M. Karpaga Vinayagam, C.J.
1. Rajeev Kumar, the petitioner herein, who was appointed as Additional District & Sessions Judge as against the temporary post of Presiding Officer of Fast Track Court in the year 2003, was terminated by the order of the State of Jharkhand dated 11.3.2006. Challenging the same, the petitioner has filed this writ petition seeking for quashing the said order dated 11.3.2006.
2. The short facts, which are relevant for disposal of the writ petition, are as follows.-
An advertisement was issued by the High Court on 23.5.2001 inviting applications for appointment to the post of Additional District & Sessions Judge from Bar quota. The petitioner, who was a practising Lawyer, sent his application. He was called for writing examination. Accordingly, he wrote the written examination. On 19.8.2001, he was informed that he secured minimum qualification marks in the examination and was called for interview. Accordingly, he attended the interview on 6.10.2001. The petitioner was finally selected on 17.10.2001. His selection was published by the Gazette Notification on 2.2.2002. He thereupon joined on 6.2.2002 in Garhwa. On 24.6.2003 he was transferred to Daltanganj. In 2004 he was transferred to Hazaribagh.
On noticing that some persons, who were not eligible, were selected for appointment to the post of Additional District & Sessions Judge, he sent a representation to the High Court drawing its attention about their selection and requesting for the cancellation of their appointment. However, no action was taken on the said representation. Therefore, he filed a writ petition before the High Court. However, the same was dismissed on 25.1.2006 for non-prosecution. However, the matter was not pursued further.
At that stage, the High Court, on noticing a news-report published in the newspaper about an extremist carrying a prize of Rs. 1 lac on his head had been granted bail by the petitioner's court, called for the records of the bail application and the order and found the petitioner granted bail to the said accused. Thereafter the High Court on 23.2.2006 sent recommendation note to the Government for the termination of the petitioner. On 11.3.2006, the Government, accepting the recommendation terminated the service of the petitioner through the order of the Governor. Challenging the termination, this writ petition has been filed.
3. The submission, assailing the order of termination dated 11.3.2006, made by the petitioner, who appeared as party in person, is summarised as follows:
(A) The appointment in the ad hoc capacity on an ex cadre temporary post of Presiding Officer, Fast Track Court, was only initial arrangement. The probation period under Rule 6 of the Jharkhand Superior Judicial Service (Recruitment, Appointment & Condition of Service) Rules, 2001, is for two years. The petitioner was serving as Judicial Officer for four years. After expiry of two years, it must be deemed that it is confirmed. Till his termination, there was no adverse remarks in his confidential remarks. It is for the first time mentioned in the removal order that his service is not satisfactory. Earlier the High Court never communicated to the petitioner that his service was not satisfactory. Even if the Judicial Officer has committed some mistake, opportunity must have been given to explain the said mistake or rectify the same. Without giving such an opportunity, recommending for termination of the petitioner from service without complying Article 311(2) of the Constitution is illegal.
(B) The recommendation letter dated 23.2.2006 sent by the High Court for termination of the petitioner to the Government would show that the High Court's recommendation for his removal was in the public interest. The termination order dated 11.3.2006 would show that his service was not satisfactory. Thus, it is clear that the recommendation letter as well as the termination order carry with stigma of inefficiency and his removal was in the public interest. The above order is based upon some enquiry by the High Court through verification of the records which would indicate that the petitioner had granted bail to the extremist without valid reasons. Thus, it is clear that the termination order indicating the conduct of the petitioner in granting bail, on the basis of the newspaper report as not satisfactory on verification of records, is stigmatic, and the same was passed without conducting any departmental enquiry, which is violative of Article 311(2) of the Constitution.
4. Replying to the above contention, both the counsel appearing for the respondent No. 1 and respondent No. 2 would make the following contention:
(A) The petitioner's service admittedly was purely on temporary basis against the post created for a limited period. The service of the petitioner was net confirmed, after the probation period of two years was over. If the Officer continued beyond probation, he cannot be deemed to be confirmed. Prior to confirmation of the service, any order of termination does not make the petitioner entitled to any show cause or explanation. From bare perusal of the impugned order, it would be evident that the order is simplicitor. It is imperative that the work and conduct of every Judicial Officer are always kept under watch by the High Court. In that way, the performance of the petitioner as a probationer was Judged by the High Court periodically. On being satisfied that his service was not satisfied, his service was dispensed with through termination.
(B) The High Court called for the records and looked into the orders and judgments passed by the petitioner only to make a preliminary enquiry to ascertain the suitability and desirability for continuance of the petitioner in service. In other words, it is necessary for the High Court to assess the service of the temporary probationer in order to find out as to whether he should be confirmed or not. In this case, the service and performance of the Judicial Officers, the petitioner herein, was judged by the High Court and decision has been taken by the Committee of the High Court and thereafter Full Court considered the same and recommended his termination to the Government and consequently, an order was passed on 11.3.2006 by the Government for his removal. As such, it did not contain any stigma against him. Therefore, the departmental enquiry was neither necessary, nor required. Where the intention behind the enquiry against the probationer was not to hold a full-fledged departmental enquiry to punish but to hold mere a summary enquiry to determine only the suitability of the petitioner being a probationer to continue in service, an order of termination following such a summary enquiry cannot be said to be an order of punishment. As such, it does not attract Article 311(2) of the Constitution.
5. Elaborate arguments were advanced by the petitioner, party in person, as well as by the Advocate General appearing for the respondent No. 1, State of Jharkhand, and by Mr. Nilesh Kumar, appearing for the respondent No. 2, Registrar General, Jharkhand High Court.
6. The petitioner, who is appearing as party in person, would cite the following authorities:
: (1970)IILLJ440SC State of Bihar v. Shiva Bhikhsuk Misra
: (1973)ILLJ411bSC Madan Mohan Prasad v. State of Bihar
: (1974)IILLJ465SC Shamser Singh v. State of Punjab
AIR 1980 SC 1857 Gujrat Steel Tubes v. Gujrat Steel Mazdoor
: (1984)ILLJ337SC Anoop Jaiswal v. Govt. of India
: AIR1988SC1395 Ishwar Chandra Jain v. High Court
: (2000)ILLJ1099SC V.P. Ahuja v. State of Punjab
(2005) 11 SCC 5 Sudesh Kumar v. State of Haryana
: 1996CriLJ2469 Kashi Nath Roy v. State of Bihar
: [1999]1SCR532 Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre For Basic Sciences, Calcutta and Ors.
: (1999)IILLJ229SC M. Mohan Chowdhery v. State of Bihar
: AIR2000SC1816 Chandra Prakash Shahi v. State of U.P. and Ors.
: AIR1988SC1388 The Registrar, High Court of Madras v. R. Rajiah
: [1999]2SCR834 Registrar High Court v. I.C. Jain
JCR 2007 (1) 251 Indrapreet Singh Kahlon v. State of Punjab 2006 (11) 356
: (1989)IILLJ228SC Dr. Mrs. Sumati P. Shere v. Union of India and Ors.
: (1985)IILLJ309SC O.P. Shingla v. Union of India
: (1981)ILLJ140SC Baleshwar Das v. State of U.P.
: (1990)IILLJ601SC Ram Eqbal Sharma v. State of Bihar
: [2002]3SCR810 Brij Mohan Lal v. Union of India and Ors.
7. The counsel appearing for the respondent No. 2 would cite the following authorities:
: (1979)IILLJ393SC State of Maharashtra v. Veeroppa R. Sobaji
: (1988)ILLJ73SC Robindra Kumar Mishra v. Uttar Pradesh State Handloom Corporation Ltd. and Anr.
: [1991]1SCR29 State of Uttar Pradesh and Anr. v. Kausal Kishore Shukla
: AIR2001SC3234 High Court of M.P. Through Registrar and Ors. v. Satyanarayan Jhavar
: (2002)ILLJ690SC Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Science and Anr.
: AIR2005SC2960 State of Punjab and Ors. v. Sukhbindra Singh
: AIR2007SC192 Kendrya Vidyalya Sangathan v. Arunkumar Madhavrao Sinddhiya and Anr.
8. Now we will refer to the relevant observations made by the Supreme Court in some of the decisions cited by the petitioner:
In : (1970)IILLJ440SC (The State of Bihar and Ors. v. Shiva Bhikshuk Mishra) the Supreme Court observed as follows:
If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. In : (1974)IILLJ465SC (Samsher Singh. v. State of Punjab and Anr.), it is held that-
Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperament or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. In : (1984)ILLJ337SC (Anoop Jaiswal v. Government of India and Anr.) the Supreme Court would observe as follows:
It is well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee. In : [1999]1SCR532 (Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre For Basic Sciences. Calcutta and Ors.) the Supreme Court observed as follows: (Para 25)
In the matter of 'stigma', this Court has held that the effect which an order of termination may have on a person's future prospects of employment is a matter of relevant consideration. In the seven-Judge Bench decision in Samsher Singh v. State of Punjab, Ray, C.J. observed that if a simple order of termination was passed, that would enable the officer to 'make good in other walks of life without a stigma'. It was also stated in Bishan Lal Gupta v. State of Haryana : (1978)ILLJ316SC ) that if the order contained a stigma, the termination would be bad for 'the individual concerned must suffer a substantial loss of reputation which may affect his future prospects. In : AIR2000SC1816 (Chandra Prakash Shahi v. State of U.P. and Ors.) the Supreme Court would observe as follows:It is well settled that the temporary Government servants or probationers are as much entitled to the protection of Article 311(2) of the Constitution as the permanent employees despite the fact that temporary Government servants have no right to hold the post and their services are liable to be terminated at any time by giving them a month's notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service. The Courts can, therefore, lift the veil of an innocuously-worded order to look at the real face of the order and to find out whether it is as innocent as worded.
9. The relevant observations made by the Supreme Court in the decisions cited by the Registrar General, Jharkhand High Court, respondent No. 2, are as follows:
: (1979)IILLJ393SC (State of Maharashtra v. Veerappa R. Saboji and Anr.)
Ordinarily and generally the rule would be 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 question of violation of Article 311(2) 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.... Secondly, the question to be examined is whether the termination was by way of punishment.
The law 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.
: (1988)ILLJ73SC (Ravindra Kumar Mishra v. U.P. State Handloom Corporation Ltd. and Anr.)
It is necessary for every employer to assess the service of the temporary incumbent in order to find out as to whether he should be confirmed in his appointment or his services should be terminated. It may also be necessary to find out whether the officer should be tried for some more time on temporary basis. Since both in regard to a temporary employee or an officiating employee in a higher post such an assessment would be necessary merely because the appropriate authority proceeds to make an assessment and leaves a record of its views the same would not be available to be utilized to make the order of termination following such assessment punitive in character. : [1991]1SCR29 (State Of Uttar Pradesh and Anr. v. Kaushal Kishore Shukla)
In determining the true nature of the order the Court should apply two tests namely (i) whether the temporary Government servant had a right to the post or the rank or (ii) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the order of termination of a temporary Government servant is by way of punishment. It must be borne in mind that a temporary Government servant has no right to hold the post and termination of such a Government servant does not visit him with any evil consequences.
In order to determine this question, it is necessary to consider the nature of the respondent's right to hold the post and to ascertain the nature and purpose of the inquiry held against him. The respondent being a temporary Government servant had no right to hold the pout and the competent authority terminated his services by an innocuous order of termination without casting any stigma on him. The termination order does not indict the respondent for any misconduct. The inquiry which was held against the respondent was preliminary in nature to ascertain the respondent's suitability and continuance in service.
: AIR2001SC3234 (High Court of M.P. Through Registrar and Ors. v. Satya Narayan Jhavar)
Where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. : [2001]2SCR83 (H.F. Sangati v. Registrar General, High Court of Karnataka and Ors.)
Whether an order terminating the appointment of a probationer Munsif could be considered to be punitive. In that case during the period of probation, several adverse remarks had been made in the confidential records of the probationer. The Administrative Committee of the High Court considered these confidential records and came to the conclusion that the appellant was not fit to be confirmed in the post of a Judicial Officer. They recommended to the High Court accordingly. The High Court accepted the recommendation at a full court meeting and referred the matter to the State Government. The State Government accepted the recommendation and discharged the probationer from service. The order of termination mentioned that the employee was 'unsuitable to hold the post of Munsif'. The Court held that the order did not cast any stigma on the employee and was not punitive. : (2002)ILLJ690SC (Pavanendra Narayan Verma v. Sanjay Gandhi PGI Of Medical Sciences and Anr.) (para 21)
One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing the termination has been upheld.
What language in a termination order would amount to a stigma? Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order, which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job. The language used in the order of termination in this case is that the appellant's work and conduct has not been found to be satisfactory. These words are almost exactly those which have been quoted in Dipti Prakash Banerjee's case : [1999]1SCR532 as clearly falling within the class of non-stigmatic orders of termination. It is, therefore, safe to conclude that the impugned order is not ex facie stigmatic.
: AIR2005SC2960 (State Of Punjab and Ors. v. Sukhwinder Singh)
It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any rhyme or reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not makes inquiries for this purpose, it would be wrong to hold that the inquiry which was held was really intended of the purpose of imposing punishment.
The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. A probationer is on test and a temporary employee has no right to hold the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry for the purpose of imposing punishment and an order of discharge or termination of service as a result thereof punitive in character, the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong.
: AIR2007SC192 (Kendriya Vidvalaya Sangathan v. Arunkumar Madhavrao Sinddhaye and Anr.)
The nature of enquiry conducted against the respondent was merely a preliminary or fact-finding enquiry and no formal full scale departmental enquiry had been conducted.
The termination order is wholly innocuous and does not cast any stigma upon the respondent, nor it visits him with any evil consequences. The High Court seems to have proceeded on a wholly wrong basis and has treated the enquiry which was only a preliminary or fact-finding enquiry upto a regular disciplinary enquiry, which was not the case here.
10. The above observations made by the Supreme Court in various decisions cited supra would give the following guidelines to follow while deciding the issue in question:
(i) Before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that the probationer is unsuitable for the job and hence must be discharged where the matter did not involve any moral turpitude. No punishment is involved in this.
(ii) Ordinarily the rule would be that the order impugned has to be looked into on the face of it and has to be found out 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.
(iii) In determining the true nature of the order, the Court should apply two tests - (i) whether the temporary Government servant had a right to the post and (ii) whether he has been visited with evil consequences. If either of the tests is satisfied, it must be held that the order of termination of a temporary Government servant is by way of punishment.
(iv) Where in the service rules, the period of probation is specified and power to extend the same is conferred without prescribing any maximum period of probation and the Officer is continued beyond the prescribed period, he cannot be deemed to be confirmed. In such cases, there is no bar against termination even after the expiry of the period of probation.
(v) To determine whether in substance an order of termination is punitive or not, there are three factors to be considered. They are as follows. It is to be considered:
(a) whether prior to termination there was full scale formal enquiry,
(b) whether the allegations would involve moral turpitude or misconduct,
(c) whether that enquiry culminated into a finding of guilt.
If all three factors are present, then only the termination order has to be held to be punitive. On the other hand, if any of the one of the three factors is missing, termination would not attract Article 311(2) of the Constitution.
(vi) The superior authorities of the Departments have to extract work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not, having regard to the his performance, conduct and over-all suitability of the job. A probationer is on test. The temporary probationer has no right to hold the post. If mere holding an enquiry to ascertain the relevant facts for arriving at a decision whether to continue the employee in service or not would not be treated an full-fledged enquiry for the purpose of imposing punishment.
11. Bearing the above principles in our mind, we shall now analyze the questions as to whether the order of termination is stigmatic and whether it is violative of Article 311(2) of the Constitution of India.
At the outset, it shall be stated that the petitioner's service was purely on temporary basis against the post created for a limited period. It is not in dispute that this post was created for a particular purpose under the scheme of Fast Track Court. His appointment was in ad hoc capacity on an ex cadre temporary post. The petitions, knowing fully well about its nature and tenure of service and also its future extension depending upon the subsequent approval by the competent authority, accepted and joined the service. Even though his appointment order shows that his probation period is for two years, unless he was confirmed after the probation period of two years, he cannot be deemed to be confirmed. Let us now refer to the appointment order dated 20.10.2001, which is reproduced below:
la[;k&6@LFkk izks&704@2001 dk 832@ kj[kaM+ ojh; U;kf;d lsok HkrhZ fu;qfDr vkSj lsok 'krsZ fu;ekoyh 2001 ds fu;e&4 es iznRr 'kfDr;ksa ds vUrZxr Jh jktho dqekj dks lh/kh HkrhZ }kjk muds ;ksxnku dh frfFk ls vij ftyk U;k;k/kh'k osrueku 12000&375&16500@ Jas.kh ds xSj laoxhZ; ,oa vLFkk;h in ij rnFkZZ :i ls fu;qDr fd;k tkrk gS vkSj vxys vkns'k rd vij ftyk ,oa l= U;k;k/kh'k QkLV VSd dksVZ xok ds in ij inLFkkfir fd;k tkrk gSA
(Translation In English)
In exercise of powers conferred under Rule 4 of the Jharkhand Superior Judicial Service (Recruitment, Appointment & Conditions of Service) Rules; 2001, Sri Rajeev Kumar is appointed by direct recruitment on ad hoc basis to the ex cadre and temporary post of Additional District & Sessions Judge (Pay Scale - Rs. 12,000/- 375-16,500/-) in the Fast Track Court, Garhwa, from the date he assumes charge as such till further order, vide State Government's notification No. 6/Stha-Pro-704/2001/Ka 832 dated 2nd February, 2002.
In the above letter of appointment, his appointment is on ad hoc basis to ex cadre and temporary post of Additional & Sessions Judge. As such, it must be construed that he is only a probationer. In this case, admittedly there is no confirmation order making the post permanent. As such, till the date of removal, the petitioner's service was still in the category of temporary ex cadre ad hoc appointment under the Fast Track Court scheme. Since it cannot be disputed that the petitioner was not regularized in the regular cadre of A.D.J. he, being the probationer, cannot claim the benefits and remedies envisaged under the Jharkhand Superior judicial Service (Recruitment, Appointment & Condition of Service) Rules, 2001. Therefore, the plea taken by the petitioner for his deemed confirmation after expiry of the so called probation period is not tenable in the eye of law.
12. Of course, in this case, the High Court called for the records relating to the petitioner's conduct as a Judge in order to make preliminary enquiry to find out whether the petitioner is suitable for confirmation and continuance. It is also necessary for such an enquiry to make such as assessment to find out whether the Judicial Officer should be waited for some more time on temporary basis before confirmation or he is held fit for confirmation. Such an assessment would be necessary because the appropriate authority shall proceed to make an assessment and leave a record of its views to decide about confirmation or termination. Such an assessment is not punitive in character.
13. In other words, the enquiry for the purpose of verification of his conduct was only preliminary in nature. It cannot be said that there is an element of punitive proceeding when there were no charges, no Enquiry Officer was appointed and no findings were recorded. Mere fact that some preliminary enquiry was conducted by the High Court for making assessment of his tenure as a probationer prior to the order of termination does not change the nature of the order into the tough punishment. It is a routine matter that the work and conduct of every judicial officers always are kept under watch by the High Court. In that way, the performance of the petitioner as a Judge was adjudged by the High Court periodically.
14. As laid down by the Supreme Court, there are three factors to determine as to whether the order of termination is punitive or not. Those are (i) whether there was full scale formal enquiry, (ii) whether the enquiry was conducted into the allegations involving moral turpitude or misconduct and (iii) whether the enquiry culminated into a finding of guilt. If all the three factors are present, then termination of even a probationer has to be held to be punitive irrespective of the form of the termination order. On the other hand, if any of the three factors is missing, the termination order cannot be held to be violative of Article 311(2) of the Constitution of India. In this case, all the above three factors are absent. The service and performance of the Judicial Officer, the petitioner herein, as indicated above, was judged by the High Court periodically. After calling for the records, the Committee sent a report to the Full Court, which, in turn, looked into the records and recommended for his termination on 23.2.2006. In pursuance of the recommendation for the same, the Government passed an order on 11.3.2006. As such, the service of the probationer, the petitioner, was not confirmed and on the other hand, he was discharged or removed. This does not require show cause and departmental enquiry.
15. Further in determining the true nature of the order, the Court should apply two tests - (i) whether the temporary Government servant had a right to holder the post and (ii) whether he has been visited with evil consequences. Only when both the requirements of the tests are satisfied, it must be held that the order of termination of a temporary employee is by way of punishment. In this case, as indicated above, the requirement of both the tests had not been fulfilled. It is not debated that the petitioner was appointed in temporary ad hoc ex cadre post and as such he has no right to hold the post. This apart, there is no case made out by the petitioner that the order of termination visited him with evil consequences.
16. The petitioner, relying on the decision rendered in the case of Samsher Singh v. State of Punjab and Anr. reported in : (1974)IILLJ465SC , strenuously contended that any sort of enquiry before termination of the probationer would attract protection under Article 311(2) of the Constitution of India. The said observation by the Supreme Court is not a ratio. On the other hand, the ratio decidendi determined by the Supreme Court in : (1974)IILLJ465SC , Seven Judge Bench, is as follows:
Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperament or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this.
The above observation of the Supreme Court would clearly indicate that before making confirmation of the probationer the authority concerned is under obligation to make a preliminary enquiry and assessment to find out whether the work of the probationer is satisfactory or not or whether he is suitable for the post or not. This was the thing which was exactly done in this case.
17. Even, according to the counter, as admitted by the counsel for respondent No. 2, the records have been called for and Full Court considered the records as well as the annual confidential report and after discussion with all the Judges, the Full Court decided that his work is not satisfactory and therefore, it recommended that his service must be dispensed with. It is vehemently contended by the petitioner that his past records is very good and there is no adverse remarks in his Annual Confidential Report. This Court summoned his A.C.R. as well as Full Court proceedings for verification. On perusal of those records, it is found that the said statement of the petitioner is factually incorrect. On the other hand, there are some remarks as against him in the A.C.R. and the same was intimated to the petitioner. These past records were also looked into by the Committee appointed by the Full Court as well as the Full Court. Unless such an assessment through the preliminary enquiry is made, the Full Court would not have been able to find out the answer to the question as to whether he is suitable for the job, whether his service is satisfactory and whether he is entitled for confirmation. The records as referred to above would clearly indicate that the Committee as well as the Full Court conducted a preliminary enquiry to ascertain the suitability of the petitioner for the job Hence, at any stretch of imagination, the said preliminary enquiry conducted by the Full Court of the High Court cannot be termed as full-fledged formal enquiry. In that view of the matter, the said preliminary assessment enquiry, in our view, would not attract the Article 311(2) of the Constitution of India.
18. Nextly, it is vehemently contended by the petitioner that the recommendation letter dated 23.2.2006 sent by the High Court for termination of the petitioner to the Government as well as the removal order dated 11.3.2006 carries with stigma of inefficiency of the petitioner. Since the petitioner's removal was in public interest without any enquiry, it is violative of Article 311(2) of the Constitution of India. When the order of removal is stigmatic or the form of the order is merely a camouflage for an order of dismissal for misconduct, it is the duty of the Court to go beyond the form and ascertain the true character of the order; even if the Judicial Officer has committed some mistake, opportunity must have been given to the petitioner either to explain that he has not committed any such mistake or to have an opportunity to rectify the said mistake, as this was not done, the order, which is stigmatic, becomes invalid. Hence, it must be held to be violative of Article 311(2) of the Constitution of India.
19. We are not impressed with the above submission made by the petitioner for the following reasons:
Whenever a probationer challenges an order of dismissal, the first task of the Court will be to apply the test of stigma. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job. As held by the Supreme Court, the use of the words, 'work and conduct has not been found to be satisfactory' contained in the order is not ex facie stigmatic. In this context, it is relevant to refer to the relevant observations made by the Supreme Court in the case of Pavanendra Narayan Verma v. Sanjay Gandhi PGI Of Medical Sciences and Anr. reported in : (2002)ILLJ690SC , which is as follows:What language in a termination order would amount to a stigma? Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order, which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job. The language used in the order of termination in this case is that the appellant's work and conduct has not been found to be satisfactory. These words are almost exactly those which have been quoted in Dipti Prakash Banerjee's case : [1999]1SCR532 as clearly falling within the class of non-stigmatic orders of termination. It is, therefore, safe to conclude that the impugned order is not ex facie stigmatic.
20. In the light of the above observation made by the Supreme Court, it would be appropriate to look into the recommendation letter, dated 23.02.2006, sent by the High Court as well as the termination order, dated 11.03.2006, passed by the Government, which is reproduced below:
From
Rakesh Ranjan Prasad
Registrar General
High Court of Jharkhand
Ranchi
File No. XXIII (2)/80/2002
No. 1320/Apptt.
Dated 23.02.2006
To
The Secretary to the Government
Department of Personnel, Administrative
Reforms & Rajbhasha,
Jharkhand, Ranchi
Sir,
I am directed to inform that the services of Sri Rajeev Kumar, Adhoc Additional District & Sessions Judge, first Track Court - III, Chaira, being not satisfactory, the Court have been pleased to resolve and recommend that the services of Sri Kumar is dispensed with in public interest with immediate effect.
The arrears of salary and allowances admissible to him will be paid in accordance with and subject to the condition laid down in Rule 95 of the Jharkhand Service Code, 2001.I am, therefore, to request you to take up the follow up action so that notification in this regard be issued at the earliest.
Yours faithfully,
Sd/-R.R. Prasad
23.2.06
Registrar General
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(Translation in English)
Government of Jharkhand
Personnel, Administrative Reforms and Rajbhasha
Department
Order:
Ranchi, Dated 11/03/2006
Aa. San.-6/Stha.-022/2001 Ka.
The Registrar General, Jharkhand High Court, through his letter No. 1320/Apptt., dated 23.02.2006, forwarded the resolution and recommendation of the Hon'ble Jharkhand High Court that the service of Sri Rajeev Kumar, Additional District & Sessions Judge, Fast Track Court - III, Chatra, being not satisfactory, is dispensed with, with immediate effect and the admissibility of arrears of salary on account thereof will be under Rule 95 of the Jharkhand Service Code.
The Government, after due consideration of the recommendation of the Hon'ble Jharkhand High Court on the basis of its resolution, removes Sri Rejeev Kumar, Additional District & Sessions Judge, Fast Track Court - III, Chatra, from service with immediate effect.
2. The admissibility of arrear salary of Sri Kumar will be under Rule 95 of the Jharkhand Service Code.
By Order of the Governor, Jharkhand
Sd/-
(Mukhtiar Singh)
Chief Secretary to the Government
Both these documents would simply state that service is not satisfactory and his service is dispensed with through removal. As such, these orders would not indicate that they visit the judicial officer, the petitioner herein, with any evil consequences and cast aspersion against his character and integrity. As held by the Supreme Court in the matter of stigma, the effect which an order of termination may have on a person's future prospects of employment is a matter of relevant consideration. We have to look to the order on the face of it and find out whether it casts any stigma on the officer concerned. In such a case, there is no presumption that the order is arbitrary or mala fide unless a strong case is made and proved by the officer concerned who challenges such an order. In this case, the petitioner has not made out a case that the order is arbitrary or mala fide. Further, the petitioner, being a probationer, admittedly had no right to hold the post and no material was shown that order of termination visit the petitioner with evil consequences. His service was terminated by the order of the Government on the basis of the recommendation by the High Court and this order shows that it is innocuous order of termination without casting any stigma on him. The observations made by the Supreme Court in a similar case dealing with removal of the Judicial Officer reported in : [2001]2SCR83 , H.F. Sangati v. Registrar General, High Court of Karnataka and Ors. is quite relevant in this context. The same is as follows:
Whether an order terminating the appointment of a probationer Munsif could be considered to be punitive. In that case during the period of probation, several adverse remarks had been made in the confidential records of the probationer. The Administrative Committee of the High Court considered these confidential records and came to the conclusion that the appellant was not fit to be confirmed in the post of a Judicial Officer. They recommended to the High Court accordingly. The High Court accepted the recommendation at a full court meeting and referred the matter to the State Government. The State Government accepted the recommendation and discharged the probationer from service. The order of termination mentioned that the employee was 'unsuitable to hold the post of Munsif' The Court held that the order did not cast any stigma on the employee and was not punitive.
In our view, the above dictum laid down by the Supreme Court would apply to the present facts of the case in all fours.
21 As indicated above, both the letter of recommendation dated 23.2.2006 and the order of termination dated 11.3.2006 do not cast aspersion against the character and integrity of the petitioner. As such, the orders would not visit the petitioner with evil consequences. As a matter of fact, it is specifically stated in the recommendation letter dated 23.2.2006 that 'as the service of Mr. Rajeev Kumar, Ad hoc Additional District & Sessions Judge, Fast Track Court, being not satisfactory, the High Court has been pleased to recommend the service of Mr. Rajeev Kumar is dispensed with in public interest'. It does not even indicate the dismissal or removal Similarly, the order dated 11.3.2006 passed by the Government would also indicate that in view of the recommendation of the High Court, the service of Mr. Rajeev Kumar, the petitioner herein, can be dispensed with and the Government passed an order removing the petitioner from service. The word, 'removal' indicates only dispensing with the service. As a matter of fact, the conjoint reading of the letter written by the High Court and the order passed by the Government would clearly reveal that the petitioner is discharged from service in view of the fact that the service of the petitioner, being a probationer, has not been found to be satisfactory. This is not stigmatic as the order of the Government does have the effect of discharge only and as such, it has to be stated that the effect of this order of termination or discharge will not affect the petitioner's future prospect of his employment some where else. To reiterate, it is made clear that the order of termination, which is impugned, would not stand In the way of the future prospects of the petitioner as the same is not stigmatic.
22. In view of the discussion and finding referred to above, we do not find any merit in this petitioner. Hence, the same is liable to be dismissed. Accordingly, it is dismissed.