the records placed before them. This Court
is also satisfied, after perusing the Confidential Reports and other
relevant Vigilance files etc. that the respondent is not entitled to continue
B
as a Judicial officer. The order of termination is termination simplicitor
and not punitive in nature and, therefore, no opportunity needs to be
given to the respondent. 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 High Court that the services of the c
respondent during the period of probation respondent be terminated
because of his unsuitability for the post. In this view of the matter, order
of termination simplicitor cannot be said to be violative of Arts. 14, 16
and 311 of the Constitution of India. [96-F-H; 97-A)

6. What is to be considered in such matters is the examination of D
overall entries of the officer concerned and not the entry here and there.
In such case, the record so considered would naturally include the
entries in the Confidential Reports/Character RollsNigilance Reports,.
both favourable and adverse. There cannot be any justification for
interference by this Court in such cases. (99-E-G) E
State of UP. and Anr. v. Bihari Lal, [1994) Supp. 3 SCC 593, relied
on.

Wasim Beg v. State of UP. and Ors., [1998) 3 SCC 321; H.F. Sangati
v. Registrar General, High Court ofKarnataka and Ors. Etc., [2001) 3 sec F
117; Dipti Prakash Banerjee v. Satyendra Nath Bose National Center for
basic Sciences, Calcutta and Ors., [1999) 3 SCC 60; Pavanendra Narayan
Verma v. Sanjay Gandhi PG! of Medical Sciences and Anr., [2002) 1 SCC
520; Ishwar Chand Jain v. High Court of Punjab and Haryana and Anr.,
[1988) 3 SCC 370; P.C. Joshiv. State of UP. and Ors., [2001) 6 SCC 491;
MS. Bindra v. Union of India and Ors., [1998) 7 SCC 310; Chandra G
... Prakash Shahi v. State of U.P. and Ors., [2000) 5 SCC 152; Nepal Singh
v. State of UP. and Ors., (1985) 1 SCC 56; State of Gujarat v. Akhilesh
C. Bhargav & Ors., [1987] 4 SCC 482; Om Prakash Maurya v. UP.,
Cooperative Sugar Factories Federation, Lucknow and Ors., [1986] Supp.
SCC 95; State of Punjab v. Dharam Singh, [1968] 3 SCR 1 and Dayaram H
82 SUPREME COURT REPORTS [2004] SUPP. 6 S.C."R.

A Dayal v. State of MP. and Anr., [1997) 7 SCC 443, distinguished.

CIVIL APPELLATE illRISDICTION : Civil Appeal No. 4019 of
2002.

B From the Judgment and Order dated 5.9.2001 of the Gujarat High
Court L.P.A. No. 1721/99 in S.C. Application No. 11218 of 1994.

WITH

C.A. No. 575 of 2003.
c
Ms. Hemantika Wahi for the Appellants.

Colin Gonsalves, Vikram and Rajesh Pandey for the Respondent.

The Judgment of the Court was delivered by
D
DR. AR. LAKSHMANAN, J. : The above two appeals were filed by
the Registrar of the High Court of Gujarat and Mr. C.G. Sharma respectively
against the final judgment and order dated 5.9.2001 passed by the High
Court of Gujarat at Ahmedabad in Letters Patent Appeal No. 1721/1999 in
E Special Civil Application No. 11218/1994 whereby the High Court allowed
the Letters Patent Appeal filed by Mr. C.G. Sharma - respondent in C.A.
No. 4019/2002 and appellant in C.A. No.575/2003 and directed that Mr.
C.G.Sharma Shall be entitled to all the consequential benefits as if the
termination order had never been passed. Aggrieved by the findings of the
F Division Bench in regard to his contention of deemed confirmation, Mr.
C.G. Sharma filed Civil Appeal No. 575/2003.

Both these appeals raised common question of law about the
interpretation of the provisions of sub-rule (4) of Rule 5 of the Gujarat
Judicial Service Recruitment Rules, 1961 (hereinafter referred to as "the
G Rules") regarding the power of the Government to extend the period of
probation. Hence both these appeals have been heard together and are being
disposed of by a common judgment.

Mr. C.G. Sharma, respondent in C.A. No. 4019/2002 was appointed
H as Civil Judge (Junior Division) and Judicial Magistrate, First Class on
REGISTRAR, HIGH COURT OF GUJARAT v. C.G. SHARMA [AR. LAKSHMANAN, J.)83

probation for a period of two years vide Government Notification dated A
7 .6.1991. He joined his duties on 29 .6.1991. By the order dated 22.9 .1994,
the respondent's services were terminated with immediate effect on account
of unsuitability for the post held by him under the recommendations of the
High Court. The said order was challenged in Special Civil Application No.
11218 of 1994 on various grounds, more particularly, on the ground that B
two years' period of probation having expired, the respondent must be
deemed to have been confirmed on the post of Civil Judge (Junior Division)
and, therefore, the respondent's services could not have been terminated
without holding a departmental enquiry. The respondent also invoked the
principles of natural justice by contending that opportunity of hearing
should have been afforded to him before terminating his services. It was also C
contended before the learned single Judge that the respondent had tried to
the best of his capacity to dispose of the cases and that many others who
had no disposal as per the norms were confirmed in the post but because
of the pick and choose approach the respondent's services came to be
terminated. D

The petition was resisted by the Registrar of the High Court pointing
out that the respondent's case was examined by the High Court and having
regard to the fact that the overall performance of the respondent was :;10t
satisfactory, the High Court recommended to the S_tate Government on
12.9.1994 to terminate the respondent's services with immediate effect on E
account of unsuitability for the post held by him and accordingly the State
Government issued a Notification terminating the respondent's services. It
was further contended that the respondent was originally serving as an
Assistant in the Establishment of the High'Court and upon termination of
his services as a Civil Judge (Junior Division) and Judicial Magistrate, First F
Class, he has been taken back by the establishment of the High Court with
effect from 27.9.1994. It was also submitted that there were adverse remarks
in the Confidential Reports which were communicated to the respondent and
that the period of probation was extended by one year w.e.f. 17.6.1993.
During the subsequent period also, the respondent was communicated the
adverse remarks for the quarters between 15.6.1993 and 15.5.1994 and that G
the High Court considered the respondent's overall performance and on
12.9.1994 recommended to the State Government to terminate the
respondent's services on the ground of unsuitability for the post.

Though various grounds have been taken in the writ petition, learned H
84 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A counsel appearing for Mr. C.G. Sharma before the High Court have
concentrated on the legal contention regarding the interpretation of the
relevant rule and the consequential question about the status of Mr. C.G.
Sharma as probationer or officer deemed to have been confirmed on the post
of Civil Judge. There was no effective challenge on the merits of the
B decision of the High Court to the effect that Mr. C.G. Sharma was found
unsuitable for the post in question. The learned single Judge of the High
Court, on a consideration of the arguments advanced, came to the conclusion
that there is no automatic confirmation on the expiry of the probation period
of two years in the first instance and that on the expiry of the said period
and on the fulfilment of the requirement of sub-clauses (a) and (b) a
C Government servant becomes eligible for being confirmed. Holding so, the
petition filed by Mr. C.G. Sharma was dismissed.

Being aggrieved, Mr. C.G. Sharma preferred Letters Patent Appeal
assailing the judgment of the learned single Judge on three grounds:
D I) The first ground was that with the expiry of the period of two
years of probation in 1993 when the respondent was allowed to
continue, he stood automatically confirmed and that there was no
question of termination of his services without holding any enquiry.

E 2) The judgment of the learned single Judge suffers from the vice
of the non-adjudication of the plea that the respondent had been
subjected to pick and choose inasmuch as the other officers, who
L
had no disposal as per the norms, were confirmed whereas Mr.
C.G. Sharma had been terminated and this point was not considered
by the learned single Judge.
F
·!· 3) That except the case ofless disposal in civil cases, which was also
the basis for the communication of remarks, there was nothing
against Mr. C.G. Sharma so as to warrant his termination and the
assessment of the work of Mr. C.G. Sharma, as mentioned in two
charts produced by the Registrar of the High Court of Gujarat and
G
sifting of the assessment of disposal of cases qua the assessment
of disposal of cases for the other officers who are included in
.
these charts would show that it is a clear cut case of pick and ·
choose.
r
;..
H So far as the first point is concerned, the learned Judges of the Division
REGISTRAR, HIGH COURT OF GUJARAT v. C.G. SHARMA [AR. LAKSHMANAN, J.]85
r
Bench, interpreting the Rule, found that the point has been fully dealt with A
by the learned single Judge in the context of sub-rule (4) of Rule 5 of the
Rules. The Division Bench held that even if the two years' period 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, the work has to be satisfactory, which is a pre-requisite B
or pre-condition for confirmation. The Division Bench held that there is no
question of deemed confirmation.

So far as the second point is concerned, the Division Bench held that
there has been no adjudication of this grievance by the learned single Judge
and the impugned judgment suffers from the vice of non-adjudication. C

Coming to the third point, the Division Bench, on a perusal of two
charts filed by the Registrar of the High Court of Gujarat, held that it is a
clear and transparent case of arbitrary exercise of the power and the
respondent's contention is right that he had been subjected to pick and D
choose. According to the Division Bench, the work of the respondent was
never assessed to be inadequate or poor in any quarter and was assessed to
be very good for two quarters and adequate for nine quarters out of eleven
quarters, in all, for which he was assessed. The Division Bench also observed
that it is a fool proof case in which the respondent has been wronged and
wrongly picked up for termination and that different yardsticks have been E
applied insofar as the respondent is concerned.

In the result, the Division Bench allowed the appeal filed by the
respondent-Mr. C.G. Sharma and set aside the order passed by the learned
single Judge by holding that the respondent shall be entitled to all F
consequential benefits as if the termination order had never been passed
subject to the adjustment of the emoluments drawn by him as an employee
0
of the High Court Staff.

Aggrieved by the above judgment and final order, the Registrar of the
High Court of Gujarat and the State of Gujarat preferred S.L.P.(C) No. G
22808/2001. Leave was granted on 12.7.2002. Hence, Civil Appeal No.
4019/2002. This Court, after issuing notice, ordered to maintain the status
quo.

We heard Mr. L.Nageswara Rao, learned senior counsel, assisted by H
\-

86 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
.. '
A Mrs. H.Wahi, learned counsel, appearing for the Registrar of the High Court
of Gujarat & for the State of Gujarat and Mr. Colin Gonsalves, learned
senior counsel, assisted by Mr. Vikram and Mr. Rajesh Pandey, learned
counsel appearing for Mr. C.G. Shanna.

B We have been taken though the entire pleadings and annexures filed
by both sides and the judgments of the learned single Judge and of the
Division Bench.

It is to be noticed here that through various grounds have been raised
in the writ petition, the learned counsel appearing for Mr. C.G. Shanna
c concentrated only on the legal contention on the interpretation of the relevant
Rule and the consequential question about the status of Mr. C.G. Sharma
as probationer or officer deemed to have been confinned on the post in
question. No argument was addressed before the learned single Judge on
other grounds raised. However, before the Division Bench, three contentions
D were raised by the respondent herein as narrated above and the judgment
was delivered on that basis. It is seen from the judgment that the Division
Bench after holding that there is no question of automatic or deemed
confinnation, however, was concentrated on the other points namely, the
adequacy of the disposal of the cases in Civil and Criminal matters which
E was not even argued before the learned single Judge. The Division Bench
found fault that the respondent has been wronged and wrongly picked up
for tennination. However, the Division Bench failed to note that the adequacy
or inadequacy of disposal is not the only consideration for passing the
impugned order when the respondent herein was appointed on probation for
a period of two years. The Division Bench also found fault with the learned
F single Judge that there had been no adjudication of the grievance of the
respondent in regard to the disposal of the cases, set aside the judgment of
the learned single Judge on the ground of vice of non-adjudication.
•
When the hearing of the case was half way through, we felt
G that we should summon the original records from the High Court, namely,
the ACRs and the Vigilaace Reports so that the overall performance
of the respondent can be analysed and a decision could be taken. Accordingly,
we summoned the records and the same was placed before us. We perused
-·'
the same also.

H Mr. L.N. Rao, learned senior counsel, contended before us that the
REGISTRAR, HIGH COURT OF GUJARAT v. C.G. SHARMA [AR. LAKSHMANAN, J.]87

Division Bench of the High Court was not justified in permitting the A
respondent herein to agitate the question of standard of assessment of
satisfactory performance of the work done by him in comparison to his
colleagues, when this point was not argued before the learned single Judge
or raised in the memorandum of LP.A. He also submitted that the whole
approach by the Division Bench is incorrect and that the Division Bench B
was not justified in permitting the respondent to agitate the question of
assessment of satisfactory performance of the work done by him as a Civil
Judge. Mr. L.N. Rao, however, submitted that while exercising the power
under Letters Patent Appeal, the Court is exercising the power under Section
226 of the Constitution of India. It is not sitting in appeal over the decision
of the High Court on the administrative side. The High Court was exercising C
power of judicial review when the conclusion reached by the High Court,
on the administrative side, is based on evidence, the High Court on the
judicial side is devoid of power to re-appreciate the evidence and came to
a different conclusion. He would further submit that the Division Bench
erred in picking up one of the aspects of the assessment in allowing of the D
L.P.A. The order of termination was passed by the High Court on
administrative side after examining all aspects and his overall performance
which was found not satisfactory.

Concluding his arguments, Mr. L.N. Rao, submitted that the Division
erred in law in applying the concept of equality as envisaged in articles of E
the Constitution in negative manner. When any authority shows to have
committed illegality or irregularity in favour of any individual or group of
individuals others cannot claim the same illegality or irregularity on ground
of denial thereof. Mr. L.N. Rao further submitted that the impugned judgment
of the High Court is exfacie wrong and, therefore, the said judgment is liable F
to be set aside.

Mr. L.N. Rao cited the following decisions of this Court in support Qf
his contentions :

- I.

2.
Wasim Beg v. State of UP. & Ors., [1998] 3 SCC 321

H.F. Sangati v. Registrar General, High Court of Karanataka &
Ors. etc., [2001] 3 SCC 117
G

3. Dipti Prakash Banerjee v. Satyendra Nath Bose National Center H
88 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A for Basic Sciences, Calcutta & Ors., [1999] 3 SCC 60

4. State of Maharashtra v. Veerappa R. Saboji & Anr., [1979] 4
sec 466
B 5. Pavanendra Narayan Verma v. Sanjay Gandhi PG/ of Medical
Sciences & Anr., [2002] 1 SCC 520

Mr. Colin Gonsalves, learned senior counsel appearing for Mr.
C.G.Sharma, submitted that the High Court was not right in concluding that
C in the absence of express provision for extension· of probation, there would
be no deemed confirmation. It was further contended that the fact when the
maximum period of probation of two years under the Rules in the absence
·of anything to the contrary continuance in service would mean confirmation.

He further submitted that the learned single Judge failed to examine
D and consider all the arguments and contentions advanced at the time of
hearing and failed to record the same and to deal with the same in the
impugned judgment. He would further submit that since the respondent was
in service after the completion of the probation period, it was a case of
deemed confirmation. According to him, the High Court committed an error
E by mis-reading sub-rule (4) of Rule 5 of the Rules and thereby coming to
entirely on a erroneous conclusion that Rule 5(4) of the Rules was in pari
materia with the Rule which was considered by this Court in the case of
State of Maharashtra v. Veerappa Saboji & Anr. (supra). It was further
argued by the learned senior counsel that the High Court committed an error
F in law by holding that condition (a) ofa vacancy existing and (b) the work
being found satisfactory, by itself excludes any chance of giving deemed
or automatic confirmation. He would further add that the High Court failed
to appreciate that in the facts and circumstances of the case, since the
respondent's services were deemed to be confirmed, the question of mere
dismissal or withdrawal of appointment does not arise without conducting
G proper departmental enquiry.

Concluding his arguments, learned senior counsel appearing for Mr.
C.G. Sharma, submitted that the impugned judgment of the Division Bench
insofar as it relates to deemed confirmation is wrong and is, therefore, liable
H to be set aside.
REGISTRAR, HIGH COURT OF GUJARAT v. C.G. SHARMA [AR. LAKSHMANAN, J.]89

Mr. Colin Gonsalves cited the following decisions of this Court in A
support of his contentions:

l. Ishwar Chand Jain v. High Court of Punjab & Haryana & Anr.,
[1988] 3 sec 370

2. P.C. Joshi v. State of U.P. & Ors., [2001] 6 SCC 491
B

3. MS. Bindra v. Union of India & Ors., [1998] 7 SCC 310

4. Chandra Prakash Shahi v. State of U.P. & Ors., [2000] 5 SCC
l~ C
5. Nepal Singh v. State of U.P. & Ors., [1985] 1 SCC 56

6. State of Gujarat v. Akhi/esh C. Bhargav & Ors., [1987] 4 SCC
482
D
7. Om Parkash Maurya v. U.P., Cooperative Sugar Factories
Federation, Lucknow & Ors., [1986] Supp SCC 95

8. State of Punjab v. Dharam Singh, [1968] 3 SCR l
E
9. Dayaram Dayal v. State of MP. & Anr., (1997) 7 SCC 443

Before considering the rival submissions, it is beneficial to reproduce
sub-rule (4) of Rule 5 of the Rules:

"(4) Unless otherwise expressly provided every person F
appointed under the preceding sub-rules shall be on probation for
a period of two years and on the expiry of such period, he may be
confinned if :-

(a) there is a vacancy; and
G
(b) his work is found to be satisfactory."

According to Mr. L.N. Rao, the Rule in question does not provide for
any maximum period of probation and, therefore, the ordinary and general
Rule would apply and that in any view of the matter, the Rule itself contains H
90 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A an indication that the services could not be treated as confirmed unless a
specific order is passed after the enquiry of probationary period if there is
a vacancy and if the officer's work is found to be satisfactory.

According to Mr. Colin Gonsalves, the aforesaid Rule provides the
B maximum period of probation of two years and since the services of the
respondent were continued for more than two years, the respondent must
be deemed to have been confirmed in service and, therefore, the termination
of his service after more than three years without holding any departmental
enquiry under Art. 311 (2) of the Constitution of India was illegal.

c A large number of authorities were cited before us by 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 ofMaharashtra
v. Veerappa Saboji & Anr. (Supra) and we find that even if the period of
D 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 pre-
requisite or pre-condition for confirmation and, therefore, even if the
probationer is allowed to continue beyond the period of two years as
E 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 because the confirmation is to be ordered if there is a vacancy
and ifthe work if 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 arguments
F 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 period of two years and on the expiry of
the said period of two years, the confirmation order can be passed only if
G 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
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 ,.
H learned counsel for the respondent. We, therefore, answer this issue in the
REGISTRAR, HIGH COURT OF GUJARAT v. C.G. SHARMA [AR. LAKSHMANAN, J.)91

negative and against the respondent. A

In this context, it is useful to reproduce paragraph 6 of the judgment
of this Court in the case of State of Maharashtra v. Veerappa R. Saboji &
Anr. (Supra) on the question of deemed confirmation which reads as under:
B
"There are two parts of clause (iv): (1) that it is imperative to
put every person appointed under sub-rule (2) on probation for a
minimum period of two years "unless otherwise expressly directed",
and (2) on the expiry of the said period of two years the person
appointed may be confirmed if there is a vacancy and if his work
is found to be satisfactory. The plain meaning of the rule is that c
there is no automatic confirmation on the expiry of the probationary
period of two years in the first instance. On the expiry of the said
period and on the fulfilment of the requirement of sub-clauses (a)
and (b) a Government servant becomes eligible for being confirmed
and normally he is likely to be confirmed. But it is a matter of D
common knowledge in many branches of government service
including the judiciary that for administrative reasons or otherwise
the confirmation is delayed and is made at a subsequent time. It may
also be delayed for watching the work of the government servant
for a further period. The expression "unless otherwise expressly
directed" governs only the first part 9f clause (4) and not the second E
as was attempted to be argued by ~r. Nariman. In my opinion the
rule in question, therefore, comes under the ordinary and normal
rule that without an express order of confirmation the government
servant will not be take~, to have been confirmed in the post to
which he was appointedftemporarily and/or on probation. It is not F
covered by the excep~nal ruie like the one which was the s~bject
matter of con~ideration of this court in State of Punjab v:. Dharam
Singh, [1968] 3 SCR I."

In view of our abo've finding!'- on the question of deemed confirmation,
Civil Appeal No. 575/2003 filed by Mr,C.G ..Sharma shall stand dismissed. G

Learned counsel appe~ring for the respondent claimed parity by placing
a submission to the effect that though the disposal in civil matters, the case
of the respondent was the main basis for discharge but other simill'rly
situated persons have been allowed to continue in service and this petitioner H
92 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A was given discriminatory treatment. This contention, in our opinion, is
misconceived in law and facts. It is seen from the record that the overall
performance of the respondent was considered while assessing the suitability
and continuing the respondent and that there is no similarity of the situation
and/or facts of the case of the respondent and eleven others named in the
_ chart. In our view, each officer's case has been evaluated on its own merits
8
and decision has been taken in conformity with the norms settled. We are
of the opinion that the contention put forward by _the learned counsel for
the respondent claiming parity with other co-officers has no merits and,
therefore, the same is rejected.
.
c The argument of the learned senior counsel for the respondent that
there is no finding on the fact either by the Vigilance or by any unit Judge
that would cast any doubt regarding the integrity and nothin-g has been
placed on record by the authority before any of the Courts to even remotedly
suggest that the respondent had indulged to any practice that would cast
doubts about his integrity. Since t~e learned single Judge and the learned
D Judges of the Division Bench have n9t adverted to this fact, we, in order
to see the record by ourselves, and in order to shorten the litigation, summoned
the original records and perused the same.

We have closely perused the confidential register of the respondent and -
E it contains series of adverse entries and it is abundantly clear that respondent
was not having good 'reputation as judicial officer and his service was far
from satisfactory.

The District Judges concerned, in view of his unsatisfactory performance
and questionable integrity, have also recommended for extension ofp'robation
F from time and time and ultimately th~ District Judge was of the opinion that
no further extension of probation was called for.

We have also perused the original correspondence in connection with
the probation of the respondent. It is seen from the above records that the
Vigilance Cell of the High Court also investigated some matters regarding
G his integrity. The District Judge was of the opinion that though there would
be no proof about integrity but it is a fact that his integrity was doubtful
and the representations made by the officer were also filed on many occasions.
The representation made by the respondent in regard to the communication
of adverse remarks was ordered to be filed before the Chief Justice and the
H other portfolio Judges.
REGISTRAR, HIGH COURT OF GUJARAT v. C.G. SHARMA [AR. LAKSHMANAN, J.]93

It is useful to reproduce the remarks made by Mr. Justice R.K. A
Abichandani while considering the note put up by the Office on 8.8.1994.
The remarks reads as under:

"As per the office note at points 1,4,13,17, the reports of the
D.J. against Mr. C.G. Sharma contain following remarks : "Not B
industrious" "less diligent'', "Below average" "Inadequate
disposals", "His conduct was suspicious and he is a dull Judge",
"Complete judicial aloofness is lacking", "No clarity of thought and
expression", "knowledge of law upto the mark", "poor in civil
work" "Average in diligence". Since his extended probation has
come to an end, the period of probation is required to be extended
c
for six months in view of his unsatisfactory performance so far. The
D.J. be asked to closely watch the officer for his performance and
conduct."

However, the Chief Justice ordered the matter to be placed before the D
Standing Committee. The Standing Committee took the following decision:

"Considering un-suitability of Mr. C.G. Sharma, Civil Judge
(Junior Division), and Judicial Magistrate, First Class, Dabhoi, for
the post he is holding at present, it was decided to place the matter E
before the Chamber Meeting for consideration and appropriate
decision."

Decision was taken at the Chamber Meeting on 5.9.1994 which is
reproduced as under:
F
"Having regard to the fact that the overall performance of Mr.
C.G. Sharma, Civil Judge(Junior Division) and Judicial Magistrate,
First Class, Dabhoi is not at all satisfactory, it was decided that, his
probation be terminated on the ground of unsuitability for the post
he holds and Government be moved to pass necessary orders in the G
matter with immediate effect.

It was further decided that since extended period of probation
of Mr. C.G. Sharma is over on 28.6.1994 (A.0.H.), it will stand
extended till Government issue orders terminating his probation."
H
94 SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.

A Thus, it is seen that the respondent is not industrious, less diligent,
below average and inadequate disposals and that the conduct was suspicious
and complete aloofness is lacking and no clarity of thought and expression,
poor in civil work and fair in criminal work and average in diligence. In
our opinion; such an officer should not be allowed to continue in service
B in public interest and in the interest of the judicial administration.

In our opinion, the Division Bench was not justified in permitting the
respondent herein to agitate the question of standard of assessment of
satisfactory performance of the work done by him in comparison to his other
colleagues when this point was not argued before the learned single Judge
c or even raised in the memorandum of the Letters Patent appeal. The learned
single Judge has expressly indicated in his judgment that no other points
were urged save and except about the interpretation of the relevant Rule.
The Division Bench was, therefore, not right in law in permitting the
respondent on second thought to address the Court on merits about the
D standard of assessment of his performance. Even in the memorandum of the
Letters Patent appeal, the point that the High Court had not applied the
correct standard of assessment of the performance was not raised. The
reasoning assigned by the Division Bench is, therefore, not justified.

In our opinion, the judicial review is not an appeal from a decision but
E a review of the manner in which the decision is made. It is meant to ensure
that the delinquent receives fair treatment and not to ensure that the conclusion
which the authority reaches is necessarily correct in the view of the Court
or the Tribunal. When the conclusion reached by the authority is based on
the evidence, the Tribunal is devoid of power to re-appreciate the evidence
F and would come to its own conclusion on proving of the charge. The perusal
of the entire record including the record summoned from the Gujarat High
Court would only go to show that the order of termination was passed by
the High Court on administrative side after examining all aspect and his
overall performance which was found "not satisfactory". It is also seen from
G the file that Unit Judge, in-charge ofMahesana District when the respondent
was working as a Civil Judge at Mahesana and Unit Judge of Vadodara as
also the Chief Justice recommended that the probation of the respondent
should not be extended. The recommendations were considered by the
Standing Committee and also referred to the Full Court. An affidavit was
filed by the Registrar in the High Court on 9 .10.2000 and the High Court
H has not referred to the said affidavit. In the Affidavit, the Registrar emphasized
REGISTRAR, HIGH COURT OF GUJARAT v. C.G. SHARMA [AR. LAKSHMANAN, J.)95

that performance and extension on the basis of the work on the overall A
assessment does not indicate any room for confirmation of the probation
period as Judicial Officer. However, the Division Bench picked up one
aspect of the assessment and allowed the appeal. As rightly pointed out by
Mr. L.N. Rao, learned senior counsel appearing for the Registrar of the High
Court of Gujarat & the State of Gujarat that the Division Bench applied the B
concept of equality as envisaged in Articles of the Constitution in negative
manner. In our opinion, Art. 14 cannot be extended to legalise illegal orders
that the others have wrongly got the benefit of the orders. A wrong order
cannot be the foundation for claim of equality. It is also seen from the further
affidavit filed on behalf of the Registrar of the High Court of Gujarat that
on receiving instructions from the advocate-on-record, it was proposed to c
reconsider the matter on administrative side. The matter was placed before
the Standing Committee for further consideration with the office note dated
25.2.2002. On further study of the relevant file of the respondent, the
Standing Committee was of the opinion that the decision of the Full Court
of the High Court, on administrative side, proposing to terminate the services D
of the respondent/probationer by the impugned order dated 22.9.1994 was
taken in the interest of the judicial administration of the State and was bona
fide.

It is also seen from other records that the Standing Committee of the
High court while proposing termination of the respondent, considered not E
only periodical confidential reports received from the District Judge, Mehsana
but also considered his overall performance including the complaints raising
doubts about his integrity. As already stated, the Standing Committee
considered the respondent herein to be "not industrious", "less diligent", "a
dull judge" as also the fact that he was "lacking in complete judicial F
aloofness" and that "his conduct was suspicious". We have already perused
the endorsement made by the Administrative Judge dated l 0.8.1994 as also
the subsequent decision taken in the Standing Committee meeting on
25.8.1994 and of the Full Court on 5.9.1994 which approved the
recommendation of the Standing Committee.
G
Mr. Colin Gonsalves, learned senior counsel appearing for the
respondent, submitted that the termination order is void inasmuch as the
order of termination would be punitive and also amount to a stigmatic order.
He would further submit that questioning the integrity of a Judge is perhaps
the most serious charge against judicial officer and no person can be H
96 SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.

A terminated on such a serious charge without affording the employee a
reasonable opportunity to rebut such serious and stigmatic allegations. It -
was submitted that the respondent was neither given any show cause notice
levelling any charge questioning the integrity nor any opportunity, whatsoever
has been given to such an officer against such a serious allegation. Therefore,
he would submit that the termination order is liable to be struck down on
B
the ground that the action of termination is punitive without following the
principles of natural justice and, therefore, void and also in contravention
of Article 311 (2) of the Constitution of India.

It is true that an honest judicial officer is likely to have adversaries in
C the mofussil Courts and if complaints are entertained on trifling matters
relating to judicial orders, which may have been upheld by the High Court
on the judicial side, no judicial officer would feel protected and it would
be difficult for him to discharge his duties in an honest and independent
manner. It is also true that if judicial officers are under constant threat of
D complaint and enquiry on trailing matter and if High Court encourages
anonymous complaints to hold the field the subordinate judiciary will not
be able to administer justice in an independent and honest manner. It is,
therefore, imperative that the High court should also take steps to protect
its honest officer by ignoring ill-conceived or motivated complaints made
by the unscrupulous lawyers and litigants. It is also true that the judicial
E officers have also to face some times quarrelsome, unscrupulous and
cantankerous litigations but they have to face them boldly without deviating
from the right path and that they are not expected to be overawed by such
litigants or fall to their evil designs. This ratio was laid down in several
judgments of this Court.
F
But the facts and circumstances in the case on hand is entirely different
and the administrative side of the High Court and the Full court were right
in taki~g tile 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
G the respondent is not entitled to continue as a Judicial officer. The order of
termination is termination simplicitor 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 High Court that
H the services of the respondent during the period of probation of the respondent
REGISTRAR, HIGH COURT OF GUJARAT v. C.G. SHARMA [AR. LAKSHMANAN, J.]97

be terminated because of his unsuitability for the post. In this view of the A
matter, order of termination simplicitor cannot be said to be violative of
Arts. 14, 16 and 311 of the Constitution of India. The law on the point is
crystalised that the probationer remains 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 B
provision for automatic or deemed confirmation and/or deemed appointment
on regular 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.

This Court, in the judgment in the case of Wasim Beg v. State of U.P. C
& Ors. (supra), while considering the confirmation and its scope held as
under:

"Whether an employee at the end of the probationary period
automatically gets confirmation in the post or whether an order of D
confirmation or any specific act on the part of the employer
confirming the employee is necessary, will depend upon the
provisions in the relevant Service Rules relating to probation and
confirmation. There are broadly two sets of authorities of this Court
dealing with this question. In those cases, where the Rules provide
for a maximum period of probation beyond which probation cannot E
be extended, this court has held that at the end of the maximum
probationary period there will be a deemed confirmation of the
employee unless Rules provide to the contrary. This is the line of
cases starting with State of Punjab v. Dharam Singh, AIR (1968)
SC 1210, N.K. Agarwal v. Gurgaon Gramin Bank, [1987] Supp F
SCC 643, Om Parkash Maurya v. U.P. Cooperative Sugar Factories
Federation, [1986] Supp SCC 95 and State a/Gujarat v. Akhilesh
C. Bhargav, [1987] 4 SCC 482."

This Court in the case of H.F. Sangati v. Registrar General, High
Court of Karnataka & Ors. etc. (supra), held as under: G

"It is well settled by a series of decisions of this court including
the Constitution Bench decision in Parshotam Lal Dhingra v.
Union of India, [1958] SCR 828 and seven Judge Bench decision
in Samsher Singh v. State of Punjab, [1974] 2 SCC 831 that H
98 SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A services of an appointee to a permanent post on probation can be
terminated or dispensed with during or at the end of the period of
probation because the appointee does not acquire any right to hold
to continue to hold such a post during the period of probation. In
Samsher Singh case, it was observed that the period of probation
B is intended to assess the work of the probationer whether it is
satisfactory and whether the appointee is suitable for the post; the
competent authority may come to the conclusion that the probationer
is unsuitable for the job and hence must be discharged on account
of inadequacy for the job or for any temperamental or other similar
grounds not involving moral turpitude. No punishment is involved
c in such a situation. Recently, in Dipti Parkash Banerjee v. Satyendra
Nath Bose National Centre for Basic Sciences (supra) having
reviewed the entire available case law on the issue, this Court has
held that termination of a probationer's services, if motivated by
certain allegations tantamounting to misconduct but not forming
D foundation of a simple order of termination cannot be termed
punitive and hence, would be valid. In Satya Narayan Athya v.
High Court ofM.P., (1996] 1 SCC 560, the petitioner appointed on
probation as a Civil Judge and not confirmed was discharged from
service in view of the non satisfactory nature of his service. This
Court held that the High Court was justified in discharging the
E petitioner from service during the period of probation and it was
not necessary that there should have been a charge and an inquiry
on his conduct since the petitioner was only on probation and it was
opened to the High Court to consider whether he was suitable for.
confinnation or should be discharged from service.
F
In the case of State of UP. & Anr. v. Bihari Lal, (1994] Supp 3 SCC
593, the employee was found to be of bad category compulsorily retired for
not showing improvement despite adverse remarks for several years. The
High Court set aside the compulsory retirement and the employee was
G reinstated on the same day. Apepal filed by the State was allowed. In
paragraph 4 of this judgment, this Court held as under:

" ...... .It is now settled law that the entire service record should
be considered before taking a decision to compulsorily retire of
government servant exercising the power under Rule 56(j) of the
H fundamental rules. It is not necessary that adverse remarks should
REGISTRAR, HIGH COURT OF GUJARAT v. C.G. SHARMA [AR. LAKSHMANAN, J.]99

be communicated or every remark, which may sometimes be A
categorized as adverse, be communicated. It is on an overall
assessment of the record, the authority would reach a decision
whether tl:e Government servant should be compulsorily retired in
public interest. In an appropriate case, there may not be tangible
material but the reputation of officer built around him could be such B
that his further continuance would imperil the efficiency of the
public service and would breed indiscipline among other public
servants. Therefore, the Government could legitimately exercise
their power to compulsorily retire a Government servant. The Court
has to see whether before the exercise of the power, the authority
has taken into consideration the overall record even including some C
of the adverse remarks, though for technical reasons might be
expunged on appeal or revision. What is needed to be looked into
is the bona fide decision taken in the public interest to augment
efficiency in the public service. In the absence of any ma/a fide
exercise of power or arbitrary exercise of power, a possible different D
conclusion would not be a ground for interference by the Court/
tribunal in exercise of its judicial review ..... "

In our opinion, what is to be considered in such matters is the examination
of overall entries of the officer concerned and not the entry here and there.
It may well be in some cases that in spite of satisfactory performance still E
the authority may desire to not to extend the Probation of an employee in
public interest, as in the opinion of the said authority, the post has to be
manned by more efficient and dynamic person. There is no denying of the
fact that in all organizations there is great deal of dead-wood and, more so
in Government and Judicial departments, which has to be replaced in public F
interest. Therefore, as pointed out by many Courts in India and of this Court
it is purely a matter of subjective satisfaction of the High Court. In such case,
the record so considered would naturally include the entries in the Confidential
Reports/Character Rolls/Vigilance Reports, both favourable and adverse.
There cannot be any justification for interference by this Court in such cases.
G
We have decided the case on hand on the facts and circumstances of
the case with reference to the relevant Rules, original records such as
Confidential Reports, Vigilance Reports and other annexures filed along
with the writ petitions. A number of judgments were cited by the counsel
on either side. We are not inclined to refer to all those judgment and make H
100 SUPREME COURT REPORTS {2004] SUPP. 6 S.C.R.

A this judgment a voluminous one as according to us the judgments cited by
I-
both the parties are distinguishable on facts and on law.

In the result, Civil Appeal No. 4019 of 2002 filed by the Registrar of
the High Court of Gujarat and the State of Gujarat is allowed and Civil
B appeal No. 575 of2003 filed by Mr. C.G. Sharma stands dismissed. However,
there will be no order as to costs.

K.K.T. Appeal allowed.