1 wp-2511-09 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2511 OF 2009 Smt. S. B. Khandelwal, Age 36 yeaqrs, Occ. Lawyer, R/o.Flat No.8, 3rd floor, New Building, Idrayani, Bara Bunglow, Kopri Colony, Thane East-400 603. .. Petitioner Vs. 1. The State of Maharahstra through the Principal Secretary Law and Judiciary Department, Mantralaya, Mumbai-400 032. 2.The Registrar General, High Court of Judicature at Bombay, Mumbai-32. .. Respondents Mr. M. P. Vashi i/by M.P. Vashi and Associate for petitioner. Mr. Samir Patil, AGP for respondent No.1. Mr. V. R. Dhond for respondent No.2. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. RESERVED ON: OCTOBER 18, 2010. PRONOUNCED ON: NOVEMBER 15, 2010 JUDGMENT (PER B. H. MARLAPALLE, J.) 1. Heard Mr. Vashi the learned counsel for the petitioner. 2. Rule. 2 wp-2511-09 3. Respondents waives service. The petition is heard finally. 4. The petitioner came to be selected and appointed to the post of Civil Judge, J.D. and Judicial Magistrate First Class with effect from 12/9/2004 and her appointment was on probation for a period of two years, which could be extended. Initially, she was posted at Pune as 21st Joint Civil Judge, J.D., and JMFC and in the general round of transfers, she came to be transferred as 7th Joint Civil Judge, J.D. and JMFC at Thane in May, 2008. In the meanwhile, her probation period came to be extended for one year upto 11/9/2007. Finally, by an order dated 21/10/2008, she was, on the recommendations of the High Court on its administrative side, dis-continued from service by giving her one month’s salary in lieu of notice, by the State Government. This order dated 21/10/2008 is the subject matter of challenge in this petition filed under Article 226 of the Constitution. 5. It is submitted by the petitioner that as per the remarks communicated to her, the disposal given by her till April, 2007 was noted to be “noteworthy”. There was no complaint against her doubting her integrity or character and even in the extended period of probation, she has given satisfactory disposal. As per her say, there was no case made out to 3 wp-2511-09 invoke the powers under Rule 4(iv)(b) of the Bombay Judicial Service Recruitment Rules, 1956 (for short the Bombay Rules) so as to issue the impugned order of termination. It is further submitted that she was not given a personal hearing before the impugned order was issued. In any case, there is no provision to extend the period of probation beyond two years as per the Maharashtra Judicial Service Rules, 2008 (for short the Maharashtra Rules), which were brought into force before the impugned termination order was issued. It is also pointed out that till the impugned order was issued, there was no order extending her period of probation beyond 11/9/2007 and the same has been done for the first time by the impugned order only. The petitioner also claimed that no adverse remarks were ever intimated to her so as to give her an opportunity to furnish her explanation. 6. The petitioner has placed on record the letters dated 26/9/2006, 2/12/2006, 5/3/2007, 21/4/2007, 23/7/2007 and 18/12/2007 she received under the signature of the District Judge and in all these letters she was informed that her disposal was rated as “noteworthy”. She has amended the petition and stated that the impugned order is punitive, is based on adverse confidential reports, which were not made available to her even when the 4 wp-2511-09 petition was filed on 9/1/2009. Some incident had taken place, which resulted in the adverse remarks made by the then Principal District Judge and arising from a complaint filed under Section 138 of the Negotiable Instruments Act. The petitioner had dismissed the complaint on 21/3/2006 for default and the Advocate for the complainant had lodged a complaint with the High Court. Her explanation was not called for, but as per her, the said complaint was the foundation of her ratings being brought down to “average” or “below average” by the Principal District Judge. It has also been claimed that when the impugned termination order was issued, the Maharashtra Judicial Service Rules, 2008 were in force and the impugned termination order is based on the Bombay Rules which were, in fact, repealed. The learned counsel for the petitioner has also submitted that on completion of four years of service, the petitioner ought to have been treated as deemed confirmed and the impugned order amounted to a punitive action which was required to be taken only after the petitioner was issued a charge-sheet/show cause notice and given an opportunity to defend herself, as per the Maharashtra Civil Services (Discipline & Appeal) Rules 1979. He, therefore, urged that the petitioner ought to be treated as a confirmed judicial officer and if there is anything adverse against her, she is willing to face the disciplinary enquiry in conformity with the 5 wp-2511-09 Maharashtra Service (Discipline and Appeal) Rules. In support of these contentions, he has relied upon the following decisions:- (a) Dev Dutt vs. Union of India and ors. [2008 (3) L.L.N. 621] (b)Khazia Mohammed Muzammil vs. State of Karnataka and anr. [2010(5) ALL MR 426] 7. In the affidavit-in-reply filed by the Joint Secretary, Law and Judiciary Department, Government of Maharashtra, it has been stated that under Article 235 of the Constitution of India, the power to transfer, maintain discipline and keep control over the subordinate judiciary rests with the High Court after the Governor has appointed these judicial officers and the Government does not interfere in these powers of supervision and control over the subordinate courts. It has been further stated that the High Court had given due consideration to the provisions contained in Rule 4(iv) (b) of the Bombay Rules and under the said Rule, it is deemed that the probation period was extended upto the date of service of the termination order, in the instant case. The affidavit further states that the High Court on its administrative side appears to have considered the entire service record and other relevant factors in public interest before forwarding its 6 wp-2511-09 recommendation to discontinue the petitioner as a judicial officer. 8. On behalf of the High Court administration, affidavit-in-reply came to be filed by the Registrar (Legal) on or about 18/2/2009 and an additional affidavit by the Registrar (Legal and Research) was filed on or about 8/10/2010. It has been denied that the impugned order is illegal, unjust, arbitrary and against the principles of natural justice. It has been reiterated that the work of the petitioner as a judicial officer was good from the quantitative point of view but it was not satisfactory from the qualitative point of view. The petitioner, after her probation period was extended by the order dated 29/6/2007, did not improve her performance and also her language and knowledge of law. Consequently, her confirmation was held up and the subject matter was placed before the administrative judges' committee which also endorsed that the petitioner’s work was not satisfactory and, therefore, had decided to extend the period of probation. The administrative judges' committee at the end of four years' tenure of the petitioner, recorded its opinion that she was unfit to be retained in service, having regard to her record of service and the assessment made by the Principal District Judge as well as the Guardian Judge and, therefore, recommended to the State Government accordingly. 7 wp-2511-09 It was not a punitive order and unless a certificate regarding the satisfactory completion of probationary period is issued, no judicial officer can claim to have attained a status of deemed confirmed officer in judicial service, even though in the instant case there was no fresh order of extension of probationary period beyond 11/9/2007. It is also stated that though the petitioner completed four years, one month and 22 days service before the impugned order was issued on 21/10/2008, she could not claim to have attained the status of deemed confirmed judicial officer even under the Maharashtra Rules. It has been further pointed out that when the petitioner was appointed, the Bombay Rules were applicable, but when the impugned order was issued, the Maharashtra Rules were applicable and these Rules were brought into force from August, 2008. However, the discontinuation of the petitioner as a judicial officer under the impugned order ought to be covered under the Bombay Rules. It is also submitted that under the Maharashtra Rules, the maximum period of probation is provided for four years and prior to six months before the end of probation period/extended probation period, the appointing authority shall consider the suitability of the person concerned and if found suitable, issue an order declaring him or her to have satisfactorily completed the said period. However, these Rules specifically provide that absence of such an order 8 wp-2511-09 does not lead to the conclusion that the judicial officer shall be deemed to have completed the period of probation satisfactorily. In the instant case, the extended period of probation ended on 11/9/2008 and even if the Maharashtra Rules apply, the issue of her confirmation was to be decided six months prior to 11/9/2008 and at that time (in March, 2008) the Maharashtra Rules were not in force and, therefore, the Bombay Rules were applicable. Unless there was a specific order, declaring the petitioner to have completed the period of probation satisfactorily, even under the Maharashtra Rules, she cannot claim to be a deemed confirmed judicial officer even after completion of a maximum of four years of the period of probation. Hence, the impugned order does not amount to a punitive order and it is a case of discontinuation of service of a judicial officer on probation for which there is no requirement to issue a show cause notice and to hear the petitioner so as to comply with the principles of natural justice. 9. The learned counsel for the High Court has relied upon the following observations made by a three Judge Bench of the Supreme Court in the case of Dhanjibhai Ramjibhai vs. State of Gujarat [AIR 1985 SC 603]: 9 wp-2511-09 “8. It is then submitted that the appellant enjoyed a legitimate expectation of being confirmed on the expiry of two years of probation and on successfully completing the qualifying tests and training undergone by him. We are not impressed by that contention. It was open to the State Government to consider the entire record of service rendered by the appellant and to determine whether he was suitable for confirmation or his services should be terminated. There was no right in the appellant to be confirmed merely because he had completed the period of probation of two years and had passed the requisite tests and completed the prescribed training. The function of confirmation implies the exercise of judgment by the confirming authority on the overall suitability of the employee for permanent absorption in service.” He has also relied upon the judgment of the Supreme Court in the case of Khazia Mohammed Muzammil (Supra) so as to point out that even Rule 13 of the Maharashtra Rules, which has been relied upon by the petitioner to claim deemed confirmation, cannot support her case in view of sub-rule (5) of the very same Rule. The learned counsel further submitted that the scheme of Rules 13, 14 and 15 of the Maharashtra Rules has to be read together and in harmony and if so read, it would be clear that even after the completion of a maximum period of probation of four years, a judicial officer cannot claim deemed confirmation unless he/she has been 10 wp-2511-09 declared to have satisfactorily completed the period of probation. 10. There cannot be any dispute that the Maharashtra Rules were published by the Notification dated 25/8/2008 and the said Notification was gazetted on 27/8/2008. They have been so framed in exercise of the powers conferred by Articles, 233, 234 and the proviso to Article 309 read with Article 235 of the Constitution of India and in supersession of all the existing rules, orders or instruments made in that behalf and they regulate the recruitment to the Maharashtra Judicial Service from 27/8/2008. Rule 22 of the Maharashtra Rules is regarding repeal and savings and it states that on and from the date of commencement of the Maharashtra Rules, the Bombay Rules shall stand repealed provided that such repeal shall not affect the previous operation of the Rules so repealed, anything done or any action taken shall, in so far as it is not inconsistent with the provisions of the Maharashtra Rules, may be deemed to have been done or taken under the corresponding provisions of the said Rules and shall continue in force unless and until specifically invalidated under the Maharashtra Rules. The appointment of the petitioner was made under the Bombay Rules and when the Maharashtra Rules were brought into force, she was in judicial service. Rule 4(iv) of the Bombay Rules reads as under:- 11 wp-2511-09 “4(iv) a – The person appointed by nomination shall be on probation for a period of two years which may be extended by the High Court from time to time, as it may deem fit. (b) – During the period of probation and untill expressly confirmed by a written order the services of a appointee shall be terminable by one month’s notice on either side, without any reason being assigned therefor or by payment of salary for the period notice or the unexpired portion thereof.” Under the said Rule, the person appointed by nomination to the post of Civil Judge, J.D. and JMFC could be on probation for a period of two years which could be extended by the High Court from time to time, as it may deem fit. During the period of probation and unless expressly confirmed by a written order, the services of an appointee shall be terminated by one month’s notice on either side and without any reason being assigned therefor or by payment of salary for the period of notice or the unexpired portion thereof. There was no cap placed on the extension of the period of probation and the number of such extensions. At the same time, until expressly confirmed by a written order, the services of an appointee on probation could be terminated by one month’s notice on either 12 wp-2511-09 side and without assigning any reason. As against this Rule, the scheme of Rules 13, 14 and 15 of the Maharashtra Rules which scheme, in fact, is based on the First National Judicial Pay Commission Report (for short Shetty Commission Report) recommendations is slightly different. 11. Chapter IV of the Maharashtra Rules deals with probation and officiation and Rules 13 to 16 are under the said Chapter. For the present considerations, Rules 13 to 15 are relevant and hence they are being reproduced as under:- “13. Probation and Officiation.- (1) All appointments to the service by nomination shall be on probation for a period of two years. (2) All appointments by promotion shall be on officiating basis for a period of two years. (3) The period of probation or officiation, as the case may be, for reasons to be recorded in writing, may be extended by the Appointing Authority by such period not exceeding two years. (4) Six months before the end of the period or extended period of Probation or Officiation, as the case may be, the Appointing Authority shall consider the suitability of the person so appointed or promoted to hold the post to which he was appointed or promoted; and 13 wp-2511-09 (i) if found suitable, issue an Order declaring him to have satisfactorily completed the period of Probation or officiation, as the case may be and such an Order shall have effect from the date of expiry of the period of Probation or Officiation, including extended period, if any, as the case may be; (ii) if the Appointing Authority finds that the person is not suitable to hold the post to which he was appointed or promoted, as the case may be, it shall by Order - (a) if he is promotee, revert him to the post which he held prior to his promotion; (b) if he is a probationer, discharge him from service. (5) No person shall be deemed to have satisfactorily completed the period of Probation or Officiation, as the case may be, unless so declared by a specific Order to that effect. 14. Discharge of a Probationer during the period of Probation.- Notwithstanding anything contained in rule 13, the Appointing Authority may, at any time during the period of probation, discharge from services, a probationer on account of his unsuitability for the service. 15. Confirmation.- A Probationer who has been declared to have satisfactorily completed his probation and a promotee who has been declared to have satisfactorily completed his 14 wp-2511-09 period of Officiation shall be confirmed as a member of the service in the category of post to which he was appointed or promoted, as the case may be, in any substantive vacancy which may exist or arise.” 12. Under Rule 13 of the Maharashtra Rules, all appointments to the judicial service by nomination shall be on probation for the period of two years and the said period of probation, for reasons to be recorded in writing, may be extended by the appointing authority by such period, not exceeding two years. Six months before the end of the period or extended period of probation, the appointing authority shall consider the suitability of the person so appointed or promoted to hold the post to which he/she was appointed and if found suitable, issue an order declaring him/her to have satisfactorily completed the period of probation and such an order shall have effect from the date of expiry of the period of probation. If the appointing authority finds that the person is not suitable to hold the post to which he/she was appointed, it shall, by an order, discharge the probationer from service. As per Sub-rule (5) of Rule 13, no person shall be deemed to have satisfactorily completed the period of probation unless so declared by a specific order to that effect. As per Rule 14 of the Maharashtra Rules, 15 wp-2511-09 notwithstanding anything contained in rule 13, the appointing authority may, at any time, during the period of probation, discharge from service the probationer on account of his unsuitability for the service. As per Rule 15, a probationer who has been declared to have satisfactorily completed his probation shall be confirmed as a member of the service in the category of the post to which he was appointed, in any substantive vacancy which may exist or arise. Thus the confirmation of a probationer’s service is not automatic and it is imperative that the probationer is declared to have satisfactorily completed his/her probationary period and then only he/she shall be confirmed as the member of the service. 13. In our opinion, when the impugned order was passed, the Maharashtra Rules were applicable and, therefore, the challenge to the said order has to be tested on the basis of Rules 13 to 15 of the said Rules. Though there is a cap of extension of probationary period by maximum two years under Rule 13(3), Sub-rule (5) of Rule 13 as well as Rule 15 of the said Rules make it very clear that on completion of the extended period of probation and for a maximum period of two years, the judicial officer appointed on probation cannot claim to have been deemed confirmed or satisfactorily completed the period of probation because such a claim is not 16 wp-2511-09 automatic and he/she must be, by a specific order, declared to have completed the probationary period satisfactorily. Confirmation as a member of service of a probationer is also not automatic on completion of the original period of two years or extended period of two years and he/she is required to be declared to have completed his/her probationary period satisfactorily and thereafter only the confirmation follows. This interpretation is in keeping with the law laid down by the Supreme Court in the case of Khazia Mohammed Muzammil (Supra). We also find support to this interpretation from to the Shetty Commission recommendations which have been accepted by the Supreme Court in the case of All India Judges Association and ors. vs. Union of India and ors. [AIR 2002 SC 1752] with some modifications. Chapter III of the Shetty Commission recommendations deals with the recruitment of the judicial officers, whereas Chapter IV of the said Report deals with the probation and officiation. As per Rule 12 (1) of the said Chapter, all appointments to the service by direct recruitment shall be on probation for a period of two years and under Rule 12(3), the period of probation, for the reasons to be recorded in writing, may be extended by the appointing authority by such period not exceeding the period of probation specified in Sub-rule (1). Rule 12(4) of the said Chapter states that at the end of the period of probation or 17 wp-2511-09 the extended period of probation, the appointing authority shall consider the suitability of the person so appointed to hold the post to which he/she was appointed and if it decides that he/she is suitable to hold the post, it shall as soon as possible, issue an order declaring him/her to have satisfactorily completed the period of probation and such an order shall have effect from the date of expiry of the period of probation, including extended period, as the case may be. If the appointing authority considers that the person is not suitable to hold the post to which he/she was appointed, by an order discharge the probationer from service. As per Rule 12(5) of Chapter IV a person shall not be considered to have satisfactorily completed the period of probation unless a specific order to that effect is passed. Any delay in passing such an order shall not entitle the person to be deemed to have satisfactorily completed the period of probation (emphasis supplied). It is thus clear that the Shetty Commission report makes it abundantly clear that any delay in passing the order of satisfactorily completion of probationary period shall not entitle such an appointee to be deemed to have satisfactorily completed the period of probation. Thus any delay on account of administrative/procedural actions to issue a certificate of satisfactorily completion of probationary period does not entitle a judicial officer appointed by nomination to claim deemed confirmation or 18 wp-2511-09 to have satisfactorily completed the probationary period. The Maharashtra Rules have to be read in harmony with the Shetty Commission recommendations and if so read, it is clear that in the instant case the petitioner cannot claim to have attained the status of deemed confirmation or that she was deemed to have completed the probationary period before the impugned order was issued and only because she had completed four years of probation before the impugned order was issued. 14. The arguments advanced by Mr. Vashi that the impugned order amounted to a punitive order and that the petitioner was deemed to have been confirmed in service on completion of four years i.e. on or about 11/9/2008 cannot be accepted. The scheme of the Maharashtra Rules read with the Shetty Commission recommendations does not permit such an interpretation or a vesting right of deemed confirmation or deemed completion of probationary period successfully. The administrative delay caused in issuing the order of completion of probation period, does not entitle the judicial officer for deemed confirmation. Rule 15 of the Shetty Commission recommendations is safeguard to ensure that on account of administrative delays, a judicial officer, otherwise unfit to be retained in service, does not get the benefit of deemed confirmation. An officer unfit 19 wp-2511-09 for being confirmed, cannot be allowed to claim deemed confirmation. 15. Now coming to the issue of the petitioner’s service record, it is noticed that she