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 dated 9.5.1996. In furtherance to this notification letter of appointment dated 14th May 1996 was issued where after the appellant joined the service on 15th May, 1996. However, vide order dated 20th of May, 1996, the appellant was transferred and posted as 1st Additional City Civil and Sessions Judge, Bangalore City. It is the case of the appellant that he performed his duties with utmost diligence and had an excellent track record. His rate of disposal of the cases was very good. THE High Court had scrutinized his performance and neither any adverse remarks were communicated to him nor any memo or show-cause notice was served upon him during the entire period of his service. Initially in terms of the notification/letter of appointment, he was appointed on probation for two years. According to the appellant, he had completed the probation period successfully and there was no specific communication issued to him by the authority extending his probation period. Thus, the appellant would be deemed to be a confirmed judge as per the rules. A Sub-Committee of the Hon'ble Judges constituted by the High Court had recommended to the Full Court in its meetings held on 11th Feburary, 1999 and 15th October, 1999 for discharge of the appellant from service. It appear that in October 1999, the Registrar General of the High Court addressed a communication to the Chief Secretary of the State seeking the discharge of the appellant in terms of Rule 6 (1) Kerala Civil Service (Probation) Rules, 1977 on the ground that appellant was not 'suitable for the post'. Pursuant to this recommendation, the Government issued a notification on 24th March, 2000 discharging the appellant from service. According to the appellant, the notification dated 24th March, 2000 was arbitrary, contrary to rules and was unsustainable in law. THE appellant had put in 3 years 10 months and 10 days in service as on that date and therefore the appellant was entitled to confirmation. Aggrieved from the said notification dated 24th March, 2000, the appellant filed the Writ Petition in the High Court of Karnataka, Bangalore which came to be registered as Writ Petition No. 11965/2000 and raised various issues including the legal submissions referable to the relevant rules. THE 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 and no interference was called for. It will be useful to reproduce the reasoning given by the High Court which reads as follows:- " 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 will not be deemed to have completed the probationary period. Rule 6(1) provides for discharge of 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 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 10 days, was not found suitable to hold the post and no order has been passed that he has satisfactory completed the probationary period. Under the circumstances, the argument that Rule 6 (1) of KCSRs 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 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 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 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 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 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 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 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. 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: JUDGEMENT_424_TLPRE0_2010Html1.htm xxx xxx xxx xxx The bare reading of the above impugned notification shows that it is ex-facie not stigmatic. It simply discharges 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 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. We may also notice that conduct of the appellant, who 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. 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 present. This attitude of the respondents in this court compelled the Bench to pass an order dated 20th May, 2010 which reads as under:- "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 affidavits. 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: JUDGEMENT_424_TLPRE0_2010Html2.htm Counter Affidavit 44 By the High Court As would be evident that if one of the dates given by the appellant is taken to be correct, he would 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 15th May, 1995, which on the face of it, is not a correct statement of facts. We further note that the case 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 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 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 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 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. We may also notice that yesterday some papers had been shown to us showing that the name of the appellant was placed in the "rowdy" list of the police maintained by the concerned police station and his local activities were being watched. The appellant has filed the writ petition praying for quashing and deletion of his name from the said list. This fact does not find mention either in the reply filed by the appellant before the High Court. Learned counsel for the appellant submitted that this event was subsequent to the filing of the writ petition. Whatever be the merit or otherwise of that Writ Petition, we fail to understand why this fact was not taken note of and brought to the notice of the High Court when the police gave a verification report about the appellant which was monitored prior to the appointment of the Higher Judicial Services of the State. We find that we are unable to appreciate the conduct of the appellant as well as that of the High Court in the present proceedings and in our view certain directions need to be issued in this regard. Before we issue any such orders or consider the conduct of either of them in accordance with law, we consider it appropriate to require the appellant to file an affidavit explaining the above-mentioned events. The High Court is also at liberty to file affidavit, if any, but the Registrar General of the High Court shall be present in Court with complete records. We are compelled to pass such directions but are left with no alternative in view of the conduct of the parties in the present appeal. List for further hearing on 28th may, 2010. Copy of this order be sent to the Registrar General of the High Court of Karnataka by the Registry."
(3.) BESIDES the conduct of the parties which is reflected in our above order, it is also very important to notice another facet of this case. It is not in dispute that the appellant had filed a Writ Petition being Writ No. WP No. 16244 of 2000 in the High Court praying for issuance of mandamus to the Superintendent of Police, Karwar to strike off the entries against the name of the appellant, in the 'rowdy and goonda register' prior to his selection as the District Judge, maintained by the concerned Police Station. The Police has sought to justify before the Court the inclusion of the appellant's name in the list and for the reasons declared in the reply affidavit filed by the State in that case. The stand of the Government in that case was that while keeping in view the antecedents and past activities of the appellant, his name was entered in the Form No. 100 being the Communal Goonda Sheet on 8th January, 1993 under order No. 9/93 dated 2.1.1993 of the then Superintenent of Police, Uttaraka Kannada. The appellant was General Secretary of an organization called Majlis-Isa-o-Tanzim and was in the habit of harbouring criminals, who were involved in serious crimes like murder and communal riots etc. There was a specific charge against the appellant for his delivering provocative communal speeches, which contributed to aggravate communal disturbance in Bhatkal in the year 1993. He was president of the Bar Association, Bhatkal and still used to provoke young people in that institution. Nineteen people were killed and many injured in a group clash. With this background under Rules 65 and 66 of State Interchange Manual the name of the appellant was inducted on the sheet of Register of Rowdies maintained by the Karnataka Police in Form No. 100 in terms of Rule 1059 of the Karnataka Police Manual which is normally treated as confidential. Keeping all these averments in mind and the judgment of the Supreme Court, the High Court vide its order dated 3rd of November 2000 dismissed the Writ Petition and declined to declare the entries as being without basis or arbitrary. The ancillary but an important issue that flows from these facts is as to how and what the Police Verification Report was submitted to the Government/High Court before the appellant was permitted to join his duties as an Additional District Judge? Normally, the person, with such antecedents, will hardly be permitted to join service of the Government and, particularly, the post of a Judge. The High Court on the administrative side also appears to have dealt with the matter in a very casual manner. The averments made in the Writ Petition 16244 of 2000, if it were true, it was a matter of serious concern for the High Court as he was being appointed as an Additional District and Sessions Judge and would have remained as such for a number of years. It was expected of the Government as well as the High Court to have the character verification report before the appointment letter was issued. The cumulative effect of the conduct of the appellant in making incorrect averments in the Court proceedings as well as the fact that his name was in the 'Rowdie list' of the concerned Police Station are specific grounds for the Courts not to exercise its discretionary and inherent jurisdiction under Articles 136 and 226 of the Constitution of India in favour of the appellant. These reasons have to be given definite significance, particularly when the High Court has declined to quash the entries against the appellant and inclusion of his name in the 'Rowdie list'. Another aspect of this case, to which our attention has been invited, is that for the first time, the High Court has filed the detailed affidavit in this Court after passing of the order dated 20th May, 2010. We failed to understand why appropriate and detailed affidavit was not even filed before the Court. During the course of hearing, we have also called for the original Confidential Reports of the appellant, copies whereof have been filed. The Confidential Reports, which could have been recorded in the case of the appellant as per the rules and regulations, or resolutions of the Full Court of High Court of Karnataka, will be for the years 1996-97, 1997-98 and 1998-99. There is only one Confidential Report on record for the year 1997 wherein the appellant has been graded as 'Satisfactory'. This falsifies his claim that he had outstanding service record in regard to disposal of cases and other service related matters. With some regret and anxiety, we must notice that for all the remaining years no Confidential Report of this officer, and in fact, many others, as the record now reflects, have been recorded by the High Court. We are unable to overlook this aspect, as it is just not a simplicitor question of writing the Confidential Report of a given officer but adversely affects the administration of justice on the one hand and dilutes the constitutional power and functions of Superintendence of the High court, on the other. A note was put up by the Registrar General before the then Hon'ble Acting Chief Justice that Confidential Report was put up before Hon'ble Chief Justice for recording remarks but that were not recorded and orders were being obtained now in that behalf. However, even thereafter no confidential remarks were recorded. We may also notice that reference was made to the resolution of the Full Court passed in its meeting dated 15th March,1988 which has been referred to in the office note, reads as under:- "Resolved that Judicial Officers Annual Confidential Reports shall be recorded in the Proforma at Annexure - 'A' for the period from 1.1.1988 onwards." ;