Civil Appeal No 628 of 1976
Appeal by special leave from the Judgment and Order dated 4 3 1976 of the Bombay High Court in Spl
Civil Appeal No 138 of 1972
M N Phadke section K Mehta and M N Shroff for the Appellant
G L Sanghi F section Nariman and K R Nagaraja for Respondent No 1
The following Judgments were delivered UNTWALIA J
This appeal by special leave has been preferred by the State of Maharashtra from the judgment of the Bombay High Court given in a Writ Petition filed by respondent No 1 for quashing the order of termination of his service
The High Court has allowed the Writ Petition and quashed the order
Respondent No 1 was appointed a Civil Judge Junior Division and Judicial Magistrate First Class on probation in accordance with the Bombay Judicial Service Recruitment Rules 1956 hereinafter referred to as the Rules
In paragraph 3 of the appointment letter dated 31st October 1960 it was clearly stated You will be on probation for a period of two years from the date on which you take charge of your appointment and during this period your appointment is liable to be terminated without notice
After the period of probation your services are liable to be terminated on one month s notice as long as your appointment is temporary
It should be clearly understood that your appointment at present is purely temporary Respondent No1 pursuant to the said letter of appointment joined the Judicial Service Class II in the State of Maharashtra on the 7th 556 December 1960
The two years  probationary period originally fixed expired on 6th December 1962 even so he was allowed to continue in the post only in an officiating capacity and was not confirmed
His services were terminated by a simple order of termination dated the 15th December 1971 which ran as follows The Government is pleased to terminate the services of Shri V R Saboji Officiating Civil Judge Junior Division and Judicial Magistrate First Class Kalamnuri District Parbhani with effect from 1st February 1972
 A copy of the above order was forwarded to and served upon the first respondent alongwith a covering letter of that date expressly stating therein Your appointment is still temporary and your services are liable to be terminated on one month s notice
I am to state that Government has decided to terminate your services with effect from 1st February 1972 and that you will therefore cease to be in service with effect from that date
A formal order is enclosed herewith
 The first respondent challenged the order of his termination in the High Court by filing a Writ Petition impleading the then Law Secretary to the Government of Maharashtra as respondent No 1 State of Maharashtra respondent No 2 and SShri K N Wahi and P G Karnik as respondents 3 and 4 respectively
To put it briefly the case made out by the first respondent in his Writ Petition was that he had become a confirmed Government servant and the order terminating his services simpliciter was by way of punishment
Respondents 3 and 4 were respectively District and Inspecting District Judges in the District where respondent No 1 happened to work under them
They bore some ill feeling and ill will against him and had made certain enquiries and reported the matter to the High Court as a result of which according to the belief of the said respondent some adverse remarks were given to him and his services were terminated at the insinuation of the said two officers
Affidavits were filed on behalf of the State of Maharashtra and respondents 3 and 4 as well
The latter two in their counters denied the allegations of mala fides against them
In the High Court the following five points were urged on behalf of respondent No 1 1 That the order of termination has been passed as by way of punishment which amounts in fact to dis 557 missal and since the provisions of Article 3112 have not been complied with the order is void 2 That the petitioner has been purposefully picked for discharge when many of his juniors were allowed to be retained
Therefore the order is violative of Article 16 of the Constitution 3 The order has been passed mala fide with a view to circumvent the provisions of Article 311 of the Constitution 4 The petitioner had in fact at the time of termination of his services become permanent employee in accordance with Rule 42iv of the Bombay Judicial Service Recruitment Rules 1956 and 5 The order is bad as it is passed in violation of the provisions of Article 235 of the Constitution
 Point No 5 was decided against respondent No 1
Apropos the other four points the High Court has held 1 that the respondent No 1 will be deemed to have been confirmed in his post because his work was satisfactory and a vacancy in the permanent cadre was available
The Government had no discretion in the matter and it was bound to confirm the said respondent under Rule 42 iv of the Rules 2 that the appointment of respondent No 1 therefore could not be terminated by a simple notice of termination and it was passed by way of punishment in violation of Article 3112 of the Constitution
The High Court did not hear the counsel on either side on the point of mala fides and they also agreed not to advance any argument on that point as mentioned in the High Court judgment
Before us also except in passing no argument of any substance was advanced to press the point of mala fides
The correctness of the decision of the High Court was assailed before us by Mr M N Phadke appearing for the appellant while it was sought to be sustained by Mr F section Nariman appearing for respondent No 1
I now proceed to examine the rival contentions of the parties
In the High Court judgment there is a reference to an undertaking given by respondent No 1 showing his willingness to accept the employment on a temporary basis
But that apart the letter of appointment itself had indicated that he was being appointed on probation and in a temporary capacity
It is necessary at this stage to read the relevant provisions of the Rules
Sub rule 2 of Rule 4 deals with method of recruitment to the Junior Branch Class II and clause iv of sub rule 2 states 558 Unless otherwise expressly directed every person appointed under the last foregoing sub rule shall be on probation for a period of two years and on the expiry of such period he may be confirmed if a there is a vacancy and b his work is found satisfactory
 There was sub clause c also which was deleted in 1961 and we are not concerned with that sub clause
There are two parts of clause iv 1 that it is imperative to put every person appointed under sub rule 2 on probation for a minimum period of two years unless otherwise expressly directed and 2 on the expiry of the said period of two years the person appointed may be confirmed if there is a vacancy and if his work is found to be satisfactory
The plain meaning of the rule is that there is no automatic confirmation on the expiry of the probationary period of two years in the first instance
On the expiry of the said period and on the fulfillment of the requirement of sub clauses a  b a Government servant becomes eligible for being confirmed and normally he is likely to be confirmed
But it is a matter of common knowledge in many branches of Government service including the Judiciary that for administrative reasons or otherwise the confirmation is delayed and is made at a subsequent time
It may also be delayed for watching the work of the Government servant for a further period
The expression unless otherwise expressly directed governs only the first part of clause iv and not the second as was attempted to be argued by Mr Nariman
In my opinion the rule in question therefore comes under the ordinary and normal rule that without an express order of confirmation the Government servant will not be taken to have been confirmed in the post to which he was appointed temporarily andor on probation
It is not covered by the exceptional rule like the one which was the subject matter of consideration of this Court in State of Punjab vs Dharam Singh1
In Kedar Nath Bahl vs The State of Punjab and others2 Palekar J delivering the judgment on behalf of this Court said at page 876 column 2 The law on the point is now well settled
Where a person is appointed as a probationer in any post and a period of probation is specified it does not follow that at the end of 559 the said specified period of probation he obtains confirmation automatically even if no order is passed in that behalf
Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period or there is a specific service rule to that effect the expiration of the probationary period does not necessarily lead to confirmation
At the end of the period of probation an order confirming the officer is required to be passed and if no such order is passed and he is not reverted to his substantive post the result merely is that he continues in his post as a probationer
 I am aware that a review against this judgment was allowed and the appeal was re heard recently by a Division Bench of this Court to which I was a party
The appeal was again dismissed and no different view of law was expressed therein than the one extracted above
Bachawat J also while delivering the judgment on behalf of a Constitution Bench of this Court in Dharam Singh s case supra has said at page 4 thus This Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation he should be deemed to continue in his post as a probationer only in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules
In such a case an express order of confirmation is necessary to give the employee a substantive right to the post and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation it is not possible to hold that he should be deemed to have been confirmed In Rule 63 of he Punjab Educational Service Provincialised Cadre Class III Rules 1961 a certain period had been fixed beyond which the probationary period could not be extended
It was because of that it was held that when the Government servant was allowed to continue in the post after completion of the maximum period of probation without an express order of confirmation he could not be deemed to continue in that post as a probationer by implication
In other words because of the express provision in the rule vis a vis the maximum period of probation the confirmation was automatic
There is nothing of the kind to be found in the rules in the 560 present case
The view of the High Court to the contrary is erroneous and cannot be sustained
Mr Nariman submitted that if an interpretation were to be given to Rule 42 iv that it depended upon the sweet will of the appointing authority to confirm a Government servant as and when it liked then the rule would be violative of Articles 14 and 16 of the Constitution
He placed reliance upon a decision of this Court in section B Patwardhan  others etc
vs State of Maharashtra  others1 in support of his contention I find no substance in the argument
The question for consideration in that case related to the competition of seniority between the direct recruits and the promotees in the Engineering cadre
In that connection it was said at page 796 thus Confirmation is one of the inglorious uncertainities of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies
A glaring instance widely known in a part of our country is of a distinguished member of the judiciary who was confirmed as a District Judge years after he was confirmed as a Judge of the High Court
It is on the record of those writ petitions that officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed
It shows that confirmation does not have to conform to any set rules and whether an employee should be confirmed or not depends on the sweet will and pleasure of the government These observations were made with reference to apparent discriminatory results which followed by applying different standards to the members of the two groups for determining their seniority one the direct recruits and the other promotees
I am not concerned with such a situation in the present case
It was not suggested on behalf of the Government that the confirmation depended on the sweet will and the pleasure of the Government
What was however argued was that on the fulfillment of the two conditions mentioned in sub clauses a and b of clause iv of sub rule 2 of rule 4 of the Rules the Government servant became eligible but there may be several other reasons administrative of otherwise which may delay the confirmation
The confirmation can surely be delayed if the suitability of the Government servant has got to be watched further to decide whether he should be confirmed in the post or not
561 Mr Nariman pointed out that the High Court in support of its view has relied upon a resolution of the Government dated the 19th April 1963 and the Gazette Notification dated the 11th May 1963
It is not necessary to quote both in my judgment
It would suffice to refer to the wordings of the notification only
It reads as follows On satisfactory completion of the probationary period of two years Shri V R Saboji is appointed with effect from 6th December 1962 afternoon as officiating Civil Judge Junior Division and Judicial Magistrate First Class
 The submission was that respondent No 1 had satisfactorily completed his probationary period of two years and therefore he should be deemed to have been confirmed on the strength of this notification
But such an argument is in the teeth of the language of the notification itself as it says that he was appointed from 6th December 1962 as officiating Civil Judge Junior Division and Judicial Magistrate First Class In other words even after the completion of the two years period he continued in officiating capacity and was not confirmed in the post
Two inferences are possible to be drawn from this 1 that the period of probation in case of respondent No 1 stood extended beyond two years until and unless he was confirmed and 2 that in any event he continued in the post in his temporary or officiating capacity
No order was ever made confirming respondent No 1 in the post and without such an order it is difficult to sustain the view of the High Court that he was confirmed
The question of violation of Article 3112 has to be examined in two perspectives
Firstly if it could be held in agreement with the High Court that he should be deemed to have been confirmed in the post to which he was initially appointed it is plain that terminating his services by a notice of termination simpliciter like the one given in this case will be violative of the requirement of Article 3112
On my finding it is manifest that it is not so
He was continuing in the post in an officiating capacity
His services could be terminated by one month s notice simpliciter according to the terms of the employment
Secondly the question to be examined is whether the termination was by way of punishment
Even in the case of a temporary or officiating Government servant his services cannot be terminated by way of punishment casting a stigma on him in violation of the requirement of Article 3112
This principle is beyond any dispute but the difficulty comes in the application of the said principle from case to case
If a Government servant is compulsorily retired or one who is officiating in a higher post is reverted to his parent cadre or when the services 562 of an officiating or temporary Government servant are dispensed with by an order of termination simpliciter then problems arise in finding out whether it is by way of punishment
In different kinds of situation different views have been expressed
Yet the underlying principle remains the same
One should not forget a practical and reasonable approach to the problem in such cases
Ordinarily and generally and there may be a few exceptions any of the three courses indicated above is taken recourse to only if there are some valid reasons for taking the action against the Government servant
If a probe in the matter is allowed to be made in all such cases then curious results are likely to follow
In a given case there may be valid reasons may be of a serious kind which led the authorities concerned to adopt one course or the other as the facts of a particular case demanded
If one were to say in all such cases that the action has been taken by way of punishment then the natural corollary to this would be that such action could be taken if there was no such reason in the background of the action
Then the argument advanced is that the action was wholly arbitrary mala fide and capricious and therefore it was violative of Article 16 of the Constitution
Where to draw the line in such cases 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
The Government is on the horns of the dilemma in such a situation
If the reasons are disclosed then it is said that the order of the Government was passed by way of punishment
If it does not disclose the reasons then the argument is that it is arbitrary and violative of Article 16
What the Government is to do in such a situation In my opinion therefore the correct and normal principle which can be pulled out from the earlier decisions of this Court is the one which I have indicated above
I shall now proceed to refer to only three recent decisions of this Court two relied upon by the appellant and the one by the respondent
I do not consider it necessary to refer to others
In section P Vasudeva vs State of Haryana  Ors
1 a Bench of this Court to which I was a harty Alagiriswami J delivering the judgment of this Court said at page 187  In cases where enquiries have been held before orders of reversion of a probationer to his former lower post or discharge of a probationer or discharge from service of a 563 temporary servant were passed certain decisions have taken the view that where the enquiry was held in order to find out the suitability of the official concerned the order would not be vitiated
In certain other cases it has been held that the enquiry was held with a view to punish and as the enquiry did not satisfy the requirements of Article 311 the punishment was bad
It appears to us that this theory as to whether the reversion to a lower post of a probationer in a higher post or the discharge of a probationer or the discharge from service of a temporary servant was meant as a punishment leads to a very peculiar situation
After ali if such an order gives no reasons the Court will not normally interfere because ex facie there is nothing to show that the order was intended as a punishment Jaswant Singh J delivering the judgment of this Court in State of UP vs Ram Chandra Trivedi1 on behalf of a Division Bench of this Court the other two members of which were Khanna and Sarkaria JJ reviewed all the earlier cases of this Court very elaborately including the well known judgment of Das CJ in Parshotam Lal Dhingra vs Union of India2 and the comparatively recent decision of a Bench of 7 Judges in Shamsher Singh  Anr
vs State of Punjab3 Relevant extracts in extenso have been quoted from those two decisions as well as from others
It would be of use to very briefly state the facts of Ram Chandra Trivedi supra
The respondent was appointed as a temporary clerk in a Canal Division in the year 1954
Seven years later he was required to appear in a departmental examination and there it was found that another clerk of another Canal Division was attempting to personate and appear for the respondent
The Executive Engineer detected this and obtained the explanation of both the clerks and reported the matter to the Superintending Engineer
Finding the explanations tendered by the clerks to be unsatisfactory the Superintending Engineer brought the matter to the notice of the Chief Engineer
The latter asked him to award suitable punishment to the two clerks
The Superintending Engineer thereafter issued the orders terminating the services of both the clerks
Eventually Ram Chandra Trivedi the respondent filed a suit challenging the order of termination of his service as having been made by way of punishment in disregard of Article 3112
The suit was dismissed
The dismissal 564 was maintained by the First Appellate Court
The High Court however allowed the second appeal filed by the respondent and decreed his suit
The State came to this Court in such a situation
This Court reviewed all the previous decisions and finally said at page 475  Keeping in view the principles extracted above the respondent s suit could not be decreed in his favour
He was a temporary hand and had no right to the post
It is also not denied that both under the contract of service and the service rules governing the respondent the State had a right to terminate his services by giving him one month s notice
The order to which exception is taken is ex facie an order of termination of service simpliciter
It does not cast any stigma on the respondent nor does it visit him with evil consequences nor is it founded on misconduct
In the circumstances the respondent could not invite the Court to go into the motive behind the order and claim the protection of Article 3112 of the Constitution
 The case relied upon for the respondent is Manager Govt
Branch Press  Anr
vs D P Belliappa1
Speaking for the Court Sarkaria J found that the order of termination was wholly arbitrary and had been passed because of some hostile motive which the authority terminating the services had against the Government servant concerned
On the facts of this case it was found that the decision of the High Court allowing the Writ Petition of the Government servant was correct and was covered by some earlier decisions of this Court
I may briefly refer to the facts of this case also from the judgment
The appellant in the appeal was the Manager of a Government Press who had terminated the services of Belliappa by the impugned order without assigning any reason albeit in accordance with the conditions of his service while three employees similarly situated junior to Belliappa in the same cadre had been retained
A charge of hostile discrimination was levelled with sufficient particularity against the appellant
Hostile animus was also attributed by Belliappa in his writ petition to his superior officers
He asserted that his service record was good
This fact was not controverted by the appellant by filing any counter affidavit
The impugned order was preceded by a show cause notice of proposed disciplinary action against Belliappa
In such a situation it was observed in the judgment  Of course there is always some reason or cause for terminating the services of a temporary employee
It is not 565 necessary to state that reason in the order of termination communicated to the employee concerned
But where there is a specific charge of arbitrary discrimination or some hostile motive is imputed to the authority terminating the service
It is incumbent on the authority making the impugned order to explain the same by disclosing the reason for the impugned action Emphasis supplied
It would also be seen from the judgment that sufficient time was given to learned counsel for the appellant to show to the Court as to whether the services of the respondent had been terminated on the ground of unsuitability
Yet learned counsel failed to produce any such material in the Court
In that view of the matter the order of the High Court was upheld
Now coming to the facts of the instant case I find that the allegations of mala fides were made in the Writ Petition only against respondents 2 and 3 who were the immediate superior officers of respondent No 1 at the relevant time
No specific allegation was made against them that they made reports against him to the High Court due to any ulterior motive or to feed fat any grudge against respondent No 1
Merely to say as was said by him in his Writ Petition that their action was not justified and it was out of bias that they took the action was not in the least any allegation of mala fide
If it were to be permitted in such cases to examine all these reports in detail to find out whether the reports were justified or not and then to draw an inference of mala fide on that basis where will it lead to Then in every case the reasons for termination of service will have to be scrutinised thread bare to arrive at a conclusion that the order passed was not mala fide
On his own showing respondent No 1 had earned adverse remarks before his service was terminated which clearly showed that his record was not satisfactory
The High Court therefore recommended to the Government that the services of respondent No 1 be terminated
The Government accepted the recommendation of the High Court and terminated his services
No allegation whatsoever of any hostile discrimination was made in the Writ Petition against the High Court or the Government not even against the Chief Justice or any Judge of the High Court who might have dealt with this matter
Nor was any such allegation made against the Law Secretary or the Chief Secretary or any Minister of the Government
After all when the orders were passed against respondent No 1 the High Court must have examined the 566 matter carefully and found that it was not desirable to allow respondent No 1 to continue in the service and must have found further that the facts did not warrant or make it expedient to hold any regular enquiry against respondent No 1 and to remove him from service by way of punishment
I may add that the High Court file containing the recommendation in case of respondent No 1 was ready in the High Court to be shown to the Division Bench which heard the Writ Petition
But the learned Judges refused to see it because the State Counsel was not prepared to show it to respondent No 1
Obviously it could not be shown to him
Otherwise he would have come out with a plea right or wrong that the order was made against him by way of punishment
This is the delicate area where the Government and the State Counsel find themselves in a peculiar and delicate position
Mr Phadke also informed us that the High Court file was ready with him and if we liked we may see it
On the facts and in the circumstances of this case we did not think it necessary to see and therefore we did not see
It was also argued on behalf of respondent No 1 that 162 officers had been appointed when respondent No 1 was appointed to the Judicial Service of Maharashtra along with them
The service of none else was terminated and perhaps others junior to him were confirmed
Mr Phadke informed that till 1971 none of the 162 officers had been confirmed
Some of them might have been or must have been confirmed later
No occasion arose for terminating the services of any other out of those 162 officers except respondent No 1 by the year 1971
It is not quite correct to say that his service record was all through satisfactory and this fact was not controverted in the counter filed on behalf of the State
Having examined all the relevant paragraphs I find that apart from the denial being there in the counter respondent No 1 himself as I have stated above disclosed in his Writ Petition acts of commissions and omissions on his part which which led respondents 3 and 4 to submit adverse reports against him to the High Court
That being so in my opinion the order of termination against respondent No 1 was not passed by way of punishment contravening the requirement of Article 3112 nor was it arbitrary or mala fide
For the reasons stated above I allow this appeal set aside the judgment and order of the High Court and dismiss the Writ Petition filed by respondent No 1
In regard to costs already an order was passed that costs will be paid by the appellant in any event
Accordingly the costs or any balance thereof will be paid by the appellant
567 PATHAK J I agree with the judgment and order proposed by my learned brother
There are certain observations however in his judgment on the point whether a Government servant petitioner is entitled to information from the relevant official records forming the basis of the order terminating his services
Unfortunately I find myself unable to subscribe to these observations
The law it seems to me is that where the services of a temporary Government servant or a probationer Government servant are terminated by an order which does not ex facie disclose any stigma or penal consequences against the Government servant and is merely a termination order simpliciter there is no case ordinarily for assuming that it is anything but what it purports to be
Where however the order discloses on the face of it that a stigma is cast on the Government servant or that it visits him with penal consequences then plainly the case is one of punishment
There may still be another kind of case where although the termination of service is intended by way of punishment the order is framed as a termination simpliciter
In such a case if the Government servant is able to establish by material on the record that the order is in fact passed by way of punishment the innocence of the language in which the order is framed will not protect it if the procedural safeguards contemplated by Article 3112 of the Constitution have not been satisfied
In a given case the Government servant may succeed in making out a prima facie case that the order was by way of punishment but an attempt to rebut the case by the authorities may necessitate sending for the official records for the purpose of determining the truth
It is in such a case generally that the official records may be called for by the Court
It is not open to the Court to send for the official records on a mere allegation by the Government servant that the order is by way of punishment
For unless there is material on the record before the Court in support of that allegation an attempt by the Court to find out from the record whether the termination of service is based on the unsuitability of the Government servant in relation to the post held by him or is in reality an order by way of punishment will in effect be an unwarranted attempt to delve into the official records for the purpose of determining the nature of the order on the basis of a mere allegation of the Government servant
On a sufficient case being made out on the merits before the Court by the Government servant it is open to the Court to resort to scrutiny of the official records for the purpose of verifying the truth
I am unable to see why the Court should decline to peruse the official records in an appropriate case and why where considerations of privilege and confidentiality do not suffer the information set forth in the records should 568 not be made available to the Government servant
The mere possibility that the official records could confirm what the Government servant had set out to prove and prima facie had indeed proved should not shut out disclosure of the information
What I say here in no way detracts from what this Court has laid down in State of UP vs Ram Chandra Trivadi1 The Court did deprecate there the act of the High Court in probing into the departmental correspondence that passed between the superiors of the Government servant for the purpose of determining whether the impugned order was passed by way of punishment
But it does not appear from the facts recited in that case that the Government servant had made out any case that the impugned order had been made by way of punishment and that on the claim being disputed by the State it was necessary to ascertain whether the case sought to be proved by the Government servant stood rebutted or confirmed by the departmental correspondence
I am unable to spell out from the judgment any absolute rule enunciated by this Court that where the order terminating the services of a temporary or a probationer Government servant is ex facie an order of termination simpliciter the Government servant is barred from establishing that it is in fact an order by way of punishment and that on the Government servant succeeding in establishing it to be so the court is prohibited from examining the official records for the purpose of verifying the true position
The question of scrutinising the official records arises where a government servant is entitled to show that although the order impugned by him purports to be an order of termination simpliciter it is in fact an order made by way of punishment
In regard to that right this Court specifically referred in Ram Chandra Trivedi supra to the decisions in Union of India  Ors
vs R section Dhaba and R section Sial vs The State of UP  Ors2 with approval and observed  The form of the order however is not conclusive to its true nature
The entirety of circumstances preceding or attendant on the impugned order must be examined by the court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order
 569 And it proceeded to quote from Shamsher Singh  Anr
vs State of Punjab1 decided by a Bench of seven Judges of this Court that  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 3112 of the Constitution
 In the same case it was observed further  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 It seems clear that if a Government servant is able to establish that although the impugned order is innocent ex facie it was made on the ground that he was guilty of misconduct and therefore the order was intended by way of punishment
The law still is that an order although framed in terms which do not cast an aspersion against the character and integrity of the Government servant or visit him with evil consequences may still be proved to be in fact one by way of punishment
It is true that in section P Vasudeva vs State of Haryana  Ors2 this Court laid down that ordinarily the courts should not go behind an order of reversion of a person who had no right to the post if ex facie it did not disclose that he was being reverted as a measure of punishment and did not cast any stigma on him
But the words advisedly used were  
The courts will not normally go behind that order to see if there were any motivating factors behind that order No definite principle as a rule of law appears to have been laid down in that case on the point and the Court has merely suggested that 570 the question whether it should be open to the courts in such cases to go behind the order should be examined de novo and it recommended that an order reverting a probationer from a higher to a lower post or discharging a probationer or discharging a temporary servant from service should not be questioned except on the basis of mala fides in making the order
From the further comments of the Court it appears that the observation was made with a view to lightening the burden of the Court having regard to the heavy load of work presently occupying it
Until the day that the recommendation is accepted I believe it to be true that the jurisdiction of the courts extends to examining and scrutinising the official records in the circumstances to which I have specifically adverted
In the present case if the High Court refused to examine the official records I presume that the reason was that the respondent Government servant had failed to make out any case whatever that the order was by way of punishment and there being no doubt in the mind of the High Court on the point it was justified in declining to look into the official records
That the respondent Government servant has been unable to make out any case at all that the impugned order is by way of punishment is clearly evident from the material before us
No occasion arises in such a case for scrutinising the official records
The appeal is allowed the judgment and order of the High Court are set aside and the Writ Petition filed by the first respondent is dismissed
In view of the order already made by this Court that the respondent will be entitled to his costs from the appellant in any event the respondent will be paid his costs accordingly
section R Appeal allowed


Summary:
Respondent 1 joined the judicial service Class II in the State of Maharashtra on the 7th December 1960 as per his order of appointment which clearly states i that he would be on probation for a period of two years from the date of his joining ii that during that period his appointment would be liable to be terminated without notice iii that after the period of probation his services would be liable to be terminated on one month s notice as long as his appointment was temporary
The two years  probationary period originally fixed expired on 6th December of 1962 even so he was allowed to continue in the post only in an officiating capacity and was not confirmed
His services were terminated with effect from 1 2 1972 by a simple order of termination dated 15th December 1971
Respondent 1 challenged the order of his termination by filing a writ petition
The High Court of Bombay allowed the petition holding 1 that Respondent 1 would be deemed to have been confirmed in his post because his work was satisfactory and a vacancy in the permanent cadre was available
The Government had no discretion in the matter and it was bound to confirm him under Rule 42iv of the Rules 2 that the appointment of respondent 1 therefore could not be terminated by a simple notice of termination and it was passed by way of punishment in violation of Article 3112 of the Constitution
Allowing the appeal by special leave the Court  HELD Per Untwalia J 1
Sub rule 2 of Rule 4 of the Bombay Judicial Service Rules 1956 deals with the method of recruitment to the Junior Branch Class II
Clause iv of Sub rule 2 of Rule 4 deals with probation and confirmation
There are two parts of clause iv a that it is imperative to put every person appointed under sub rule 2 on probation for a minimum period of two years unless 552 otherwise expressly directed and b on the expiry of the said period of two years the eprson appointed may be confirmed if there is a vacancy and if his work is found to be satisfactory
557H 558 B C The plain meaning of the rule is that there is no automatic confirmation on the expiry of the probationary period of two years in the first instance
On the expiry of the said period and on the fulfillment of the requirement of sub clauses a and b a Government servant becomes eligible for being confirmed and normally he is likely to be confirmed
But in many branches of Government service including the judiciary that for administrative reasons or otherwise the confirmation is delayed and is made at a subsequent time
It may also be delayed for watching the work of the Government servant for a further period
The expression unless otherwise expressly directed governs only the first part of clause iv and not the second part
Therefore the rule in question comes under the ordinary and normal rule that without an express order of confirmation the Government servant will not be taken to have been confirmed in the post to which he was appointed temporarily andor on probation
It is not covered by the exceptional rule like the one in State of Punjab vs Dharam Singh  558C F State of Punjab vs Dharam Singh   Kedar Nath Bahl vs State of Punjab and Ors AIR 1972 SC 873 referred to
Rule 42 iv of the Bombay Judicial Service Recruitment Rules 1956 does not violate Articles 14 and 16 of the Constitution there being several other reasons administrative or otherwise which may delay the confirmation of an officer
The confirmation can surely be delayed if the suitability of the Government servant has got to be watched further to decide whether he should be confirmed in the post or not
560 B G H section B Patwardhan and Ors
etc etc v State of Maharashtra   distinguished
The Government Resolution dated 19 4 1963 and the Gazette Notification dated 11 5 1963 do not give a deemed confirmation status
Two inferences are possible to be drawn from them 1 that the period of probation stood extended beyond two years until and unless he was confirmed and 2 that in any event be continued in the post in his temporary or officiating capacity
561A D E 4
Termination of services by a notice of termination simpliciter will be violative of the requirement of Article 3112 of the Constitution if the Government servant be held either as confirmed or deemed to have been conformed in the post to which he has been initially appointed
In the instant case Respondent 1 was continuing in the post in an officiating capacity
His services could be terminated by one month s notice simpliciter
561E G 5
If the termination was by way of punishment then also Article 3112 would be attracted
Even in the case of a temporary or officiating Government servant his services cannot be terminated by way of punishment casting a stigma on him in violation of the requirement of Article 3112
561 G H 6
Ordinarily and generally any of the three courses namely compulsory retirement reversion to parent cadre from a higher officiating post dispensing 553 with the services of an officiating or temporary Government servant with an order of termination simpliciter is taken recourse to only if there are some valid reasons for taking the action against the Government servant
If a probe in the matter is allowed to be made in all such cases then curious results are likely to follow
In a given case there may be valid reasons may be of a very serious kind which led the authorities concerned to adopt one course or the other as the facts of the particular case demanded
If reasons are disclosed in the order then it could be said that the order of the Government was passed by way of punishment
If not disclosed then it would be said as arbitrary and violative of Article 16 of the Constitution
Only a practical and reasonable approach to the problem would solve it
Ordinarily and generally the rule laid down in most of the cases by this Court is that the Court should 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 malafide unless a very strong case is made out and proved by the Government servant who challenges such an order
562B E section P Vasudeva vs State of Haryana  Ors   State of UP vs Ram Chandra Trivedi   Parshotam Lal Dhingra vs Union of India   Shamsher Singh vs State of Punjab  and Manager Govt
Branch Press  Anr
vs D P Belliappa   referred to
Malafide should be pleaded by specific allegations
Merely to say that the action was not justified and it was out of bias that the impugned action was taken was not in the least any allegation of malafide
565 E In the instant case in the absence of any specific allegation against any of the respondents in the Writ Petition the conclusion would be that when the orders were passed against Respondent 1 the High Court must have examined the matter carefully and found that it was not desirable to allow him to continue in the service and must have further found that the facts did not warrant or make it expedient to hold any regular enquiry against him and to remove him from service by way of punishment
The order of termination against Respondent 1 was not passed by way of punishment contravening the requirement of Article 311 2 of the Constitution
565H 566A B G 8
The State counsel rightly refused to show the records of the case to Respondent 1
Obviously it could not be shown to him
Otherwise he would have come out with a plea right or wrong that the order was made against him by way of punishment
566B C Per Pathak J 1
Where the services of a temporary Government servant or a probationer Government servant are terminated by an order which does not ex facie disclose any stigma or penal consequences against the Government servant and is merely a termination order simpliciter there is no case ordinarily for assuming that it is anything but what it purports to be
Where however the order discloses on the face of it that a stigma is cast on the Government servant or that it visits him with penal consequences then plainly the case is one of punishment
There may still be another kind of case where although the termination of services is intended 554 by way of punishment the order is framed as a termination simpliciter
In such a case if the Government servant is able to establish by material on the record that the order is in fact passed by way of punishment the innocence of the language in which the order is framed will not protect it if the procedural safeguards contemplated by Article 3112 of the Constitution have not been satisfied
567 B D 2
The jurisdiction of the Court extends to examining and scrutinising the official records in the following circumstances a The official records may be called for by the Court generally in a given case for the purpose of determination the truth where the Government servant succeeds in making out a prima facie case that the order was by way of punishment but an attempt to rebut the case is made by the authorities
567D E b It is not open to the Court to send for the official records on a mere allegation by the Government servant that the order is by way of punishment
For unless there is material on the record before the Court in support of that allegation an attempt by the Court to find out from the record whether the termination of service is based on the unsuitability of the Government servant in relation to the post held by him or is in reality an order by way of punishment will in effect be an unwarranted attempt to delve into the official records for the purpose of determining the nature of the order on the basis of a mere allegation of the Government servant
On a sufficient case being made out on the merits before the Court by the Government servant it is open to the Court to resort to scrutiny of the official records for the purpose of verifying the truth
567E G c Courts should not decline to peruse the official records in an appropriate case
Where considerations of privilege and confidentiality do not suffer the information set forth in the records should be made available to the Government servant
The mere possibility that the official records could confirm what the Government servant had set out to prove and prima facie had indeed proved should not shut out disclosure of the information
567G H 568A d There is no absolute rule that where the order terminating the services of a temporary or a probationer Government servant is ex facie an order of termination simpliciter the Government servant is barred from establishing that it is in fact an order by way of punishment and on the Government servant succeeding in establishing it to be so the Court is prohibited from examining the official records for the purpose of verifying the true position
568D E e The question of scrutinising the official records arises where a Government servant is entitled to show that although the order impugned by him purports to be an order of termination simpliciter it is in fact an order made by way of punishment
568E F f If a Government servant is able to establish that although the impugned order is innocent ex facie it was made on the ground that he was guilty of misconduct and therefore the order was intended by way of punishment the law still is that an order although framed in terms which do not cast an aspersion against the character and integrity of the Government servant or visit him with evil consequences may still be proved to be in fact one by way of punishment
569E F 555 g In the present case the reason for the High Court refusing to examine the official records was that the respondent Government servant had failed to make out any case whatever that the order was by way of punishment
There being no doubt in the mind of the High Court on the point it was justified in declining to look into the official records
570C D State of UP vs Ram Chandra Trivedi   Union of India vs R section Dhaba  R section Sial vs The State of UP  Ors  Shamsher Singh  Anr
vs State of Punjab   applied
section P Vasudeva vs State of Haryana and Ors   explained and relied on