Khazia Mohammed Muzammil vs State Of Karnataka & Anr

1. The appellant, who was a practicing advocate, was appointed as District Judge under the Karnataka Judicial Services 1 (Recruitment) Rules 1983 (for short `the 1983 Rules') vide Notification No. DPAR 37 SHC 96 dated 9.5.1996. In furtherance to this notification letter of appointment dated 14th May 1996 was issued where after the appellant joined the service on 15th May, 1996. However, vide order dated 20th of May, 1996, the appellant was transferred and posted as 1st Additional City Civil & Sessions Judge, Bangalore City. It is the case of the appellant that he performed his duties with utmost diligence and had an excellent track record. His rate of disposal of the cases was very good. The High Court had scrutinized his performance and neither any adverse remarks were communicated to him nor any memo or show-cause notice was served upon him during the entire period of his service. Initially in 2 terms of the notification/letter of appointment, he was appointed on probation for two years. According to the appellant, he had completed the probation period successfully and there was no specific communication issued to him by the authority extending his probation period. Thus, the appellant would be deemed to be a confirmed judge as per the rules. A Sub-Committee of the Hon'ble Judges constituted by the High Court had recommended to the Full Court in its meetings held on 11th Feburary, 1999 and 15th October, 1999 for discharge of the appellant from service. It appear that in October 1999, the Registrar General of the High Court addressed a communication to the Chief Secretary of the State seeking the discharge of the appellant in terms of Rule 6 (1) Kerala Civil Service 3 (Probation) Rules, 1977 on the ground that appellant was not `suitable for the post'. Pursuant to this recommendation, the Government issued a notification on 24th March, 2000 discharging the appellant from service. According to the appellant, the notification dated 24th March, 2000 was arbitrary, contrary to rules and was unsustainable in law. The appellant had put in 3 years 10 months and 10 days in service as on that date and therefore the appellant was entitled to confirmation. Aggrieved from the said notification dated 24th March, 2000, the appellant filed the Writ Petition in the High Court of Karnataka, Bangalore which came to be registered as Writ Petition No. 11965/2000 and raised various issues including the legal submissions referable to the relevant rules. The 4 High Court vide its judgment dated 9th July, 2004 dismissed the Writ Petition holding that the notification dated 24th March, 2000 did not suffer from any error or illegality & no interference was called for. It will be useful to reproduce the reasoning given by the High Court which reads as follows:-

5. Besides the conduct of the parties which is reflected in our above order, it is also very important to notice another facet of this case. It is not in dispute that the appellant had filed a Writ Petition 19 being Writ No. WP No. 16244 of 2000 in the High Court praying for issuance of mandamus to the Superintendent of Police, Karwar to strike off the entries against the name of the appellant, in the `rowdy and goonda register' prior to his selection as the District Judge, maintained by the concerned Police Station. The Police has sought to justify before the Court the inclusion of the appellant's name in the list and for the reasons declared in the reply affidavit filed by the State in that case. The stand of the Government in that case was that while keeping in view the antecedents and past activities of the appellant, his name was entered in the Form No. 100 being the Communal Goonda Sheet on 8th January, 1993 under order No. 9/93 dated 2.1.1993 of the then Superintenent of Police, Uttaraka 20 Kannada. The appellant was General Secretary of an organization called Majlis-Isa-o-Tanzim and was in the habit of harbouring criminals, who were involved in serious crimes like murder and communal riots etc. There was a specific charge against the appellant for his delivering provocative communal speeches, which contributed to aggravate communal disturbance in Bhatkal in the year 1993. He was president of the Bar Association, Bhatkal and still used to provoke young people in that institution. Nineteen people were killed and many injured in a group clash. With this background under Rules 65 and 66 of State Interchange Manual the name of the appellant was inducted on the sheet of Register of Rowdies maintained by the Karnataka Police in Form No. 100 in terms of Rule 21 1059 of the Karnataka Police Manual which is normally treated as confidential. Keeping all these averments in mind and the judgment of the Supreme Court, the High Court vide its order dated 3rd of November 2000 dismissed the Writ Petition and declined to declare the entries as being without basis or arbitrary. The ancillary but an important issue that flows from these facts is as to how and what the Police Verification Report was submitted to the Government/High Court before the appellant was permitted to join his duties as an Additional District Judge? Normally, the person, with such antecedents, will hardly be permitted to join service of the Government and, particularly, the post of a Judge. The High Court on the administrative side also appears to have dealt with the matter 22 in a very casual manner. The averments made in the Writ Petition 16244 of 2000, if it were true, it was a matter of serious concern for the High Court as he was being appointed as an Additional District and Sessions Judge and would have remained as such for a number of years. It was expected of the Government as well as the High Court to have the character verification report before the appointment letter was issued. The cumulative effect of the conduct of the appellant in making incorrect averments in the Court proceedings as well as the fact that his name was in the `Rowdie list' of the concerned Police Station are specific grounds for the Courts not to exercise its discretionary and inherent jurisdiction under Articles 136 and 226 of the Constitution of India in favour of the appellant. These 23 reasons have to be given definite significance, particularly when the High Court has declined to quash the entries against the appellant and inclusion of his name in the `Rowdie list'. Another aspect of this case, to which our attention has been invited, is that for the first time, the High Court has filed the detailed affidavit in this Court after passing of the order dated 20th May, 2010. We failed to understand why appropriate and detailed affidavit was not even filed before the Court. During the course of hearing, we have also called for the original Confidential Reports of the appellant, copies whereof have been filed. The Confidential Reports, which could have been recorded in the case of the appellant as per the rules and regulations, or resolutions of the Full Court of High Court of 24 Karnataka, will be for the years 1996-97, 1997-98 and 1998-99. There is only one Confidential Report on record for the year 1997 wherein the appellant has been graded as `Satisfactory'. This falsifies his claim that he had outstanding service record in regard to disposal of cases and other service related matters.

6. With some regret and anxiety, we must notice that for all the remaining years no Confidential Report of this officer, and in fact, many others, as the record now reflects, have been recorded by the High Court. We are unable to overlook this aspect, as it is just not a simplicitor question of writing the Confidential Report of a given officer but adversely affects the administration of justice on the one hand and dilutes the constitutional power & functions of 25 Superintendence of the High court, on the other. A note was put up by the Registrar General before the then Hon'ble Acting Chief Justice that Confidential Report was put up before Hon'ble Chief Justice for recording remarks but that were not recorded and orders were being obtained now in that behalf. However, even thereafter no confidential remarks were recorded. We may also notice that reference was made to the resolution of the Full Court passed in its meeting dated 15th March,1988 which has been referred to in the office note, reads as under:-

regulation (3) along side sub-regulation (4), in 73 stipulating the consequences of any delay in making an order declaring satisfactory completion, the reference is confined only to deemed satisfaction and completion of "the period of officiation", and not of probation.

74 Therefore, the appeals referred by the Corporation came to be dismissed as the employee had attained the status of confirmed employee.

20. Another aspect, which would further substantiate the view that we have expressed, is that proviso to Rule 4 shows that where during the period of probation the results of an examination have not been declared which the probationer was required to take, in that event the period of probation shall be deemed to have extended till completion of the act i.e. declaration of result. Applying this analogy to the provisions of Rule 5 unless certificate is issued by the competent authority the probation period would be expected to have 92 been extended as it is a statutory condition precedent to successful completion of the period of probation and confirmation of the probationer in terms of this Rule.

We reiterate this principle with respect and approval and hope that all the authorities concerned should take care that timely actions are taken in comity to the Rules governing the service and every attempt is made to avoid prejudicial results against the employee/probationer. It is expected of the Courts to pass orders 97 which would help in minimizing the litigation arising from such similar cases. Timely action by the authority concerned would ensure implementation of rule of fair play on the one hand and serve greater ends of justice on the other. It would also boost the element of greater understanding and improving the employer employee relationship in all branches of the States and its instrumentalities. The Courts, while pronouncing judgments, should also take into consideration the issuance of direction which would remove the very cause of litigation. Boni judicis est causes litium dirimere.

24. Although for the reasons afore recorded we find no merit in this appeal and dismiss the same. While dismissing the appeal we feel constrained to issue the following directions:

With the above directions, the appeal is dismissed. However, the parties are left to bear their own costs.