1. The petitioner has filed this writ petition challenging the order dated 09.02.2017 (Annexure P/1) passed by Principal Secretary, Law and Legislative Affairs, Government of Chhattisgarh accepting the recommendation of the High Court of Chhattisgarh for termination of service of the petitioner who is a member of Lower Judicial Service and posted at the relevant time as Civil Judge Class-II, Kanker. The petitioner has also challenged the recommendation of Internal Complaints Committee (for short “the ICC”) report dated 06.04.2016 (Annexure P/2) (which has been received by the petitioner vide memo dated 26.10.2016) wherein the complaint made by the petitioner has been rejected.
2. The brief facts, as reflected from the records are that the petitioner was selected on the post of Civil Judge (Entry Level) in the examination conducted in the year 2012-13. She was appointed on probation for a period of 2 years vide order dated 12.12.2013 (Annexure P/3) from the date the petitioner assumes charges. Accordingly, she joined her duty on 27.12.2013. It has also been contended that when the petitioner was taking training with Civil Judge Class-I at Ambikapur, she has faced multiple unwelcome verbal connotation and conduct which were sexual in nature from the said officer. It has also been alleged that this was continued for quite some time but she has not made complaint to senior officer as she is newly appointed judicial officer. After completion of training, the petitioner was given independent charge of the post of First Civil Judge Class-II at Ambikapur in August 2014. It has also been contended that most of the Senior Magistrates were transferred and the only senior Magistrate available in the Ambikapur was Mr. XYZ under whom 4 trainee officers were posted (2 male and 2 female). Usually when the petitioner used to visit Mr. XYZ in his chamber for guidance in judicial matters, his behavior was embarrassing as it contained unwelcome embarrassing verbal connotation of sexual nature, which gradually became more frequent and intense. Initially, the petitioner had to report about the conduct of Mr. XYZ to the District and Session Judge, Ambikapur orally and thereafter in writing. On the basis of complaint made by the petitioner, the High Court has constituted the ICC, who has submitted its report on 06.04.2016 wherein it has been held that the allegation made by the complainant has not been found proved. However, on the report of the ICC, the service of the petitioner was terminated which is stigmatically. It has also been contended that against the report submitted by the ICC, the petitioner has preferred a review application dated 21.11.2016, which has also been rejected vide report dated 05.01.2017 without any consideration to the submissions made by the petitioner.
3. It has also been contended that as per "Note" of Regulation 7 of the Chhattisgarh Judicial Officers (Confidential Rolls) Regulations, 2015 (for short “the Regulations, 2015”), the ACR of the petitioner for the year 2015-16 should have been communicated to the petitioner on or before 01/08/2016, but the same was communicated vide letter dated 10/04/2017 i.e. after two months from her termination from the service on 09/02/2017 and Rule 9 of the Regulations, 2015 deals with representation against adverse remarks within 15 days of the date of its receipt. Thus, the petitioner’s opportunity to make representation has been violated by delay communication of adverse ACR. It has also been submitted that ACR has been written de hors the circular/direction of the State Government, thus, adverse ACR should have not been acted upon. It has also been contended that in the ACR for the year 2015-16, it has been mentioned that "She would not be able to discharge any other job". This remark takes away the petitioner's right to livelihood enshrined under Right to Life under Article 21 of the Constitution of India. It has also been contended that as per Rule 4 (C) of the High Court Rules, 2007, the Standing Committee has no power to dismiss/remove any member of Chhattisgarh Lower Judicial Service as it has to be recommended by the Full Court only and even the procedure provided under the High Court Rules, 2007 (for short “the Rules, 2007”) has not been followed.
4. She would further submit that the Standing Committee in its meeting held on 24.01.2017, has directed the Registrar General to keep ready the entire service record of the petitioner with nine other members of her batch specially when extension was granted but the Standing Committee in its meeting on 31.01.2017 has dropped the complaint dated 25.04.2016 filed by the petitioner against the then District Judge Ambikapur and has not found the petitioner to continue in service. Except this matter, all other matters were kept in abeyance, thus, she would submit that on the complaint made by Anju Gupta, ADPO on 30.12.2015, comments were called by the District Judge Ambikapur 30.01.2016 but no action has been taken till 31.01.2017 which clearly shows that the Standing Committee is acting upon in a biased manner. It has also been contended that the District Judge has rejected the earlier leave application of the petitioner on 12.04.2016 and thereafter he has sent the report on 13.04.2016 which shows that the District Judge keeps grudge against the petitioner. So far as complaint made by R.S. Shukla dated 10.05.2016 is concerned, it has been contended by her that this complaint was made after the complaint made by the petitioner on 25.04.2016 against the then District Judge and CJM Amikapur, which clearly speaks biased attitude of the senior judicial officer against the petitioner. It has also been stated that the High Court in its return has mentioned that five complaints were filed against the petitioner, but it has not been attached with their reply. She would submit that the recommendation made by the Standing Committee not to extend the probation period amounts to termination from service and on the recommendation made to the State Government by the High Court, the impugned termination order dated 09.02.2017 (Annexure P/1) has been passed, which is illegal and would pray for quashing of impugned order dated 09.02.2017 and would pray for reinstatement with all consequential benefits.
5. To substantiate her submission, she would refer to the judgment rendered by Hon'ble the Supreme Court in case of Registrar General High Court of Gujrat & Anr Vs. Jayshree Chamanlal Buddhbhatti, reported in (2013) 16 SCC 59, Ishwar Chand Jain Vs. High Court of Punjab & Haryana and Anr., reported in (1988) 3 SCC 370, High Court of Chhattisgarh Vs. Ganesh Ram Berman and anr., [Writ Appeal No. 281 of 2022], Devdutt Vs. Union of India & Ors., reported in (2008) 8 SCC 725, Sukhdev Singh Vs. Union of India & Ors., reported in (2013) 9 SCC 566 and Abhay Jain Vs. The High Court of Judicature for Rajsthan and Anr., reported in (2022) AIR OnLine SC 359.
6. On the other hand, learned Senior counsel for the High Court/respondents No. 2 & 3 opposing the submission made by the petitioner would submit that vide order dated 18/03/2016, the probation period of the petitioner was further extended as per the provisions contained in Rule 11 of the Chhattisgarh Lower Judicial Service (Recruitment and Condition of Service), Rules, 2006 (For short “the Rules, 2006). The Rule 11 of the Rules, 2006 provides that the High Court may, at any time before the completion of probation period, extend the period of probation, but the total period of probation shall not exceed three years. This Rule further provides that the High Court, may, at any time, before completion of period of probation, recommend termination of the services of Civil Judge appointed to the category (a) of sub-rule (1) of Rule 3 of the Rules of 2006. Thus, the language enumerated in sub-rule (4) of Rule 11 of the Rules, 2006 is unambiguous and clear. He would further submit that the petitioner was not found fit for confirmation in service, therefore, High Court of Chhattisgarh has recommended the State Government on 03/02/2017 to terminate the services of the petitioner in accordance with sub-rule (4) of Rule 11 of the Rules, 2006, and based upon which the Government of Chhattisgarh has terminated the services of the petitioner with immediate effect, therefore, the procedure so adopted by the respondent for terminating the services of the petitioner is just, proper and legal and in accordance with the provisions contained in sub-rule (4) of Rule 11 of the Rules, 2006. He would further submit that in the preliminary enquiry conducted by the ICC, it was found that no case was made out under the Act of 2013 and the complaint was found to be an afterthought story of the petitioner. It has also been contended that sufficient opportunity of hearing was given to he petitioner to put forward her case and after appreciating the evidence, material on record, the Committee has recorded its finding which cannot be said to be faulty or suffers from perversity or illegality.
7. He would further submit that since the petitioner was probationer and his probation period has not been extended and even her services have not been terminated by way of stigmatic order, which entitled her to get protection of Article 311(2) of the Constitution of India. As such, the contention raised by the petitioner that there is violation of Article 14 and 311 of the Constitution of India merits no consideration. He would further submit that the petitioner was on probation and during her probation period, the Standing Committee of the High Court of Chhattisgarh had resolved to recommend the State Government that the petitioner was not fit for confirmation in service and further recommended for issuing necessary orders. Thus, it cannot be said that the Standing Committee has transgressed its jurisdiction or violation to Rule 4 (C) of the Rules, 2007. He would further submit that the Standing Committee after due consideration on 06.05.16 resolved to call for a report from the District & Session Judge, Ambikapur in a sealed cover. After the report was received under a sealed cover and same was placed before the Standing Committee who vide resolution dated 26.07.2016 referred the matter to the Internal Complaint Committee of the High Court. It would not be out of place to mention herewith that the Internal Complaint Committee of the High Court was constituted for dealing with the complaints regarding sexual harassment of woman at work. In the present case, after receipt of the resolution dated 26.07.2016 the Internal Complaint Committee convened the meeting on 30.07.2016. The ICC has completed the enquiry proceedings after giving every opportunity during 12 hearing of their meeting from 30.07.16 to 22.09.16 to the petitioner/complainant as well as the respondent therein. After due consideration of all the material available on record submitted a detailed enquiry report dated 22.09.16 by recording its finding that the Committee had not found proved charges of complaint of sexual harassment against the respondent. He would further submit that the ICC had not made any recommendation in its report for any action to be taken against anybody.
8. He would further submit that the complaint made by the petitioner was duly inquired by the ICC in which opportunity of hearing was also given to the petitioner, statements were recorded and the petitioner was permitted to cross examine. The Committee after dealing with the evidence available on record came to the conclusion that the complaint of sexual harassment against the respondent was not found. He would further submit that the petitioner herself admits that the ICC after receipt of the reply, recorded the statements of both the parties and they were allowed to cross-examine witnesses too, meaning thereby the ICC by observing the rules of natural justice decided the complaint and had submitted its report. He would further submit that all the members of the internal committee have appended their signatures with dated 22.09.16 on the original enquiry report. He would further submit that contention of the petitioner that ICC failed to appreciate the nature and impact of complaint and actual facts and reasons behind it and looked the case as a defence counsel is specifically denied. The petitioner time and again without any substantial proof is in a habit of making bald allegations. It is respectfully submitted that the petitioner herself in writ petition has made the following averment:-
"The ICC after receipt of the answer/reply of Mr. XYZ recorded the statements of the petitioner, her father and Mr. XYZ and both the parties were also allowed to cross examine the witnesses of each other. After the enquiry, report was submitted by the ICC and a copy of which was also served on the petitioner".
9. He would further submit that the contention of the petitioner that she was not a probationer and attained the status of confirmed employee also merits no consideration. It is respectfully submitted that sub rule (6) of Rule 11 of the Chhattisgarh Lower Judicial Service (Recruitment and Conditions of Service) Rules 2006 hereinafter referred to as 'Rules of 2006' provides that the probation would continue until terminated or confirmed under sub rule (4) or sub rule (5) of rule 11 of the 'Rules, 2006'. He would further submit that in view of the fact that no orders regarding confirmation of the petitioner were issued therefore the petitioner was not confirmed under the Rules of 2006'. So far as challenge to the ACRs is concerned, the petitioner had not raised any specific grounds except that it will take away the means of livelihood and marketability of petitioner and it would be an additional punishment, disproportionate to the misconduct. He would further submit that the interpretation made by the petitioner for Rule 11 of the 'Rules, 2006' is wholly erroneous. The petitioner is relying on sub rule (3) of rule 11 of the Rules of 2006', the petitioner has purposely skipped sub Rule (6) of Rule
11. He would further submit that the contention of the petitioner that the extended probationary period of the petitioner ought to have come to an end by 27.12.16 is wholly erroneous. He would further submit that sub rule (6) prescribes that a person appointed on probation shall continue as such until terminated or confirmed under sub rule (4) or sub rule (5), sub rule (6) of Rule 11 of the Rules of 2006' provides that a person has to be confirmed, under sub rule (5) or has to be terminated under sub rule (4) of the Rule 11 of the Rules, 2006' and there is no automatic confirmation as averred by the petitioner. Sub Rule (5) of Rule 11 of the 'Rules of 2006' prescribes that on successful completion of probation period a probationer shall be confirmed in the service and a certificate shall be issued to the effect. He would further submit that in the present case it is an admitted fact that the services of the petitioner were not confirmed in terms of sub rule (5) of Rule 11 of Rules, 2006'. He would further submit that further contention of the petitioner that there was no reason to arrive at the conclusion leading to termination of the service of a regular employee who had passed out the probation period without blemish is wholly misconceived.
10. He would further submit that vide order dated 23.12.16, Hon'ble the then Chief Justice directed the matter of confirmation of the petitioner alongwith 9 other officers whose period of probation was extended to be placed before the Standing Committee for consideration and order. The matter was placed before the standing committee on 24.01.17 where a resolution to defer was passed which reads as under:-
"Deferred for the next meeting. Registrar General is directed to keep ready the entire service records of these officers especially after the extension was granted".
11. Accordingly, the matter was placed before the Standing Committee in its meeting dated 31.01.2017 where it was resolved to issue the certificate of confirmation to the nine officers and recommendation was made for termination of the services of the petitioner. He would further submit that the petitioner submitted a written complaint to the Hon'ble Portfolio Judge, Ambikapur mentioning her grievances. The matter was placed before the Standing Committee for consideration. On 26.07.2016, the Standing Committee resolved that the Registrar (Vigilance) would conduct a preliminary enquiry and would submit a report. The Registrar (Vigilance) conducted the preliminary enquiry which was submitted before the standing committee for consideration. In the meeting dated 31.01.2017 the preliminary enquiry report dated 26.09.2016 submitted by the Registrar (Vigilance) was considered and it was resolved to accept the report of the Registrar (Vigilance) and to drop the matter. He would submit that the petitioner has leveled bald allegations against Mr. XYZ who is not even the party to this writ petition and it is a settled proposition of law that allegations leveled against a person cannot be looked into without impleading him as a party. He would further submit that all sorts of bald allegations without any substantial proof has been leveled. The internal complaint committee had already enquired about the allegations leveled by the petitioner and has found them to be untrue hence the allegations are specifically denied.
12. He would further submit that the petitioner was awarded Grade D i.e, average for the year 2014-15 and 2016-17 and adverse remarks were recorded in the ACR. As many as five complaints were made to the District Judge, Ambikapur by Ms. Anju Gupta ADPO, Shri R.S.Shukla ASI, Mahila Thana Ambikapur and one Surajmati regarding conduct of insubordination, indiscipline, irregularity in judicial work, misbehavior and misuse of post and power were pending at the time of confirmation of the petitioner. When the matter for confirmation of the petitioner was taken up by the Standing Committee, three complaints against the petitioner were also placed before the Committee on 31.01.2017. Vide resolution dated 31.01.2017 the Standing Committee resolved that in view of the fact that the petitioner was not found fit to be continued in services these matters be kept in abeyance. He would further submit that needless to mention here that the two other complaints pending against the petitioner at the time of her confirmation were kept in abeyance by the order dated 21.02.17 by the Hon'ble Portfolio Judge, Ambikapur in view of resolution dated 31.01.17 passed by the standing committee.
13. He would further submit that the petitioner has not made any substantial pleading regarding violation of Article 14, 16 & 21 of the Constitution of India and pray for dismissal of the writ petition. To substantiate his submission, he would relied upon the judgment rendered by Hon’ble the Supreme Court in case of Rajasthan High Court Vs. Ved Priya and another, reported in (2021) 13 SCC 151.
14. Learned State counsel would submit that they have acted upon the recommendation made by Hon’ble High Court of Chhattisgarh, would support the stand taken by respondents No. 2 & 3 and would pray for dismissal of the writ petition.
15. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction.
16. This Court has also called for the records pertaining the report submitted by the then Registrar General of the High Court against the then District and Sessions Judge, Ambikapur wherein it has been recorded as under:-
“……….The enclosed documents also reveals that there were many complaints against Ku. Bhardwaj regarding her work and conduct and being the District Judge XXXXXX had the right to reject her leave application and to advise her for improvement but Ku. Bhardwaj took it otherwise and instead of showing improvement she has made the complaint against the District Judge, Ambikapur which is an act of insubordination.”
17. The report made by the ICC against Mr. XYZ, the then Chief Judicial Magistrate, Ambikapur where it has been recorded its finding as under:-
18. This Court while hearing the matter on 06.12.2023 has taken up the points which were argued by the petitioner which reads as under:-
(i) The standing committee is not empowered to recommend termination in view of Rule 4-C of the High Court Rules, 2007.
(ii) Entire service record has not been taken into consideration therefore, without recording of the finding that the performance is not satisfactory is contrary to the record.
(iii) Since They have taken into consideration certain allegation levelled against her, therefore, she must have been provided opportunity of hearing to defend her case.”
19. The petitioner in person would submit that as per Rule 4 (c) of the High Court Rules, 2007, the Standing Committee is not empowered to recommend for termination or dismissal of member of Lower Judicial Service in view of law laid down by Hon’ble the Division Bench of this Court in case of Ganesh Ram Berman (supra). She would further submit that the learned District Judge has failed to protect the judicial officer against the unjustified allegation made against her and would pray that it be held that the petitioner has completed her probation period satisfactorily. She has also relied upon the judgment of Ishwar Chand (supra) to make her submission that if ill-conceived or motivated complaint made by unscrupulous litigant, the judicial officer should be protected and would refer to paragraph 14 which reads as under:-
“14. Under the Constitution the High Court has control over the subordinate judiciary. While exercising that control it is under a constitutional obligation to guide and protect judicial officers. An honest strict judicial officer is likely to have adversaries in the mofussil courts. If complaints are entertained on trifling matters relating to judicial orders which may have been upheld by the High Court on the judicial side no judicial officer would feel protected and it would be difficult for him to discharge his duties in an honest and independent manner. An independent and honest judiciary is a sine qua non for Rule of law. If judicial officers are under constant threat of complaint and enquiry on trifling matters and if High Court encourages annonymous complaints to hold the field the subordinate judiciary will not be able to administer justice in an independent and honest manner. It is therefore imperative that the High Court should also take steps to protect its honest officers by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants. Having regard to facts and circumstances of the instant case we have no doubt in our mind that the resolution passed by the Bar Association against the appellant was wholly unjustified and the complaints made by Sh. Mehalawat and others were motivated which did not deserve any credit. Even the vigilance judge after holding enquiry did not record any finding that the appellant was guilty of any corrupt motive or that he had not acted judicially. All that was said against him was that he had acted improperly in granting adjournments.”
20. She has also relied upon the judgment passed by Hon’ble the Supreme Court in case of Jayshree Chamanlal Buddhbhatti (supra) wherein it has been held at paragraph 38 as under:-
“38. Before we conclude, we must once again reflect 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 is behavior 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 difficulties faced by her. Instead, certain unjustified adverse remarks were made against her. Subsequently, the then District Judge conducted the preliminary inquiry against her, in his capacity as the vigilance officer, wherein without any justification he tried to connect her with the death of the wife of another judicial officer. It is the duty of the District Judge and also of the High Court to protect the judicial officers against unjustified allegations. However, what we find in the present case is that instead of doing the same, an investigtion was conducted against the respondent without affording her any opportunity, though it contained allegations against her character, and the investigation was sought to be justified as 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 officers, particularly the lady officers, is eliminated. This is necessary to encourage the young officers 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 confirm the same.”
21. She would further submit that the adverse ACR for the year 2015-16 deserves to be quashed in view of the violation of Rule 7, 8 & 9 of the Chhattisgarh Judicial Officer (Confidential) Rule, 2015 which deals with writing of the ACR as the ACR of the petitioner for the year 2015-16 should have been communicated on or before 01.08.2016 but the same has been communicated on 10.04.2017 after her termination of service on 09.02.2017 thus, it is against the law settled by Hon’ble Supreme Court in case of Devdutt (supra) & Sukhdev Singh (supra) wherein Hon’ble the Supreme Court in case of Sukhdev Singh (supra) has held that the entry in the ACR should be communicated within a reasonable period as it helps in achieving various objects. Hon’ble the Supreme Court at paragraph 8 has held as under:-
“8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR – poor, fair, average, good or very good – must be communicated to him/her within a reasonable period.”
22. She would further submit that she is entitled to get protection under Article 311 of the Constitution of India as non-confirmation of probation period is nothing but amount to termination or dismissal from service on the basis of certain allegation, therefore, it is incumbent upon them to conduct enquiry which the respondents failed to do it, therefore, the impugned orders deserve to be set aside by this Court. To substitute this submission, she has referred to the judgment of Abhay Jain (supra) wherein Hon’ble the Supreme Court has held at paragraph 49 to 52 as under:-
“49. Further, a Constitution Bench of this Court in Gopi Kishore Prasad (supra) has held that:
“1. The main question for determination in this appeal by special leave is whether the provisions of Article 311(2) of the Constitution are applicable to a probationer in the Bihar Subordinate Civil Service, who has been discharged as unsuitable on grounds of notoriety for corruption and unsatisfactory work in the discharge of his public duties.
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6…….It would thus appear that, in the instant case, though the respondent was only a probationer, he was discharged from service really because the Government had, on enquiry, come to the conclusion, rightly or wrongly, that he was unsuitable for the post he held on probation. This was clearly by way of punishment and, therefore, he was entitled to the protection of Article 311(2) of the Constitution. It was argued on behalf of the appellant that the respondent, being a mere probationer, could be discharged without any enquiry into his conduct being made and his discharge could not mean any punishment to him, because he had no right to a post. It is true that, if the Government came to the conclusion that the respondent was not a fit and proper person to hold a post in the public service of the State, it could discharge him without holding any enquiry into his alleged misconduct. If the Government proceeded against him in that direct way, without casting any aspersions on his honesty or competence, his discharge would not, in law, have the effect of a removal from service by way of punishment and he would, therefore, have no grievance to ventilate in any court. Instead of taking that easy course, the Government chose the more difficult one of starting proceedings against him and of branding him as a dishonest and an incompetent officer. He had the right, in those circumstances, to insist, upon the protection of Article 311(2) of the Constitution. That protection not having been given to him, he had the right to seek his redress in court. It must, therefore, be held that the respondent had been wrongly deprived of the protection afforded by Article 311(2) of the Constitution. His removal from the service, therefore, was not in accordance with the requirements of the Constitution.”
(emphasis supplied)
50. This Court also further observed that:
“5……In our opinion, the controversy raised in this case is completely covered by the decision of the Constitution Bench of this Court in Dhingra's case, (1958) 1 LLJ 544 SC. The main question for decision in that case was whether the appellant Dhingra had been reduced in rank by way of punishment as a result of the order of the General Manager of the Railway. Though, in that case, this Court decided that the order impugned had not that effect, this Court went elaborately into all the implications of the service conditions, with particular reference to the Railway Service Rules and the constitutional provisions contained in Section 240 of the Government of India Act, 1935 and Article 311 of the Constitution. The elaborate discussion in that judgment has reference to all stages of employment in the public services including temporary posts, probationers, as also confirmed officers. In so far as those observations have a bearing on the termination of service or discharge of a probationary public servant, they may be summarized as follows :
1 . Appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated, without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant, or removing him from service.
2 . The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment.
3. But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Article 311(2) of the Constitution.
4. In the last mentioned case, if the probationer is discharged on any one of those grounds without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will amount to a removal from service within the meaning of Article 311(2) of the Constitution and will, therefore, be liable to be struck down.
5. But, if the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or inefficiency, or some such cause.” (emphasis supplied)
51. A seven-Judge Bench of this Court in Shamsher Singh vs State of Punjab [(1974) 2 SCC 831] has held that:
“64…..The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim protection.
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65. The fact of holding an enquiry is not always conclusive. What is decisive is whether the order is really by way of punishment (see State of Orissa v. Ram Narayan Das [AIR 1961 SC 177 : (1961) 1 SCR 606 : (1961) 1 SCJ 209] ). If there is an enquiry the facts and circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance (see Madan Gopal v. State of Punjab [AIR 1963 SC 531 : (1963) 3 SCR 716 : (1963) 2 SCJ 185] ). In R.C. Lacy v. State of Bihar [ Civil Appeal No. 590 of 1962, decided on October 23, 1963] it was held that an order of reversion passed following an enquiry into the conduct of the probationer in the circumstances of that case was in the nature of preliminary inquiry to enable the Government to decide whether disciplinary action should be taken. A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311(2).
66. If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to attract Article 311. The substance of the order and not the form would be decisive (see K.H. Phadnis v. State of Maharashtra [(1971) 1 SCC 790 : 1971 Supp SCR 118] ).
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86……..In the facts and circumstances of this case it is clear that the order of termination of the appellant Shamsher Singh was, one of punishment. The authorities were to find out the suitability of the appellant. They however concerned themselves with matters which were really trifle. The appellant rightly corrected the records in the case of Prem Sagar. The appellant did so with his own hand. The order of termination is in infraction of Rule 9. The order of termination is therefore set aside.”
(emphasis supplied)
52. The present case of the appellant is squarely covered by the abovementioned Constitution Bench judgements of this Court. Since the Government had, on enquiry, come to the conclusion, rightly or wrongly, that the appellant was unsuitable for the post he held on probation, this was clearly by way of punishment and, hence, the appellant would be entitled to the protection of Article 311(2) of the Constitution. Moreover, in the facts and circumstances of the present case, the substance of the termination order reveals that the discharge was by way of punishment. Hence, the question that whether the action of non-confirmation of the appellant is in accordance with Rules 45 and 46 of the RJS Rules is answered in the Negative.”
23. So far as prayer for quashing of enquiry report dated 22.09.2016, it has been mentioned that the enquiry report suffers from perversity and would submit that Shri XYZ in his reply before the ICC has clearly mentioned in the list witnesses, name of the then District Judge, Ambikapur who against the petitioner keeps grudge and bias thus, the report is based upon evidence of bias person. As such, it deserves to be set aside and would pray for allowing the writ petition.
24. Learned Senior counsel for respondents No. 2 & 3 reiterating the stand taken in their return filed before this Court, would submit that the non-extension of probation period is termination, not dismissal. As such, the Standing Committee has acted within the four corners of the power conferred upon them as per Rule 4 (C) of the Rules, 2007. He would submit that dismissal from service is as major penalty however, termination of a probationer from service is not a penalty as it does not prohibit the Government Servant to secure the future employment with the Government and would submit that Hon’ble the Supreme Court in case of M. Ramanatha Pillai Vs. State of Kerala, reported in (1973) 2 SCC 650 has clearly distinguished between dismissal and termination. Similarly, Hon’ble the Supreme Court in case of Mahanadi Coal Fields Ltd. Vs. Ravindranath Choubey, reported in (2020) 18 SCC 71 has again considered the distinguished feature and dismissal and termination and its consequence effect. He would further submit that termination of the petitioner is not stigmatic, as such, no enquiry as alleged by the petitioner, is required to be conducted. The Standing Committee has considered the overall assessment of the petitioner and has not taken into consideration any misconduct of the petitioner. As such, prayed for dismissal of the writ petition. To substantiate this submission, he would refer to the judgment rendered by Hon’ble the Supreme Court in case of Rajesh Kohli Vs. High Court of J&K, reported in (2010) 12 SCC 783, Rajasthan High Court Vs. Ved Priya, reported in (2021) 13 SCC 151 and would pray for dismissal of the writ petition.
25. To determine the issues raised in this petition, it is expedient for this Court to consider the relevant provisions of High Court Rules, 2007 as well as Chhattisgarh Lower Judicial Services (Recruitment and Condition of Service) Rules, 2006. Rule 11 deals with regard to the probation period of the member of Lower Judicial Services, which reads as under:-
“Rule 11- (1) A person appointed to category (a) of sub-rule (1) of Rule 3 shall be posted on probation for a period of two years.
(2) A person appointed to a post in category (a) of sub-rule (1) of Rule 3 shall undergo a judicial training for a period of one year in accordance with the scheme prepared by the High Court and shall also include training in the Chhattisgarh State Judicial Academy.
(3) The High Court may, at any time, before the completion of probation period extend the period of probation, but the total period of probation shall not exceed three years.
(4) The High Court, may at any time, before the completion of period of probation, recommend termination of the services of Civil Judge appointed to the category (a) of sub-rule (1) of Rule 3.
(5) On successfully completion of probation, a probationer shall be confirmed in the Service or post, to which, he has been appointed and if no permanent post is available, a certificate shall be issued in his favour by the High Court to the effect that the probationer would have been confirmed, but for the non- availability of the permanent post and as soon as a permanent post becomes available, he shall be confirmed.
(6) A person appointed on probation shall continue as such until terminated or confirmed under sub-rule (4) or sub-rule (5) as the case may be.
(7) When a probationer is confirmed, he shall be allowed to draw annual increment for the whole of the period of probation.”
26. Rule 2(s) of the High Court Rules, 2007 defines Standing Committee means the Committee constituted under this Rules. Chapter 1-A of the said rules deals with the rules for the disposal of non-judicial business. Rule 4A defines composition of Standing Committee, 4B provides that the Standing Committee shall be charged with the control and direction of the sub-ordinate courts, so far as such control and directions are exercised otherwise than judiciary. Rule 4C provides power of the Standing Committee, without reference to the Judges generally. Rule 4C, 4D, 4E & 4O read as under:-
“4-C The Standing Committee shall have power, without reference to the Judges generally -
(i) to dispose of all correspondence within its own Department urgent in its nature and not of general importance;
(ii) to make recommendations for promotion of Subordinate Judges to the rank of Additional District & Sessions Judges and of the Additional District & Sessions Judges to the rank of District & Sessions Judges, and their initial posting on promotion or appointment;
(iii) to exercise the power exercisable by the Court under the Code of Criminal Procedure, 1973;
(iv) to make recommendations to the Government for the vesting of special powers under any special Act;
(v) to pass orders of transfer of District & Sessions Judges and Additional District & Sessions Judges;
(vi) to pass orders of the transfer and posting of subordinate Judges with or without the powers of an Additional Sessions Judges and Civil Judges;
(vii) to make recommendations for the deputation of Lower Judicial Service or Higher Judicial Service to posts under the Government of India, Government of Chhattisgarh or other State Government or to Foreign Service;
(viii) to issue orders regarding the promotion of Civil Judges;
(ix) to pass orders of suspension, initiation of departmental proceedings against members of the Higher Judicial Service and Subordinate Judicial Service, and consequential orders in the said proceedings other than that of dismissal from service;
(x) to issue Circular Orders and General letters to the Subordinate Courts;
(xi) to dispose of any matter which might have been dealt with by the Judge in charge of the Administrative Department, but which he has referred to the Committee for their opinion;
(xii) to make recommendation to the State Government for compulsory retirement of any Judicial Officer of any rank: Provided that notice of the decision of the Standing Committee shall be circulated to the Full Court within ten days from the date of the decision and if any member of Full Court desires, within three weeks of the decision, the matter to be discussed at a meeting of the Full Court then no action will be taken till the decision at such a meeting; and
(xiii) to dispose of any matter referred to it by the Full Court which might have been dealt with by the Full Court. 4-D Every order passed and every draft letter approved by the Standing Committee shall be signed by each member of it.
4-E The two Judges being members of the Standing Committee nominated under Rule 4-A (ii) shall have executive charge of the Administrative Department.
Provided that each of them shall discharge such business as may be allocated to him by the Chief Justice. In case of difference of opinion, the matter shall be decided by the Chief Justice.
4-O (i) On the following matter decision shall be taken by the Judges at a meeting of the Full Court:-
(a) All appointments which by law are to be made by the High Court and which are not otherwise expressly provided for by these rules in this Chapter.
(b) All recommendations for the dismissal from office of Judicial Officer.
(c) Proposals for designating Advocates as Senior Advocates under section 16(2) of the Advocates Act, 1961.
(d) Matters relating to the service conditions, facilities and amenities of the Judges of the Courts.
(e) Constitution of Rule Committee under section 123 of the new Civil Procedure Code nominating Judges for the Rule Committee.
(f) Consideration of matters relating to the Chief Justices’ Conference.
(g) High Court Calendar.
(ii) The following matters on which Judges have to be consulted, may be disposed of by circulation of files, except in a case where a meeting is called in accordance with Rule 4-N:-
(a) Proposed changes in the law where the proposition emanates from the Government or, in other cases, where a committee or any Judge of the Court considers that action is called for.
(b) The Administration Report yearly submitted to Government when passed by the Judges of the Standing Committee.
(c) Rules which when published will have the force of law.
(d) Subjects connected with the relation between the Supreme Court and the High Court.”
27. Rule 4C of the High Court Rules has been amended and after sub-rule (xiv) following have been added or deleted on 28.11.2023:-
“ AMENDMENTS
1. Rule 4-O (i)(d) shall be deleted and existing Sl.No. ‘(e), (f) and (g)’ shall be renumbered as ‘(d), (e) and (f)’ respectively.
2. Rule 4-O (ii)(c) shall be deleted and existing Sl.No. ‘(d)’ shall be renumbered as ‘(c)’.
3. In Rule 4-C, after sub-rule(xiv), following shall be added:-
“(xv) Matters relating to the service condition facilities and amenities of the Judges of the Courts.
(xvi) Rules which when published will have the force of law.
(xvii) To dispose of any other matter(s) which are not covered under the Rule 4-C excluding matters covered under Rule 4-O.”
28. From the bare perusal of the Rules, 2006, which have been extracted above, it has to be seen whether the petitioner has completed probation period as defined in Rule 11 or not or whether she is deemed to have been confirmed on the post of Civil Judge Class-II from the material placed on record. This Court has called the records from the Registry of the High Court pertaining to the case of the petitioner and other judicial officers whose confirmation were considered in the same meeting. The record of the case would clearly demonstrate that the petitioner was appointed on 12.12.2013 on probation for two years accordingly she joined on 27.12.2013 at Ambikapur. The Standing Committee of the High Court in its meeting held on 01.12.2015 has considered the matter regarding confirmation of 31 probationary Civil Judge Class-II Officers who were appointed in the month of December, 2013, January, 2014 and have completed two years of probation in December, 2015 & January, 2016 and including the petitioner 9 other Judicial Officers’ probation period was extended. In case of the petitioner, the petitioner’s probation period was extended up to 26.12.2016, which clearly provides that no order of completion of probation period was issued by the High Court. Thereafter, the Standing Committee in its meeting held on 26.07.2016 has resolved that the report of District Judge and the comments submitted by Ku. Akanksha Bhardwaj will be considered at the time when the matter of confirmation of Ku. Akanksha Bhardwaj in Chhattisgarh Lower Judicial Service is taken for consideration. Thereafter on 31.01.2017, the Standing Committee while considering the confirmation of temporary Civil Judge Class-II and issuance of certificate in terms of sub-rule (5) of Rule 11 of the Rules, 2006 in the event of non-availability of permanent post has considered the case of 10 Judicial Officers’ including the petitioner for confirmation and passed the following resolution with regard to the petitioner:-
“Resolved that in view of the fact that Ku. Akanksha Bhardwaj has not been found fit to be continued in service, these matters be kept in abeyance.”
29. Thus, it is quite vivid that the report dated 30.01.2016 submitted by the District & Sessions Judge, Surguja regarding complaint dated 30.12.2015 by Anju Gupta, ADPO against the petitioner regarding irregularity in judicial work and comments dated 10.06.2016 submitted by the petitioner in respect of the complaint dated 13.04.2016 by the then District & Sessions Judge, Ambikapur, has not taken into consideration.
30. The record of the case would demonstrate that the information regarding petitioner was made available to the Standing Committee which clearly reflects that the ACR of the petitioner for the year 2013-14 was not recorded, ACR for the year 2014-15 was ‘D’ and though ACR for the year 2015-16 was also graded ‘D’ but it was yet to be communicated and the Standing Committee has considered the overall performance of the petitioner for the year 2014-15 which was found average. Thus, performance of the petitioner was not satisfactory, therefore, the Standing Committee has not found fit for confirmation and accordingly, it has recommended for termination from service. From the records, it is quite vivid that the Standing Committee has not taken into consideration the complaints made against the petitioner by the then District & Sessions Judge and other persons as already detailed by this Court. Thus, the non-extension of probation period though amounting to termination but it is not by way of punishment, thus the contention raised by the petitioner that on the basis of the report submitted by the then District Judge, her services have been terminated and she has become confirmed member of Lower Judicial Services, therefore, she should be granted protection under Article 311 of the Constitution of India, deserves to be rejected. The Constitutional Bench of Hon’ble the Supreme Court in case of Shamsher Singh Vs. State of Punjab & another, reported in (1974) 2 SCC 831, has held in paragraph 62 to 72 as under:-
“62. The position of a probationer. was considered by this Court in Purshotam Lal Dhingra v. Union of India [1958] S C.R. 828 Das, C.J., speaking for the Court said that where a person is appointed to a permanent post in Government service on probation the termination of his service during or at the end of the period of probation win not ordinarily and by itself be a punishment because the Goverrment servant so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to do so. Such a termination does not operateas a forfeiture of any right of a servant to hold the post, for he has no such right. Obviously such a termination cannot be a dismissal, removal or reduction in rank by way of punishment. There are, however, two important observations of Das, C.J., in Dhingra's case (supra). One is that if a right exists under a contract or service Rules to terminate the service the motive operating on the mind of the Government is wholly irrelevant. The other is that if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and violates Article 311 of the constitution. The reasoning why motive is said to be irrelevant is that it inheres in the state of mind which is not discernible. on the other land, if termination is founded on misconduct it is objective and is manifest.
63. No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the, order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution.
64. Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved, in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim protection. In Gopi Kishore Prasad v. Union of India A.I.R. 1960 S.C. 689 it was said that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment. Instead of taking the easy course the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and imcompetent officer.
65. The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. (See State of Orissa v. Ramnarain Das [1961] 1 S.C.R. 606). If there is an enquiry the facts and circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance, (See Madan Gopal v. State of Punjab [1963] 3 S.C.R. 716). In R. C. Lacy v. State of Bihar & Ors. (Civil Appeal No. 590 of 1962 decided on 23 October, 1963) it was held that an order of reversion passed following an enquiry into the conduct of the probationer in the circumstances of that case was in the nature of preliminary inquiry to enable the Government to decide whether disciplinary action should be taken. A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311 (2). (See R. C. Banerjee v. Union of India [1964] 2 S.C.R. 135.) A preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee has been held not to attract Artiele 311 (See Champaklal G. Shah v. Union of India [1964] 5 S.C.R. 190). On the other hand, a statement in the order of termination that the temporary servant is undesirable has been held to import an element of punishment (See Jagdish Mitter v. Union of India A.I.R. 1964 S.C. 449).
66. If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to attract Article 311. The substance of the order and not the form would be decisive. (See K. H. Phadnis v. State of Maharashtra [1971] Supp. S.C.R. 118).
67. An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct. (See State of Bihar v. Shiva Bhikshik [1971] 2 S.C.R. 191).
68. The appellant Ishwar Chand Agarwal contended that he completed his initial period of two years' probation on 11 November, 1967 and the maximum period of three years' probation on 11 November, 1968 and by reason of the fact that he continued in service after the expiry of the maximum period of probation he became confirmed. The appellant also contended that he had a right to be confirmed and there was a permanent vacancy in the cadre of the service on 17 September, 1969 and the same should have been allotted to him.
69. Rule 7(1) states that every Subordinate Judge, in the first instance, be appointed on probation for two years but this period may be extended from time to time expressly or impliedly so that the total period of probation including extension, if any, does not exceed three years. The explanation to Rule 7(1) is that the period of probation shall be deemed to have been extended if a Subordinate Judge is not confirmed on the expiry of his period of probation.
70. Counsel for the appellant relied on the decision of this Court in State of Punjab v. Dharam Singh [1968] 3 S.C.R. 1 where this Court drew an inference that an employee allowed to continue in the post on completion of the maximum period of probation is confirmed in the post by implication. In Dharam Singh's case (supra) the relevant rule stated that the probation in the first instance is for one year with the proviso that the total period of probation including ex- tension shall not exceed three years. In Dharam Singh's case (supra) he was allowed to-continue without an order of confirmation and therefore the only possible view in the absence of anything to the contrary in the Service Rules was that by necessary implication he must be regarded as having been confirmed.
71. Any confirmation by implication is negatived in the present case because before the completion of three years the High Court found prima facie that the work as well as the conduct of the appellant was unsatisfactory and a notice was given to the appellant on 4 October, 1968 to show cause as to why his services should not be terminated. Furthermore, Rule 9 shows that the employment of a probationer can be proposed to be terminated whether during or at the end of the period of probation. This indicates that where the notice is given at the end of the probation the period of probation gets extended till the inquiry proceedings commenced by the notice under Rule 9 come to an end. In this background the explanation to rule 7(1) shows that the period of probation shall be deemed to have been extended impliedly if a Subordinate Judge is not confirmed on the expiry of this period of probation. This implied extension where a Subordinate Judge is not confirmed on the expiry of the period of probation is not found in Dharam Singh's case (supra). This explanation in the present case does not mean that the implied extension of the probationary period is only between two and three years. The explanation on the contrary means that the provision regarding the maximum period of probation for three years is I directly and not mandatory unlike in Dharam Singh's case (supra) and that a probationer is not in fact confirmed till an order of confirmation is made.
72. In this context reference may be made to the proviso to Rule 7(3). The proviso to the Rule states that the completion of the maximum period of three years' probation would not confer on him the right to be confirmed till there is a permanent vacancy in the cadre. Rule 7 (3) states that an express order of confirmation is necessary. The proviso to Rule 7(3) is in the negative form that the completion of the maximum period of three years would not confer a right of confirmation till there is a permanent vacancy in the cadre. The period of probation is therefore extended by implication until the proceedings com-menced against a probationer like the appellant are concluded to enable the Government to decide whether a probationer should be confirmed or his services should be terminated. No confirmation by implication can arise in the present case in the facts and circumstances as also by the meaning and operation of Rules 7(1) and 7(3) as aforesaid.”
31. Hon’ble the Supreme Court in case of Oil & Natural Gas Commission Vs. Dr. Md. S. Iskander Ali, reported in (1980) 3 SCC 428 has held at paragraph 13 to 14 as under:-
“13. The matter was again considered at great length by a recent decision of this Court in the case of State of Maharashtra v. Veerappa R. Saboji & Anr., where Untwalia, J., observed thus:
"Ordinarily and generally the rule laid down in most of the cases by this Court is that you have to look to the order on the face of it and find whether it casts any stigma on the Government servant. In such a case there is no presumption that the order is arbitrary or mala fide unless a very strong case is made out and proved by the Government servant who challenges such an order."
14. Applying the principles enunciated by this Court in various cases to the facts of the present case, the position is that the order impugned is prima facie an order of termination simpliciter without involving any stigma. The order does not in any way involve any evil consequences and is an order of discharge simpliciter of the respondent who was a probationer and had no right to the service. The respondent has not been able to make out any strong case for this Court to delve into the documents, materials in order to determine a case of victimisation or one of punishment.”
32. Hon’ble the Supreme Court in case of Ved Priya (supra) has held at paragraph 14 to 22 as under:-
“14. The present case is one where the first respondent was a probationer and not a substantive appointee, hence not strictly covered within the umbrella of Article 311. The purpose of such probation has been noted in Kazia Mohammed Muzzammil v. State of Karnataka:
“25. The purpose of any probation is to ensure that before the employee attains the status of confirmed regular employee, he should satisfactorily perform his duties and functions to enable the authorities to pass appropriate orders. In other words, the scheme of probation is to judge the ability, suitability and performance of an officer under probation. …”
15. Similarly, in Rajesh Kumar Srivastava v. State of Jharkhand5 it was opined:
“… A person is placed on probation so as to enable the employer to adjudge his suitability for continuation in the service and also for confirmation in service. There are various criteria for adjudging suitability of a person to hold the post on permanent basis and by way of confirmation. At that stage and during the period of probation the action and activities of the probationer (appellant) are generally under scrutiny and on the basis of his overall performance a decision is generally taken as to whether his services should be continued and that he should be confirmed, or he should be released from service. …”
16. It is thus clear that the entire objective of probation is to provide the employer an opportunity to evaluate the probationer’s performance and test his suitability for a particular post. Such an exercise is a necessary part of the process of recruitment, and must not be treated lightly. Written tests and interviews are only attempts to predict a candidate’s possibility of success at a particular job. The true test of suitability is actual performance of duties which can only be applied after the candidate joins and starts working.
17. Such an exercise undoubtedly is subjective, therefore, Respondent No.1’s contention that confirmation of probationers must be based only on objective material is farfetched. Although quantitative parameters are ostensibly fair, but they by themselves are imperfect indicators of future performance. Qualitative assessment and a holistic analysis of non quantifiable factors are indeed necessary. Merely because Respondent No. 1’s ACRs were consistently marked ‘Good’, it cannot be a ground to bestow him with a right to continue in service.
18. Furthermore, there is a subtle, yet fundamental, difference between termination of a probationer and that of a confirmed employee. Although it is undisputed that the State cannot act arbitrarily in either case, yet there has to be a difference in judicial approach between the two. Whereas in the case of a confirmed employee the scope of judicial interference would be more expansive given the protection under Article 311 of the Constitution or the Service Rules but such may not be true in the case of probationers who are denuded of such protection(s) while working on trial basis.
19. Probationers have no indefeasible right to continue in employment until confirmed, and they can be relieved by the competent authority if found unsuitable. Its only in a very limited category of cases that such probationers can seek protection under the principles of natural justice, say when they are ‘removed’ in a manner which prejudices their future prospects in alternate fields or casts aspersions on their character or violates their constitutional rights. In such cases of ‘stigmatic’ removal only that a reasonable opportunity of hearing is sinequanon. Way back in Parshotam Lal Dhingra v. Union of India 6, a Constitution Bench opined that:
"28.... In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with."
20. The order of termination of services of Respondent No.1 recites that “the Rajasthan High Court, Jodhpur, after examining all the relevant records has been of the opinion that Shri Ved Priya has not made sufficient use of his opportunities and has otherwise also failed to give satisfaction as a probationer in the Rajasthan Judicial Service.” It is explicit from these contents that neither any specific misconduct has been attributed to Respondent No.1 nor any allegation made. The order is based upon overall assessment of the performance of Respondent No.1 during the period of probation, which was not found satisfactory. Such an inference which can be a valid foundation to dispense with services of a probationer does not warrant holding of an enquiry in terms of Article 311 of the Constitution. It is thus not true on the part of Respondent No.1 to allege that it was a case of an indictment following allegations of corruption against him.
21. True it is that the form of an order is not crucial to determine whether it is simplicitor or punitive in nature. An order of termination of service though innocuously worded may, in the facts and circumstances of a peculiar case, also be aimed at punishing the official on probation and in that case it would undoubtedly be an infraction of Article 311 of the Constitution. The Court in the process of judicial review of such order can always lift the veil to find out as to whether or not the order was meant to visit the probationer with penal consequences. If the Court finds that the real motive behind the order was to `punish’ the official, it may always strike down the same for want of reasonable opportunity of being heard.
22. There is nothing on record in the present case to infer that the motivation behind the removal was any allegation. Instead, it was routine confirmation exercise. The evaluation of services rendered during the probationary period was made at the end of the first respondent’s tenure, along with 92 others. Vigilance reports were called not just for the Respondent No. 1 petitioner, but also for at least ten other candidates. It is thus clear that the object was not to verify whether the allegations against the first respondent had been proved or not, but merely to ascertain whether there were sufficient reasons or a possible cloud on his suitability, given the higher standard of probity expected of a judge.
23. The vigilance report suggests that one of the factors which prompted the Administrative Committee or the Full Court to not confirm Respondent No.1, was his action granting bail in the matters under the NDPS Act. It has not been alleged nor it may be true that the first respondent granted bail in NDPS matters owing to illegal gratifications or any other extraneous consideration. The stand taken by him before us is that bail was granted keeping in mind `equitable and humanitarian considerations’. We find no merit in such an explanation. The question of exercising equity arises only when the Court is conferred jurisdiction expressly or by implication. Respondent No.1 was expected to be in know of Section 36(3) of the NDPS Act, 1985 which expressly ousts competence of a judicial officer below the rank of Sessions Judge or an Additional Sessions Judge in NDPS matters. The High Court on administrative side, therefore, justifiably inferred that Respondent No.1 was prone to act negligently or had the tendency to usurp power which the law does not vest in him. This was a relevant factor to determine suitability of a probationer judicial officer.
24. Even otherwise, it may not be true that just because there existed on record some allegations of extraneous considerations that the High Court was precluded from terminating the services of Respondent No.1 in a simplicitor manner while he was on probation. The unsatisfactory performance of a probationer and resultant dispensation of service at the end of the probation period, may not necessarily be impacted by the fact that meanwhile there were some complaints attributing specific misconduct, malfeasance or misbehavior to the probationer. If the genesis of the order of termination of service lies in a specific act of misconduct, regardless of over all satisfactory performance of duties during the probation period, the Court will be well within its reach to unmask the hidden cause and hold that the simplicitor order of termination, in fact, intends to punish the probationer without establishing the charge(s) by way of an enquiry. However, when the employer does not pickup a specific instance and forms his opinion on the basis of over all performance during the period of probation, the theory of action being punitive in nature, will not be attracted. Onus would thus lie on the probationer to prove that the action taken against him was of punitive characteristics.”
33. Thus, it is quite vivid that the petitioner was probationer and she remained on probation till 31.01.2017 when probation period was not extended by the High Court. It is also quite vivid that the High Court has also not taken into consideration the complaints or report of the learned District Judge, Ambikapur but has taken into consideration the overall performance of the petitioner which was found unsatisfactory, therefore, the contentions raised by the petitioner that in the biased proceeding initiated against her by the then District Judge and report of ICC and other complaints, her termination was passed, deserves to be rejected accordingly, it is rejected.
34. Now this Court has to examine whether the recommendation made by the Standing Committee for termination is within their jurisdiction or not. This issue has already come up for consideration before Division Bench of this Court in case of Ganesh Ram Burman (supra) wherein Hon’ble Division Bench has held at paragraph 32 to 34 as under:-
“32. In view of the above discussion, there is no escape from the conclusion that the decision of the Standing Committee recommending termination of the service of the petitioner was without jurisdiction. We are fully in accord with the view taken by the learned Single Judge that since the High Court has not made any recommendation in terms of Rule 9(4) of the Rules of 2006 to terminate the service of the writ petitioner, the order of termination passed by the respondent No.2 on the basis of recommendation of the Standing Committee is unconstitutional, non-est and without authority of law.
33. In view of the above discussion, we find no merit in this appeal. Accordingly, the writ appeal is dismissed.
34. We affirm the order of the learned Single Judge. We further observe that the High Court will take appropriate decision with regard to probation period of the writ petitioner expeditiously.”
35. Further submission of the petitioner that ACR of the petitioner which was graded ‘D’ has been communicated after order dated 31.01.2017 of termination was passed and the same has lost its significance in view of the law laid down by Hon’ble the Supreme Court in case of Devdutt (supra) & Sukhdev Singh (supra) also deserves to be rejected as the Standing Committee has assessed the overall performance of the petitioner, thereafter impugned order has been passed, which does not vitiate the decision of the Standing Committee not to confirm the petitioner on the count of non-communication of ACR for the year 2015-16.
36. Thus, in view of the above discussion and considering the law laid down by Hon’ble the Supreme Court and also considering the fact that the petitioner was probationer and her probation period has not been extended considering the overall performance, which does not require enquiry as the petitioner is not entitled to get protection under Article 311 of the Constitution of India but considering the law laid down by Hon’ble Division Bench of this Court in case of Ganesh Ram Berman (supra) wherein the competency of the Standing Committee was questioned and it was held that the Standing Committee was not competent to recommend the case of termination of member of Lower Judicial Service. As such, I am of the view that the decision taken by the Standing Committee on 31.01.2017 recommending the case of the petitioner for termination, deserves to be quashed as it has been issued without competency and on the basis of this recommendation, the order dated 09.02.2017 (Annexure P/1) issued by respondent No. 1 deserves to be quashed and accordingly, they are quashed. However, the respondents are free to proceed further in accordance with law.
37. Consequently, the petitioner deserves to be reinstated without back-wages with notional seniority as the petitioner has nowhere pleaded in the writ petition that from the date of termination, she remained unemployed, in view of the law laid down by Hon’ble the Supreme Court in case of Pradeep Vs. Manganese Ore (India) Limited & others, reported in (2022) 3 SCC 683, wherein it has been held at paragraph 12 as under:-
“12. It is, undoubtedly, true when the question arises as to whether the backwages is to be given and as to what is to be the extent of backwages, these are matters which will depend on the facts of the case as noted in Deepali Gundu Surwase (supra). In a case where it is found that the employee was not at all at fault and yet, he was visited with illegal termination or termination which is actually activised by malice, it may be unfair to deny him the fruits of the employment which he would have enjoyed but for the illegal / malafide termination. The effort of the Court must be to then to restore the status quo in the manner which is appropriate in the facts of each case. The nature of the charges, the exact reason for the termination as evaluated and, of course, the question as to whether the employee was gainfully employed would be matters which will enter into the consideration by the Court.”
38. Accordingly, the writ petition is allowed in part reinstating the petitioner on her formal post i.e. Civil Judge Class-II with continuity of service but without back-wages reserving liberty to the respondents to proceed further in accordance with law, if they so desired.
