WP(C) No.6318 of 2010 Page 1 of 21 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Writ Petition (Civil) No.6318 of 2010 Judgment Reserved On: 17th September, 2010. % Judgment Pronounced On: 29th October, 2010. GAUTAM KANT NIMAAN . . . Appellant through : Mr. P.P. Khurana, Sr. Advocate with Ms. Tamali Wad, Advocate. VERSUS GNCT OF DELHI AND OTHERS . . .Respondent through: Mr. Rattan Lal, Advocate for Respondent No.1. Mr. Viraj R. Datar, Advocate with Mr. Chetan Lokur, Advocate and Mr. S.M. Afzal, Advocate for respondent No.2. CORAM :- HON’BLE MR. JUSTICE A.K. SIKRI HON’BLE MR. JUSTICE MANMOHAN SINGH 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, J. 1. The services of the petitioner, who was appointed as a Judicial Officer in the Delhi Judicial Service, have been terminated vide orders dated 18th August, 2010 invoking the provisions of Rule 22 of the Delhi Judicial Service Rules, 1970, which reads as under: “The services of a person on probation are liable to be terminated without assigning any reason.” This order is challenged by filing the present writ petition, primarily on two counts: WP(C) No.6318 of 2010 Page 2 of 21 (i) The petitioner was no more a probationer and therefore invocation of the aforesaid Rule was impermissible. (ii) The order of termination though is couched as termination simplicitor, in fact it is punitive in nature and therefore without serving the charge sheet and holding a Departmental inquiry, the services of the petitioner could not have been terminated. 2. In order to gauge the merit, or otherwise, all these contentions we would like to traverse through the factual matrix leading to the passing of the aforesaid orders. 3. The petitioner was appointed as a Member of the Delhi Judicial Service in Scale of `9000 – 14,500 vide orders dated 23.01.2007 issued by the Lieutenant Governor of National Capital Territory of Delhi. In pursuance thereto, the petitioner joined the service on 02.04.2007. The Delhi Judicial Service is covered by the Delhi Judicial Service Rules, 1970 (hereinafter referred to as „the Rules‟), as amended from time to time. Part V of Rules which contains Rules 20 to 23 deals with „probation‟. Rule 20 (2) thereof stipulates that a person so appointed shall be on probation for a period of two years. The petitioner was also placed on probation for two years. The appointment letter dated 23.01.2007 contained specific to this effect as well and that reads as under: “1. The appointment shall be initially made on probation for a period of two years in accordance with the provisions of the Delhi Judicial Service Rules, 1970.” 4. The period of two years expired on 01.04.2009. However, proviso to Rule 21 provides for extension of period of probation and at the WP(C) No.6318 of 2010 Page 3 of 21 same time, it also stipulates that the period of probation would not extend beyond the period of three years. In the case of the petitioner, no order for confirmation was passed at the end of initial period of two years. At the same time, there was no order in writing either to extend the period of probation. 5. According to the petitioner, he completed even three years period from the date of his appointment, which is the maximum period provided under the Rules. Therefore, in no case the probation of the petitioner could have been extended beyond 01.04.2010. It is on this premise the first argument raised by the learned Senior counsel for the petitioner is that Rule 22 of the Rules could not have been invoked while terminating his service vide orders dated 18.08.2010. 6. To complete the narration of facts, we note that it is stated in the petition that while the petitioner was performing his duty as Metropolitan Magistrate at the District Court Rohini, New Delhi, two lawyers, one of whom introduced himself as the President of the Bar Association came towards the dais and disrupted the Court forcing him to stop the Court proceedings and to go to his chamber. The said lawyers thereafter entered the chamber of the petitioner and unabashedly locked the door with intent to cause alarm and threatened the petitioner with injury to his person in case he refused to pass certain orders favourable to the accused persons in a case titled State Vs. Varun Pal and Others (FIR No.787/96) under Section 506/34 of the IPC which was pending in the Court of the petitioner and was listed before him on the said date. By this unruly behaviour, the petitioner was disabled to hold WP(C) No.6318 of 2010 Page 4 of 21 the Court from 11.30 a.m. to 12.30 p.m. On resumption of his judicial functions, the petitioner recorded the entire incident as part of the order in the said case and sent a copy of the proceedings to the learned District Judge, Rohini as well as to this Court for appropriate action on the very same day. Some weeks later, however, the petitioner was served with a letter from the District Judge, Rohini forwarding a letter dated 17.06.2010 from the Registrar General, Delhi High Court, calling upon the petitioner to furnish his comments on a complaint dated 26.05.2010 received against him from the Rohini Bar Association. In the complaint, certain other averments were made. It was in this context that his version on the said complaint was sought for by inviting his comments. He was also directed to provide details on his activities and his location on the night intervening 23/24.05.2010. 7. To state in brief, it was averred that the petitioner was seized of a matter on judicial side pertaining to FIR No.787/96 under Section 506/34 IPC, P.S. Shalimarbagh titled as State Vs. Varun Pal and Others. It was found that on the intervening night of 23/24.05.2010, the petitioner had shared the drink with the accused persons in the aforesaid FIR n a Wagon-R car bearing No. DL 37778 in the areas of Shakti Nagar Extension. He allegedly remained in the company of said persons till 2.15 a.m. and got down from the said car at Shakti Nagar Extension. It was further pointed out in the said FIR that the accused persons were held guilty and convicted vide orders dated 14.05.2010 and the case was fixed for arguments on the point of sentence on 26.05.2010. WP(C) No.6318 of 2010 Page 5 of 21 It is also stated in the complaint that during his stay with the accused persons on that date, version which transpired between him and accused persons was duly recorded. The Bar Association claimed that the President of Bar Association had confronted with the petitioner about his purported meeting with the accused persons on the intervening night of 23/24.05.2010 and also played the tape-recorded discussion which transpired between him and the accused persons. As per the complaint, the petitioner had admitted his meeting with the said accused persons and the talks which were held between them. He also requested the President, Bar Association that he should be excused and in future he would not commit any such blunder. It was for this reason that the said version of petitioner was called for by the High Court. The petitioner submitted his reply dated 24.06.2010 denying the allegations made in the complaint. He reiterated that the incident which took place in the Court on 26.05.2010 which led his filing of the complaints against the Members of the Bar Association as well as registering of FIR. 8. On 26.07.2010, the judicial work was withdrawn from the petitioner by the High Court, which was conveyed to the petitioner as per the communication received from the Registrar General of this Court. Thereafter the impugned order termination his service invoking the provisions of Rule 22 of the Rules was passed. It is in this backdrop, second argument of the petitioner is that, if at all, the termination is punitive in nature and the services of the petitioner are terminated because of the allegations made by the WP(C) No.6318 of 2010 Page 6 of 21 Bar Association, which were of serious in nature and he should have been given an opportunity to prove his innocence. 9. When this matter came up for hearing on admission on 17.09.2010, counsel for the respondent No.1 and 2 were present on advance notice. Mr. Datar, learned counsel for the respondent No.2, the High Court of Delhi was ready with the records of the case. In these circumstances, arguments were heard on admission and orders reserved. 10. As the necessary facts on the basis of which the present writ petition is filed have been unfolded above, we now proceed to discuss twin contentions on which strenuous submissions were made by Mr. P.P. Khurana, learned Senior counsel who appeared for the petitioner. (i) Whether the petition stood confirmed with the expiry of two year/three years period from the date of his appointment? For deciding this issue, we may scan through Rules relating to probation as contained in Delhi Judicial Service Rules. Reading of these Rules would be necessary to appreciate the controversy, we reproduce these Rules in their entirety. “PART V Probation 20. (1) Persons appointed to the service at the initial recruitment shall stand confirmed with effect from the date of appointment. (2) All other candidates on appointment to the service shall be on probation for a period of two years. 21. All persons appointed to the service on probation shall be confirmed at the end of the said period of two years: Provided that the Administrator may, on the recommendations of the High Court, extend the period of WP(C) No.6318 of 2010 Page 7 of 21 probation, but in no case shall the period of probation extend beyond the period of three years. 22. The services of a person on probation are liable to be terminated without assigning any reason. 23. After successful completion of the period of probation the officer shall be confirmed in the service by the Administrator in consultation with the High Court and the same shall be notified in the Gazette.” 11. In the present case, though the petitioner had completed maximum period of probation, admittedly there was no order of confirmation in writing. Thus, having regard to the aforesaid Rules, can it be concluded that on the completion of maximum period of probation, the petitioner is deemed confirmed in the services? This very issue has invited the attention of the Apex Court time and again by series of judgments. The legal position now stands firmly crystallized. It may not be necessary to refer to all these judgments and our purpose would be served by taking note of the principles of law revisited by the Supreme Court in the case of Dayaram Dayal Vs. State of M.P. and Another [(1997) 7 SCC 443]. The matter came up for consideration before the Supreme Court again in Wasim Beg Vs. State of Uttar Pradesh & Ors. [(1998) 3 SCC 321]. The Court again reviewed the entire gamut of case law and opined that the answer to the question posed would depend upon particular service rule/regulations. The Court classified the case into three categories which was spelt out in the following manner: “ 15. Whether an employee at the end of the probationary period automatically gets confirmation in the post or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary, will depend upon the provisions in the relevant Service Rules relating to probation and confirmation. There are broadly two sets of authorities of this Court dealing with this question. In those WP(C) No.6318 of 2010 Page 8 of 21 cases where the Rules provide for a maximum period of probation beyond which probation cannot be extended, this Court has held that at the end of the maximum probationary period there will be a deemed confirmation of the employee unless Rules provide to the contrary. This is the line of cases starting with State of Punjab v. Dharam Singh, M.K. Agarwal v. Gurgaon Gramin Bank, Om Parkash Maurya v. U.P. Coop. Sugar Factories Federation, State of Gujarat v. Akhilesh C. Bhargav. 16. However, even when the Rules prescribe a maximum period of probation, if there is a further provision in the Rules for continuation of such probation, beyond the maximum period, the courts have made an exception and said that there will be no deemed confirmation in such cases and the probation period will be deemed to be extended. In this category of cases we can place Samsher Singh v. State of Punjab which was the decision of a Bench of seven Judges where the principle of probation not going beyond the maximum period fixed was reiterated but on the basis of the Rules which were before the Court, this Court said that the probation was deemed to have been extended. A similar view was taken in the case of Municipal Corporation v. Ashok Kumar Mishra. In Satya Narayan Athya v. High Court of M.P. although the Rules prescribed that the probationary period should not exceed two years, and an order of confirmation was also necessary, the termination order was issued within the extended period of probation. Hence the termination was upheld. 17. The other line of cases deals with Rules where there is no maximum period prescribed for probation and either there is a Rule providing for extension of probation or there is a Rule which requires a specific act on the part of the employer (either by issuing an order of confirmation or any similar act) which would result in confirmation of the employee. In these cases unless there is such an order of confirmation, the period of probation would continue and there would be no deemed confirmation at the end of the prescribed probationary period. In this line of cases, one can put Sukhbans Singh v. State of Punjab, State of U.P. v. Akbar Ali Khan, Kedar Nath Bahi v. State of Punjab, Dhanjibhai Ramjibhai v. State of Gujarat and Tarsem Lal Verma v. Union of India, Municipal Corporation v. Ashok Kumar Misra and State of Punjab v. Baldev Singh Khosla. In the recent case of Dayaram Dayal v. State of M.P. (to which one of us was a party) all these cases have been analysed and it has been held that where the Rules provide that the period of probation cannot be extended beyond the maximum period there will be a deemed confirmation at the end of the maximum probationary period unless there is anything to the contrary in the Rules.” 12. Both these decisions, along with other cases, were taken note of by the Supreme Court again in the case of Karnataka State WP(C) No.6318 of 2010 Page 9 of 21 Road Tpt. Corporation & Anr. Vs. S. Manjunath [(2000) 5 SCC 250]. In Para 9 of the judgment, it was again highlighted that the law on the subject has been varying, depending upon the peculiar pattern of the service rules/regulations concerned and the scheme underlying the same in spite of more than one Constitution Bench judgments of this Court declaring the general and basic principles governing the rights of a probationer. There was a keen observation made by the Court, in the process, that there had always a keen tussle between the employer and employee in the application of those principles to individual or class or category of cases. The Court thereafter in Para 10 and 11 referred to the two Constitution Bench cases as well as aforesaid decisions in Dayaram Dayal (supra) and Wasim Beg (supra) and analyzed these cases in the following manner: “10. This Court had an occasion, to review, analyse critically and clarify the principles on an exhaustive consideration of the entire case law in two recent decisions reported in Dayaram Dayal's case (supra) and Wasim Beg's case (supra). One line of cases has held that if in the Rule or Order of appointment, a ; period of probation is specified and a power to extend probation is also conferred and the officer is allowed to continue beyond the prescribed period of probation, he cannot be deemed to be confirmed and there is no bar : on the power of termination of the officer after the expiry of the initial or extended period of probation. This is because, at the end of probation he becomes merely qualified or eligible for substantive permanent appointment. The other line of cases are those where even though there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The Constitution Bench which dealt with the case reported in State of Punjab v. Dharam Singh [1968]3SCR1 , while distinguishing the other line of cases held that the presumption about continuation, beyond the period of probation, as a probationer stood negatived by the fixation of a maximum time limit for the extension of probation. Consequently, in such cases the termination after expiry of the maximum period upto which probation could be extended was held to be invalid, inasmuch as the officer concerned must be deemed to have been confirmed. WP(C) No.6318 of 2010 Page 10 of 21 11. The principles laid down in Dharam Singh's case (supra) though were accepted in another Constitution Bench of a larger composition in the case reported in Samsher Singh, etc. v. State of Punjab and Anr. (1974) IILLJ 465 SC , the special provisions contained in the relevant rules taken up for consideration therein were held to indicate an intention not to treat the officer as deemed to have been confirmed, in the light of the specific stipulation that the period of probation shall be deemed to be extended if the officer concerned was not confirmed on the expiry of his period of probation. Despite the indication of a maximum period of probation, the implied extension was held to render the maximum period of probation a directory one and not mandatory. Hence, it was held that a probationer in such class of cases is not to be considered confirmed, till an order of confirmation is actually made. The further question for consideration in such category of cases where the maximum period of probation has been fixed would be, as to whether there are anything else in the rules which had the effect of whittling down the right to deemed confirmation on account of the prescription of a maximum period of probation beyond which there is an embargo upon further extension being made, and such stipulation was found wanting in Dayaram Dayal's case (supra).” 13. It, thus, follows from the reading of the aforesaid judgments that one has to look into the provisions of the applicable service rules/regulations to find out which of the three categories of the case at hand would fall. Keeping this position in law, we may examine the Rules relating to probation in the instant case : (a) Initial period of probation is two years; (b) The service of a probationer shall be confirmed after successful completion of the period of probation. This is to be done by the Administrator in consultation with the High Court; (c) This probation can be extended by the Administrator, on the recommendation of the High Court, but the probation is not to extend beyond three years; (d) An officer who is on probation is to be confirmed after successful completion of the period of probation; WP(C) No.6318 of 2010 Page 11 of 21 (e) Order of confirmation has to be in writing and the same is to be notified in the gazette. (f) Services of the probationer can be terminated without assigning any reason. 14. Rule position that follows from the aforesaid is that though maximum period of probation is provided, at the same time rules also provide that Judicial Officer would be confirmed subject to his fitness. In these circumstances, it cannot be said that at the end of the maximum period of probation, the probationer would be deemed to be confirmed automatically. 15. In somewhat similar circumstances, the Supreme Court in the case of Jai Kishan Vs. Commissioner of Police and Anr. [AIR 1996 SC 660] held such a probationer would not be treated as confirmed. That was a case where the services of temporary Constable were terminated under Rule 5(e) of the Central Services Temporary (Service) Rules, 1966. The Court was not convinced that the incumbent should be treated as confirmed as he had rendered five years of services as against maximum period of three years of probation. The Court held that the successful completion of probation is a condition precedent for confirmation as envisaged in the Rules. The governing rule therein and the discussion in this behalf reads as under: “3…………………. Rule 5(e) of the Rules reads as follows: (e) (i) All direct appointments of employees shall be made initially on purely temporary basis. All employees appointed to the Delhi Police shall be on probation for a period of two years. WP(C) No.6318 of 2010 Page 12 of 21 Provided that the competent authority may extent the period of probation but in no case shall the period of probation extend beyond three years in all. (ii) The services of an employee appointed on probation are liable to be terminated without assigning any reason. (iii) After successful completion of period of probation, the employee shall be confirmed in the Delhi Police by the competent authority, subject to the availability of permanent post. 4. A reading thereof clearly indicates that all direct recruits are required to be on probation for a period of two years and in no case the probation would extend beyond the period of three years. During the period of probation the probationer is required to complete successfully the probation complying with the conditions of passing the test etc. Thereafter, they need be confirmed in the Delhi Police service. The confirmation into the service, therefore, is a condition precedent, to continue as a member of Delhi Police Service. In spite of giving repeated opportunities to improve himself he failed to improve his performance. So he was given notice on 14-9-1988 terminating his service by the impugned order. 5. It is contended by the learned Counsel for the appellant, placing reliance on State of Punjab v. Dharam Singh [1968] 3 SCR 1 , that even if the appellant was not confirmed by passing any order, on expiry of three years he must be deemed to have been confirmed as a member of the Service. Thereafter, the respondents had no jurisdiction to terminate his service. It is difficult to accept the contention. Dharam Singh's case bears no relevance, as similar provision was not there in the concerned rule. Successful completion of probation is a condition precedent for confirmation as envisaged in Clause (iii) of Rule 5(e) of the Rules. The authorities have power to allow maximum period of 3 years of probation. In this case instead of giving him three years, they have giving long 5 years period so as to see whether the appellant would improve his performance in the service. Since they found that there was no satisfactory improvement, his probation was terminated and was removed from service as a probationer. Under these circumstances, we do not find any illegality in the action taken by the respondents warranting interference. 6. The appeal is accordingly dismissed. No costs.” 16. The same issue has been discussed at much greater length by a recent judgment dated 16.08.2010 of the Division Bench of this Court in LPA No.342 of 2010 in the case entitled Dy. Director of Education & Anr. Vs. Veena Sharma. The position in law based WP(C) No.6318 of 2010 Page 13 of 21 on various judgments of the Supreme Court was discussed holding that there was no automatic confirmation even