Karnataka High Court
Kulkarni Sudheer Hanumanth Rao And Ors. vs The State Of Karnataka, Rep. By The ... on 2 February, 2005
Equivalent citations: ILR2005KAR1332, 2005(2)KARLJ329, 2005 AIR - KANT. H. C. R. 1598, (2005) 2 KANT LJ 329, (2005) 3 LAB LN 1109, (2005) 2 KCCR 1471
Author: K. Bhakthavatsala
Bench: K. Bhakthavatsala
ORDER K. Bhakthavatsala, J.
1. These Writ Petitions are directed against the Government Notification bearing No. LAW.59.LAC.2003 dated 30.4.2003, whereby discharging the Petitioners from the Karnataka Judicial Service.
2. The Respondents are represented by Sri Kempanna, learned Government Pleader.
3. Heard common arguments.
4. The brief facts of the case leading to the filing of the Writ Petitions may be stated as under:-
By means of impugned Notification bearing No.LAW.106.LAC.97 dated 18.2.1998 by the Law Department, the Petitioners were appointed as Civil Judges (Junior Division) in the Karnataka Judicial Service. After the Petitioners underwent the training conducted by the Respondent No. 2, the Petitioners were given postings. It is the case of the Petitioners that they have served the subordinate judiciary of the State of Karnataka from 2.3.1998 till the Petitioners were discharged on 30.4.2003 from service. On 30.4.2003, by impugned Notification, the Petitioners (vide Sl.Nos. 1, 3 and 4 of the impugned Notification) were discharged from the Karnataka Judicial service with immediate effect under Rule 5(1)(b) of the Karnataka Civil Services (Probation) Rules, 1977. This is impugned in these two Petitions. The following grounds have been urged:-
a) that the order of discharge made against the petitioners is a stigma.
b) that the order of discharge has been passed without holding a regular enquiry as prescribed in the C C A Rules.
c) that the communication received by each of the Petitioners regarding adverse remarks made in their Confidential Reports is without basis.
d) that since the Petitioners have not received any reply after they submitted representation for expunging the remarks, it shall be presumed that the adverse remarks are deemed to be expunged.
e) that the Petitioners have not received any communication extending the period of probation.
f) that the impugned Notification suffers from non-application of mind by the concerned authority.
6. The Respondents have filed statement of objections admitting that the Petitioners were appointed as Civil. Tudges(Jr. Division), but denied the grounds urged in the Writ Petitions. It is stated that delay in issuance of an order Sub-Rule (1) of Rule 5 of K C S (Probation) Rules, 1977, shall not be presumed that the probationary period was satisfactorily completed. It is further contended that during the period of probation, the performance of the Petitioners was found to be wanting in several respects and inspite of bringing to the notice of the Petitioners with regard to adverse remarks made in the Confidential Report, of the Petitioners, there was no progress or improvement in the Petitioners' performance. Therefore, on the basis of the recommendation, the Petitioners were discharged from State Judicial Service as their services were found unsatisfactory to hold the post of Civil Judge(Jr. Division). It is further contended that non-compliance of Rule 10(2) of the Karnataka Civil Services (Performance Report) Rules, 1994 is untenable and misleading, as the Rules have been repealed and amended by the Karnataka Civil Services (Performance Report) Rules, 2000 and under Rule 1 (3) (b) of the latter-said Rules, the application of 1994 Rules is specifically excluded in so far as the members of the Karnataka Judicial Services are concerned. Further, the discharge of the Petitioners is a discharge simplicitor of probation and does not cast stigma on the Petitioners. With regard to the contention of the Petitioners that no regular enquiry was held, the Respondents have contended that no regular enquiry was required' under the provisions of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, since no punishment was imposed and therefore the application of the above-said Rules does not arise. It is contended that the petitioners continued to be a probationer in the absence of specific order regarding successful completion of probationary period. Therefore, the Respondents have prayed for dismissal of the Writ Petitions on the ground that there is no merit in the Writ Petitions.
7. Sri Subba Rao, learned Senior Counsel, in support of the case of the Petitioners, cited the following decisions:-
i) DR. RAJ PAL BHATIA MEDICAL OFFICER OF HEALTH MUNICIPAL CORPORATION, AMRITSAR v. STATE OF PUNJAB AND ORS., 1991(1) SLR 699
ii) BRIJ MOHAN SINGH CHOPRA v. STATE OF PUJJAB,
iii) STATE OF HARYANA v. SHRI P. C WADHWA, IPS, INSPECTOR GENERAL OF POLICE AND ANR.,
iv) MADAN MOHAN CHOUDHARY v. STATE OF BIHAR AND ORS.,
v) NEPAL SINGH v. STATE OF U P AND ORS.,
vi) DIPTI PRAKASH BANERJEE v. SATVENDRA NATH BOSE NATIONAL CENTRE FOR BASIC SCIENCES, CALCUTTA AND ORS.,
vii) AJIT SINGH AND ORS. v. STATE OF PUNJAB AND ANR.,
viii) THE REGISTRAR, HIGH COURT OF MADRAS V. R RAJIAH,
ix) SHIVKUMAR SHARMA v. HARYANA STATE ELECTRICITY BOARD, CHANDIGARH AND ORS., AIR 1988 SC 1673
x) KARNATAKA STATE ROAD TRANSPORT CORPORATION AND ANR. v. S MANJUNATH, AIR 2000 SC 2070
xi) V P AHUJA v. STATE OF PUNJAB AND ORS.,
xii). WASIM BAIG v. STATE OF UTTAR PRADESH AND ORS.,
xiii) DAYARAM DAYAL v. STATE OF M.P. AND ANR.,
xiv) THE STATE OF PUNJAB v. DHARAM SINGH,
8. Sri Narayanaswamy, learned Counsel appearing for the Petitioner, in WP No. 36873/2003, has cited the -following decisions:-
i) R C SOOD v. HIGH COURT OF JUDICATURE AT RAJASTAN AND ORS.,
ii) PRITHIPAL SINGH v. STATE OF PUNJAB AND ORS., (2002) 10 SCC 133
9. The learned Government Pleader has cited the following decisions:-
i) OIL AND NATURAL GAS COMMISSION AND ORS. V. DR. MAHAMMED S ISKANDER ALI, SLR 1980(2)792
ii) SHAMSHER SINGH AND ANR. v. STATE OF PUNJAB,
iii) UNION OF INDIA v. P S BHATT, AIR 1981 SC 957
iv) RANENDRA CHANDRA v. UNION OF INDIA,
v) State Of Gujarat v. Akhilesh C Bhargava, 1987
vi) HUKUM CHAND KHUNDIA v. CHANDIGARH ADMINISTRATION,
vii) H F SANGATI v. REGISTRAR GENERAL, HIGH COURT OF KARNATAKA,
viii) UNIT TRUST OF INDIA AND ORS. T BIJAYA KUMAR AND ANR., SLR 1992(5) 855
ix) RAM GOPAL CHATURVEDI v. STATE OF MADHYA PRADESH,
x) K V KRISHNAMANI v. LALIT KALA ACADEMY, AIR 1966 SC 2444
xi)
xii) DHANJIBHAI RAMJIBHAI v. STATE OF GUJARAT,
xiii) SATYANARAYAN ATHYA V. HIGH COURT OF M.P AND ANR.,
xiv)
xv) H F SANGATI V. REGISTRAR GENERAL, HIGH COURT OF KARNATAKA AND ORS.
10. The Petitioners were recruited to the Karnataka State Judicial Services as per the Karnataka Judicial Services (Recruitment) Rules, 1983 (in short, the KJS Rules). As per the KJS Rules {(vide Schedule pertaining to Civil Judges (Jr. Division), probation is for two years. It is useful to excerpt Rule 5 of the Probation Rules for immediate reference, which reads as under:-
"5. Declaration of satisfactory completion of probation etc.- (1) At the end of the prescribed or, as the case may be, the reduced or extended period of probation, the appointing authority shall consider the suitability of the probationer to hold the post to which he was appointed, and-
a) if it decide?, that the probationer is suitable to hold the post to which he was appointed and has passed the special examinations or tests, if any, required to be passed during the period of probation it shall, as soon as possible, issue an order declaring the probationer to have satisfactorily completed his probation and such an order shall have effect from the date of expiry of the prescribed, reduced or extended period of probation;
b) if the appointing authority decides that the probationer is not suitable to hold the post to which he was appointed or has not passed the special examinations or special tests, if any, required to be passed during the period of probation, it shall, unless the period of probation is extended under Rule 4, by order, discharge him from service.
2) A probationer shall not be considered to have satisfactorily completed the probation unless a specific order to that effect is passed. Any delay in the issue of an order Sub-Rule (1) shall not entitle the probationer to be deemed to have satisfactory completed his probation."
As per Rule 5(2) of the Probation Rules, it is crystal clear that a Probationer shall not be considered to have satisfactorily completed the probation unless a specific order to that effect is passed. Any delay in the issue of an order under Sub-Rule (1) of Rule 5 of the Probation Rules shall not entitle the Probationer to be deemed to have satisfactorily completed his probation. In view of the clarity in Rule 5 of the Probation Rules regarding any delay in the issue of order under Sub-Rule (1) of Rule 5, the Probationer shall not entitle to-be-deemed to have satisfactorily completed his probation, the contention of the learned Counsels for the Petitioners that non-compliance of Rule 4 regarding non-extension of the period of probation and discharging the Petitioners after 5 years is illegal holds no water. Further, when declaration of probation of Judicial Officers, who have assumed charge on 2.3.1998 was taken up, the Full Court in its Resolution dated 5.2.2003, declared the period of probation to have satisfactorily completed in respect of 30 Civil Judges(Jr. Division); with regard to 20 others, the period of probation was extended and 4 Judicial Officers viz., the present Petitioners and one K Krishnamurthy proposed to be discharged on the ground that the Judicial Officers are not suitable to hold the post, to which they were appointed.
11. I have perused the Confidential Reports of the Petitioners.
The Full Court has considered the Confidential Report of the Petitioners for the relevant period and came to a conclusion that the Petitioners are not suitable to hold the post. After the Full Court resolved to discharge the Petitioners under Rule 5(1)(b) of the Probation Rules, and recommendation of the High Court of Karnataka, the Governor, who is the appointing authority, has passed the impugned Notification. The contention of the Petitioners that the impugned order is a stigma is contrary to decision rendered by the Apex Court reported in H F SANGATI v. REGISTRAR GENERAL, HIGH COURT OF KARNATAKA. What language in the termination order would amount to a stigma? Generally speaking, when a Probationer's appointment is terminated, it means that the Probationer is unfit for job; whether by reason of misconduct or ineptitude, whatever may be the language used in the termination order. Although strictly speaking, the stigma is implicit in the termination, but a simple termination is not a stigma. In SANGATI case, supra the Apex Court dealt, with the question whether an order terminating the appointment of a Probationer Munsiff could be considered to be punitive? The Apex Court has held that during the period of Probation. Several adverse remarks had been made in the Confidential Records of the Probationer and the High Court considered the Confidential Reports and came to the conclusion that the Officer was not fit to be confirmed in the post of a Judicial Officer and the State Government accepted the recommendation of the High Court and discharged the Probationer from the service. The order of termination of the Officer on" the ground that he was 'unsuitable to hold the post of Munsiff 'was not punitive and it did not cast any stigma On the Officer. Therefore, the contention of the learned Counsels for the Petitioners that the impugned order of discharge is a stigma and no enquiry was held holds no water.
12. The contention of the learned Counsels for the parties that the provisions of the Karnataka Civil' Services (Performance Reports) Rules 1994/2000 are applicable to the Officers of the Karnataka Judicial1 Services holds no water, as Rule 1(3)(b) of the Rules 1994/2000 expressly states that the Rules-are not applicable to the Officer of the Karnataka Judicial, Service
13. In view of the decisions of the Apex Court in H F SANGATI'S case (AIR 2001 SC 1148), supra; and PAVANDENDRA NARAYAN VERMA V. SANJAY GANDHI P G 1 OF MEDICAL SCIENCES, , the decisions cited by the learned Counsels for the Petitioners are of no avail to the case' of the Petitioners.
14. For the reasons said supra, I hold that there is no illegality of infirmity in the impugned order.. Hence, I pass the following order:
The Writ Petitions fail and they are hereby dismissed. No costs.
The learned Government Pleader is permitted to file memo of appearance within three weeks.