Rajesh Kohli Vs. High
Court of J.&K. & ANR.  INSC 759 (21 September 2010)
IN THE SUPREME COURT
OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 95 OF 2004
RAJESH KOHLI .... Petitioner Versus HIGH COURT OF J. & K. & ANR. ....
present Writ Petition has been filed by the petitioner under Article 32 of the
Constitution of India against the impugned administrative order of the High
Court of Jammu & Kashmir [Respondent No. 1] recommending the termination of
service of the petitioner who was working as a probationary Judicial Officer,
and also against the order issued by the State of Jammu & Kashmir
[Respondent No. 2] on the basis of such recommendation, on 03.07.2003,
dispensing with the services of the petitioner as a District & Sessions
petitioner herein was recommended by the High Court of Jammu & Kashmir for
appointment as the District and Sessions Judge on a temporary basis. This
aforesaid recommendation of the High Court was accepted by the Government of
Jammu & Kashmir and an order of appointment was issued to him appointing
him as the District and Sessions Judge on a temporary basis. It was clearly
mentioned in the said order of appointment issued by the State Government that
the petitioner would remain on probation for a period of two years as provided
under the Jammu & Kashmir Higher Judicial Service Rules. Consequent upon
the aforesaid temporary appointment, the petitioner was appointed as 3rd
Additional District Sessions Judge, Srinagar by order dated 28.08.2000.
Thereafter he was transferred and posted as Additional District and Sessions
Judge, Jammu by issuing an order dated 05.06.2001.
this stage, it is required to be mentioned that in terms of the Jammu &
Kashmir Higher Judicial Service Rules, the total period of probation for a
Judicial Officer after his initial appointment could be for three years for
when he is initially appointed, at the first instance his probation period is
given as two years and thereafter the same could be extended by another one
year. In this connection, reference could be made to Rule 15 of the Jammu &
Kashmir Higher Judicial Service Rules which provides as follows: - "15.
Probation - (1) All persons shall on appointment to the service in the
substantive vacancies be placed on probation. The period of probation shall, in
each case, be two years;
provided that the
period for which an officer has been continuously officiating immediately prior
to his appointment may be taken into account, for the purpose of computing the
period of probation.
(2) The Governor may
in consultation with the Court, at any time extend the period of probation;
provided that the total period of probation shall not ordinarily exceed three
years. An order sanctioning such extension of probation shall specify whether
or not such extension shall count for increment in the time-scale.
(3) If it appears to
the appointing authority at any time during or at the end of the period of
probation or extended period of probation, as the case may be, that a
probationer has not made sufficient use of his opportunities or has otherwise
failed to give satisfaction, his service may be dispensed with immediately.
(4) A person whose
services are dispensed with shall not be entitled to any compensation."
petitioner was also given his increments in terms of the rules. However, while
the petitioner was so serving as an Additional District and Sessions Judge, a
complaint was received against him, filed by one Mr. Babu Ram, which was duly
supported by an affidavit dated 06.08.2001, contending inter alia that the
petitioner while acting as a counsel for him fraudulently withdrew an amount of
Rs. 2.6 lacs deposited with the Registrar [Judicial], High Court of Jammu &
Kashmir which was payable to the complainant - Babu Ram.
aforesaid complaint was enquired into by the Chief Justice of the High Court
through the Registrar [Vigilance] of the High Court. On conclusion of the
enquiry, a report was submitted stating inter alia that Mr. Rajesh Kohli, the
petitioner herein, who was engaged by Mr. Narain Dutt - the attorney holder of
Babu Ram, identified someone else as Babu Ram before Registrar [Judicial],
Jammu & Kashmir High Court and received an account payee cheque in the name
of Babu Ram. In the said report, it was also alleged that the petitioner
besides identifying the impersonator as Babu Ram, also introduced him to Vijay
Bank at the time of opening of the Bank account and thereby managed to
unlawfully receive an amount of Rs. 2.6 lacs, while the real beneficiary - Babu
Ram neither appeared before the Registrar [Judicial] or before Vijaya bank nor
did he receive the said amount. The aforesaid report of the Registrar
[Vigilance] dated 24.12.2001 was placed before the Chief Justice of the Jammu
& Kashmir High Court who directed that the matter be referred to the
Chairman, Disciplinary Committee for necessary action. The Registrar [Judicial]
of the High Court was asked to file a criminal complaint against the petitioner
before the SHO of the concerned police station.
during the period when the petitioner was posted to District - Kargil as
Principal District & Sessions Judge, he did not join there, w.e.f.,
24.12.2001 to 18.01.2002 and an explanation was sought from him in that regard.
Even thereafter, a complaint from a judicial employee of District Kargil was
received wherein it was alleged that the petitioner had been abusing the
employees and had created lot of problems at the District Kargil.
These matters are
recorded in the personal records of the petitioner. After completion of the initial
two years of his probationary period, his records and his case were required to
be placed before Full Court for consideration of his case for confirmation or
extension of period of probation or otherwise. Consequently his records were
considered by the High Court in its full court meeting held on 26.04.2003 at
Jammu, wherein it was resolved as under: - "..........................
services of Shri Rajesh Kohli, District and Sessions Judge are not found
satisfactory and thus the probation of the officer is not extended......
services are dispensed with............
resolution of the full court meeting with the recommendation was forwarded to
the State Government and the State Government passed an order on 03.07.2003,
whereby the services of the petitioner was dispensed with as recommended by the
Hon'ble High Court. This action was taken in exercise of the powers vested on
the competent authority under sub Rules 3 and 4 of Rule 15 of the Judicial
aggrieved by the issuance of the aforesaid order dated 03.07.2003 dispensing
with his service, the petitioner filed the present Writ Petition on which notice
was issued. On service of notice, the High Court has entered appearance and
also filed the counter affidavit explaining the circumstances under which the
service of the petitioner came to be terminated.
petitioner appeared in person before us and submitted that the aforesaid order
issued by the Government of Jammu & Kashmir of 03.07.2003 is illegal and
without jurisdiction as the said order was not issued by the Governor but was
issued by the Government of Jammu & Kashmir. He also submitted that the
recommendation of the High Court as communicated under letter dated 05.05.2003
is also illegal and liable to be set aside as the High Court terminated the
service of the petitioner under the aforesaid order for which no power is
vested on the High Court to dispense with the service under its own order. It
was also submitted by him that he had completed his two years' probation period
on 23.08.2002 and since there was no order of extension of his probation period
prior to and immediately after 23.08.2002, he should be deemed to have been
confirmed in the judicial service and therefore his service could not have been
terminated on the ground that he was on probation.
petitioner also submitted that his service was terminated on the ground of an alleged
misconduct, namely, pendency of a criminal complaint and his alleged behaviour
with subordinate staff and, therefore, the said order of termination of service
was in the nature of a punishment by casting a stigma on the petitioner and
therefore illegal and without jurisdiction as no opportunity of hearing was
given to the petitioner prior to passing of the order of his termination. He
also submitted that since he was granted increments by the respondent, it is
proved that the Respondents were satisfied with his service and, therefore, the
order terminating his service is without jurisdiction.
appearing for the respondent, the High Court of Jammu & Kashmir, however,
refuted the aforesaid submissions and placed before us the records of High
Court connected with the service of petitioner and also the records leading to
his termination from service. He submitted that the petitioner continued to be
on probation even after two years as no order of his confirmation was issued or
passed by the respondent and that his service was terminated within the three
years period of his probation on the ground of unsatisfactory service. He
denied that the impugned order is stigmatic or in any way punitive or that
there was any violation of the principles of natural justice. He submitted that
since the service of the petitioner was terminated on the ground of
unsatisfactory service, there was no question of drawing up of any departmental
proceedings against him.
the light of the aforesaid submissions of the counsel appearing for the parties
we have perused the records. The petitioner was recommended by the High Court
of Jammu & Kashmir for appointment as a District and Sessions Judge on
temporary basis. The appointment letter placed on record clearly indicates that
his initial appointment was not only on temporary basis but he was also kept on
probation for a period of two years. Rule 15 of the Jammu & Kashmir Higher
Judicial Service Rules permits an officer to be kept on probation ordinarily
for a period of at least three years.
petitioner was temporarily appointed as District & Sessions Judge on
24.08.2000 and therefore completed his initial period of probation of two years
on 23.08.2002. Thereafter his matter was placed on the administrative side
before the full court of the High Court in its meeting held on 26.04.2003 for
the purpose of confirmation of his service or otherwise or for extension of
probationary period. The full court on consideration of the records of the
petitioner held that his service was not found to be satisfactory and
therefore, his probation period would not be extended and accordingly the full
court recommended that the services of the petitioner be dispensed with. At
this stage, it may also be noted that when by the order dated 03.07.2003 the
service of the petitioner was terminated, the period of probation of the
petitioner was extended for the period from 24.08.2000 to 05.05.2003, the date
on which a follow-up order was issued by the High Court to the State Government
recommending his case for termination. Finally by the order dated 03.07.2003,
the service of the petitioner was terminated.
the rule permits probation to be extended for another one year and since there
was no order of confirmation 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 the case of Satya Narayan Athya v. High Court of M.P. reported in (1996) 1
SCC 560 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. This Court in that case held at Paragraphs 3
& 5 that : - "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
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."
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.
aforesaid resolution taken by the full court on its administrative side clearly
indicates that the matter regarding his confirmation or otherwise or extension
of his probation period for another one year was considered by the full court
but since his service was not found to be satisfactory on consideration of the
records, therefore, the full court decided not to confirm him in service and to
dispense with his service and accordingly recommended for dispensation of his
service. On the basis of the aforesaid recommendation of the High Court, an
order was passed by the Government of Jammu & Kashmir dispensing with the
service of the petitioner.
facts clearly prove and establish that the order of termination of service of
the petitioner was not issued by the Jammu & Kashmir High Court but it only
recommended his termination as his service was not found to be satisfactory.
The aforesaid recommendation was accepted by the Government which finally
ordered the termination of his service. The aforesaid order was an order of the
competent authority and issued by the Government of Jammu & Kashmir. Since
the said order was issued by the competent authority, it was a valid order and
should be treated as such, although it was specifically not issued in the name
of the Governor.
the present case, two orders are challenged, one, which was the order of the
High Court based on the basis of the resolution of the full court and the other
one issued by the Government of Jammu & Kashmir on the ground that they
were stigmatic orders.
our considered opinion, none of the aforesaid two orders could be said to be a
stigmatic order as no stigma is attached. Of course, aforesaid letters were
issued in view of the resolution of the full court meeting where the full court
of the High Court held that the service of the petitioner is unsatisfactory. Whether
or not the probation period could be or should be extended or his service
should be confirmed is required to be considered by the full court of the High
Court and while doing so necessarily the service records of the petitioner are
required to be considered and if from the service records it is disclosed that
the service of the petitioner is not satisfactory it is open for the
respondents to record such satisfaction regarding his unsatisfactory service
and even mentioning the same in the order would not amount to casting any
aspersion on the petitioner nor it could be said that stating in the order that
his service is unsatisfactory amounts to a stigmatic order.
position is no longer res integra and it is well- settled that even if an order
of termination refers to unsatisfactory service of the person concerned, the
same cannot be said to be stigmatic. In Pavanendra Narayan Verma v. Sanjay
Gandhi PGI Of Medical Sciences reported in (2002) 1 SCC 520, this Court has
explained at length the tests that would apply to determine if an order
terminating the services of a probationer is stigmatic. On the facts of that
case it was held that the opinion expressed in the termination order that the
probationer's "work and conduct has not been found satisfactory" was
not ex facie stigmatic and in such circumstances the question of having to
comply with the principles of natural justice do not arise. In this case court
had the occasion to determine as to whether the impugned order therein was a
letter of termination of services simpliciter or stigmatic termination. After
considering various earlier decisions of this Court in para 21 of the aforesaid
decision it was stated by this Court thus: (SCC p. 528) "21. One of the
judicially evolved tests to determine whether in substance an order of
termination is punitive is to see whether prior to the termination there was
(a) a full-scale formal enquiry (b) into allegations involving moral turpitude
or misconduct which (c) culminated in a finding of guilt. If all three factors
are present the termination has been held to be punitive irrespective of the
form of the termination order. Conversely if anyone of the three factors is
missing, the termination has been upheld."
In para 29 of the
judgment, it further held thus:
"29. Before considering the facts of the case before us one further,
seemingly intractable, area relating to the first test needs to be cleared viz.
what language in a termination order would amount to a stigma? Generally
speaking when a probationer's appointment is terminated it means that the
probationer is unfit for the job, whether by reason of misconduct or
ineptitude, whatever the language used in the termination order may be.
Although strictly speaking, the stigma is implicit in the termination, a simple
termination is not stigmatic. A termination order which explicitly states what
is implicit in every order of termination of a probationer's appointment, is
also not stigmatic. The decisions cited by the parties and noted by us earlier,
also do not hold so. In order to amount to a stigma, the order must be in a
language which imputes something over and above mere unsuitability for the
the case of Krishnadevaraya Education Trust v. L.A. Balakrishna reported in
(2001) 9 SCC 319, the services of respondent-Assistant Professor were
terminated on the ground that his on the job proficiency was not upto the mark.
This Court held that merely a mention in the order by the employer that the
services of the employee are not found to be satisfactory would not tantamount
to the order being a stigmatic one. This Court held in para 5 thus: - "5.
There can be no manner of doubt that the employer is entitled to engage the
services of a person on probation. During the period of probation, the
suitability of the recruit/appointee has to be seen. If his services are not
satisfactory which means that he is not suitable for the job, then the employer
has a right to terminate the services as a reason thereof. If the termination
during probationary period is without any reason, perhaps such an order would
be sought to be challenged on the ground of being arbitrary.
services of an employee on probation would be terminated, when he is found not
to be suitable for the job for which he was engaged, without assigning any
reason. If the order on the face of it states that his services are being
terminated because his performance is not satisfactory, the employer runs the
risk of the allegation being made that the order itself casts a stigma. We do
not say that such a contention will succeed. Normally, therefore, it is
preferred that the order itself does not mention the reason why the services
are being terminated."
6. If such an order
is challenged, the employer will have to indicate the grounds on which the
services of a probationer were terminated.
Mere fact that in
response to the challenge the employer states that the services were not
satisfactory would not ipso facto mean that the services of the probationer
were being terminated by way of punishment. The probationer is on test and if
the services are found not to be satisfactory, the employer has, in terms of
the letter of appointment, the right to terminate the services."
the case of Chaitanya Prakash v. H. Omkarappa reported in (2010) 2 SCC 623, the
services of respondent were terminated by the appellant company. During the
period of probation, his services were not found to be satisfactory and he was
also given letters for improvement of his services and his period of service
was also extended and ultimately company terminated him.
Court after referring
to a series of cases held that the impugned order of termination of respondent
is not stigmatic.
the case of State of Punjab v. Bhagwan Singh reported in (2002) 9 SCC 636 this
Court at paragraphs 4 & 5 held as follows: - "4.
............................. In our view, when a probationer is discharged
during the period of probation and if for the purpose of discharge, a
particular assessment of his work is to be made, and the authorities referred
to such an assessment of his work, while passing the order of discharge, that
cannot be held to amount to stigma.
5. The other sentence
in the impugned order is, that the performance of the officer on the whole was
"not satisfactory". Even that does not amount to any stigma."
the present case, the order of termination is a fall out of his unsatisfactory
service adjudged on the basis of his overall performance and the manner in
which he conducted himself. Such satisfaction even if recorded that his service
is unsatisfactory would not make the order stigmatic or punitive as sought to
be submitted by the petitioner. On the basis of the aforesaid resolution, the
matter was referred to the State Government for issuing necessary orders.
of the issues that were raised by the petitioner was that he was granted two
increments during the period of two and a half years of his service. Therefore
the stand taken by the respondents that his service was unsatisfactory is belied
according to the petitioner because of the aforesaid action even on the part of
the respondents impliedly accepting the position that his service was
aforesaid submission of the petitioner is devoid of any merit in view of the fact
that since the petitioner was continuing in service, therefore, the case for
granting increment was required to be considered which was so granted. The mere
granting of yearly increments would not in any manner indicate that after
completion of the probation period the full court of the High Court was not
competent to scrutinize his records and on the basis thereof take a decision as
to whether or not his service should be confirmed or dispensed with or whether
his probation period should be extended. The High Court has a solemn duty to
consider and appreciate the service of a judicial officer before confirming him
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 society.
and honest judicial officers are needed not only to bolster the image of the
judiciary in the eyes of litigants, but also to sustain the culture of
integrity, virtue and ethics among judges. The public's 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.
the light of the aforesaid discussion, the contentions raised by the petitioner
are found to be without any merit and consequently they are rejected.
a result, there is no merit in this Writ Petition, which is hereby dismissed,
leaving parties to bear their own costs.
[ Dr. Mukundakam Sharma ]
[Anil R. Dave]