Bombay High Court
Smt. S. B. Khandelwal vs The State Of Maharahstra on 15 November, 2010
Author: B. H. Marlapalle
Bench: B.H. Marlapalle, U. D. Salvi
1
wp-2511-09
pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2511 OF 2009
Smt. S. B. Khandelwal,
Age 36 yeaqrs, Occ. Lawyer, R/o.Flat No.8,
3rd floor, New Building, Idrayani,
Bara Bunglow, Kopri Colony,
Thane East-400 603. .. Petitioner
Vs.
1. The State of Maharahstra
through the Principal Secretary
Law and Judiciary Department,
Mantralaya, Mumbai-400 032.
2.The Registrar General, High Court
of Judicature at Bombay, Mumbai-32. .. Respondents
Mr. M. P. Vashi i/by M.P. Vashi and Associate for petitioner.
Mr. Samir Patil, AGP for respondent No.1.
Mr. V. R. Dhond for respondent No.2.
CORAM: B. H. MARLAPALLE &
U. D. SALVI, JJ.
RESERVED ON: OCTOBER 18, 2010.
PRONOUNCED ON: NOVEMBER 15, 2010
JUDGMENT (PER B. H. MARLAPALLE, J.)
1. Heard Mr. Vashi the learned counsel for the petitioner.
2. Rule.
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3. Respondents waives service. The petition is heard finally.
4. The petitioner came to be selected and appointed to the post of Civil Judge, J.D. and Judicial Magistrate First Class with effect from 12/9/2004 and her appointment was on probation for a period of two years, which could be extended. Initially, she was posted at Pune as 21st Joint Civil Judge, J.D., and JMFC and in the general round of transfers, she came to be transferred as 7th Joint Civil Judge, J.D. and JMFC at Thane in May, 2008. In the meanwhile, her probation period came to be extended for one year upto 11/9/2007. Finally, by an order dated 21/10/2008, she was, on the recommendations of the High Court on its administrative side, dis-continued from service by giving her one month's salary in lieu of notice, by the State Government. This order dated 21/10/2008 is the subject matter of challenge in this petition filed under Article 226 of the Constitution.
5. It is submitted by the petitioner that as per the remarks communicated to her, the disposal given by her till April, 2007 was noted to be "noteworthy". There was no complaint against her doubting her integrity or character and even in the extended period of probation, she has given satisfactory disposal. As per her say, there was no case made out to ::: Downloaded on - 09/06/2013 16:36:52 ::: 3 wp-2511-09 invoke the powers under Rule 4(iv)(b) of the Bombay Judicial Service Recruitment Rules, 1956 (for short the Bombay Rules) so as to issue the impugned order of termination. It is further submitted that she was not given a personal hearing before the impugned order was issued. In any case, there is no provision to extend the period of probation beyond two years as per the Maharashtra Judicial Service Rules, 2008 (for short the Maharashtra Rules), which were brought into force before the impugned termination order was issued. It is also pointed out that till the impugned order was issued, there was no order extending her period of probation beyond 11/9/2007 and the same has been done for the first time by the impugned order only. The petitioner also claimed that no adverse remarks were ever intimated to her so as to give her an opportunity to furnish her explanation.
6. The petitioner has placed on record the letters dated 26/9/2006, 2/12/2006, 5/3/2007, 21/4/2007, 23/7/2007 and 18/12/2007 she received under the signature of the District Judge and in all these letters she was informed that her disposal was rated as "noteworthy". She has amended the petition and stated that the impugned order is punitive, is based on adverse confidential reports, which were not made available to her even when the ::: Downloaded on - 09/06/2013 16:36:52 ::: 4 wp-2511-09 petition was filed on 9/1/2009. Some incident had taken place, which resulted in the adverse remarks made by the then Principal District Judge and arising from a complaint filed under Section 138 of the Negotiable Instruments Act. The petitioner had dismissed the complaint on 21/3/2006 for default and the Advocate for the complainant had lodged a complaint with the High Court. Her explanation was not called for, but as per her, the said complaint was the foundation of her ratings being brought down to "average" or "below average" by the Principal District Judge. It has also been claimed that when the impugned termination order was issued, the Maharashtra Judicial Service Rules, 2008 were in force and the impugned termination order is based on the Bombay Rules which were, in fact, repealed. The learned counsel for the petitioner has also submitted that on completion of four years of service, the petitioner ought to have been treated as deemed confirmed and the impugned order amounted to a punitive action which was required to be taken only after the petitioner was issued a charge-sheet/show cause notice and given an opportunity to defend herself, as per the Maharashtra Civil Services (Discipline & Appeal) Rules 1979. He, therefore, urged that the petitioner ought to be treated as a confirmed judicial officer and if there is anything adverse against her, she is willing to face the disciplinary enquiry in conformity with the ::: Downloaded on - 09/06/2013 16:36:52 ::: 5 wp-2511-09 Maharashtra Service (Discipline and Appeal) Rules. In support of these contentions, he has relied upon the following decisions:-
(a) Dev Dutt vs. Union of India and ors. [2008 (3) L.L.N. 621]
(b)Khazia Mohammed Muzammil vs. State of Karnataka and anr. [2010(5) ALL MR 426]
7. In the affidavit-in-reply filed by the Joint Secretary, Law and Judiciary Department, Government of Maharashtra, it has been stated that under Article 235 of the Constitution of India, the power to transfer, maintain discipline and keep control over the subordinate judiciary rests with the High Court after the Governor has appointed these judicial officers and the Government does not interfere in these powers of supervision and control over the subordinate courts. It has been further stated that the High Court had given due consideration to the provisions contained in Rule 4(iv)
(b) of the Bombay Rules and under the said Rule, it is deemed that the probation period was extended upto the date of service of the termination order, in the instant case. The affidavit further states that the High Court on its administrative side appears to have considered the entire service record and other relevant factors in public interest before forwarding its ::: Downloaded on - 09/06/2013 16:36:52 ::: 6 wp-2511-09 recommendation to discontinue the petitioner as a judicial officer.
8. On behalf of the High Court administration, affidavit-in-reply came to be filed by the Registrar (Legal) on or about 18/2/2009 and an additional affidavit by the Registrar (Legal and Research) was filed on or about 8/10/2010. It has been denied that the impugned order is illegal, unjust, arbitrary and against the principles of natural justice. It has been reiterated that the work of the petitioner as a judicial officer was good from the quantitative point of view but it was not satisfactory from the qualitative point of view. The petitioner, after her probation period was extended by the order dated 29/6/2007, did not improve her performance and also her language and knowledge of law. Consequently, her confirmation was held up and the subject matter was placed before the administrative judges' committee which also endorsed that the petitioner's work was not satisfactory and, therefore, had decided to extend the period of probation. The administrative judges' committee at the end of four years' tenure of the petitioner, recorded its opinion that she was unfit to be retained in service, having regard to her record of service and the assessment made by the Principal District Judge as well as the Guardian Judge and, therefore, recommended to the State Government accordingly.
::: Downloaded on - 09/06/2013 16:36:52 ::: 7wp-2511-09 It was not a punitive order and unless a certificate regarding the satisfactory completion of probationary period is issued, no judicial officer can claim to have attained a status of deemed confirmed officer in judicial service, even though in the instant case there was no fresh order of extension of probationary period beyond 11/9/2007. It is also stated that though the petitioner completed four years, one month and 22 days service before the impugned order was issued on 21/10/2008, she could not claim to have attained the status of deemed confirmed judicial officer even under the Maharashtra Rules. It has been further pointed out that when the petitioner was appointed, the Bombay Rules were applicable, but when the impugned order was issued, the Maharashtra Rules were applicable and these Rules were brought into force from August, 2008. However, the discontinuation of the petitioner as a judicial officer under the impugned order ought to be covered under the Bombay Rules. It is also submitted that under the Maharashtra Rules, the maximum period of probation is provided for four years and prior to six months before the end of probation period/extended probation period, the appointing authority shall consider the suitability of the person concerned and if found suitable, issue an order declaring him or her to have satisfactorily completed the said period.
However, these Rules specifically provide that absence of such an order ::: Downloaded on - 09/06/2013 16:36:52 ::: 8 wp-2511-09 does not lead to the conclusion that the judicial officer shall be deemed to have completed the period of probation satisfactorily. In the instant case, the extended period of probation ended on 11/9/2008 and even if the Maharashtra Rules apply, the issue of her confirmation was to be decided six months prior to 11/9/2008 and at that time (in March, 2008) the Maharashtra Rules were not in force and, therefore, the Bombay Rules were applicable. Unless there was a specific order, declaring the petitioner to have completed the period of probation satisfactorily, even under the Maharashtra Rules, she cannot claim to be a deemed confirmed judicial officer even after completion of a maximum of four years of the period of probation. Hence, the impugned order does not amount to a punitive order and it is a case of discontinuation of service of a judicial officer on probation for which there is no requirement to issue a show cause notice and to hear the petitioner so as to comply with the principles of natural justice.
9. The learned counsel for the High Court has relied upon the following observations made by a three Judge Bench of the Supreme Court in the case of Dhanjibhai Ramjibhai vs. State of Gujarat [AIR 1985 SC 603]:
::: Downloaded on - 09/06/2013 16:36:52 ::: 9wp-2511-09 "8. It is then submitted that the appellant enjoyed a legitimate expectation of being confirmed on the expiry of two years of probation and on successfully completing the qualifying tests and training undergone by him. We are not impressed by that contention. It was open to the State Government to consider the entire record of service rendered by the appellant and to determine whether he was suitable for confirmation or his services should be terminated. There was no right in the appellant to be confirmed merely because he had completed the period of probation of two years and had passed the requisite tests and completed the prescribed training. The function of confirmation implies the exercise of judgment by the confirming authority on the overall suitability of the employee for permanent absorption in service."
He has also relied upon the judgment of the Supreme Court in the case of Khazia Mohammed Muzammil (Supra) so as to point out that even Rule 13 of the Maharashtra Rules, which has been relied upon by the petitioner to claim deemed confirmation, cannot support her case in view of sub-rule (5) of the very same Rule. The learned counsel further submitted that the scheme of Rules 13, 14 and 15 of the Maharashtra Rules has to be read together and in harmony and if so read, it would be clear that even after the completion of a maximum period of probation of four years, a judicial officer cannot claim deemed confirmation unless he/she has been ::: Downloaded on - 09/06/2013 16:36:52 ::: 10 wp-2511-09 declared to have satisfactorily completed the period of probation.
10. There cannot be any dispute that the Maharashtra Rules were published by the Notification dated 25/8/2008 and the said Notification was gazetted on 27/8/2008. They have been so framed in exercise of the powers conferred by Articles, 233, 234 and the proviso to Article 309 read with Article 235 of the Constitution of India and in supersession of all the existing rules, orders or instruments made in that behalf and they regulate the recruitment to the Maharashtra Judicial Service from 27/8/2008. Rule 22 of the Maharashtra Rules is regarding repeal and savings and it states that on and from the date of commencement of the Maharashtra Rules, the Bombay Rules shall stand repealed provided that such repeal shall not affect the previous operation of the Rules so repealed, anything done or any action taken shall, in so far as it is not inconsistent with the provisions of the Maharashtra Rules, may be deemed to have been done or taken under the corresponding provisions of the said Rules and shall continue in force unless and until specifically invalidated under the Maharashtra Rules. The appointment of the petitioner was made under the Bombay Rules and when the Maharashtra Rules were brought into force, she was in judicial service.
Rule 4(iv) of the Bombay Rules reads as under:-
::: Downloaded on - 09/06/2013 16:36:52 ::: 11wp-2511-09 "4(iv) a - The person appointed by nomination shall be on probation for a period of two years which may be extended by the High Court from time to time, as it may deem fit.
(b) - During the period of probation and untill expressly confirmed by a written order the services of a appointee shall be terminable by one month's notice on either side, without any reason being assigned therefor or by payment of salary for the period notice or the unexpired portion thereof."
Under the said Rule, the person appointed by nomination to the post of Civil Judge, J.D. and JMFC could be on probation for a period of two years which could be extended by the High Court from time to time, as it may deem fit. During the period of probation and unless expressly confirmed by a written order, the services of an appointee shall be terminated by one month's notice on either side and without any reason being assigned therefor or by payment of salary for the period of notice or the unexpired portion thereof. There was no cap placed on the extension of the period of probation and the number of such extensions. At the same time, until expressly confirmed by a written order, the services of an appointee on probation could be terminated by one month's notice on either ::: Downloaded on - 09/06/2013 16:36:52 ::: 12 wp-2511-09 side and without assigning any reason. As against this Rule, the scheme of Rules 13, 14 and 15 of the Maharashtra Rules which scheme, in fact, is based on the First National Judicial Pay Commission Report (for short Shetty Commission Report) recommendations is slightly different.
11. Chapter IV of the Maharashtra Rules deals with probation and officiation and Rules 13 to 16 are under the said Chapter. For the present considerations, Rules 13 to 15 are relevant and hence they are being reproduced as under:-
"13. Probation and Officiation.- (1) All appointments to the service by nomination shall be on probation for a period of two years.
(2) All appointments by promotion shall be on officiating basis for a period of two years.
(3) The period of probation or officiation, as the case may be, for reasons to be recorded in writing, may be extended by the Appointing Authority by such period not exceeding two years.
(4) Six months before the end of the period or extended period of Probation or Officiation, as the case may be, the Appointing Authority shall consider the suitability of the person so appointed or promoted to hold the post to which he was appointed or promoted; and ::: Downloaded on - 09/06/2013 16:36:52 ::: 13 wp-2511-09
(i) if found suitable, issue an Order declaring him to have satisfactorily completed the period of Probation or officiation, as the case may be and such an Order shall have effect from the date of expiry of the period of Probation or Officiation, including extended period, if any, as the case may be;
(ii) if the Appointing Authority finds that the person is not suitable to hold the post to which he was appointed or promoted, as the case may be, it shall by Order -
(a) if he is promotee, revert him to the post which he held prior to his promotion;
(b) if he is a probationer, discharge him from service.
(5) No person shall be deemed to have satisfactorily completed the period of Probation or Officiation, as the case may be, unless so declared by a specific Order to that effect.
14. Discharge of a Probationer during the period of Probation.- Notwithstanding anything contained in rule 13, the Appointing Authority may, at any time during the period of probation, discharge from services, a probationer on account of his unsuitability for the service.
15. Confirmation.- A Probationer who has been declared to have satisfactorily completed his probation and a promotee who has been declared to have satisfactorily completed his ::: Downloaded on - 09/06/2013 16:36:52 ::: 14 wp-2511-09 period of Officiation shall be confirmed as a member of the service in the category of post to which he was appointed or promoted, as the case may be, in any substantive vacancy which may exist or arise."
12. Under Rule 13 of the Maharashtra Rules, all appointments to the judicial service by nomination shall be on probation for the period of two years and the said period of probation, for reasons to be recorded in writing, may be extended by the appointing authority by such period, not exceeding two years. Six months before the end of the period or extended period of probation, the appointing authority shall consider the suitability of the person so appointed or promoted to hold the post to which he/she was appointed and if found suitable, issue an order declaring him/her to have satisfactorily completed the period of probation and such an order shall have effect from the date of expiry of the period of probation. If the appointing authority finds that the person is not suitable to hold the post to which he/she was appointed, it shall, by an order, discharge the probationer from service. As per Sub-rule (5) of Rule 13, no person shall be deemed to have satisfactorily completed the period of probation unless so declared by a specific order to that effect. As per Rule 14 of the Maharashtra Rules, ::: Downloaded on - 09/06/2013 16:36:52 ::: 15 wp-2511-09 notwithstanding anything contained in rule 13, the appointing authority may, at any time, during the period of probation, discharge from service the probationer on account of his unsuitability for the service. As per Rule 15, a probationer who has been declared to have satisfactorily completed his probation shall be confirmed as a member of the service in the category of the post to which he was appointed, in any substantive vacancy which may exist or arise. Thus the confirmation of a probationer's service is not automatic and it is imperative that the probationer is declared to have satisfactorily completed his/her probationary period and then only he/she shall be confirmed as the member of the service.
13. In our opinion, when the impugned order was passed, the Maharashtra Rules were applicable and, therefore, the challenge to the said order has to be tested on the basis of Rules 13 to 15 of the said Rules.
Though there is a cap of extension of probationary period by maximum two years under Rule 13(3), Sub-rule (5) of Rule 13 as well as Rule 15 of the said Rules make it very clear that on completion of the extended period of probation and for a maximum period of two years, the judicial officer appointed on probation cannot claim to have been deemed confirmed or satisfactorily completed the period of probation because such a claim is not ::: Downloaded on - 09/06/2013 16:36:52 ::: 16 wp-2511-09 automatic and he/she must be, by a specific order, declared to have completed the probationary period satisfactorily. Confirmation as a member of service of a probationer is also not automatic on completion of the original period of two years or extended period of two years and he/she is required to be declared to have completed his/her probationary period satisfactorily and thereafter only the confirmation follows. This interpretation is in keeping with the law laid down by the Supreme Court in the case of Khazia Mohammed Muzammil (Supra). We also find support to this interpretation from to the Shetty Commission recommendations which have been accepted by the Supreme Court in the case of All India Judges Association and ors. vs. Union of India and ors. [AIR 2002 SC 1752] with some modifications. Chapter III of the Shetty Commission recommendations deals with the recruitment of the judicial officers, whereas Chapter IV of the said Report deals with the probation and officiation. As per Rule 12 (1) of the said Chapter, all appointments to the service by direct recruitment shall be on probation for a period of two years and under Rule 12(3), the period of probation, for the reasons to be recorded in writing, may be extended by the appointing authority by such period not exceeding the period of probation specified in Sub-rule (1). Rule 12(4) of the said Chapter states that at the end of the period of probation or ::: Downloaded on - 09/06/2013 16:36:52 ::: 17 wp-2511-09 the extended period of probation, the appointing authority shall consider the suitability of the person so appointed to hold the post to which he/she was appointed and if it decides that he/she is suitable to hold the post, it shall as soon as possible, issue an order declaring him/her to have satisfactorily completed the period of probation and such an order shall have effect from the date of expiry of the period of probation, including extended period, as the case may be. If the appointing authority considers that the person is not suitable to hold the post to which he/she was appointed, by an order discharge the probationer from service. As per Rule 12(5) of Chapter IV a person shall not be considered to have satisfactorily completed the period of probation unless a specific order to that effect is passed. Any delay in passing such an order shall not entitle the person to be deemed to have satisfactorily completed the period of probation (emphasis supplied). It is thus clear that the Shetty Commission report makes it abundantly clear that any delay in passing the order of satisfactorily completion of probationary period shall not entitle such an appointee to be deemed to have satisfactorily completed the period of probation. Thus any delay on account of administrative/procedural actions to issue a certificate of satisfactorily completion of probationary period does not entitle a judicial officer appointed by nomination to claim deemed confirmation or ::: Downloaded on - 09/06/2013 16:36:52 ::: 18 wp-2511-09 to have satisfactorily completed the probationary period. The Maharashtra Rules have to be read in harmony with the Shetty Commission recommendations and if so read, it is clear that in the instant case the petitioner cannot claim to have attained the status of deemed confirmation or that she was deemed to have completed the probationary period before the impugned order was issued and only because she had completed four years of probation before the impugned order was issued.
14. The arguments advanced by Mr. Vashi that the impugned order amounted to a punitive order and that the petitioner was deemed to have been confirmed in service on completion of four years i.e. on or about 11/9/2008 cannot be accepted. The scheme of the Maharashtra Rules read with the Shetty Commission recommendations does not permit such an interpretation or a vesting right of deemed confirmation or deemed completion of probationary period successfully. The administrative delay caused in issuing the order of completion of probation period, does not entitle the judicial officer for deemed confirmation. Rule 15 of the Shetty Commission recommendations is safeguard to ensure that on account of administrative delays, a judicial officer, otherwise unfit to be retained in service, does not get the benefit of deemed confirmation. An officer unfit ::: Downloaded on - 09/06/2013 16:36:52 ::: 19 wp-2511-09 for being confirmed, cannot be allowed to claim deemed confirmation.
15. Now coming to the issue of the petitioner's service record, it is noticed that she has relied upon the letters issued by the District Judge from time to time and there is no doubt that these letters dated 26/9/2006, 2/12/2006, 5/3/2007, 21/4/2007, 23/7/2007 and 18/12/2007 did state that her disposal was noted to be "noteworthy". Even for the four monthly period ended with April, 2008, her disposal was treated as "noteworthy", as is clear from the communication dated 28/12/2008 addressed to the Principal District and Sessions Judge, Pune by the Registrar (Inspection
-II). Merely because her disposal was rated to be "noteworthy", it does not mean that her performance was such that she ought to have been issued a certificate of satisfactory completion of the probationary period.
16. The Principal District Judge, Pune, recorded the remarks about the conduct and performance of the petitioner and also in respect of the judgments delivered by her. In the A.C.Rs., the following shortcomings were recorded:-
(a) The judgments suffered from ambiguity as well as grammatical and spelling mistakes.::: Downloaded on - 09/06/2013 16:36:52 ::: 20
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(b) The Judicial officer could not grasp correctly the real points of disputes and marshal properly.
(c) The citations were not properly quoted and appropriate references were not made to the legal provisions.
(d) The judgments contained avoidable reproduction/repetition of every eye witness.
For all these reasons the Principal District Judge had recommended for extension of the petitioner's probation period.
On 15th March, 2008 the successor Principal District Judge, Pune assessed the petitioner's performance and conduct and he made the following assessment, on scrutiny of the petitioner's judgments/orders in her A.C.Rs:-
(a) Her judgments suffered grammatical and spelling mistakes.
(b) There was lack of clarity, expression and coherence and she appeared to be confused.
(c) She clubbed together distinct topics/issues which led her to confusion.
(d) Sometimes admitted facts were repeated.
(e) She needed improvements in marshaling evidence on each point of dispute.::: Downloaded on - 09/06/2013 16:36:52 ::: 21
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(f) Citations were simply quoted and she needed more improvements to make her orders precise and formulated in legal language.
(g) Operative orders should have been more clear.
The Principal District Judge also noted the complaint received against the petitioner and that she was cautioned to be careful in future while discharging judicial work vide the High Court's confidential letter No.SID/WM/333/2005/196/07 dated 20th September, 2007. The Principal District Judge also referred to the second complaint against the petitioner and reference to High Court Confidential letter No.A(Spl)/3214/2007/1437/2007 dated 17th September, 2007. It ws pointed out that there are one and half years delay in delivering the judgment in Regular Civil Suit No.1394 of 2002. The petitioner was advised to follow the procedure mentioned in Order XX Rule 1 of the C.P.C.
17. In her ACR for the period from 1/4/2006 to 31/3/2007, the petitioner was assessed as "average" by the Principal District Judge, Pune.
The Administrative Judge reviewed the said ACR on the basis of the judgments/orders passed by the petitioner and while rating the petitioner as "below average", noted that he did not agree with the overall rating of "average" made by the Principal District Judge. In the subsequent ACR i.e. ::: Downloaded on - 09/06/2013 16:36:52 ::: 22 wp-2511-09 from 1/4/2007 to 31/3/2008 in the special remarks column the successor Principal District Judge recorded thus, "(1) She was warned by H.C.vide SID/WM/333/05/196/07 Dt.
20/9/07, (2) See H.C. Letter No.3215/2007/1437/2007 dtd.
17/9/07. - There are complaints of not giving judgments in time."
The Guardian Judge while reviewing the general assessment made by the Principal District Judge of the petitioner's performance from 1/4/2007 to 31/3/2008 noted that the knowledge of judgment was mediocre, she was using short and abrupt sentence and was found to be deficient in application of law, including case law. The Guardian Judge, therefore, rated the petitioner as "average". The Administrative Judges' Committee in its meeting held on 23/9/2008 considered the record of service of the petitioner and more particularly during the extended period of probation and noted that her work was unsatisfactory. The Committee, therefore, decided not to extend the period of probation and dispense with the service of the petitioner. The said recommendations were communicated to the Government of Maharashtra and the impugned order followed.
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18. Having regard to the assessment of the petitioner's performance during the extended period of probation by the Principal District Judges and the Guardian/Administrative Judges, we have no doubt that the Administrative Judges' Committee considered the entire record placed before it and applied its mind to the assessment so made while recording that the petitioner's performance was not satisfactory. In view of Rule 13 (3) of the Maharashtra Rules there was no scope for further extension of the probation period beyond two years and the only choice left for the Committee was to recommend to dispense with the petitioner's service as a Judicial Officer. Merely because her disposal record was found to be noteworthy, it cannot be said that her performance was satisfactory and she deserves to be confirmed in service. The quality of her orders/judgments decided her performance and not the rate of disposal alone. Her capacity to render quality judgments was found to be poor and she failed to improve in grasping the legal acumen, so imperative, for being confirmed as a judicial officer. She was provided sufficient opportunity but could not improve the quality of her judicial record. If such officers are confirmed in service, adjudication of disputes/legal rights in conformity with the facts and law would be a casualty. Satisfactory ::: Downloaded on - 09/06/2013 16:36:52 ::: 24 wp-2511-09 disposals may be one of the factors to decide the performance, but the quality of this disposal is an essential parameter to decide the performance for being retained as a judge. Even otherwise there has been no inordinate delay in deciding the petitioner's case having regard to the fact that the Administrative Judges' Committee met on 23rd September, 2008 and the delay of few months beyond four years, to decide her case on assessment of her performance does not amount to an inordinate delay and, therefore, there is no room to suggest or even doubt that Rule 15 of the Maharashtra Rules has been misused for keeping the sword of uncertainty hanging. The conclusions arrived at by the Administrative Judges Committee that the petitioner's performance was not satisfactory is consistent with the assessment made by the Principal District Judges and the Guardian Judges for both the years of extension of probation. The record thus reveals that her service has been dispensed with for the sole reason of her incompetence and an incompetent officer would be a liability to the judicial system. Incompetent judicial officers and judicial officers with doubtful integrity would be a serious threat to the justice delivery system and it is, therefore, imperative to weed out such an officer at the earliest possible.
The petitioner was granted two additional years to improve her performance, but she failed to utilize the said opportunity. During the ::: Downloaded on - 09/06/2013 16:36:52 ::: 25 wp-2511-09 extended period of probation, her performance has been assessed by two different Principal District Judges and two different Guardian Judges and, therefore, her grievance of bias against one of the Principal District Judges does not find support from the record and the allegations made by the petitioner in that regard are baseless and imaginary.
19. We must also note that the issues raised in this petition are no more res integra in view of the judgment in the case of Satya Narayan Athya v. High Court of M.P., 1996 (1) S.C.C.560, in which a judicial officer was not given any confirmation letter even after the completion of his two more years of probation. In paragraphs 3 and 5 of the said judgment the Supreme Court observed:-
"3.......A reading thereof would clearly indicate that every candidate appointed to the cadre shall undergo training initially for a period of six months before he is appointed on probation for a period of two years. On his completion of two years of probation, it may be open to the High Court either to confirm or extend the probation. AT the end of the probation period, if he is not confirmed on being found unfit, it may be extended for a further period not exceeding two years. It is seen that though there is no order of extension, it must be ::: Downloaded on - 09/06/2013 16:36:52 ::: 26 wp-2511-09 deemed that he was continued on probation for an extended period of two years. On completion of two years, he must not be deemed to be confirmed automatically. There is no order of confirmation. Until the order is passed, he must be deemed to continue on probation."
5. Under these circumstances, the High Court was justified in discharging the petitioner from service during the period of his probation. It is not necessary that there should be a charge and an enquiry on his conduct since the petitioner is only on probation and during the period of probation, it would be open to the High Court to consider whether he is suitable for confirmation or should be discharged from service."
20. More recently in the case of Rajesh Kohli v. High Court of J. & K. & Anr., JT 2010 (10) SC 276 discontinuation of a judicial officer on completion of four years of probationary period fell for consideration and discontinuation order was challenged on similar grounds as in the instant case i.e. unsatisfactory performance. The Supreme Court observed:-
"23. In the present case, the order of termination is a fall out of his unsatisfactory service adjudged on the basis of his overall ::: Downloaded on - 09/06/2013 16:36:52 ::: 27 wp-2511-09 performance and the manner in which he conducted himself. Such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought to be submitted by the petitioner. On the basis of the aforesaid resolution, the matter was referred to the State Government for issuing necessary orders.
25.......The mere granting of yearly increments would not in any manner indicate that after completion of the probation period the full court of the High Court was not competent to scrutinize his records and on the basis thereof take a decision as to whether or not his service should be confirmed or dispensed with or whether his probation period should be extended. The High Court has a solemn duty to consider and appreciate the service of a judicial officer before confirming him in service. The district judiciary is the bedrock of our judicial system and is positioned at the primary level of entry to the doors of justice. In providing the opportunity of access to justice to the people of the country, the judicial officers who are entrusted with the task of adjudication must officiate in a manner that is becoming of their position and responsibility towards society."::: Downloaded on - 09/06/2013 16:36:52 ::: 28
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21. Thus viewed from any angle, the challenge to the impugned order dated 21st August 2008 must fail on all counts and hence the petition is hereby dismissed.
Rule discharged, but with no order as to costs.
(U. D. SALVI,J.) (B. H. MARLAPALLE, J.)
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