Flat v. Responbents

(3) IN THE HIGH COURT OF CHHATTISGARH ATBILASPUR (C.G.) W.P. (S) No. ...^J.6S'./Z009(Sinqle Bench Service Matter) SINQI.E BEI PETITIONER SMTSHRAbDHA AKASHSHRIVA5TAVaged about 36 years(Shraddha Singh D/o Kamrish Singh)W/o Shri Akash ShrivastavEx. Civil Class II judgeBijapur Distt. South Bastar ^C.G.}R/o Sheela Tower Flat No. 203,Near Income Tax Office,Vyapar Vihar, Bilaspur (C.G.) VERSUS RESPONbENTS 1.STATE OF CHHATTISGARHThrough : Principal SecretaryLaw <& Legislative AffairsThrough : Principal SecretaryLaw <& Legislative Affairs bepartment &ovt. ofChhattisgarh Secretariat D. K. S: Bhawan, Raipur {C.&.) (4)2.HI6H COURT OFCHH/\TTI5&ARHThrough: Registrar&eneralHigh Court of ChhattisgarhBilaspur (C.&.)PETITIONUNbERARTICLE226OFTHECONSTITUTIONOFINDIA» „ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0. 6967 OF 2009 PETITIONER Smt. Shraddha Akash Shrivastav Versus RESPONDENTS State of Chhattisgarh & Another WRIT PETITION (S) N0. 7131 OF 2009 PETITIONER Ku. Dwarika Tidke Versus RESPONDENTS The State of Chhattisgarh & Another And WRIT PETITION fS) N0. 7255 OF 2009 PETITIONER Yashpal Singh Tandon Versus RESPONDENTS State of Chhattisgarh & Another Post for pronouncement of orders on the Jodav ofAugust,2012 Sd/-Satish K. AgnihotriJudge (Delivered[on][ this]_^d_[day][ ofAugust,][ 2012)] The batch of petitions viz. W.P. (S) Nos.6967, 71.31 and 7255 of2009, involve common facts and common question of law and, assuch, they are being considered and decided by this commonorder.For adjudication of these petitions, the documents filed inWP (S) No.6967 of 2009 are being referred, as the facts anddocuments of all these petitions are identical.2009, involve common facts and common question of law and, assuch, they are being considered and decided by this commonorder.For adjudication of these petitions, the documents filed inWP (S) No.6967 of 2009 are being referred, as the facts anddocuments of all these petitions are identical. By these petitions, the petitioners seek quashing of the order dated06.11.2009 (Annexure[-]P/5 to WP (S) No.6967 of 2009) by whichthe petitioners were discharged from the services while working onprobation as Civil Judge ClassII. The petitionersin W.P.(S)06.11.2009 (Annexure[-]P/5 to WP (S) No.6967 of 2009) by whichthe petitioners were discharged from the services while working onprobation as Civil Judge ClassII. The petitionersin W.P.(S) BI<1^» Nos.6967 & 7255 of 2009 also seek quashing of the order dated09.11.2009 (Annexure - P/6 to WP (S) No.6967 of 2009) by whichthe respondent No.2 endorsed the order dated 06.11.2009 passed'by the respondent No.1. The indisputable facts, which are in narrow compass, as projectedby the petitioners, are that the petitioners were appointed by orderdated 22.09.2006 (Annexure - P/2 to WP (S) No.6967 of 2009) asCivil Judge Class II in the pay scale of Rs.9000-250-10750-300-13150-350-14550.Thereafter,videorderdated07.10.2006(Annexure - P/3 to WP (S) No.6967 of 2009), the petitioners weredirected to repori: at their respective place of posting on or before26.10.2006. The petitioners joined.on 1,8.10.2006, 13.10.2006 &11.10.2006, respectively.Subsequently, the petitioners were notconfirmed on probation anddischarged from the service by theimpugned order dated 06.11.2009. The indisputable facts, which are in narrow compass, as projectedby the petitioners, are that the petitioners were appointed by orderdated 22.09.2006 (Annexure - P/2 to WP (S) No.6967 of 2009) asCivil Judge Class II in the pay scale of Rs.9000-250-10750-300-13150-350-14550.Thereafter,videorderdated07.10.2006(Annexure - P/3 to WP (S) No.6967 of 2009), the petitioners weredirected to repori: at their respective place of posting on or before26.10.2006. The petitioners joined.on 1,8.10.2006, 13.10.2006 &11.10.2006, respectively.Subsequently, the petitioners were notconfirmed on probation anddischarged from the service by theimpugned order dated 06.11.2009. According to the petitioners, during their tenure, they were neverserved with any show cause notice and even no order was passedextending the probation period of the petitioners. However, all of asudden, by order dated 06.11.2009 (Annexure - P/5 to WP (S)No.6967 of 2009) in exercise of the powers conferred by sub-rute(4)ofRule11of theChhattisgarhLowerJudiQialService(Recruitment and Conditions of Service) Rules, 2006 (for short "theRules, 2006") on the recommendation of the respondent No.2 thepetitioners were discharged from service on the ground of not beingfound suitable for confirmation in the service. Subsequently, byorder dated 09.11.2009 (Annexure - P/6 to WP (S) No.6967 of2009) the respondent No.2 endorsed the order dated 06.11.2009.Thus, these petitions.•:' Shri Tamaskar & Shri Swarnakar, learned counsel appearing forthe respective petitioners, would submit that the discharge of the 6. petitioners after completion of three years of service is bad in lawon the ground that it ought to have been done immediately after theperiod of probation of two years, as such it was a case of 'deemedconfirmation'. The impugned discharging order is an unreasonedand non-speaking order. Thepetitionershaveproducedacopy of comparative chartshowingdisposal of cases by the judicial officers indicating that thedisposal of the petitioners were better than others, who have beenconfirmed on probation.showingdisposal of cases by the judicial officers indicating that thedisposal of the petitioners were better than others, who have beenconfirmed on probation. Ontheotherhand,ShriThakur,learnedDy.Adv.Generalappearing for the State/respondent No.1while supporting theimpugnedorders,wouldsubmitthattheemployeehasnoright beforehis services are terminated during the period ofprobation. ShriAgrawal,learnedAdvocateGeneralappearingfortherespondent No.2 would submit that the overall performance andentire service records of the petitioners were considered by the FullCourt, before taking decision of not suitable for confirmation andaccordingly recommendation has been made by the respondentNo.2 to the respondent No.1.Consequently, the respondent No.1has discharged the petitioners from the service by order dated6-11-2009.Therefore, the question of deemed confirmation doesnot arise.The petitioners -have been discharged from the serviceas not found suitable for confirmation and, as such, the question ofservice of show cause notice does also not arise. Inrespect of comparativechartproducedby thepetitionersindicating the disposal of the judicial officers, Shri Agrawal wouldsubmit that disposal governs only disposal of cases, not quality ofjudgment and other qualifications namely; integrity, behaviour, etc.The disposal alone is not the criteria to confirm the petitioners onindicating the disposal of the judicial officers, Shri Agrawal wouldsubmit that disposal governs only disposal of cases, not quality ofjudgment and other qualifications namely; integrity, behaviour, etc.The disposal alone is not the criteria to confirm the petitioners on •^-^--^ ^ 10. 11. 12. 13. 14. (J^) probation. However, they were graded 'poor' in one year, 'average'in other year. Inrespect of comparativechartproducedby thepetitionersindicating the disposal of the judicial officers, Shri Agrawal wouldsubmit that disposal governs only disposal of cases, not quality ofjudgment and other qualifications namely; integrity, behaviour, etc.The disposal alone is not the criteria to confirm the petitioners onindicating the disposal of the judicial officers, Shri Agrawal wouldsubmit that disposal governs only disposal of cases, not quality ofjudgment and other qualifications namely; integrity, behaviour, etc.The disposal alone is not the criteria to confirm the petitioners on •^-^--^ ^ 10. 11. 12. 13. 14. (J^) probation. However, they were graded 'poor' in one year, 'average'in other year. Shri Agrawal would further submit that mere completion of a periodof two years service by the petitioners does not result in automaticconfirmation in service or post as the petitioners were not foundsuitable for confirmation on the post of Civil Judge Class II.ShriAgrawal would next submit that sub-rule (4) Rule 11 of the Rules,2006 provides that the High Court may recommerid termination ofservice of the probationer Civil Judge. From the impugned order, itis manifest that the respondent No.2 has made recommendation fordischarging the petitioners from the seryice on the ground of notbeing suitable.ShriAgrawalwouldalsosubmit that without therebeingaconfirmation order, it is not necessary to pass the order extendingthe period of probation from two years to three years.In fact, sinceno confirmation order was passed or any certificate to the effect ofconfirming the probation was passed, accordingly, the probationperiod[of][ the]petitioners[was][ extended][ for][ one][ more]year.I have heard learned counsel appearing for the parties, perused thepleadings and the documents appended thereto. The respondent No.2 took a decision not to confirm the services ofthe petitioners on probation and further decided to discharge themfrom theservice and accordingly on the basis of recommendationmade by the respondent No.2, the respondent No.1 passed theorders separately in respect of each of the petitioner on the samedayi.e. 06.11.2009. The contention of the learned counsel appearing for the petitionersthat since the Rules, 2006 were not mentioned in the appointmentorder,the same cannot be made applicableincase of thepetitioners.It is found that in the appointment order, there was no '^KSS^ 19. 20. Smt. Shrivastava was graded 'D' in the year 2007-08 and grade 'E'in the year 2008-09.Ku. Tidke & Shri Tandon were graded 'E' inthe year 2007-08 and grade 'D' in the year 2008-09. When in caseof other Judicial Officers they were graded as t0f i.e. (average? andin case of the petitioners one year it was 'average' and anotheryear it was 'below average' i.e. 'poor'.Thus, comparatively theperi'ormance of the petitioners was not good, as pleaded by thepetitioners.On perusal of the minutes of the full court proceedingsheld on 27-10-2009, it is manifest that the over all performance andentire service records of 60 Civil JudgeSj who were considered forconfirmationwereexaminedanditwasfound.thatfourofficersincludingthepetitioners werenot foundsuitable forconfirmation.On careful consideration of the material, the evaluation made bythe Full Court, forming their unanimous opinion cannot be held asarbitrary or capricious and irrational.In view of that, judicial reviewof the Full Court's unanimous opinion is impossible except in anextraordinary case when the Court is 6onvinced that some realinjustice has been done. In Rajesh Kohli v. High Court ofJammu and Kashmir and Another,the Supreme Court observed as under: In Rajesh Kohli v. High Court ofJammu and Kashmir and Another,the Supreme Court observed as under: "18.Duringtheperiodof probationanemployee remains under watcharidhisservice and his conduct is under scrutiny.Aroundthetimeofcompletionoftheprobationaryperiod,anassessmentismade of his work and conduct during theperiodof.probationandonsuchassessmentadecisi.pnistakenastowhether or not his service is satisfactoryand also whether or not on the basis of hisservice and track record his service shouldbeconfirmedorextendedforfurtherscrutiny of his service if such extension ispermissible or whether his service shouldbe dispensed withand terminated.The servicesrenderedbyajudicialofficerduring probation are assessed not solely onthe basis of judicial performance, but alsoon the probity as to how one has conductedhimself." 21.In Rajendra Singh Verma (Dead) through LRs and Others v. Lieutenant Govemor (NGTof Delhi) and Others2, observed as under: "218.Ona careful consideration of theentire material,it must be held that theevaluationmadeby theCommittee/FullCourt, forming their unanimous opinion, isneither so arbitrary nor capricious nor canbe said to be so irrational, so as to shockthe conscience of this Court to warrant orjustify any interference. In cases of suchassessment, evaluation and formulation ofopinions, a vast range of multiple factorsplay a vital and important role and no onefactor should be allowed to be blown out ofproportion either to decry or deify an issuetoberesolvedor daims: sought to beconsidered or asserted. In the very natureof things,it wouldbedifficult,nearingalmostanimpossibility tosubjectsuchexercise undertaken by the Full Court tojudicial review except in an extraordinarycase when the Courtis convinced thatsome real injustice, which ought not to havetaken place, has really happened and notmerely because there couldbe anotherpossiblevieworsomeonehassomegrievance about the exercise undertaken bythe Committee/ Full Court." 22.It is not the case of the petitioners, as neither pteaded nor argued,that the impugned order dated 06.11.2009 is a stigmatic order and, as such, show cause notice was necessary. 23.InKaziaMohammedMuzzammilv.State of Kamatakaand Anothei3, the Supreme Court observed as under: "9. A bare reading of the above impugnednotification shows that it is ex facie notstigmatic. It simply discharges the appellantfromserviceashavingbeenfoundunsuitable to hold the post of District Judge.Until and unless, the appellant is able toshow circumstances supported by cogent 2 (2011)108cci (2011)108cci3 (2010)88cc 155 (^ !B 25. 26. On perusal of the entire Rule 11 of the Rules, 2006, which dealswith the probation, under sub-rule (6) a person appointed onprobation shall continue as such until terminated or confirmedunder sub-rule (4) or sub-rule (5) as the case may be. Sub-rules(1) & (3) also provide that the official shall be posted on probationfor a period of two years and thereafter, before the completion ofprobation period extend the period of probation, but the totalperiod of probation shall not exceed three years.The identical issue arising out of the provisions of the M.P.Judicial Service (Classification, Recruitment and Conditions ofService)Rules,1955came intoconsiderationbefore threeHon'ble Judges of the Supreme Court in High Court of M.P.through Registrar and Others v. Satya Narayan Jhavar , whereinthe Supreme Court observed that there is no concept of 'deemedconfirmation' under the rules.It requires proper orders forconfirmationeveniftheemployeehascontinuedwithoutconfirmation. TheSupreme Court further observed as under: "38.Apart from sub-rule (1) of Rule 24 ofthe Rules, the effect of sub-rule (3) mayalso be considered. Under sub-rule (3), if aprobationer has been found unsuitable forthe service during the perio<j of probation orhehasfailedtothepassprescribeddepartmentalexaminationthentheGovernoratanytimethereaftermaydispense with his services. The power fordispensingwithserviceshasbeenconferredupontheGovernor,tobeexercised at any time after the period ofprobationiftheprobationerisfoundunsuitable or if he has failed to pass theprescribed departmental examination. If theinterpretation given by this Court in thecase of Dayaram Dayal to sub-rule (1) ofRule 24 is held to be correct then thispower of the Governor under sub-rule (3)wouldbecomeotioseinasmuchasaprobationerwouldacquifeadeemedconfirmation on the expiry of the maximumperiod ofprobation provided in sub-rule (1). 27. 28. Sub-rule(3)ofRule24,therefore,isanother inbuilt provision in the Rules whichcan be held to be a special provision tonegativetheinferenceofdeemedconfirmation on the expiry of the maximumperiod of probation indicated in sub-rule (1),as has been observed by this Court in thecase of Dayaram Dayal also and which is inconformity with the dedsions of this Courtin the cases of Samsher Singh, SukhbansSingh,G.S.Ramaswamy and Akbar AliKhan.Rule 24,ona plain grammaticalmeaning being given to the words usedthereindoesnot prpvide ,for a deemedconfirmationonexpiry of themaximumperiod of probation, and on the other hand itcontemplatesapositiveorderofconfirmationtobepassedbytheappropriateauthority,iftheauthorityconcerned is satisfied about the fitness ofthe probationer for confirmation, and if theprobationer has passed the departmentalexamination,asprescribed.Merecontinuanceoftheprobationerafterconsidering his case for confirmation duringthe period of probation and findinghimunsuitable for confirmation by the decisionoftheFullCourt,bynostretchofimaginationcanbeconstruedtobeaconfirmation by implication,,-as was held bythis Court in the case of Dharam Singh andthat can never be the intention of the ru|e-making authority.lfthe Full Courtwould nothaveconsideredthesuitabilityoftheprobationerforconfirmationwhiletheprobation period was continuing, the mattermight have stood on a different footing." In the cases on hand, the petitioners were continued in service,but no order of cbnfirmation was passed and, as such, thecontention ofthe learned counsel for the petitioners that sincethepetitioners have worked'for more than two years without anyorder for extensionof probationthatmaybedeemedasconfirmation, is unsustainable in the eyes of law and accordinglythe aforesaid contention of the petitioners is rejected.The Supreme Court in Registrar,High Court of Gujarat andAnotherv.C.G. Shanna5, observed as under : ^t^. In the cases on hand, the petitioners were continued in service,but no order of cbnfirmation was passed and, as such, thecontention ofthe learned counsel for the petitioners that sincethepetitioners have worked'for more than two years without anyorder for extensionof probationthatmaybedeemedasconfirmation, is unsustainable in the eyes of law and accordinglythe aforesaid contention of the petitioners is rejected.The Supreme Court in Registrar,High Court of Gujarat andAnotherv.C.G. Shanna5, observed as under : ^t^. "26. A large number of authorities werecitedbeforeusbyboththeparties.However, it is not necessary to go into thedetails of all those cases for the simplereason that sub-rule (4) of Rule 5 of theRules is in pari materia with the Rule whichwas under considerationin the case ofStateofMaharashtrav.VeerappaR.Saboji and we find that even if the period oftwo years expires and the probationer isallowed to continue after a period of twoautomatic confirmation cannot beyears,claimed as a matter of right because intermsoftheRules,woi-khastobesatisfactorywhichisaprerequisite.orprecondition for confirmation and, therefore,eveniftheprobationerisallowedtocontinue beyond the period of two years asmentioned in the Rule, there is no questionof deemed confirmation. The language oftheRuleitself excludes any chance ofgiving deemed or automatic confirmationbecause the confirmation is to be ordered ifthere is a vacancy and if the work is foundto be satisfactory. There is no question ofconfirmationand,therefore,deemedconfirmation, in the light of the language ofthis Rule, is ruled out. We are, therefore, ofthe opinionthat the argument advanced bylearned counsel for the respondent on thisaspect has no merits and no leg to stand.The learned Single Judge and the learnedJudges of the Division Bench have rightlycome to the condusion that there is noautomatic confirmation on the expiry of theperiod of two years and on the expiry of thesaid period of two years, the confirmationordercanbepassedonlyifthereisvacancyandthe workisfoundtobesatisfactory. The Rule also does not saythat the two years' period of probation, asmentionedin the Rule,is the maximumperiodofprobationandtheprobationcannot be extended beyond the period oftwo years. We are, therefore, of the opinionthat there is no question of automatic ordeemed confirmation, as contended by thelearned counsel for the respondent. We,therefore, answer this issue in the negativeand against the respondent." 29.It is well settled that no opportunity of hearing is required to begiventotheprobationer,iftheprobationerisdismissed/terminated from the service during the period of probation. Itt ~^J/\..?^--:%-.^I: 30.The Supreme Court in Om Prakash Mann v. Director of Education (Basic) and Others6, observed as under: "10....It is well settled principle of law that if is well settled principle of law that iftheprobationerisdismissed/terminatedduringtheperiodofprobationnoopportunity is required to be given and,therefore,thequestionofviolationofprinciple of natural justice does not arise inthe given facts of this case."duringtheperiodofprobationnoopportunity is required to be given and,therefore,thequestionofviolationofprinciple of natural justice does not arise inthe given facts of this case." 31. The decision of Supreme Court in Amar Pal Singh v. State ofUttar Pradesh and Another^, cited by the petitioners,is notrelevant to the facts of the case, as the said decision deals withmakingunwarrantedcomments or extravagant criticismandusageofintemperatelanguageagainst subordinate judicialofficers in judgments of High Courts. The reliance of the petitioners upon the decision of the SupremeCourt inRegistrar General,High Court of Patna v.PandeyGajendra Prasadand Others8, is 6f no:assistance, in the facts ofthe present petitions, as the Supreme Court was dealing withrecording of the ACRs in the service record of the JudicialOfficers. 33. 31. The decision of Supreme Court in Amar Pal Singh v. State ofUttar Pradesh and Another^, cited by the petitioners,is notrelevant to the facts of the case, as the said decision deals withmakingunwarrantedcomments or extravagant criticismandusageofintemperatelanguageagainst subordinate judicialofficers in judgments of High Courts. The reliance of the petitioners upon the decision of the SupremeCourt inRegistrar General,High Court of Patna v.PandeyGajendra Prasadand Others8, is 6f no:assistance, in the facts ofthe present petitions, as the Supreme Court was dealing withrecording of the ACRs in the service record of the JudicialOfficers. 33. The Supreme Court in High Court ofM.P. v. Mahesh Prakash andOthers9, having regard to the status of the Full Court, whichcannot be disbelieved lightly, held that it is undesirable andunsafe for one Full Cpurt to revise the decision taken by theearlier Full Court, particularly in cases 6f promotion, confirmation,supersession and the like.It is holding the field.However, in anextraordinary case when the Court is convinced that some rea!injustice,whichoughtnot tohave takenplace,hasreallyhappenedandnot merely because there couldbe another 6 (2006) 7 SCC 558 (2006) 7 SCC 558 7 (2012)68cc 491 (2012)68cc 491 8 (2012)68cc 357 (2012)68cc 357 9 (1995)1 SCC203 (1995)1 SCC203 Gowri 34. 35. w^c possible view or someone has some grievance about the exerciseundertaken by the Futl Cqurt, review may be possibte.For the reasons mentioned hereinabove and applying the wellsettled principles of law to the facts of the present petitions,1 havenot noticed any injustice or violation of any statutory rules.As a sequel, the writ petitions, being bereft of merit, are liable tobe and are hereby dismissed, leaving the parties to bear theirown costs.—~— Sd/-Satish K. AgnihotriJudge