Bombay High Court
Ajay Ramesh Dinode vs The State Of Maharashtra Thru The ... on 30 January, 2020
Equivalent citations: AIRONLINE 2020 BOM 74, 2020 (2) ABR 294, AIRONLINE 2020 BOM 2247
Author: N. B. Suryawanshi
Bench: S. S. Shinde, N.B. Suryawanshi
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vks
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13484 OF 2018
Ajay Ramesh Dinode ]
age 44 years, ]
Occupation : practicing advocate ] Petitioner.
r/o Shiv Priya Wankhede Lay out, ]
Near Dr. Laddhad Hospital, Buldhana ]
Taluka & District : Buldhana ]
V/s.
1] The State of Maharashtra, ]
Through the Principal Secretary ]
and Legal Remembrance, ]
Law and Judicial Department, ]
Mantralaya, Mumbai 400 032. ]
]
2] The Registrar General ]
High Court, Bombay ]
Appellate Side, ]
Bombay 400 032 ] Respondents
]
3] Mr. Sandeep Karnik ]
Ex-DCP, EOW, Mumbai ]
Presently posted at ]
Additional Commissioner of Police ]
Crime Branch, Mumbai ]
• Mr. A.V. Anturkar, Senior Advocate i/by Mr.
Avinash B. Avhad, for the petitioner.
• Mr. Milind Sathe, Senior Advocate a/w Mr.
Sanjay Udeshi a/w Mr. N.N. Gawade i/by M/s
Sanjay Udeshi & Co., for respondent No.2.
• Mr. A.I. Patel and R.P. Kadam, AGP for respondent No.1.
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CORAM : S. S. SHINDE &
N.B. SURYAWANSHI, JJ.
JUDGMENT RESERVED ON : 17th OCTOBER, 2019
JUDGMENT PRONOUNCED ON : 30th JANUARY, 2020
JUDGMENT [ Per: N. B. Suryawanshi, J.]
1] Rule, rule made returnable forthwith with the consent of the
parties and the petition is taken up for fnal hearing at the admission
stage.
2] By this petition under Articles 14, 16, 21 309, 311(2) and 226
of the Constitution of India, the petitioner questions the legality and
propriety of order of discharge from service, issued by the State
Government on 23rd June, 2017, under the provisions of Rule 13(4)
(ii)(b) and Rule 14 of the Maharashtra Judicial Services Rules 2008
(for brevity referred to as, "the MJS Rules"), which according to the
petitioner is creating disqualifcation from future employment as per
Rule 7(b) of the MJS Rules.
3] The Brief facts which are necessary for the decision of this
petition, are as follows :-
The Maharashtra Public Service Commission published an
advertisement inviting applications for the post of "District of Judge",
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by nomination in the month of November, 2013. The petitioner was
successful in the selection process and was appointed as District
Judge, vide order dated 26th August, 2014. The petitioner was posted
as Additional District and Sessions Judge III, Akola on 14.9.2014 on
which date the petitioner joined service and took charge at Uttan,
District Thane. The petitioner was transferred from time to time and
on 27.11.2019, the petitioner was transferred to City Civil Court,
Mumbai. The Annual Confdential Report of the petitioner for the
period 24.11.2014 to 31.3.2015 is good (B).
4] The petitioner was thereafter conferred with the powers of
Additional Sessions Judge, in the month of December, 2015. In July
2016, the petitioner was nominated by the High Court, as Special
Judge for speedy and expeditious trial for the matters relating to
National Spot Exchange Ltd., ("NSEL" for short) Scam. Thereafter
the petitioner was also assigned the work as Special Judge under the
Prevention of Money Laundering Act for NSEL. While the petitioner
was honestly and diligently discharging his duties, the petitioner was
discharged vide order dated 22.06.2017. Hence this petition.
5] Learned Senior Counsel appearing on behalf of the petitioner, in
support of the case of petitioner urged the following points:-
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i. The impugned order is not passed in conformity with the
MJS Rules.
ii. The MJS Rules specifcally refer to the distinction between
"appointing authority and "recruiting authority". As per
the said distinction, for the petitioner, the High Court is not
the appointing authority under the provisions of Rules 13
and 14 of the MJS Rules, the order is required to be passed
by the appointing authority and not by the recruiting
authority.
iii. The appointing authority i.e. the State Government has
mechanically and almost like post offce manner, simply
followed the recommendations of the High Court. A more
meaningful role is expected to be played by the executive as
appointing authority under the MJS Rules.
iv. The appointing authority has more resources to fnd out,
the "suitability" or otherwise of the Judicial offcer.
v. Rule 13(4) (a) requires fnding. If the fnding is to be
recorded, then an enquiry is expected to be conducted,
which may be minimal, but (to the same), it has to be there.
vi. The suitability of the candidate is not properly assessed.
Rule 20 of the MJS Rule is in the nature of residuary
provision. The MJS Rules are silent in respect of
assumption of suitability of the probationer whether to
discharge him or to confrm. Therefore, according to him
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IAS (Probationary) Rules and more particularly Rule 12
and instructions contained in the directions (I) (iv) would
be attracted. The decision making process shows a total
non application of mind on the part of High Court as well as
by the Government.
vii. According to the petitioner, IAS Rules requires summary
enquiry, opportunity of being heard and timely
communication of adverse remarks to the petitioner
enables him to improve. All these aspects were grossly
violated in the decision making process.
viii. In the affdavit fled by the High Court a misleading
statement is made which, according to the learned Senior
Counsel, is an attempt to malign the career of petitioner.
The administration has not properly assisted the decision
making authority.
ix. The order of discharge of the petitioner has civil
consequences and the same is not simple order in the
nature of golden shake hand. Since the impugned order has
civil consequences, principles of natural justice ought to
have been followed. At least the opportunity of being heard
ought to have been given to the petitioner.
x. In view of the statements made in the affdavit-in-reply fled
by High Court, the order can be termed as stigmatic, hence
an opportunity of being heard ought to have been given.
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6] Learned Senior Counsel for the petitioner, vehemently assailed
the impugned order by elaborating the propositions enumerated
hereinabove. The main thrust of the argument is that the appointing
authority i.e. the State Government has mechanically followed the
recommendations of the High Court. In fact the appointing authority
ought to have verifed the suitability of the petitioner through their
own resources. Since Rule 13(4) (a) mentions the word, "fnding", in
absence of any enquiry there cannot be any fnding. Hence an
enquiry, howsoever, brief in nature should have been conducted. It is
further urged that since ACRs of the petitioner were good, there was
no reason and/or occasion for his discharge. It is argued that since
certain adverse facts, integrity, morality of the petitioner have been
taken into consideration, as has been disclosed in the affdavit fled by
the High Court, the impugned order is stigmatic and the same cannot
be sustained in absence of any enquiry conducted by the High Court.
He further argued that since the MJS Rule dis-entitle a person who is
discharged during the probation, from competing for the post of
Government Pleader etc, the impugned order ensues civil
consequences and for absence of observance of principles of natural
justice, the order is vitiated.
7] In support of the points argued, the learned Senior Counsel for
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the petitioner relied on the following the citations :-
I. Registrar General, High Court of Gujarat and anr vs. Jayshree
Chamanlal Buddhbhatti1.
II. State bank of India and ors vs lPalak Modi & Anr2
III. High Court of Judicature at Patna vs. Ajay Kumar
Shrivastava & ors3
IV. High Court of Judicature at Patna vs. Ajay Kumar Shrivastava
& ors4
V. Deepti Prakash Banerjee vs. Satendranath Bose National Center
of Basic Sciences Calcutta and ors 5
VI. Madan Mohan Choudharyt vs State of Bihar and ors6
VII. Pradip Kumar vs. Union of India and ors 7
8] In reply to the above, learned Senior Counsel appearing for the
second respondent, would urge that the impugned order is of
simpliciter discharge without casting any stigma/aspersions on the
petitioner, hence there was no necessity to follow the principles of
natural justice. It is further argued that according to the terms of the
appointment order, the appointment of the petitioner was of a
temporary nature and the appointment order stipulates that without
assigning any reason the services of the petitioner can be discharged
1 (2013) 16 SCC 59
2 (2013) 3 SCC 607
3 (2017) 5 SCC 138
4 Civil Appeal (S) 8775 of 2015
5 (1999) 3 SCC 60
6 (1999) 3 SCC 396
7 (2012) 13 SCC 182
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during the probation period.
9] It is further argued that the impugned order is in conformity
with the MJS Rules. In terms of Scheme of Article 233, 234, 235, 236
and 309 of the Constitution of India, High Court has primacy in the
matters of recruitment and appointment on probation, confrmation
on probation, disciplinary proceedings, compulsory retirement and
termination of District Judges. In terms of Rule 13 and 14 of the MJS
Rules, the recommendation of the High Court is binding on the State
Government. The use of the words "fnding and suitability" by no
stretch of imagination can be said to imply holding of an enquiry.
Such interpretation would be contrary to the intention of the rule
making authority.
10] In reply to the argument that IAS Service Rules should be
applied to the facts of the present case, the learned Senior Counsel
would urge that the MJS Rules is a self contained Code, for
appointment of Judicial Offcers in Maharashtra and Chapter IV,
"Probation and Offciation" deals with all the aspects of appointment
on probation and discharge and/or confrmation. There is no lacuna
or ambiguity in these rules and IAS rules have no application in the
present matter. Learned Senior Counsel further resisted the
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argument of the petitioner that the impugned order entails civil
consequences, contending that the order is of simpliciter discharge. In
view of the catena of decisions of the Apex Court, the services of
probationer can be terminated at any time during the probation. For
termination of probationer, minimal opportunity of being heard,
passing a reasoned order demonstrating that the decision making
authority has taken into consideration all relevant things etc. cannot
be expected.
11] In reply to the argument that the impugned order is punitive
and/or stigmatic, the learned Senior Counsel, contended that while
judging the order of discharge, what has to be considered is the
concept, "motive and foundation" and if the factor is only the motive
which stimulates an act, the termination/discharge of probationer
cannot be considered as stigmatic. It is urged that the discharge order
does not refer to any document. Hence the order is of discharge
simpliciter. Therefore, there was no occasion and/or reason to hold
enquiry and to hear the petitioner. In these circumstances learned
Senior Counsel prayed for dismissal of the writ petition.
12] Learned Senior Counsel appearing for the second respondent in
support of his arguments relied upon the following citations :-
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I. State of Bihar vs. Bal Mukund Sah8
II. State Bank of India vs. Palak Modi (supra)
III. H.F.Sangati vs.Registrar General, High Court of
Karnataka9
IV. Abhijit Gupta vs S.N.B. National Centre, Basic Science10
V. Chaitanya Prakash vs. H. Omkarappa11
VI. Girish S.Shukla vs. High Court of Judicature at Mumbai 12
VII. Smita Rajendra Kadu vs. State of Maharashtra13
VIII. Vishnu Dattarao Gite vs The State of Maharashtra
W.P.No.8210 of 2016 dated 14/16.9.2016.]
IX. Girish Chandrakant Gosavi vs. Chief Secretary14
X. Rajeshkumar Shrivastava vs State of Jharkhand15
XI. Rajesh Kohli vs. High Court of Jammu and Kashmir 16
XII.High Court of Judicature at Patna vs. Pandey Madan Mohan
Prasad Sinha17 .
13] Learned Senior Counsel appearing for the second respondent
8 2000 (4) SCC 640
9 2001 (3) SCC 117
10 2006 (4) SCC 469
11 2010 (2) SCC 623
12 2014 (5) BCR 104
13 2016 (2) Mah. L.J.867
14 2018 (3) BCR 709
15 2011 (4) SCC 447
16 2010 (12) SCC 783
17 1997 (10) SCC 409
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has made available the original record of the present matter
maintained by the Registrar General, High Court, and with the able
assistance of both the learned Senior Counsels, we have perused the
original record.
14] Learned AGP has adopted the arguments of learned Senior
Counsel for second respondent.
15] The learned Senior Counsel for the petitioner has made
available the appointment order of the petitioner during the course of
argument, which is taken on record and marked "X" for the purpose
of identifcation. The perusal of the appointment order of the
petitioner shows that it is issued by the State Government. Clause 2
of the appointment order clearly states that the appointment of the
petitioner is of a temporary nature and the same can be terminated
without assigning any reason.
16] Thus, even in terms of the appointment order, the services were
of temporary nature and could have been terminated without
assigning any reason. In this view of the matter since the petitioner
was discharged during the period of probation, we do not fnd any
fault in the impugned order.
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17] We are unable to accept the argument of the petitioner
that the impugned order is not passed in conformity with the MJS
Rules 13 and 14.
18] The MJS Rules are made in exercise of power conferred under
Article 233, 234 and the proviso to Article 309 of the Constitution of
India read with Article 235. On perusal of the MJS Rules, it is evident
that it is a self contained Code for appointment of Judicial offcers in
Maharashtra. Rule 13 of Chapter IV of the said Rules deals with
probation and offciation, Rule 14 deals with discharge of the
probationer during the period of probation, Rule 15 deals with
confrmation. Rule 16 deals with increment during the period of
probation and/or offciation, thus, it can be said that Chapter IV of the
MJS Rules deals with every aspect of appointment on probation. For
ready reference the relevant Rules are quoted here:-
"CHAPTER IV
PROBATION AND OFFICIATION
13. Probation and Offiationon (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 ofciating
basis for a period of two years.
(3) The period of probation or ofciation, as the case may
be, for reasons to be recorded in writing, may be extended
by the Appointing Authority by such period not exceeding
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two years.
(4) Six months before the end of the period or extended
period of Probation or Ofciation, 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
(i) if found suitable, issue an Order declaring him to have
satisfactorily completed the period of Probation or
Ofciation, as the case may be, and such an Order shall
have efect from the date of expiry of the period of
Probation or Ofciation, including extended period, if any,
as the case may be;
(ii) if the Appointing Authority fnds 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 a 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 period of Probation or Ofciation, as case may
be, unless so declared by a specifc Order to that efect.
14. Disfharge of a Probationer during the period of
Probationon . 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 on A Probationer who has been declared
to have satisfactorily completed his Probation and a
promotee who has been declared to have satisfactorily
completed his period of Ofciation shall be confrmed 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"
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19] On plain reading of Rule 13 and 15 for considering the
suitability of the person appointed to hold the post and the
satisfaction of appointing authority about the suitability of the
candidate on probation is contemplated. The word "fnds" used in the
Rule 13 cannot be read in isolation and given the meaning as is tried
to be given by the learned senior counsel for the Petitioner. The word
"fnds" has to be given its ordinary dictionary meaning. The
appointing authority needs to be fnd out as to whether or not the
person appointed on probation is suitable to hold the post or not.
Thus, it has to be read in the context of suitability of a person. By no
stretch of imagination, the word "fnds" can be interpreted in the
present case to mean that fnding has to be recorded about the
suitability of the candidate on probation. The word "fnds" has to be
read in the common parlance about the suitability of the candidate on
probation. Therefore, we are not impressed by the argument that
because the word "fnds" and "suitability" are used in the rules. Some
brief inquiry has to be made in that behalf.
20] A conjoint reading of the Article 233 and Rule 13 and 14 of MJS
Rules, make it clear that the recommendation of the High Court is
binding on the State Government. A useful reference in this behalf
can be made to the ratio laid down by the Hon'ble Apex Court in the
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case of State of Bihar vs. Bal Mukund Sah (supra) has observed
thus :-
"26. ... ..... .... Article 233 dealing with appointment
of District Judges, on its own express terminology projects a
complete scheme regarding the appointment of persons to
District Judiciary as District Judges. In the present appeals, we
are concerned with direct recruitment to the cadre of District
Judges and hence sub-article (2) of Article 233 becomes
relevant. Apart from laying down the eligibility criterion for
candidates to be appointed from the Bar as direct District
Judges, the said provision is further hedged by the condition
that only those recommended by the High Court for such
appointment could be appointed by the Governor of the State.
Similarly, for recruitment of judicial offcers other than District
Judges to the judicial service at lower level, complete scheme is
provided by Article 234 wherein the Governor of the State can
make such appointments in accordance with the rules framed
by him after consulting with the State Public Service
Commission and with the High-Court exercising jurisdiction in
relation to such State. So far as the Public Service Commission is
concerned, as seen from Article 320, the procedure for
recruitment to the advertised posts, to be followed by it is
earmarked therein. But the role of the Public Service
Commission springs into action after the posts in a cadre are
required to be flled in by direct recruitment and for that
purpose due intimation is given to the Commission by the State
authorities. They have obviously to act in consultation with the
High Court so far as recruitment to posts in subordinate
judiciary is concerned. Of course, it will be for the High Court to
decide how many vacancies in the cadre of District Judges and
Subordinate Judges are required to be flled in by direct
recruitment so far as the District Judiciary is concerned and
necessarily only by direct recruitment so far as subordinate
judiciary is concerned. This prime role of the High Court
becomes clearly discernible from Article 235 which deals with
the control of the High Court over the subordinate judiciary and
also of subordinate Courts. The said article provides as under:
"Control over subordinate Courts, The control over
District Courts and Courts subordinate thereto
including the posting and promotion of, and the grant
of leave to, persons belonging to the judicial service of a
State and holding any post inferior to the post of
District Judge shall be vested in the High Court, but
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nothing in this article shall be construed as taking
away from any such person any right of appeal which
he may have under the law regulating the conditions of
his service or as authorising the High Court to deal
with him otherwise than in accordance with the
conditions of his service prescribed under such law.
29. ... ..... But so far as the High Court is
concerned, its consultation becomes pivotal and relevant by
the thrust of Article 233 itself as it is the High Court which
has to control the candidates, who ultimately on getting
selected, have to act as Judges at the lowest level of the
judiciary and whose posting, promotion and grant of leave
and other judicial control would vest only in the High Court,
as per Article 235".
"30. It has also to be kept in view that neither Article 233
nor Art. 234 contains any provision of being subject to any
enactment by the appropriate Legislature as we fnd in
Articles 98, 146, 148, 187, 229(2) and 324(5). These latter
articles contain provisions regarding the rule making power
of the authorities concerned subject to the provisions of the
law made by the Parliament or Legislature. Such a provision
is conspicuously absent in Articles 233 and 234 of the
Constitution of India. Therefore, it is not possible to agree
with the contention of learned Counsel for the appellant -
State that these Articles only deal with the rule making
power of the Governor, but do not touch the legislative power
of the competent Legislature. It has to be kept in view that
once the Constitution provides a complete Code for
regulating recruitment and appointment to District
Judiciary and to the Subordinate Judiciary, if gets insulated
from the interference of any other outside agency. We have
to keep in view the scheme of the Constitution and its basic
framework that the Executive has to be separated from the
judiciary. Hence, the general sweep of Article 309 has to be
read subject to this complete Code regarding appointment of
District Judges and Judges in the subordinate judiciary".
In this view of the matter, there is no substance in the argument of
the petitioner that the State Government must independently assess
the proposal of the High Court for discharge of a petitioner.
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21] In view of the above observations that the High Court has
primacy in the matter of recruitment and appointment on probation,
confrmation of probation, disciplinary proceedings etc. In this view
of the matter, we are unable to accept the argument of learned Senior
Counsel for the petitioner that there is violation of MJS Rules and
Government must independently assess proposal of the High Court in
respect of the suitability of the petitioner.
22] We do not agree with the submission on behalf of the petitioner
that Rule 20 of the MJS Rules is applicable and IAS rules would apply
in the present case, as has been observed hereinabove since Chapter
IV of the MJS Rules can be said to be self contained Code for
appointment of Judicial Offcers and as Chapter IV deals with the
probation and offciation i.e. with all the aspects of appointment on
probation, discharge and/or confrmation.
23] This Court in Writ Petition No.8210 of 2016 and in connected
matters by relying on Rule 20, Chapter V of the Judicial Service
Rules has held that the members of Judicial Service are governed by
the MJS Rules and no other rules can be relied upon in their case.
Hence reliance by the petitioner on IAS Rules can be said to be
misplaced. We do not fnd any ambiguity in the MJS Rules and we are
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of the considered view that IAS Rules have no application in the
present case.
24] The next argument of the petitioner that in view of the
statements made in the reply-affdavit of the second respondent, the
order can be said to be stigmatic and in view of the non following of
the principles of natural justice, the order is stated to be vitiated.
Learned counsel for the second respondent is right in his submission
that the order of discharge is of simpliciter discharge under Chapter
IV Rule 13 (ii) and 14 of the MJS Rules. Since the impugned order
apparently is of simpliciter discharge, the same is in consonance with
the appointment order at Exh. "X" issued to the petitioner, no fault
can be found with the said simpliciter discharge.
25] The next argument is that in the affdavit-in-reply fled on behalf
of the High Court, some aspersions are casted on the petitioner. It is
necessary to mention here that discharge order does not refer to any
document, the cause referred in the affdavit-in-reply can be said to be
motive which may have triggered the discharge order, but that by
itself cannot term the impugned order as stigmatic as the impugned
order, on the face of it, is of simpliciter discharge and cannot be
termed as stigmatic, as sought to be propounded by the learned
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Senior Counsel for the petitioner.
26] The cause referred in the affdavit in reply may be one of the
several relevant factors which motivated the termination order. But
that itself is not suffcient to term the impugned order as stigmatic or
punitive. In the line of judgment, the Hon'ble Supreme Court has
observed that "if there is suspicion of misconduct, the discretion is of
the employer to go into it or he may not go into it but would like to
keep the man with whom he is not happy". It is also held in Palak
Modi (supra) that "If the competent authority holds an inquiry for
judging the suitability of the probationer or for his further
continuance in service or for confrmation and such inquiry is the
basis for taking decision to terminate his service, then the action of
the competent authority cannot be castigated as punitive. However, if
the allegation of misconduct constitutes the foundation of the action
taken, the ultimate decision taken by the competent authority can be
nullifed on the ground of violation of the rules of natural justice.
27] In the light of above observations of the Hon'ble Supreme Court
and in view of the fact that the impugned order is of simpliciter
termination and it can not be termed as stigmatic/ punitive, we are
not inclined to accept this argument.
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28] The argument of the learned Senior Counsel for the petitioner
that the order of discharge of the petitioner has civil consequences,
therefore, the principles of natural justice ought to have been followed
and at least an opportunity of hearing ought to have been given to the
petitioner does not appeal to us. The said argument is based on Rule
7(b) of MJS Rules which is quoted hereinbelow for ready reference:-
7. Disqualifcation for appointment:- No person shall
be eligible for appointment to the service:-
(a) xxx xxx xxx
(b) if he is compulsorily retired, removed or
dismissed from judicial service or from service in
Government or Statutory or Local Authority or failed
to complete probation period in judicial service on
any post, or in Government or Statutory or Local
Authority; or
29] The petitioner being a practicing advocate applied for the post of
District Judge at the relevant time. It is unacceptable that the
Petitioner without going through the relevant MJS Rules which
clearly states that the appointment of the Petitioner is temporary
nature and the same can be terminated without assigning any reason.
Having accepted the appointment order of probation with open eyes it
does not allow in the mouth of the Petitioner now to contend that he
suffered disqualifcation because of the impugned termination order
and therefore the principles of natural justice ought to have been
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violated. Since the order of termination of the Petitioner is simplisitor
termination of a probationer, it was not necessary to follow the
principles of natural justice and or to hold any inquiry before issuing
an order of termination to the Petitioner.
30] In view of the discretion in the aforesaid paras, we are also of
the considered opinion that in absence of any challenge to Rule 7(b)
which provides for disqualifcation, we are not inclined to accept the
contention of the petitioner that some incurs civil consequences and
the enquiry ought to have been held before discharge of the
petitioner.
31] The learned Senior Counsel for the petitioner has relied upon
the ratio in Registrar General, High Court of Gujarat & Anr. Vs.
Jayshree Chamanlal (supra), to support his argument that enquiry is
expected to be held, even in cases of probationer before discharge. In
para Nos. 31, 35 and 38 of the said judgment, it has been held by the
Apex Court that :-
"31. Having gone through the salient judgments on the
issue in hand, one thing which emerges very clearly is that, if
it is a case of deciding the suitability of a probationer, and for
that limited purpose any inquiry is conducted, the same
cannot be faulted as such. However, if during the course of
such an inquiry any allegations are made against the person
concerned, which result into a stigma, he ought to be afforded
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the minimum protection which is contemplated under Article
311(2) of the Constitution of India even though he may be a
probationer. The protection is very limited viz. to inform the
person concerned about the charges against him, and to give
him a reasonable opportunity of being heard.
35. As held by this Court time and again, it is the
responsibility of the High Court to protect honest judicial
offcers. As the facts in this case indicate, apart from the fact
that no opportunity was afforded to the Respondent, even the
material placed on record did not establish any such aspect
which would lead to a conclusion of unsuitability. The disposal
of the Respondent was very good, and the complaints by the
subordinate staff were clearly motivated. There was no
involvement of the Respondent in the suicide by the wife of
Shri N.P. Thakker, and all that the High Court administration
could lay hand on was the telephonic conversations which the
Respondent had with Mr. Thakker. The inference of
unsuitability drawn by the High Court administration was
therefore totally uncalled for. The impugned judgment setting
aside the termination order dated 14th December 2007
issued on the ground of unsuitability is, therefore, fully
justifed.
38. Before we conclude, we must once again refect on the
facts that have emerged in the present case. As noted earlier,
the Respondent was a candidate who had obtained a high
rank in the selection for the judicial service, and was given an
independent posting in a rural area, where she was living all
alone. Her disposal of cases had been very good to say the
least. The complaints made by her, regarding the
misbehaviour of the staff, and the harassment to her by a
section of the bar, were not heeded by the then District Judge,
leave aside making an attempt to understand the diffculties
faced by her. Instead, certain unjustifed adverse remarks
were made against her. Subsequently, the then District Judge
conducted the preliminary inquiry against her, in his capacity
as the vigilance offcer, wherein without any justifcation he
tried to connect her with the death of the wife of another
judicial offcer. It is the duty of the District Judge and also of
the High Court to protect the judicial offcers against
unjustifed allegations. However, what we fnd in the present
case is that instead of doing the same, an investigation was
conducted against the Respondent without affording her any
opportunity, though it contained allegations against her
character, and the investigation was sought to be justifed as
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determination of her suitability for the post which she was
holding. We would like to take this opportunity to emphasise
that the High Courts must see to it that the hostile work
environment for junior judicial offcers, particularly the lady
offcers, is eliminated. This is necessary to encourage the
young offcers to put in good judicial work without fear or
favour. We are constrained to say that in the present case the
High Court administration has clearly failed in this behalf. In
the circumstances, we have no reason to interfere in the
judgment and order of High Court and we confrm the same.
32] We are bound by the ratio laid down in this Authority,
However, this authority is different on facts. In that case, a lady
judicial offcer who obtained high rank for selection for judicial
service and was given an independent posting in rural area where
she was alone. Her disposal was good. The complaint made by her
regarding the misbehaviour and harassment by section of bar were
not heeded by the then District Judge. The diffculties faced by her
were not considered by the District Judge. On the contrary,
unjustifed adverse remarks made against her and the District Judge
after conducting preliminary inquiry against her in the capacity as a
Vigilance Offcer without there being any justifcation tried to connect
with the death of wife of another judicial offcer. Thus, without
offering any opportunity, the investigation was conducted against the
judicial offcer though there was allegation against her character and
the said investigation was sought to be justifed as termination of her
suitability for the post which she was holding, Thus, the decision in
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this authority is in different set of facts and in our opinion this ratio
is not applicable in the fats of the present case.
33] The learned senior counsel for the Petitioner placed reliance on
Pradip Kumar (supra). In that case the probation of the Petitioner
was continued even after completion of the mandatory period of
probation without any extension and the Respondent was continued
in service without receiving any formal or informal notice about the
defects in his work or any defciency in his work and in that case
there was complaint made by some advocate and a report prepared
by the President communicated that the only reason of issuing the
order of termination was contained in the said report. Hence, the
Hon'ble Supreme Court opined that the order of discharge passed by
the Union of India was clearly vitiated legal malice. It was further
observed that there was clearly a nexus between the decision to
discharge the Respondent and the disturbance caused by the
members of Bar in the Court of Respondent and he is leaving the
Bench and retiring in his chamber. The report of the President leaves
no manner of doubt that the Respondent had been condemned
unheard on the basis of aforesaid incident and the report of the
Chairman dated 18th November, 2009. The order of discharge being
based upon the report of the President is clearly stigmatic and could
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not have been passed without giving an opportunity to the
Respondent to meet the allegations contained in the report of the
President. Thus, it was held that the order of discharge cannot be
upheld as it was stigmatic and punitive in nature. Thus the facts of
that case were different and it cannot be help to the Petitioner.
34] The learned senior counsel for the second Respondent relied on
Palak Modi & Anr (supra) in which the Hon'ble Supreme Court by
quoting judgment in Chandra Prakash Shahi vs. State of U.P. 18 has
held as under:
18. In Chandra Prakash Shahi v. State of U.P. (2000) 5 SCC 152,
the Court considered the correctness of the order passed by the
High Court which had allowed the writ petition fled by the State
and set aside the order passed by U. P. Public Services Tribunal for
reinstatement of the appellant. The competent authority had
terminated the appellant's service in terms of Rule 3 of the U. P.
Temporary Government Servants (Termination of Service) Rules,
1975. It was argued on behalf of the appellant that the order by
which his service was terminated, though innocuous, was, in fact,
punitive in nature because it was founded on the allegation that he
had fought with other colleagues and used flthy and
unparliamentary language. In the counter affdavit fled on behalf of
the respondents, it was admitted that there was no adverse
material against the appellant except the incident in question. The
original record produced before the Tribunal revealed that the
appellant's service was terminated on account of his alleged
involvement in the quarrel between the constables. After noticing
various precedents, this Court observed:
27. "The whole case-law is thus based on the
peculiar facts of each individual case and it is wrong
18 (2000) 5 SCC 152
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to say that decisions have been swinging like a
pendulum; right, the order is valid; left, the order is
punitive. It was urged before this Court, more than
once including in Ram Chandra Trivedi case that
there was a confict of decisions on the question of an
order being a simple termination order or a punitive
order, but every time the Court rejected the
contention and held that the apparent confict was
on account of different facts of different cases
requiring the principles already laid down by this
Court in various decisions to be applied to a different
situation. But the concept of "motive" and
"foundation" was always kept in view.
28. The important principles which are deducible
on the concept of "motive" and "foundation",
concerning a probationer, are that a probationer has
no right to hold the post and his services can be
terminated at any time during or at the end of the
period of probation on account of general
unsuitability for the post in question. If for the
determination of suitability of the probationer for the
post in question or for his further retention in
service or for confrmation, an inquiry is held and it
is on the basis of that inquiry that a decision is taken
to terminate his service, the order will not be
punitive in nature. But, if there are allegations of
misconduct and an inquiry is held to fnd out the
truth of that misconduct and an order terminating
the service is passed on the basis of that inquiry, the
order would be punitive in nature as the inquiry was
held not for assessing the general suitability of the
employee for the post in question, but to fnd out the
truth of allegations of misconduct against that
employee. In this situation, the order would be
founded on misconduct and it will not be a mere
matter of "motive".
29 "Motive" is the moving power which impels
action for a defnite result, or to put it differently,
"motive" is that which incites or stimulates a person
to do an act. An order terminating the services of an
employee is an act done by the employer. What is
that factor which impelled the employer to take this
action? If it was the factor of general unsuitability of
the employee for the post held by him, the action
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would be upheld in law. If, however, there were
allegations of serious misconduct against the
employee and a preliminary inquiry is held behind
his back to ascertain the truth of those allegations
and a termination order is passed thereafter, the
order, having regard to other circumstances, would
be founded on the allegations of misconduct which
were found to be true in the preliminary inquiry.
35] The observations made in Chandra Prakash Shahi (supra) are
squarely applicable, in our opinion, to the facts of the present case
and since the order is of simpliciter termination, we do not fnd force
in the arguments of the Petitioner. We are unable to accept the
contention of the Petitioner that the order is punitive.
36] The ratio laid down in cases High Court of Judicature at Patna
Vs. Ajay Kumar Srivastava & ors (supra) and in the case of Madan
Mohan Choudhari vs. State of Bihar (supra), are pertaining to
compulsory retirement and hence are of no help to petitioner.
37] In Deepti Prakash Banerjee (supra) while deciding the
termination of service whether is punitive or simpliciter, the
considerations are (i) In what circumstances the termination of the
probationer can be said to be founded on misconduct and (ii) In what
circumstances, it would be said that the allegations will be only a
motive. It was held that if "fndings" arrived at in an inquiry as to
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misconduct, behind the back of the offcer or without a regular
departmental inquiry simply order of termination is to be treated as
'founded' with allegations and will be bad. If however, inquiry was not
held, no fndings were arrived at and the employer was not inclined to
conduct inquiry but at the same time, he did not want to continue the
employee against whom there was complaints it would only be a case
of motive and the order would not be bad. Similar is the position if the
employer did not want to inquire into the truth of allegations because
of delay in regular departmental proceeding or he was doubtful about
the securing adequate evidence. In such circumstances, the
allegations would be motive and not foundation and simply of
termination would be followed.
38] It was further held that on material which amounting to
`stigma' need not be contained in termination order of probationer
but might be contained in documents referred to in the termination
order or in its annexures, such documents can be asked for or called
for by any future employer of the probationer. In such a case,
employee's interests would be harmed and therefore termination
order would stand vitiated on the ground that no regular inquiry was
conducted. If we apply this ratio to the facts of the presnet case, it is
clear that the impugned order of discharge is simpliciter termination
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or discharge. The impugned order, cannot be said to be punitive and it
does not contain any word amounting to stigma. In this view of the
the matter also, no fault can be found with the impugned termination
order. In case the order refected stigma, then the petitioner ought to
have been heard and enquiry could have been held. However, since
there is no stigma in the impugned order, there was no occasion to
hold any enquiry.
39] In the case in hand since the order of discharge was passed by
the State Government i.e. appointing authority on reference from the
High Court, after the Administrative Committee of the High Court had
considered all the relevant material and formed an opinion that the
Petitioner is not suitable for the post which was accepted by the State
Government. The impugned order is in consonance with Rule 14 of
the MJS Rules and the same is simpliciter discharge and the same, in
our opinion is justifed in the present case.
40] The learned Senior Counsel for the second respondent was
justifed in placing reliance on the ratio laid down in the case of
Abhijit Gupta (supra). In para Nos. 11 and 12, the Hon'ble Apex
Court, held thus :-
"11. Having observed thus, the Court formulated the
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judicial test to determine as to on which side of the fence
the case lay, in the following words (vide para 21):
"21. One of the judicially evolved tests to
determine whether in substance an order of
termination is punitive is to see whether prior
to the termination there was (a) a full scale
formal enquiry (b) into allegations involving
moral turpitude or misconduct which (c)
culminated in a fnding of guilt. If all three
factors are present the termination has been
held to be punitive irrespective of the form of
the termination order. Conversely if any one of
the three factors is missing, the termination has
been upheld.
9. It referred to Dipti Prakash Banerjee and pointed out
that in Dipti Prakash Banerjee the termination letter
expressly made reference to an earlier letter which had
explicitly referred to all the misconducts of the employee
and a report of an inquiry committee which had found that
the employee was guilty of misconduct and so the
termination was held to be stigmatic and set aside. Finally,
this Court said that whenever a probationer challenges his
termination the court's frst task will be to apply the test of
stigma or the 'form' test. If the order survives this
examination the "substance" of the termination will have to
be found out.
41] In this case, the impugned order and the record makes it clear
that since it is simpliciter termination, it cannot be said that the same
is stigmatic or is issued by way of punishment. There was no full scale
formal enquiry into the allegations involving moral turpitude or
misconduct of the petitioner which culminated in the fnding of guilt.
In absence of these three factors, as per the ratio quoted above, the
impugned order cannot be termed as stigmatic. The impugned order
is neither punitive nor stigmatic, the same is not vitiated on the basis
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of alleged violation of principles of natural justice. This Court in the
case of Girish Satyanarayan Shukila (supra) in para 23 has held
thus :-
"23. ... ... ... ...It is true that there is
nothing placed on record to show that the ACRs were
communicated to the Petitioner. In fact, the learned Counsel
for the High Court administration stated that the practice of
communicating the remarks in the ACRs was started on the
basis of the decision taken by the Administrative Judges in
the meeting on 5th January 2010. However, in the present
case, there is no question of complying with the principles of
natural justice. As the impugned order is neither punitive nor
stigmatic, the same would not vitiate on the basis of the
alleged violation of the principles of natural justice. ... .... .... ...
... .... ...The order cannot be said to be a stigmatic based on
any misconduct or misdemeanor. Moreover, as is permissible
in law, the period of probation of the Petitioner was extended
by a period of one year with a view to give him an
opportunity to improve his performance"
The above observations are applicable to the facts of the
present case.
42] This Court, in Smita Rajendra Kadu (supra), has held as
under:-
"High Court performs a solemn duty to evaluate and
appraise the services of a judicial offcer before confrming
him or her in service. The District Judiciary is foundation of
our judicial system and is positioned at the primary level of
entry. It is, therefore, obligatory for the High Court to
evaluate and assess the performance of offcers of district
judiciary. The suitability for confrmation in service or
continuation in service is an important function of High
Court on administrative side. The High Court is duty bound to
protect honest and hard working judicial offcers. When
complaints against judicial offcers are found to be motivated
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or false and vexatious, then the High Court has ignored them.
One must presume and in absence of any material to the
contrary that the High Court protects the interests of
members of the District Judiciary. Eventually High Court is
expected to act as patriarch and is in a position as a parent
guiding the pupil. The petitioner has not been confrmed in
service. There is no communication or letter to that effect.
There is nothing like deemed confrmation in the law. She
was on probation. The authorities were duty bound to assess
her performance and to fnd out whether she is suitable for
confrmation in judicial service. That is an obligation and
trust which the High Court discharges, and for protecting the
larger public interest. After having found that she was
qualifed and eligible, the petitioner was appointed. Like any
other judicial offcer she was appointed on probation. After
she joined the initial posting, she came to be transferred. Like
all other judicial offcers, the High Court was duty bound to
assess her performance. All Judicial offcers in the District
Judiciary irrespective of their caste, creed, sex and religion
go through similar process. None has ever questioned the
same on the ground of a gender or caste discrimination. All
concerned must remember that Higher Judiciary is acting
free of such prejudice or bias in above matters and none has
accused it of the same till date. The probation period of the
petitioners has been terminated in exercise of powers under
Rule 13(4)(ii)(b) after overall assessment of her
performance. It is nothing but a discharge simpliciter of a
probationer during probationary period."
43] On going through the record of the case, we are of the view that
the impugned order was passed taking into consideration the overall
performance, conduct and the suitability of the petitioner for the job.
While taking such decision neither notice is required to be given to
the petitioner nor opportunity of being heard is required to be given,
since the case of the petitioner is not of removal or it cannot be
termed as stigmatic/punitive, the same is of simple discharge of
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petitioner from service. It cannot be termed as removal for any
misconduct or on the ground of indiscipline. While judging
performance of the petitioner overall suitability, performance record,
so also reports from higher authorities were called and were looked
into before arriving at the decision of discharging the petitioner from
service. In this view of the matter also no fault can be found with the
impugned decision.
44] In view of above discussion, we fnd no merit in the writ petition
and it is liable to be dismissed. Hence the following order.
ORDER
I] The Writ Petition is dismissed.
II] Rule is discharged. Therefore, there shall be no order as to costs.
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