# KHAZIA MOHAMMED MUZAMMIL v. STATE OF

- **Citation:** [2010] 7 S.C.R. 1061
- **Court:** Supreme Court of India
- **Decided:** 2010-07-08
- **Case number:** Civil Appeal Nos. 596 of 2007
- **Bench:** Dr. B.S. Chauhan, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/khazia-mohammed-muzammil-v-state-of-26871
- **Pages:** 58

## Headnote

Kamataka Civil Service (Probation) Rules, 1977:
'A ..
Rule 5(2) - Deemed confirmation - Held· Rule 5(2) c
provides that competent authority has to examine the
suitability of the probationer and upon recording satisfaction
issue an order of confirmation - ·Thus in the absence of
specific order, there is no deemed/automatic confirmation -
Delay in issuance of order would ndt·entitfe tfrEf propationer D
to be deemed to have satisfactorily completed his prObation
- On facts, Probation period of 2 years and the Probatib.nerJudicial officer discharged from service after 3 years and 10
months of service on the ground that he was not found
suitable for the post - He cannot claim that he is deemed to
be confirmed - His service record also did not reflect that he
E
was an officer of outstanding caliber - He had made
contradictory statements in his writ petition and mentioned his
age as per his convenience - Not a fit case for exercising
jurisdiction under Article 136 of the Constitution - Karnataka
Judicial Services (Recruitment) Rules, 1983 - Rule 2, item
F
no. 2 - Constitution of India, 1950 - Article 136.
rule 5(2) - Discharge order of probationer showed that it
was not stigmatic - Held: Since the discha(ge was simplicitor
without causing stigma upon the concem'ed probationer,
G
holding of formal proceedings under the Karnataka Civil
Services (Classification, Control and Appeal) Rules 1957 was
not necessary - Service law.
1061
H
1062
SUPREME COURT REPORTS
[2010] 7 S.C.R.
A
Service law:
Confidential report - Necessity of recording - Discussed.
Judicial service - Appointment - Police verification report
- High Courts directed to ensure that the police verification
B report conducted in accordance with law should be received
by the concerned authority, before the order of appointment
in the State Judicial Service is issued by the said authority -
On facts, name of concerned judicial officer on rowdy list prior
to his appointment - Normally a person which such
C antecedents would not be permitted to join service of the
government and particularly the post of a judicial officer -
High Court on the administrative side dealt with the matter in
a very causal manner and issued appointment order to the
concerned judicial officer.
D
Probation - Purpose of.
High Court:
Non-recording of confidential report of judicial officer -
E Held: Adversely affects the administration of justice and
dilutes the constitutional power and functions of
superintendence of High Court - It is constitutional obligation
on the High Court to ensure that the members of judicial
service of the State are treated appropriately with dignity and
F without undue delay - Directions passed - Administration of
justice - Judiciary - Constitution of India, 1950 - Article 235
- Service law.
The appellant was appointed as District Judge under
the Karnataka Judicial Services (Recruitment) Rules,
G 1983. By Notification dated 24.3.2000, he was discharged
from service. The appellant challenged the said
Notification by filing writ petition before High Court on the
ground that he had put in 3 years, 10 months of service
and thus had completed the probation period and that
H since there was no specific communication Issued to him
KHAZIA MOHAMMED MUZAMMIL v. STATE OF
1063
KARNATAKA AND ANR.
by the authority extending his probation period, he
A
should be deemed to be confirmed. Appellant also prayed
for issuance of mandamus to the Superintendent of
Police to strike off his name in the 'rowdy and goonda
register' prior to his selection as District Judge
maintained by the concerned police station. The High
B
Court dismissed the writ petition holding that the
appellant was found not suitable to hold the post and
there was no specific order to the effect that he had
satisfactory completed the probationary period. It also
declined to declare the entries as being without basis. c
Hence the appeal.
Dismissing the appeal, the Court
HELD: 1. A bare reading of the notification dated
24.3.2000 showed

## Text

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[2010) 7 S.C.R. 1061
KHAZIA MOHAMMED MUZAMMIL
.v.
THE STATE OF KARNATAKA AND ANR.
(Civil Appeal Nos. 596 of 2007)
JULY 08, 2010
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
Kamataka Civil Service (Probation) Rules, 1977:
'A ..
Rule 5(2) - Deemed confirmation - Held· Rule 5(2) c
provides that competent authority has to examine the
suitability of the probationer and upon recording satisfaction
issue an order of confirmation - ·Thus in the absence of
specific order, there is no deemed/automatic confirmation -
Delay in issuance of order would ndt·entitfe tfrEf propationer D
to be deemed to have satisfactorily completed his prObation
- On facts, Probation period of 2 years and the Probatib.nerJudicial officer discharged from service after 3 years and 10
months of service on the ground that he was not found
suitable for the post - He cannot claim that he is deemed to
be confirmed - His service record also did not reflect that he
E
was an officer of outstanding caliber - He had made
contradictory statements in his writ petition and mentioned his
age as per his convenience - Not a fit case for exercising
jurisdiction under Article 136 of the Constitution - Karnataka
Judicial Services (Recruitment) Rules, 1983 - Rule 2, item
F
no. 2 - Constitution of India, 1950 - Article 136.
rule 5(2) - Discharge order of probationer showed that it
was not stigmatic - Held: Since the discha(ge was simplicitor
without causing stigma upon the concem'ed probationer,
G
holding of formal proceedings under the Karnataka Civil
Services (Classification, Control and Appeal) Rules 1957 was
not necessary - Service law.
1061
H
1062
SUPREME COURT REPORTS
[2010] 7 S.C.R.
A
Service law:
Confidential report - Necessity of recording - Discussed.
Judicial service - Appointment - Police verification report
- High Courts directed to ensure that the police verification
B report conducted in accordance with law should be received
by the concerned authority, before the order of appointment
in the State Judicial Service is issued by the said authority -
On facts, name of concerned judicial officer on rowdy list prior
to his appointment - Normally a person which such
C antecedents would not be permitted to join service of the
government and particularly the post of a judicial officer -
High Court on the administrative side dealt with the matter in
a very causal manner and issued appointment order to the
concerned judicial officer.
D
Probation - Purpose of.
High Court:
Non-recording of confidential report of judicial officer -
E Held: Adversely affects the administration of justice and
dilutes the constitutional power and functions of
superintendence of High Court - It is constitutional obligation
on the High Court to ensure that the members of judicial
service of the State are treated appropriately with dignity and
F without undue delay - Directions passed - Administration of
justice - Judiciary - Constitution of India, 1950 - Article 235
- Service law.
The appellant was appointed as District Judge under
the Karnataka Judicial Services (Recruitment) Rules,
G 1983. By Notification dated 24.3.2000, he was discharged
from service. The appellant challenged the said
Notification by filing writ petition before High Court on the
ground that he had put in 3 years, 10 months of service
and thus had completed the probation period and that
H since there was no specific communication Issued to him
KHAZIA MOHAMMED MUZAMMIL v. STATE OF
1063
KARNATAKA AND ANR.
by the authority extending his probation period, he
A
should be deemed to be confirmed. Appellant also prayed
for issuance of mandamus to the Superintendent of
Police to strike off his name in the 'rowdy and goonda
register' prior to his selection as District Judge
maintained by the concerned police station. The High
B
Court dismissed the writ petition holding that the
appellant was found not suitable to hold the post and
there was no specific order to the effect that he had
satisfactory completed the probationary period. It also
declined to declare the entries as being without basis. c
Hence the appeal.
Dismissing the appeal, the Court
HELD: 1. A bare reading of the notification dated
24.3.2000 showed ttfat it was ex-facie not stigmatic. It D
simply discharged the appellant from service as having
been found unsuitable to hold the post of District Judge.
Until and unless, the appellant is able to show
circumstances supported by cogent material that the said
order was stigmatic and was intended to overreach the
E
process of law provided under the rules, there is no
occasion to interfere on facts. [Para 3] [1079-E-F]
I
2. The conduct of the appellant, who is a Judicial
Officer, belonging to the Higher Judicial Services of the
State is a matter of some concern. Co~tradictory . F
statements were made in the Writ Petition before the High
Court, memorandum of appeal before this Court and
even in the rejoinder and further affidavit filed before this
Court. Strangely, the High Court had neither contested
this case nor pursued it in its correct perspective. Even
G
appearance on behalf of the High Court' was not entered
, upon. Despite specific orders of this Court, the High
' Court had failed to produce the records and even no
responsible officer was present. [Para 4] [1079-G-H; 1080·
A·B]
H
1064
SUPREME COURT REPORTS
[2010] 7 S.C.R.
A
3. Normally, the person, with antecedents such as
appellants', would not be permitted to join service of the
G·overnment and, particularly, the post of a Judge. The
High Court on the administrative side also appeared to
have dealt with the matter in a very casual manner. It was
B 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
c that his name was in the 'Rowdie list' of the concerned
Police Station were 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 reasons were to be given
0 definite significance, particularly when the High Court
had declined to quash the entries against the appellant
and inclusion of his name in the 'Rowdie list'. During the
course of hearing, the original Confidential Reports of the
appellant were filed. There was only one Confidential
Report on record for the year 1997 wherein the appellant
E was graded as 'Satisfactory'. This falsified his claim that
he had outstanding service record in regard to disposal
of cases and other service related matters. Surprisingly,
for all the remaining years, no Confidential Report of this
officer, and in fact, many others, as the record reflected
F were recorded by the High Court. This aspect cannot be
overlooked as it was just not a simplicitor question of
writing the Confidential Report of a given officer but
adversely affected the administration of justice on the one
hand and dilutes the constitutional power and functions
G of Superintendence of the High court, on the other. The
records were submitted to the concerned Judge of the
High court and no Confidential Reports were recorded.
All this demonstrated not a very healthy state of affairs
in relation to the recording of Confidential Reports of the
H officers in the Judicial Services of the State of Karnataka.
KHAZIA MOHAMMED MUZAMMIL v. STATE OF
1065
KARNATAKA AND ANR.
The Confidential Report of an officer is a proper A
document, which is expeded to be prepared in
accordance with the Rules and practice of the Court, to
form the basis while considering the officer for promotion
to higher post and all other service related matters, in
future. Non-writing of the Confidential Reports is bound
to have unfair results. It affects the morale of the members
of the service. The timely written Confidential Reports
would help in putting an officer at notice, if he is expected
B
to improve in discharging of his duties and in the present
days where 25% (now 10%) of the vacancies in Higher c
Judicial Service cadre are expected to be filled, from out
of turn promotions after holding of written examination
and interview. Highly competitive standard of service
discipline and values are expected to be maintained by
the Judicial Officers as that alone can help them for better D
advancement of their service career. In such
circumstances,
the
significance
of
proper
Superintendence of the High Court over the Judicial
Officers has a much greater significance than what it was
in the past years. In fact, it is mandatory that such
Confidential Reports should be elaborate and written
timely to avoid any prejudice to the Administration as well
as to the officer concerned. [Paras 5 to 7] [1083-G-H;
1084-A-H; 1085-A-H; 1086-A]
E
4.1. There can be 'deemed confirmation' after an
F
employee completes the maximum probation period
provided under the Rules whereafter, his entitlement and
conditions of service are placed at parity with the
confirmed employee. Secondly, there can be no 'deemed
confirmation' and at best after completion of maximum
G
probation period provided under the Rules governing the
employee, the employee becomes eligible for being
confirmed in his post. His period of probation remains in
force till written document of successful completion of
probation is issued by the Competent Authority. What
H
1066
SUPREME COURT REPORTS
[2010) 7 S.C.R.
A view has to be taken, would depend upon the facts of a
given case and the relevant Rules in force. It will be
cumulative effect of these two basics that would
determine application of the principle of law to the facts
of that case. The specific rules relating to alleged
B automatic confirmation of the appellant are relevant and
the fact that the appellant failed to satisfactorily complete
the period of probation or extended period of probation
in terms of Rule 5(8) of the Karnataka Civil Service
(Probation) Rules, 1977. The Karnataka Judicial Services
c (Recruitment) Rules, 1983 ought to be read in
conjunction with the 1977 Rules as they have duly been
adopted by the High Court. The 1977 Rules are specific
Rules on the subject in question while 1983 Rules are
general Rules and in any case there is no conflict
0 between the two as they seek to achieve the same object
in relation to probation and effects thereof in relation to
different matters. [Para 9] [1086-E-H; 1087-A-F]
4.2. Not only the Rules but even the principles of
service jurisprudence fully recognizes the status of
E employee as probationer and a confirmed employee.
Probationer in terms of Rule 2 (ii) of 1977 Rules means a
Government servant on probation. Rules 3 to 6 are the
relevant Rules which specifically deal with the period of
probation, extension or reduction of period of probation,
F satisfactory completion of the probation period and
discharge of a probationer during the period of
probation. No doubt Rule 3 of 1977 Rules states that the
period of probation shall be, as may be, provided for in
the Rules of recruitment specially made for any service
G or post, which shall not be less than two years, out of
which period extraordinary leave will have to be
excluded. The framers of the Rules have introduced
proviso to Rule 3, which gives discretion to the
Authorities and, in fact, introduced deemed extension in
H the event, the probationer has appeared for any
KHAZIA MOHAMMED MUZAMMIL v. STATE OF
1067
KARNATAKA AND ANR.
examination or result thereof has not been declared
A
within the period of probation and extended period. The
Rule, therefore, contemplates deemed extension of
probation period where the Authorities have not passed
any order for extending or declining to extend the period
of probation provided the circumstances stated therein
B
are satisfied. [Paras 10, 11] [1087-G-H; 1088-A~E; 1089-AH; 1090-D-G]
5. The purpose of any probation is to ensure that
before the employee attains the status of confirmed
regular employee, he should satisfactorily perform his
C
duties and functions to enable the Authorities to pass
appropriate orders. In other words, the scheme of
probation is to j.udge the ability, suitability and
performance of an officer under probation. Once these
ingredients are satisfied, the Competent Authority may D
confirm the employee under Rule 5 of the 1977 Rules.
Rule 5(b) empowers the Authority that in the event it is.
of the. view that the period of probation has not been
satisfactorily completed or has not passed the special
examinations, it may discharge him from service unle$S
E
the period of probation is extended. Rule 5(2) has been
coveted with negative language. It specifically prescribes
that a probationer shall not be considered to have
satisfactorily completed the probation unless a specific
order to that effect is passed. This Rule further clarifies
F
that if there is a delay in issuance of an order under subRule (1 ), it shall not entitle the probationer to be deemed
to have satisfactorily completed his probation. Rule 6 (1)
states that the Competent Authority may, at any time,
during the period of probation, discharge from service,
G
a probationer on grounds arising out of the conditions,
if any, imposed by the Rules or in the order of
appointment, or on account of his unsuitability for the
service of post. However, the said order of discharge
would take effect only after it is confirmed by the next
H
1068
SUPREME COURT REPORTS
[2010] 7 S.C.R.
A higher authority. Rule 6(2) specifically excludes the
application or holding of formal proceedings under the
Karnataka Civil Services (Classification, Control and
Appeal) Rules 1957. It says that such course will not be
necessary. Item No. 2 of Rule 2 of 1983 Rules states that
B probation period will be of 2 years and further mandates
that during that period of probation, the officer must
undergo a training, as may be specified by the High
Court. That itself is indicated under the head 'minimum
qualifications'. It, therefore, clearly shows that it is not the
c provision dealing with the probation period, extension
and discharge of a probationer during that period but is
primarily relatable to the minimum qualifications, which
are to be essentially satisfied by the officer concerned
before he takes over his appointment as a regular judge.
D The reference to the probation period has to be examined
and interpreted with reference to and in conjunction with
1977 Rules which are the primary Rules dealing with
probation. These Rules have admittedly been adopted by
the High Court. Under the 1983 Rules, the emphasis is
on performance and training during the period of
E probation. While the significance under the 1983 Rules
is on training, under 1977 Rules, all matters relating to
probation are specifically dealt with. It would not be
permissible to read the relevant part of 1983 Rules to say
that it mandates that probation period shall be only for
F two years and not more. If that was to be accepted, all
provisions under Rules 3 to 6 of 1977 Rules will become
redundant and ineffective. In fact, it would frustrate the
very purpose of framing the 1977 Rules. What will be the
period of probation, the circumstances under which it can
G be extended or reduces and discharge of the Probationer
Officer in the event of unsuitability etc. are only dealt with
under the 1977 Rules. The 1983 Rules would have to be
read harmoniously with 1977 Rules to achieve the real
purpose of proper and timely training of Judicial Officers
H on the one hand and appropriate control over the matters
KHAZIA MOHAMMED MUZAMMIL v. STATE OF
1069
KARNATAKA AND ANR.
relating to probation of the officers on the other. [Para 12]
A
[1090-H; 1091-A-G]
State of Punjab v. Dharam Singh AIR 1968 SC 1210;
Shamsher v. State of Punjab (1974) 2 SCC 834; State of
Punjab v. Dharam Singh AIR 1968 SC 1210; Dayaram Dayal
8
v. State of M.P. (1997) 7 SCC 443; Karnataka State Road
Transport Corporation v. S. Manjunath (2000) 5 SCC 250;
High Court of Madhya Pradesh v. Satya Narayan Jhavar
I
1 (2001) 7 SCC 161; Registrar, High Court of Gujarat v. C. G.
Sharma (2005) 1 SCC 132 - referred to.
c
6.1. If Rule or Regulation require the competent
authority to examine the suitability of the probationer and
then upon recording its satisfaction issue an order of
confirmation, then the question of automatic confirmation
would not even arise. Of course, every authoricy is o
, expected to act properly and expeditiously. It cannot and
ought not to keep issuance of such order in abeyance
without any reason or justification. While there could be
some other cases where the Rules do not contemplate
issuance of such a specific order in writing but merely
E
require that there will not be any automatic confirmation
F
or some acts, other than issuance of specific orders, are,
required to be performed by the parties, even in those
cases it is difficult to attract the application of this
doctrine. However, there will be cases where not only
such specific Rules, are absent but the Rules specifically
prohibit extension of the period of probation or even
specifically provide that upon expiry of that period he
shall attain the status of a temporary or a confirmed
employee. In such cases, again, two situations would
rise: one, that he would attain the status of an employee
G
being eligible for confirmation and second, that actually
he will attain the status of a confirmed employee. It may
not be possible to prescribe a straight jacket formulae of
universal implementation for all cases involving such
questions. It will always de-pend upon the facts of a case
1-t
1070
SUPREME COURT REPORTS
[2010) 7 S.C.R. _
A and the relevant Rules applicable to that service. [Para
18] [1111-D-H; 1112-A-B]
6.2. The language of Rule 5(2) is a clear indication of
the intent of the framers that the concept of deeming
8 confirmation could not be attracted in the present case.
This Rule is preceded by the powers vested with the
authorities under Rules 4 and 5(1) respectively. This Rule
mandates that a probationer shall not be deemed to have
satisfactorily completed the probation unless a specific
order to that effect is passed. The Rule does not stop at
C that but further more specifically states that any delay in
issuance of order shall not entitle the probationer to be
deemed to have satisfactorily completed his probation.
Thus,
use
of unambiguous
language
clearly
demonstrates that the fiction of deeming confirmation, if
D permitted to operate, it would entirely frustrate the very
purpose of these Rules. On the ground of unsuitability,
despite what is contained in Rule 5, the competent
authority is empowered to discharge, the probationer at
any time on account of his unsuitability for the service
E post. Such discharge has to be simplicitor without
causing a stigma up.on the concerned probationer. It is
difficult for the Court to bring the present case within the
class of cases, where 'deemed confirmation' or principle
of 'autome1tic confirmation' can be judiciously applied.
F The 1977 Rules co not contain any provision which
places a ceiling to the maximum period of probation, for
example, the probation period shall not be extended
beyond a period of two years. On the contrary, a clear
distinction is visible in these Rules as it is stated that
G probation period shall not be less than two years and can
be extended by the authority by such period not
exceeding half the period. The negative expression is for
half the period and not the maximum period totally to be
put together by adding to the initial period of probation
H and to extended period. Even assuming that this period
'
/
KHAZIA MOHAMMED MUZAMMIL v. STATE OF
1071
KARNATAKA AND ANR.
is of three years, then in view of the language of Rules 5
A
(1) and 5(2) there cannot be automatic confirmation, a
definite act on the part of the authority is contemplated.
The act is not a mere formality but a mandatory
requirement which has to be completed by due
application of mind. The suitability or unsuitability, as the
B
case may be, has to be recorded by the authority after
due application of mind and once it comes to such a
decision the other requirement is that a specific order in
that behalf has to be issued and unless such an order is
issued it will be presumed that there shall not be· c
satisfactorily completion of probation period. The Rules,
being specific and admitting no ambiguity, must be
construed on their plain language to mean that the
concept of 'deemed confirmation' or 'automatic
confirmation' cannot be applied in the present case.
D
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
E
unless certificate is issued by the competent authority the
probation period would be expected to have 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.
F
[Paras 19, 20] [1113-8-H; 1114-A-G]
7. In the present case, the appellant was appointed
to the post by letter dated 9/10th May, 1996 and he
reported for his duty on 15th May, 1996. He was on
G
probation for a period of two years. Thereafter, no letter
of extension of probation or order stating that the
appellant has completed the period of probation
successfully in terms of Rule 5(1) was ever issued. Rule
5 (2), therefore, would come into play and till the issuance
H
1072
SUPREME COURT REPORTS
[2010] 7 S.C.R.
A of such an order and certificate of satisfactory
completion of probation period, the appellant cannot
claim to be a confirmed employee by virtue of principle
of automatic or deemed confirmation. His services were
terminated by order dated 24th March, 2000. It was
B discharge from service simplicitor without causing any
stigma on the appellant. Even prior to his selection as a
member of the Higher Judicial Services of State of
Karnataka, his name was placed for surveillance in the
police records. The original service record of the
C appellant also did not reflect that he was an officer of
outstanding caliber or had done extraordinary judicial
work. He was an officer who was not even aware of his
date of birth and mentioned his age as per his
convenience. In these circumstances, it is a case where
0 in exercise of jurisdiction of this Court under Article 136
of the Constitution of India, interference with the
judgment of the High Court is not called for as the same
does not suffer from any tactual or legal infirmity. [Para
21] [1114-G-H; 1115-A-E]
E
8. The concerned authorities failed to act
expeditiously and in accordance with the spirit of the
relevant Rules. Rule 5 (2) of 1977 Rules has used the
expression 'as soon as possible' which clearly shows
the intent of the rule framers explicitly implying urgency
F and in any case applicability of the concept of reasonable
time which would help in minimizing the litigation arising
from such similar cases. It is hoped that all the authorities
concerned would take care that timely actions are taken
in comity to the Rules governing the service and every
G attempt is made to avoid prejudicial results against the
employee/probationer. It is expected of the Courts to pass
orders which would help in minimizing the litigation
arising from such similar cases. Timely action by the
authority concerned would ensure implementation of rule
H of fair play on the one hand and serve greater ends of
KHAZIA MOHAMMED MUZAMMIL v. STATE OF
1073
KARNATAKA AND ANR.
justice on the other. It would also boost the element of A
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
B
of litigation. Boni judicis est causes litium dirimere. [Para
22) [1115-E-G; 1116-D-G]
Shiv Kumar Sharma v. Haryana State Electricity Board
(1988) Supp. SCC 669, affirmed.
9. It is really unfortunate that a person, who is
involved in the process of judicial dispensation, is dealt
with in a manner that for years neither his confidential
reports were written nor the competent authority issued
c
an order of satisfactory completion of probation period
D
or otherwise. Another very important aspect is that in the
present days of high competition and absolute integrity
and even to satisfy the requirements of out of turn
promotions by competition it is expected of the High
Court to inform the concerned judicial officer as of his
E
drawbacks so as to provide him a fair opportunity to
improve. Unfortunately High Court did not maintain the
expected standards of proper administration. There is a
constitutional obligation on the High Court to ensure that
F
the members of the judicial services of the State are
treated appropriately, with dignity and without undue
delay. They are the face of the judiciary inasmuch as a
common man, primarily, comes in contact with these
members of the judicial hierarchy. It is a matter of
concern, that timely action on behalf of the High Court
would have avoided this uncalled for litigation as it would
G
have been a matter of great doubt whether the appellant
could at all be inducted into the service in face of the
admitted position that the name of the appellant was
stated to be on the rowdy list at the relevant time. [Para
23) [1116-H; 1117-A-E]
H
1074
SUPREME COURT REPORTS
[2010] 7 S.C.R.
A
10. The judgment of this Court should be placed
before the Hon'ble the Chief Justice of Karnataka High
Court for appropriate action. It is hoped that steps would
be taken to ensure timely recording of the confidential
reports of the judicial officers by appropriate authority
B (which in terms of Chapter VI with particular reference to
the provisions of Article 235 of the Constitution is the
High Court) and in an elaborate format depicting
performance of the judicial officers in all relevant fields,
so as to ensure that every judicial officer in the State
c would not be denied what is due to him in accordance
with law and on the basis of his performance; the
Secretary of the Union of India, Ministry of Personnel,
Public Grievances and Pension as well as all the Chief
Secretaries of the States are directed to issue appropriate
0 guidelines, in the light of this judgment, within eight
weeks from the date of the pronouncement of this
judgment. Further all the High Courts are dfrected to
ensure that 'police verification reports', conducted in
accordance with law, are received by the concerned
authority before an order of appointment/posting in the
E State Judicial Service is issued by the said authority.
[Para 24] [1117 -F-H; 1118-A-C]
Case Law Reference:
F
AIR 1968 SC 1210
referred to
Para 13
(1974) 2 sec 834
referred to
Para 13
AIR 1968 SC 1210
referred to
Para 14
(1997) 1 sec 443·
referred to
Para 15
G
(2000) 5 sec 250
referred to
Para 15
(2001) 1 sec 161
referred to
Para 16
(2005) 1 sec 132
referred to
Para 17
H
(1988) Supp. sec 669
affirmed
Para 22
KHAZIA MOHAMMED MUZAMMIL v. STATE OF
1075
KARNATAKA AND ANR.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 596
A
of2007.
From the Judgment & Order dated 09.07.2004 of the High
Court of Karnataka at Banglore in W.P. No.11965 of 2000.
Guru Krishna Kumar, Abhay Kumar, S.R. Setia for the
B
Appellant.
Anil Kr. Mishra, A. Rohen Singh, Sanjay R. Hegde, R.B.
Budihal, RG, Karnataka HC for the Respondent.
The Judgment of the Court was delivered by
c
SWATANTER KUMAR, J. 1. The appellant, who was a
practicing advocate, was appointed as. District Judge under the
Karnataka Judicial Services (Recruitment) Rules 1983 (for •"
short 'the 1983 Rules') vide Notification No. DPAR 37 SHC 96
D
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 2oth of May, 1996, the appellant was transferred
and posted as 1st Additional City Civil & Sessions Judge,
E
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
F
show-cause notice was served upon him during the entire
period of his service. Initially in 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 St1CCessfully and there was no specific communication
G
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 15~h
H
1076
SUPREME COURT REPORTS
[2010] 7 S.C.R.
A October, 1999 for discharge of the appellant from service. It
appear that in October 1999, the Registrar General of the High
Cou1i addressed a communication to the Chief Secretary of the
State seeking the discharge of the appellant in terms of Rule
6 (1) Karnataka Civil Service (Probation) Rules, 1977 on the
8
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 andwas unsustainable in
law. The appellant had put in 3 years 10 months and 10 days
C 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
D issues including the legal submissions referable to the relevant
rules. The 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
E reasoning given by the High Court which reads as follows:-
F
G
H
" A bare reading of Rule 3 makes it clear that the period
of probation shall be fixed as per the rules of recruitment
specially made for any service and also that the minimum
period of probation shall be two years. Rule 4 deals with
the extension of reduction of period of probation. Rule 5
deals with declaration of satisfactory completion of
probationary period. Sub-rule (1) (b) of Rule 5 states that
the if the appointing authority decides that the probationer
is not suitable to hold the post, it may discharge him from
service, if the probationary period if not extended. Rule
5(2) makes it clear that there has to be an order declaring
the probationer to have completed the probationary period
and if there is a delay in issuing such an order, the
probationer wiil not be deemed to have completed the
KHAZIA MOHAMMED MUZAMMIL v. STATE OF
1077
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
probationary period. Rule 6(1) provides for discharge of
A
a probationer during the probationary period under the
circumstances like the grounds arising out of the
conditions, if any, imposed in the rules or in the order of
appointment or unsuitability to hold the post. Rule 7 states
that when a probationer, whether during or at the end of
B
probation period, is terminated for any misconduct, the
termination shall be in accordance with Karnataka Civil
Services (Classifications, Control and Appeal) Rules, 1957
(for short 'the 1957 Rules')
In the instant case, the petitioner, who was appointed
on probation, though he had worked for 3 years 10 months
and 1 O days, was not found suitable to hold the post and
c
no order has been passed that he has satisfactory
completed the probationary period. Under the
circun:_istances, the argument that Rule 6 (1) of KCSRs . D
cannot be invoked and the petitioner's case falls under
Rule 7 of the KCSRs is not sustainable. It is seen that the
petitioner has not been removed on misconduct pending
probation. So the argument that Rule 7 of the KCSRs has
not been considered by this Court and the decisions
E
referred to above are not applicable, it not acceptable in
the.facts of the given case as Rule 7 deals with termination
for misconduct during or at the end of probation period,
whereas as stated in the present case on hand, the
probationer has been discharged from his services as he
F
is found unsuitable to hold the post and there is no violation
of the provisions of the 1957 Rules."
2. Aggrieved from the judgment of the High Court, the
appellant has preferred the present appeal to this Court under
G
Article 136 of the Constitution of India. The challenge to the
judgment of the High Court as well as notification, dated 24th
of March 2000, is on the ground that the appellant could not
have remained probationer beyond the period of probation. He
had held the office for a period of more than 3 years. After this
H
1078
SUPREME COURT REPORTS
[2010] 7 S.C.R.
A period, the appellant will be deemed to have been confirmed
and thus his discharge from service is contrary to the rules. A
confirmed employee cannot be discharged as probationer and
if there is anything against the appellant, the department i.e.
High Court/Government, on that plea ought to have conducted
B departmental enquiry in accordance with rules. Further, it is
contended that the action of the High Court and the State
Government is arbitrary and without any basis. The service
record of the appellant was excellent and there was nothing on
the record to justify that the appellant had become 'unsuitable
c for the post'. On the contrary, the submission on behalf of the
respondents is that there cannot be a deemed confirmation.
The High Court, in exercise of its power of superintendence as
well as under the rules found that the appellant was entirely
unsuitable for his retention in service. The service record of the
0 appellant is also such that it does not justify his retention in
service being a person under surveillance of Police prior to
joining the service. The appellant, being a probationer, has
rightly been discharged from service and the Writ Petition has
rightly been dismissed by the High Court for valid reasons and
judgment of the High Court does not call for any interference.
E Before we proceed to discuss the merit or otherwise of the rival
contention raised before us, at the very outset, we may refer to
the impugned notification which reads as under:
F
G
"CONFIRM EDIT OF KARNATAKA
No. PPAR 69 SHO 99 ....
Karnataka
Government
Secretariat,
Vidhan Soudha,
Bangalore,
Dated 24.3.2000
NOTIFICATION
In exercise of the powers conferred by Rule 6 (1) of
H
the Karnataka Civil Services (Probation) Rules, 1977, I,
KHAZIA MOHAMMED MUZAMMIL v. STATE OF
1079
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
V.S. RAMA DEVI, Governor of Karnataka, hereby order
A
that Sri. Kazia Mohammed Muzzammil, 1st Additional City
Civil and Sessions Judge, Bangalore City be discharged
from service with immediate effect as he is unsuitable to
hold the post of District Judge.
Sd/-
B
(V.S. RANA DEVI)
GOVERNOR OF KARNATAKA
BY ORDER AND IN THE
NAME OF THE GOVERNOR OF
KARNATAKA,
C
(V.R. TLKAL)
UNDER SECRETARY TO THE
GOVERNMENT DEPARTMENT OF
PERSONNEL AND ADMINISTRATIVE
REFORMS (SERVICES .3)
xxx
xxx
xxx
xxx
D
· 3. The bare reading of the above impugned notification
shows that it is ex-facie not stigmatic. It simply discharges the
E
appellant from service as having been found unsuitable to hold
the post of District Judge. Until and unless, the appellant is able
to show circumstances supported by cogent material on record
that this order is stigmatic and is intended to over reach the
process of law provided under the rules, there is no occasion
for this Court to interfere on facts. As far as law is concerned,
the question raised is with regard to the applicability of the
concept of 'deemed confirmation', to the present case under
the service jurisprudence.
F
4. We may also notice that conduct of the appellant, who
G
is a Judicial Officer, belonging to the Higher Judicial Services
of the State is matter of some concern. Contradictory
statements have been made in the Writ Petition before the High
Court, memorandum of appeal before this Court and even in
the rejoinder and further affidavit filed before this Court.
H
\
'
1080
SUPREME COURT REPORTS
[2010] 7 S.C.R.
A Strangely, the High Court has neither contested this case nor
pursued it in its correct perspective. As it appears, even
appearance on behalf of the High Court was not entered upon.
Despite specific orders of this Court the High Court had failed
to produce the records and even no responsible officer was
B present. This attitude of the respondents in this court compelled
the Bench to pass an order dated 20th May, 2010 which reads
as under:-
c
D
E
F
G
H
"This case was heard at some length yesterday and was
part-heard for today. At the very outset, we must notice that
from the record before us, ex-facie, it appears that the
appellant before this Court has sworn the false and/or
incorrect affidavit.s. In order to demonstrate our above
observation, we must refer to the following details which
have been given by the appellant in various affidavits and/
or pleadings of the present case, which are as follows:
Date Age
Page (s)
29.3.2000
46
28/37
23.2.2001
20.9.2004
14.10.2006
22.10.2009
30.6.2010
9.5.1996
20.3.2000
46
51
50
18
54
52
57
4/5 (Appln.
for Early Hearing)
60
Joined Service E
WP
Counter Affidavit 44
By the High Court
34
15.5.95)
25.3.2000)
As would be evident that if one· of the dates given
KHAZIA MOHAMMED MUZAMMIL v. STATE OF
1081
KARNATAKA AND ANR. [SWATANTER KUMAR, J.]
by the appellant is taken to be correct, he would
A
superannuate on 30th June, 2010, and if another date is
taken, he would be only 57 years of age as on 22nd
October, 2009. Besides this, he had joined service as per
the letter of appointment of 9th may, 1996, but at page 34
of the paper book, he claimed to have joined service on
B
15th May, 1995, which on the face of it, is not a correct
statement of facts. We further note that the cas~ of the
appellant is that during the period of his service, no
adverse entries had been made in his service record,
which has been seriously disputed by the respondents who c
state that even complaints were received against the
appellant.
With some amount of anguish, we must also notice
that the High Court appears to be callous about the whole
matter. The reply filed on behalf of the High Court does not
D
specifically dispute any of the averments made by the
appellant. The reply besides being vague, is intended to
benefit the appellant, which is entirely uncalled for. It has
become necessary for us to know the correct position of
facts before we dwell upon legal submissions raised on
E
behalf of the appellant. This Court vide its order dated 28th
April, 2006, had expressed certain doubts and directed
that the records should be produced before the Court and
records should be made available before this Court at the
time of hearing. Despite the fact that this case has been
F
on Board for this entire week and was heard for
considerable time yesterday and was part-heard for today,
still records are not available. We are unable to appreciate
this attitude of the High Court towards this case, pending
in the highest Court of the land.