would submit that the order impugned in the present case is
founded on misconduct. His submission is that in a bold and
highlighted portion of the ACR of the Petitioner, it is stated that
there are complaints about her integrity as well. There is,
according to Mr.Anturkar, a complaint that the Petitioner has
not pronounced the judgments after dictating them but has
pronounced them without dictation. It is in these circumstances
that he would submit that the order is not of discharge
simplicitor but on account of serious misconduct and which can
be established and proved only after a regular inquiry. That
mandates an opportunity being given to the party like Petitioner
and before being terminated/discharged from service. It is in
these circumstances that he would submit that the impugned
order is required to be quashed and set aside. We are unable to
agree with Mr.Anturkar. The observations of the Principal Judge
of Bombay City Civil and Sessions Court would have to be read
as a whole. They refer to the criminal judgments and civil
judgments. If there are no material defects in the civil
judgments and that is why the argument is that the foundation
of the order is a misconduct or complaint about integrity or of
pronouncing the judgments without dictating the same, then, it
is not a discharge simplicitor. However, this overlooks the fact
that the judgment writing too suffers from four basic legal
infirmities and as highlighted. It is in these circumstances that
merely because something is written in bold does not mean that
High Court has been influenced by that portion alone or it has
based its decision on the same without taking into consideration
the entire record and assessing it in a overall manner.
Mr.Anturkar's argument overlooks the fact that the Principal
Judge of the Bombay City Civil and Sessions Court is the
Reporting Authority. His/Her remarks are placed before a
learned Judge of this Court and who is nominated as a
Guardian Judge for that particular District Court by the Hon'ble
Chief Justice of this Court. When these remarks were placed
before the Hon'ble Guardian Judge, he endorsed that the
performance of the Petitioner is not satisfactory and hence she
may be discharged from service. Thereafter, a Committee
comprising of four learned Judges two of whom are lady Judges
and earlier presiding over as Judges of the Bombay City Civil
and Sessions Court, considered the entire record. It is not that
the remarks of the registry or the highlighted portion only has
influenced their conclusion. The Committee in its ultimate
order expressed its agreement with the remarks of the learned
Guardian Judge.
19. Thereafter these remarks of the Probation
Committee were placed before the Administrative Judges'
Committee and it is the Administrative Judges' Committee, of
which neither the Guardian Judge nor other two lady Judges
were a part, expressed its independent agreement and held that
the Probation Committee has rightly arrived at a conclusion that
the Petitioner ought to be discharged from service. Nothing
from this record would indicate that the order passed and
impugned in the present petition is founded on the alleged
misconduct of the Petitioner or is influenced by any complaint
about lack of integrity. An overall assessment of the Petitioner's
performance has been made. For that purpose, the service
record has been perused in its entirety including all the
judgments delivered and their quality. Once the Petitioner's
performance is assessed for determining whether she is suitable
for being confirmed or continued in Maharashtra Judicial
Services, then, it is erroneous to term the impugned order as
casting any stigma or aspersion on the character of the
Petitioner. It is nothing but a discharge simplicitor of a
probationer and during the probationary period.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2814 OF 2015
Smt.Smita Rajendra Kadu,
versus
The State of Maharashtra.
CORAM : S.C.DHARMADHIKARI AND
B.P.COLABAWALLA, JJ.
DATE : 23 December 2015
Citation; 2016 (2) MHLJ 867
Rule. Learned counsel for the Respondents waive
service. By consent, the Rule is made returnable forthwith. The
writ petition is taken up for hearing and final disposal, by
consent and on the request of learned counsel.
2. By this petition under Article 226 of the Constitution
of India, the Petitioner challenges the order dated 12 August
2014. By that order, a copy of which is annexed at AnnexureA,
page 19 of the writ petition, the services of the Petitioner have
come to an end meaning thereby she is discharged from the
judicial service.
3. The Petitioner states that the Respondents before us
namely Respondent nos.1 and 2 are the authorities who
appointed the Petitioner in judicial service by virtue of
Maharashtra Judicial Service Rules, 2008. They have passed the
impugned order on the recommendations of Respondent no.3.
4. In paragraph 2 of this writ petition, it is stated that
by invoking Rule 13(4)(ii)(b) of the Maharashtra Judicial
Service Rules, 2008 (`the Rules'), the probation period of the
Petitioner has been terminated and this action, by which the
services have been brought to an end abruptly, violates the
mandate of Article 14 of the Constitution of India.
5. For appreciating the contentions raised by
Mr.Anturkar, Senior Advocate, appearing for the Petitioner, we
would have to note the full facts. The applications for
appointment to the post of direct District Judges were invited by
an advertisement dated 28 July 2008. The Petitioner applied in
pursuance of this advertisement. After the results of an
examination were declared in March2010, the interviews of the
eligible candidates were held. Out of 268 candidates, only 14
were eligible. The Petitioner being one of them was called for
interview and ultimately came to be selected. The Petitioner
states that she belongs to Scheduled Caste category. After her
successful completion of the examinations and the oral
interview, a letter was received by her which was appointing her
to the post of Judge, City Civil Court, Mumbai. Thus, the
Petitioner joined the judicial service on 12 October 2010 as a
Judge of the Bombay City Civil and Sessions Court. She states
that after completion of all the formalities, she received her
salary and thereafter she was posted at Dindoshi (Mumbai
Suburban District). While in service at Dindoshi and functioning
as a Judge of City Civil and Sessions Court, her services were
transferred to Pandharpur. She therefore took over as a District
Judge, at Pandharpur. She was designated as District JudgeI.
She relies upon a communication in that behalf dated 22
October 2014.
6. The Petitioner then complains that she successfully
worked at both the places and it is in that background that her
challenge to the impugned order be appreciated.
7. Mr.Anturkar would submit that Petitioner's initial
appointment was on probation for two years. That probation
period commenced from 12 October 2010 and ended on 11
October 2012. Six months before the end of the probation
period namely by 11 April 2012, the Respondent nos.1 and 2
herein considered the suitability for being appointed and to
hold the post. She is not aware whether any of these
Respondents applied their mind to the relevant factors.
However, Mr.Anturkar states that the Petitioner received a letter
dated 21 July 2012 from the Principal Judge, Bombay City Civil
and Sessions Court and she complied with the requisitions
contained therein. The Petitioner in paragraph 18 places
reliance on Rule 13(4)(ii) of the Rules to urge that if the
appointing authority finds that the person is not suitable to hold
the post to which he or she was appointed or promoted, then, a
reversion can be effected, meaning thereby a person can be
reverted to the post held prior to the promotion or, if he is a
probationary officer, discharge him or her from service. The
impression of the Petitioner was that since nothing was
communicated to her, her probation period is successfully
completed. However, it is only when the order impugned in this
petition was served upon her that she realized that though her
probation period was to end on 11 October 2012, it was
extended by two years.
8. It is in these circumstances that it is submitted that
the impugned order cannot be said to be termination or
discharge simplicitor of a probationer from service. This is an
order founded on misconduct and, therefore, casts a stigma on
the Petitioner's conduct and character. Such an order could not
have been passed unless an opportunity of being heard was
granted to the Petitioner. That prior opportunity not being
given, the impugned order deserves to be quashed and set aside.
9. It is next contended by Mr.Anturkar that during the
course of probation, if there is any error or mistake committed
and that is reported, then, an opportunity or chance to improve
ought to be given to a Presiding Officer like the Petitioner. They
should not be visited with extreme consequences. A judicial
officer expects protection from the High Court. A judicial officer
also expects guidance from his/her superiors. A judicial officer
would also expect that in the event any complaint is received
against him or her, the High Court would protect such officer
and not entertain every vague or general complaint. Our
attention is invited by Mr.Anturkar to page 98 of the paper book
in this behalf. He would submit that the Reporting Officer
namely the Principal Judge of the Bombay City Civil and
Sessions Court has written Annual Confidential Remarks
(`ACRs'). It has been observed by her that there are complaints
about Petitioner's integrity and of pronouncing the judgments
without dictating them. Mr.Anturkar submitted that these
observations in the ACRs have been highlighted and they have
influenced the decision of Respondent no.3. These remarks and
highlighted as above, were placed before the Hon'ble Guardian
Judge. The Hon'ble Guardian Judge has opined that the
Petitioner's performance is not satisfactory. Hence, she may be
discharged from the service. Mr.Anturkar states that these
recommendations of the Guardian Judge, when placed with the
prefatory comment of the registry before a Committee of the
Judges, it is apparent that the said Committee was also
influenced to a great extent by the complaints and in that
regard our attention is invited to page 103 of the paper book.
10. Thus, Mr.Anturkar would submit that the order is
founded on complaints and charges of corruption or lack of
integrity. If there are adverse remarks and the allegations in
that behalf have a definite bearing in reaching the ultimate
conclusion, then, it is apparent that this is not a case of
termination simplicitor. The foundation being a misconduct and
of serious nature, the order deserves to be quashed and set
aside. It is then incumbent upon the Respondents to hold an
inquiry so as to determine the guilt, if any, of the Petitioner. For
all these reasons, it is submitted that the impugned order be
quashed and set aside.
11. One more submission of Mr.Anturkar deserves to be
noted, though there is no foundation laid for the same in the
pleadings. It is submitted that the Petitioner, a lady judicial
officer and belonging to Scheduled Caste, has been victimized
and deliberately chosen for this treatment. Her superiors have
ignored this fact and instead of protecting her and allowing her
an opportunity to improve her performance, chose to dispense
with her services. This amounts to serious miscarriage of
justice. It is submitted that there is no assurance to the judicial
officers after they sacrifice their careers as advocates and join
the judicial service. If they join the judicial service with great
hopes and aspirations that they would be protected and guided
by the High Court, then, they are belied in the present case as
the Petitioner is discharged from judicial service. All the more,
when now more women are taking up judicial service as a
career.
12. In support of the above contention, reliance is
placed by Mr.Anturkar on the judgment of Hon'ble Supreme
Court of India in the case of Registrar General, High Court of
Gujarat and another Vs. Jayshree Chamanlal Buddhbhatti1
.
13. On the other hand, Mr.Dani, learned Senior
Advocate appearing for Respondent no.3 would submit that
1 (2013)16-SCC-59
none of the contentions of Mr.Anturkar deserve to be accepted.
He would submit that there is no challenge to the Rules. There
is no challenge to the power of the High Court. If the Rules
provide for extension of probation period and that is precisely
what is done, then, it is not open for the Petitioner to complain
that there is any violation of Rules or that she was given any
impression that her probation period is satisfactorily completed.
There is no communication of this nature emanating from
Respondent no.3 and placed on record. He would submit that
all judicial officers and who join judicial service, are performing
a public duty. Equally, the High Court is performing a public
duty in evaluating and assessing their performance. Irrespective
of caste, creed, sex and religion, all judicial officers, upon
appointment, are placed on probation. The probation period
has to be satisfactorily completed by all. It is open for the
appointing authority to evaluate and assess the performance
and if the same is found to be satisfactory, then the concerned
judicial officer is continued in service. The larger public interest
and public trust demands that the High Court performs its duty
impartially, dispassionately, independently and in detached
manner. That has been done in the instant case and there is
absolutely no material to indicate that any allegation of
corruption has influenced the decision of discharge from
service. The decision to discharge the Petitioner is based on an
overall assessment of her performance and work. It has been
pointed out as to how the quality of civil judgments is not up to
the mark. It has also been pointed out that the judgments in
criminal matters are not of the required standard and quality.
In these circumstances, it is only the assessment of the
performance and in an overall manner that has led to the
decision. This is a case of termination or discharge simplicitor
and of a probationary officer for unsatisfactory performance. In
these circumstances, neither the judgment of the Supreme Court
of India would be of any assistance nor any general allegation
particularly highlighting the caste and sex of the Petitioner. For
all these reasons, Mr.Dani would submit that the petition is
frivolous and deserves to be dismissed.
14. For properly appreciating these submissions, a
reference will have to be made to the Rules. A copy of the Rules
is annexed to the petition and amended up to 11 June 2012.
The term "Service" has been defined in Rule 2(j) to mean
Maharashtra Judicial Services. ChapterII of the Rules refers to
the Constitution of Service and one of the categories or the
cadre is that of the District Judges in the Maharashtra Judicial
Services. The eligibility criteria for the same is then set out.
ChapterIII refers to the Recruitment. The appointing authority
for the cadres of District Judges and Civil Judges, Junior
Division, shall be Governor and for the promotion to the cadre
of Senior Civil Judges is High Court. The method of
recruitment, age limit and qualifications are set out in Rule 5.
Thereafter, Rule 6 refers to recruitment by nomination. The
Rule following it, namely Rule 7, sets out the disqualification for
appointment. Then conditions relating to suitability, fitness and
character are set out in Rule 8 and the fees for nomination are
set out in Rule 9. Rule 10 provides for joining time after
appointment and Rule 11 deals with appointment by promotion.
By Rule 12, which was earlier in field, a competitive
examination was provided for. By ChapterIV, the matter of
probation and officiation has been dealt with and Rules 13 to 15
are material for our purpose. They read as follows :
"13. Probation and Officiation :
(1) All appointments to the service by nomination
shall be on probation for a period of two years.
(2) All appointments by promotion shall be on
officiating basis for a period of two years.
(3) The period of probation or officiation, as the case
may be, for reasons to be recorded in writing, may be extended
by the Appointing Authority by such period not exceeding two
years.
(4) Six months before the end of the period or
extended period of probation or officiation, as the case may be,
the Appointing Authority shall consider the suitability of the
person so appointed or promoted to hold the post to which he
was appointed or promoted; and
(i) if found suitable, issue an Order declaring
him to have satisfactory completed the period of
Probation or Officiation, as the case may be, and
such an Order shall have effect from the date of
expiry of the period of Probation or Officiation,
including extended period, if any, as the case may be;
(ii) if the appointing Authority finds that the
person is not suitable to hold the post to which he
was appointed or promoted, as the case may be, it
shall by Order,
(a) if he is a promotee, revert him to
the post which he held prior to his
promotion;
(b) if he is a probationer, discharge
him from service.
(5) No person shall be deemed to have satisfactorily
completed the period of Probation or Officiation, as the case
may be, unless so declared by a specific Order to that effect.
14. Discharge of a Probationer during the period of
Probation : Notwithstanding anything contained in Rule 13,
the Appointing Authority may, at any time during the period of
probation, discharge from services, a probationer on account of
his unsuitability for the service.
15. Confirmation : A Probationer who has been declared
to have satisfactorily completed his Probation and a promotee
who has been declared to have satisfactorily completed his
period of Officiation shall be confirmed as a member of the
service in the category of post to which he was appointed or
promoted, as the case may be, in any substantive vacancy which
may exist or arise."
15. A perusal of these Rules would indicate that all
appointments to the judicial service by nomination, shall be on
probation for a period of two years, and all appointments on
promotion shall be on officiating basis for a period of two years.
The period of probation or officiation, as the case may be, for
the reasons to be recorded in writing, may be extended by the
Appointing Authority, by such period not exceeding two years.
Then, by subRule 4 of Rule 13, six months before the date of
period of probation or officiation, the Appointing Authority shall
consider the suitability of the person so appointed to hold the
post to which he/she was appointed or promoted. The
satisfaction in terms of Rule sub4, Clauses (i) and (ii) of Rule
13 of the Rules is apparent and in the case of a probationer,
discharge from service is also contemplated. Rule 14 starts with
a nonobstante clause and notwithstanding anything contained
in Rule 13, the Appointing Authority may, at any time during
the period of probation, discharge from service, a probationer,
on account of his/her unsuitability from service. Rule 15
provides for confirmation.
16. Admittedly, the Petitioner has not been confirmed in
service. There is no communication or letter to that effect.
There is nothing like deemed confirmation in the law. She was
on probation. The authorities were duty bound to assess her
performance and to find out whether she is suitable for
confirmation in judicial service. That is an obligation and trust,
which the High Court discharges, and for protecting the larger
public interest. In the case of Rajesh Kohli Vs. High Court of
Jammu & Kashmir and another2
, a litigation under similar
Rules came up for consideration before the Hon'ble Supreme
Court of India. The Hon'ble Supreme Court in paragraphs 16 to
18 and 23 to 25 concluded as under :
"16. Since the Rules permits probation to be extended for
another one year and since there was no order of confirmation
2 (2010)12 -SCC-783
passed by the respondents confirming his service, the
petitioner would be deemed to be continuing on probation
immediately after his expiry of the initial two years of
probation. In this regard, we may refer to Satya Narayan
Athya Vs. High Court of Madhya Pradesh {(1996)1SCC560}
in which a judicial officer was not given any confirmation
letter even after the completion of his two years of probation
period. The rules in the said case provided for the extension
of initial two years of probation period for a further period of
two years.
17. This court in Athya case (supra) held at paras 3 and 5
that (SCC pp. 56162)
`3. ... A reading thereof would clearly
indicate that every candidate appointed to the
cadre shall undergo training initially for a
period of six months before he is appointed on
probation for a period of two years. On his
completion of two years of probation, it may
be open to the High Court either to confirm or
extend the probation. At the end of the
probation period, if he is not confirmed on
being found unfit, it may be extended for a
further period not exceeding two years. It is
seen that though there is no order of extension,
it must be deemed that he was continued on
probation for an extended period of two years.
On completion of two years, he must not be
deemed to be confirmed automatically. There is
no order of confirmation. Until the order is
passed, he must be deemed to continue on
probation.
5. Under these circumstances, the High
Court was justified in discharging the
petitioner from service during the period of
his probation. It is not necessary that there
should be a charge and an enquiry on his
conduct since the petitioner is only on
probation and during the period of probation,
it would be open to the High Court to consider
whether he is suitable for confirmation or
should be discharged from service.'
(emphasis supplied)
18. During the period of probation an employee remains
under watch and his service and his conduct is under scrutiny.
Around the time of completion of the probationary period, an
assessment is made of his work and conduct during the period
of probation and on such assessment a decision is taken as to
whether or not his service is satisfactory and also whether or
not on the basis of his service and track record his service
should be confirmed or extended for further scrutiny of his
service if such extension is permissible or whether his service
should be dispensed with and terminated. The services
rendered by a judicial officer during probation are assessed
not solely on the basis of judicial performance, but also on the
probity as to how one has conducted himself."
In paragraphs 31 and 32, what we have emphasized above is
laid down as a matter of principle. These paragraphs would
read as under :
"31. The High Court has a solemn duty to consider and
appreciate the service of a judicial officer before confirming
him in service. The district judiciary is the bedrock of our
judicial system and is positioned at the primary level of entry
to the doors of justice. In providing the opportunity of access
to justice to the people of the country, the judicial officers
who are entrusted with the task of adjudication must officiate
in a manner that is becoming of their position and
responsibility towards the society.
32. Upright and honest judicial officers are needed not
only to bolster the image of the judiciary in the eyes of the
litigants, but also to sustain the culture of integrity, virtue and
ethics among Judges. The public perception of the judiciary
matters just as much as its role in dispute resolution. The
credibility of the entire judiciary is often undermined by
isolated acts of transgression by a few members of the Bench,
and therefore it is imperative to maintain a high benchmark
of honesty, accountability and good conduct."
17. Upon perusal of these paragraphs it is apparent that
the High Court performs a solemn duty to evaluate and appraise
the services of a judicial officer before confirming him or her in
service. The District Judiciary is foundation of our judicial
system and is positioned at the primary level of entry. It is,
therefore, obligatory for the High Court to evaluate and assess
the performance of officers of district judiciary. The suitability
for confirmation in service or continuation in service is an
important function of High Court on administrative side. These
principles have been reiterated in several cases by the Hon'ble
Supreme Court and it is not necessary to multiply this decision
with them. Suffice it to note that in the following decision of
the Hon'ble Supreme Court of India they are referred (See
paragraphs 8 and 9 of the Judgment in a Three Judge Bench in
the case of H.F.Sangati Versus Registrar General, High Court
of Karnataka and others reported in (2001)3SCC117.
18. Mr.Anturkar does not dispute this legal position but
would submit that the order impugned in the present case is
founded on misconduct. His submission is that in a bold and
highlighted portion of the ACR of the Petitioner, it is stated that
there are complaints about her integrity as well. There is,
according to Mr.Anturkar, a complaint that the Petitioner has
not pronounced the judgments after dictating them but has
pronounced them without dictation. It is in these circumstances
that he would submit that the order is not of discharge
simplicitor but on account of serious misconduct and which can
be established and proved only after a regular inquiry. That
mandates an opportunity being given to the party like Petitioner
and before being terminated/discharged from service. It is in
these circumstances that he would submit that the impugned
order is required to be quashed and set aside. We are unable to
agree with Mr.Anturkar. The observations of the Principal Judge
of Bombay City Civil and Sessions Court would have to be read
as a whole. They refer to the criminal judgments and civil
judgments. If there are no material defects in the civil
judgments and that is why the argument is that the foundation
of the order is a misconduct or complaint about integrity or of
pronouncing the judgments without dictating the same, then, it
is not a discharge simplicitor. However, this overlooks the fact
that the judgment writing too suffers from four basic legal
infirmities and as highlighted. It is in these circumstances that
merely because something is written in bold does not mean that
High Court has been influenced by that portion alone or it has
based its decision on the same without taking into consideration
the entire record and assessing it in a overall manner.
Mr.Anturkar's argument overlooks the fact that the Principal
Judge of the Bombay City Civil and Sessions Court is the
Reporting Authority. His/Her remarks are placed before a
learned Judge of this Court and who is nominated as a
Guardian Judge for that particular District Court by the Hon'ble
Chief Justice of this Court. When these remarks were placed
before the Hon'ble Guardian Judge, he endorsed that the
performance of the Petitioner is not satisfactory and hence she
may be discharged from service. Thereafter, a Committee
comprising of four learned Judges two of whom are lady Judges
and earlier presiding over as Judges of the Bombay City Civil
and Sessions Court, considered the entire record. It is not that
the remarks of the registry or the highlighted portion only has
influenced their conclusion. The Committee in its ultimate
order expressed its agreement with the remarks of the learned
Guardian Judge.
19. Thereafter these remarks of the Probation
Committee were placed before the Administrative Judges'
Committee and it is the Administrative Judges' Committee, of
which neither the Guardian Judge nor other two lady Judges
were a part, expressed its independent agreement and held that
the Probation Committee has rightly arrived at a conclusion that
the Petitioner ought to be discharged from service. Nothing
from this record would indicate that the order passed and
impugned in the present petition is founded on the alleged
misconduct of the Petitioner or is influenced by any complaint
about lack of integrity. An overall assessment of the Petitioner's
performance has been made. For that purpose, the service
record has been perused in its entirety including all the
judgments delivered and their quality. Once the Petitioner's
performance is assessed for determining whether she is suitable
for being confirmed or continued in Maharashtra Judicial
Services, then, it is erroneous to term the impugned order as
casting any stigma or aspersion on the character of the
Petitioner. It is nothing but a discharge simplicitor of a
probationer and during the probationary period.
20. Now, what remains for consideration is the reliance
of Mr.Anturkar on the decision of Hon'ble Supreme Court of
India in Registrar General, High Court of Gujarat and another Vs.
Jayshree Chamanlal Buddhbhatti1
(supra). There, a lady Judge
of Gujarat State Judicial Service was discharged from service.
Mr.Anturkar invites our attention to the factual position as
emerging from paragraphs 1 to 17. The factual position was
that the Respondents asserted that she discharged her duties
successfully and faithfully but during her work she found that
her subordinates were not conducting their work properly and
were taking the Court papers outside the Court premises, which
was impermissible. That is how she brought to the notice of the
District Judge, Junagarh these facts and in writing. She
highlighted the difficulties faced by her due to the behaviour of
the subordinate staff. There was no response to these letters
but she received adverse remarks. The Respondent judicial
officer before the Supreme Court replied to this communication
containing the adverse remarks and highlighted that she has
disposed off 500 and odd civil cases and 1,600 criminal cases
1 (2013)16-SCC-59
during the period between January2006 and October2006.
This would not have been possible without her good attitude
and also without her dedication to work, cooperation of bar
and public. She assured the registry of the High Court that the
remarks with regard to her behaviour with the subordinate staff
are taken by her in right spirit and she would be good with the
staff, bar and public. Thereafter, further adverse remarks
followed and which we find have been reproduced at page 577
of the law report. The Petitioner replied to them as well and in
great details. It is in this backdrop that she was shocked to
receive a termination letter. The Hon'ble Supreme Court,
therefore, found that the High Court administration conducted a
discrete inquiry against the judicial officer and, thereafter,
another inquiry called as preliminary inquiry was conducted.
The initial discrete inquiry was carried out by the District Judge
whereas the subsequent inquiry was conducted by Registrar
(Vigilance) of High Court who was at one time the District
Judge at Junagarh and to whom the Petitioner had complained
about behaviour of the subordinate staff. The officer who
conducted the discrete inquiry earlier in point time, had again
conducted the preliminary inquiry and gave his report.
21. The preliminary inquiry has been referred in depth
and that is how the Supreme Court has made the observations
in paragraphs 33 and 35 of the judgment. Mr.Anturkar's
reliance on these paragraphs does not seem to be factually
correct and appropriate in our context. The Supreme Court
relied upon the judgment in the case of Ishwar Chand Jain Vs.
High Court of Punjab & Haryana {(1988)3SCC370} and the
judgment in Samsher Singh Vs. State of Punjab {(1974)SCC
(L&S)550} only with a view to support its conclusions. The
Supreme Court found that even on assessment of the service
record of the Respondent judicial officer and in overall manner,
it would not be proper to hold that the Respondent judicial
officer is unsuitable for being confirmed or continued in judicial
service. The disposal rate of the Respondent judicial officer was
found to be very good. The complaints by the subordinate staff
were clearly motivated. It is also pointed out in the judgment of
the Supreme Court as to how the lady judicial officer suffered
because of frivolous and vexatious complaints regarding her
character.
22. We do not see how this judgment can help the
Petitioner before us. The Supreme Court concluded that the
foundation for termination or dispensation from service of the
Respondent judicial officer before it was her alleged misconduct
and a slur on her personal character. That was part of the
record. The Hon'ble Supreme Court found as to how
throughout this judicial officer complained about lack of cooperation
from the subordinate staff and lack of response from
her superiors.
23. It is no doubt true that the High Court is duty bound
to protect honest and hard working judicial officers. It is no
doubt true that when complaints against judicial officers are
found to be motivated or false and vexatious, then the High
Court has ignored them. One must presume and in absence of
any material to the contrary, that the High Court protects the
interests of members of District Judiciary. Eventually High
Court is expected to act as patriarch and is in a position as a
parent guiding the pupil. It is not, therefore, proper to assume
that the High Court victimizes or acts on frivolous or vague or
general complaints and thereafter takes decisions detrimental to
the interest of judicial officers. The High Court bears in mind
the sacrifices of the Advocates and who join the judicial service
and are ready and willing to be posted throughout the State.
The High Court considers genuine difficulties of judicial officers
in several matters including transfers and postings. There are,
therefore, enough safeguards and in delicate issues, instead of
taking extreme steps, the judicial officers are guided by
superiors. There are measures such as personal counselling
adopted in appropriate cases. Once the High Court
administration in the case before the Hon'ble Supreme Court
was found to have acted not in accordance with the above
principles, that its decision was interfered with.
24. Equally, unsound is the argument of Mr.Anturkar
that merely because some allegations about character and
integrity are made, the High Court being duty bound to inquire
into the same, then, its failure violates the guarantee and
protection to a Judicial Officer. The High Court has to find a
Judicial Officer suitable for confirmation in the judicial service.
While performing that duty, the High Court takes into
consideration the service record. An overall assessment of the
work and performance is made. In such circumstances and
when the High Court is possessed of such powers, it is not
proper to then urge that it has failed to perform its public duty
or that it has based its decision on unverified allegations about
lack of integrity and character. Such sweeping conclusions
cannot be reached in law. Even that position has been clarified
and when Mr.Anturkar placed reliance on Samsher Singh Vs.
State of Punjab (supra), he reads paragraph 64 thereof in
isolation.
25. The Hon'ble Supreme Court clarifies that if a
probationer is faced with an inquiry on charges of misconduct
or inefficiency or corruption and his services are terminated
without following the mandate of law, he can claim the
protection. The fact of holding an inquiry is not conclusive.
What is decisive is whether the order is really a punishment. If
there is an inquiry, the facts and circumstances in a particular
case will be looked into in order to find out whether the order is
of dismissal in substance. A preliminary inquiry to satisfy that
there was reason to dispense with the services of a temporary
employee has been held not to attract the constitutional
mandate enshrined in Article 311 thereof. It is in these
circumstances that we do not find that any assistance can be
derived from the principles laid down in Samsher Singh Vs.
State of Punjab (supra). All paragraphs, namely 63 to 66
referred in the later decisions ought to be read together to cull
out the legal principles.
26. One final argument needs to be considered. Though
there is no foundation for the same in the pleadings, what we
find is that relying upon certain materials placed in rejoinder
affidavit of the Petitioner, it is argued by Mr.Anturkar that the
Petitioner being a lady judicial officer is victimized by the High
Court. She is victimized and meted out this treatment because
she belongs to a Scheduled Caste.
27. It is very unfortunate that such arguments are
canvassed and across the bar without any foundation or basis in
the pleadings. Such arguments would have been dismissed
outright in the case of any other official but when it comes to a
judicial officer and canvassed by a Senior Advocate designated
by this Court, then, it becomes our bounden duty to consider
them. We do not find that the Petitioner has ever complained
with regard to her performance being judged and assessed to
find out whether she is suitable for continuation in judicial
service. The Petitioner has never complained about the process
and manner of recruitment. She has never complained about
being made to go through a written test and an oral interview.
After having found that she was qualified and eligible, the
Petitioner was appointed. Like any other judicial officer and as
highlighted above, she was appointed on probation. After she
joined the initial posting, she came to be transferred. Like all
other judicial officers, the High Court was duty bound to assess
her performance. It is in these circumstances that we do not
find that the complaint of the nature made by Mr.Anturkar has
any basis. The Petitioner has rendered judgments both on the
civil and criminal side and they had to be assessed for their
quality. Her performance as a whole had to be assessed to
Judge her suitability. All Judicial Officers in the District
Judiciary irrespective of their caste, creed, sex and religion go
through similar process. None has ever questioned the same on
the ground of a gender or caste discrimination. All concerned
must remember that Higher Judiciary is acting free of such
prejudice or bias in above matters and none has accused it of
the same till date. Therefore, we do not find any basis for the
complaint that is now made.
28. In the case of State of Bihar and another Vs. Bal
Mukund Sah and others3
, this is what the Supreme Court had
to say on the aspect highlighted by Mr.Anturkar before us :
3 AIR-2000-SC-1296
"67. The plain and grammatical meaning of the words used
in Section 4 quoted above unequivocally indicates, that it is a
law relating to recruitment/appointment and as such once, it
is held that the power of recruitment in respect of Judicial
Services is provided for in Article 234, the State Legislature in
the garb of making law in consonance with Article 16(4)
cannot encroach upon Article 234. In course of hearing an
elaborate argument had been advanced that reservation is
intended to fulfil the Right of Equality under Article 16(1)
read with 16(4) and the question whether there has been
adequate representation of a particular backward class of
citizens has been left to the satisfaction of the State
Government in Article 16(4) and, therefore, the State
Legislature cannot be denuded of its right to make such law to
fulfil the aforesaid Constitutional mandate. We really fail to
understand as to why the legislatures would feel that the
Governor, when frames rules in consultation with the High
Court and the Public Service Commission under Article 234
will not take into consideration the constitutional mandate
under Article 16(1) or Article 16(4). In fact in the case in
hand in the Bihar Judicial Service Recruitment Rules, 1955,
reservations have been provided for Scheduled Caste and
Scheduled Tribe candidates and the Full Court of Patna High
Court have also adopted the percentage of reservation for
these candidates as per the notification of the State
Government. So far as the Superior Judicial Service is
concerned, it is of course true that there has been no
provision for reservation. But such provision could always be
made by the Governor in consultation with the High court,
also bearing in mind the mandate of Article 335, namely
"Maintenance of Efficiency of Administration." It is indeed
painful to notice, some times law makers unnecessarily feel that
the High Court or the Judges constituting the High Court are
totally oblivious to the Constitutional mandate underlying
Article 16 and more particularly, Article 16(4). It is also not
appropriate to think that the High Court will not take into
consideration the provisions of Article 16(1) and 16(4) while
considering the case of recruitment to the judicial services of the
State. The Judiciary is one of the three limbs of the Constitution
and those who are entrusted with the affairs of administration
of justice must be presumed to have greater expertise in
understanding the Constitutional requirements. In this view of
the matter, the contention of Mr.Dwivedi, appearing for the
State of Bihar is unfounded."
29. We hope that had these remarks been brought to the
notice of all concerned, such complaints as are made before us
by Mr.Anturkar, would not be made. When Hon'ble Supreme
Court holds that it is not appropriate to think that High Court
will not take into consideration Articles 16(1) and 16(4) of the
Constitution of India while considering the case of recruitment
to the judicial service of the State and being one of the three
limbs of the Constitution, it is presumed that the High Court is
aware of the same, then, it is extremely unfair that such
arguments are canvassed. We say nothing more.
30. As a result of the above discussion, we do not find
any basis for the challenge to the impugned order. Having dealt
with all contentions of the Petitioner's counsel and finding no
merit in them, we proceed to dismiss this petition. It is
accordingly dismissed but without any orders as to costs.
(S.C.DHARMADHIKARI, J.)
(B.P.COLABAWALLA, J.)
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