Madhya Pradesh High Court
Kaustubh Khera vs The State Of Madhya Pradesh on 7 May, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION No. 10052 of 2025
KAUSTUBH KHERA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Petitioner in person.
Shri Aditya Adhikari, learned Senior Advocate along with Ms. Divya Pal, learned
counsel for respondent No.2-High Court of Madhya Pradesh.
ORDER
(Reserved on: 29/04/2025)
(Pronounced on:07/05/2025)
Per: Justice Vivek Jain
By way of this petition, the petitioner who is a discharged Judicial
Officer and held the post of Civil Judge, Junior Division in M.P. Judicial
Services has put to question the order dated 05/09/2024 passed by the State
Government, Department of Law and Legislative Affairs based upon the
recommendations of the Administrative Committee of the High Court dated
08.8.2024 as ratified by the Full Court on 20/08/2024, whereby he has been
discharged from services. The said order has been passed by exercising
powers under Rule 11(c) of M.P. Judicial Service (Recruitment and
Conditions of Service) Rules, 1994 (for short hereinafter referred to as
‘Rules 1994’).
2. The aforesaid order has been issued mentioning that the petitioner
has been unable to complete the probation period satisfactorily and
successfully and therefore, as per decision of the Administrative Committee
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of the High Court dated 08/08/2024 and of the Full Court dated 20/08/2024,
the petitioner has been recommended to be discharged from services. The
consequential discharge order has been issued by the State Government vide
Annex.P/1 dated 05/09/2024.
3. The petitioner who appeared in person, while assailing the aforesaid
order of discharge from services has submitted that he was appointed in M.P.
Judicial Services vide order dated 12/03/2019 (Annex.P/5) and joined the
services as probationer. It is his case that he received B (very good) in the
first ACR for the year 2019, C (good) in the ACR for the year 2020, C
(good) in the ACR for the year 2021, C (good) in the ACR for the year 2022,
B (very good) in the ACR for the year 2023, which was the last ACR prior to
his discharge from services on 05/09/2024.
4. The petitioner has argued that the order though worded as discharge
simpliciter, is actually a punitive order and not discharge simpliciter because
it is founded on allegations of misconduct against the petitioner. By placing
reliance on the documents obtained by him under Right to Information and
collectively placed on record as Annexure P/21, it is argued that various
complaints in the matter of working of petitioner were placed before the
Administrative Committee, which were seven in number, relating to
misbehavior with Advocates appearing in his Court, initiating contempt of
Court proceedings, trying and dropping the said proceedings against
Advocates, President of Bar Association and Police personnel without any
authority to initiate contempt of Court proceedings, leaving headquarter
without permission, passing penalty order of fine against his Court peon and
sentencing his Court peon to two months imprisonment for committing
misconduct without having authority to pass such orders, etc. It is further
argued by the petitioner on the strength of documents obtained by him under
Right to Information Act that the Administrative Committee and the Full
Court were also placed with material of complaints against him by the
Court staff including women staff regarding verbal abuse to the Court
staff during Court hours, running after the Court staff sitting on their seats by
leaving his dais and giving chase to the staff, and the staff had to save
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themselves by running from their seats to avoid being slapped and assaulted
by the petitioner, etc. It is further contended that there were complaints made
by Bar Association, Portfolio Judge, Principal District Judge and by the
Chief Judicial Magistrate against the petitioner in the aforesaid matter which
establishes that Administrative Committee and the Full Court have passed
the order by way of penalty, and it is not discharge simpliciter.
5. It is further contended that a preliminary enquiry was ordered by the
Principal District Judge and one Shri Nadeem Khan, District Judge was
asked to conduct discrete enquiry and the report of discrete enquiry has been
obtained by him under RTI Act, in which the instances of misbehavior with
staff, verbal abuses to staff, etc. were enquired including such behavior to
female staff and the Enquiry Officer conducting discrete enquiry, who is a
District Judge has opined that prima facie complaints are substantiated
against the petitioner. Therefore, it is contended that in fact he has been
punished in the name of discharge.
6. The petitioner in person while arguing his case apart from arguing
that the order is founded on misconduct has also tried to justify his conduct
by stating that he infact had been drawing contempt of Court proceedings
against the Police personnel, Advocates, etc. and two such order sheets are
placed on record as Annex.12 and Annexure P/13, in which the petitioner has
himself closed the contempt of Court proceedings after recording finding
against the alleged contemners and accepted their apologies. It was argued by
the petitioner in person that he drew the contempt of Court proceedings only
with a purpose to refer the matter to the High Court in terms of Section 10 of
Contempt of Court’s Act, 1971 but since the parties tendered apology, he
closed the proceedings without referring matter to the High Court. However,
it was accepted by him that he initiated contempt of Court proceedings
against Bar Association President and various police personnel, recorded
findings and closed the cases after accepting apology. It was further argued
by the petitioner that the allegations against him as narrated in the various
complaints were in fact justified and it has been argued that he was
compelled to issue written directions to certain Class III and Class IV staff of
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the Court presided over by him in light of their dereliction from duty and had
to take action against them for better functioning of the Court. It is further
argued that he was bombarded with complaints which were well coordinated
counter blast by Police, Bar Association and employees of the Court and a
barrage of false complaints were opened against him before the senior
officials of District Judiciary of District Alirajpur, wherein he was posted at
Jobat which is an outlying Court Centre in District Alirajpur.
7. It is further argued that his judicial functioning was very good and
though initially his disposal rate was slow but thereafter he had picked up the
speed of work and his disposal units were excellent and much above the
requisite minimum units required from a Civil Judge, Junior Division.
8. It is further argued that he was kept on probation for nearly five and
a half years though the Rules of 1994 provide a mandatory condition that the
probation period shall not exceed three years, therefore, his services stood
automatically confirmed upon completion of 3 years of service. It is further
argued that the examination notification provided that one month notice is
requisite for discharging a probationer but no such notice was given to him.
However, it is admitted that the statutory rules do not contain such a
stipulation though it was contained in the advertisement.
9. Per contra, it is contended by learned counsel for the High Court
that though complaints were made against the conduct of the petitioner and
were received by the High Court and the High Court had also ordered for
discrete enquiry into the said complaints but the action against the petitioner
has not been founded on allegation of misconduct and therefore, no enquiry
was necessary. It is argued that the order issued to the petitioner is not a
stigmatic order and therefore, no enquiry was required to be conducted. He
was only a probationer and a satisfaction was reached that he will not shape
into a suitable Judicial Officer and therefore, the decision was taken to
discharge him from service without casting any stigma and even not
disqualifying him for future appointments.
10. The learned senior counsel further argued that the adverse material
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which is against the petitioner could have only constituted material to form
opinion whether he would shape into suitable Judicial Officer or not but it is
not intended to pass a punitive order nor a punitive order has been passed
against him. It is also argued that the competent authority would obviously
take into consideration some material to reach at conclusion whether the
officer concerned has utilized his probation period satisfactorily and would
shape into a suitable Judicial Officer. Consideration of such material does
not amount to taking a punitive action if the concerned authority reaches to a
conclusion that the officer concerned would not shape into suitable Judicial
Officer.
11. It was further argued that the order that was communicated to the
petitioner, so also the resolution of the Administrative Committee as also of
the Full Court do not allege any misconduct against the petitioner and a
simpliciter decision has been taken to discharge the petitioner. Only because
the petitioner has later on obtained some material under RTI Act and has got
to lay hands on the material which was before the Administrative Committee
and before the Full Court while taking decision not to confirm the petitioner
in service and to discharge the petitioner as a probationer, it does not
constitute that the petitioner has been punished for such conducts or such
instances which were before the Administrative Committee and the Full
Court before taking decision to discharge him as a probationer and not to
confirm him in service. It is argued that mere non confirmation of a
probationer and simpliciter discharge during period of probation does not
amount to punitive action because the decision was not founded on or
motivated by any misconduct so that enquiry might has been necessary and
further that even the discharge order does not mention any instance of
misconduct and simply mentions that the competent authority i.e.
Administrative Committee and Full Court have reached the conclusion that
the petitioner has been unable to carry out the probation period satisfactorily
and successfully and this is the all reason which has been communicated in
the impugned order. Therefore, it is a case of discharge simpliciter without
any further consequences and even it does not amount to future
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disqualification. Therefore, the order impugned does not need to be
interfered with by this Court in exercise of judicial review and further that
the order is fully justified and deserves to be maintained.
12. The learned senior counsel has further argued by referring to the
ACRs of the petitioner recorded from time to time that sufficient comments
had been marked in the ACRs of the petitioner from time to time and these
comments so also the entire material available on record was considered by
the Administrative Committee and by the Full Court and they reached to a
correct conclusion that the petitioner would not shape into a suitable Judicial
Officer and therefore, decided to discharge him prior to confirmation of
services.
13. Heard.
14. In the present case it was argued by the petitioner in person that
there were various complaints against the petitioner and he has got copy of
the entire material available against the petitioner under RTI Act and
therefore, the impugned discharge order has to be treated as punitive order
and since it was not followed by a regular enquiry, therefore, it is a case of
punitive order being passed without an enquiry and therefore, needs to be
interfered with. The discharge order against the petitioner mentions the only
reason that he has been unable to successfully and satisfactorily carry out the
probation period and is as under:
भोपाल, दनांक 05 िसत बर, 2024
फा. मांक 3610/2024/21-ब (एक), म य दे श याियक सेवा के सद य ी
कौ तुभ खेडा, यवहार यायाधीश, किन ख ड, जोबट जला अलीराजपुर के ारा
प रवी ा अविध का िनवहन संतोषजनक एवं सफलतापूवक नह ं कर पाने के
फल व प उ च यायालय, म य दे श क शासिनक सिमित (म य दे श याियक
सेवा) क बैठक दनांक 08.08.2024 तथा फलकोट मी टं ग दनांक 20.08.2024 म
िलये गये िनणय के अनु म म उ च यायालय म य दे श, जबलपुर ारा
म य दे श याियक सेवा (भत तथा सेवा शत) िनयम, 1994 के िनयम-11 (ग) के
अंतगत उ याियक अिधकार को सेवा से उ मु (Discharge from Service)
करने क अनुशंसा क गई है ।
उ याियक अिधकार के संबंध म उ च यायालय, म य दे श क अनुशंसा
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के साथ संल न सहप से सहमत होते हुए रा य शासन ने यह िनणय िलया है क
ी कौ तुभ खेडा, यवहार यायाधीश किन ख ड, जोबट जला अलीराजपुर को
आदे श दनांक से सेवा से उ मु (Discharge from Service) कया जाए।
अतः म य दे श याियक सेवा (भत तथा सेवा शत) िनयम 1994 के िनयम
11(ग) के अंतगत एत ारा रा य शासन ी कौ तुभ खेड़ा, यवहार यायाधीश,
किन ख ड, जोबट जला अलीराजपुर को सेवा से उ मु (Discharge from
Service) करता है ।
म य दे श के रा यपाल के नाम से तथा आदे शानुसार
ताप िसंह)
(नरे
मुख सिचव,
म य दे श शासन, विध और वधायी काय वभाग
15. The said order dated 05/09/2024 was preceded by resolution of the
Administrative Committee which was as under:
The matter of Shri Kaustubh Khera, Civil Judge, Junior Division,
Jobat (Alirajpur) (S.No. 2 of the consideration list) is being taken
up along with Item No. 9.
Discussed and resolved that Shri Kaustubh Khera did not utilize
his probation period successfully and satisfactorily, therefore
having considered the overall circumstances the Committee
resolves to recommend that services of Shri Kaustubh Khera is no
more required to be continued and refuses to grant him
confirmation. Accordingly, it is resolved to recommend that Shri
Kaustubh Khera be discharged from service as per Rule 11(c) of
M.P. Judicial Service (Recruitment and Conditions of Service)
Rules, 1994. This discharge will not be disqualification for future
appointment.
The matter be placed before the Full Court for approval.
Sd/-
(MANOJ KUMAR SHRIVASTAVA)
REGISTRAR GENERAL
16. The Full Court considered the matter in its meeting dated
20/08/2024, and item No.1 was regarding complaints against the petitioner
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while item No.2 was regarding confirmation of Judicial Officer. The
resolution of Full Court was as under:
The Administrative Committee (M.P. Judicial Service) in its
meeting dated 08.08.2024 resolved that since Shri Kaustubh
overall Khera did not utilise his probation period successfully and
satisfactorily, therefore having considered the circumstances, the
Administrative Committee (M.P. Judicial Service) recommended
that Shri Kaustubh Khera be discharged from service as per Rule
11(c) of M.P. Judicial Service (Recruitment and Conditions of
Service) Rules, 1994.
The Full Court, after going through the recommendation of
Administrative Committee (M.P. Judicial Service) in respect of
Shri Kaustubh Khera, resolved to accept the recommendation of
Administrative Committee (M.P. Judicial Service) dated
08.08.2024 that Shri Kaustubh Khera be discharged from service
as per Rule 11(c) of M.P. Judicial Service (Recruitment and
Conditions of Service) Rules, 1994. This discharge will not be
disqualification for future appointment.
Sd/-
(MANOJ KUMAR SHRIVASTAVA)
REGISTRAR GENERAL
17. The aforesaid resolution of the Full Court duly establishes that the
Full Court did not pass any punitive order against the petitioner and its
simply decided to discharge the petitioner from service by holding that he
did not utilize his probation period successfully and satisfactorily.
18. It is evident from the aforesaid discharge order, so also the
resolutions of the Administrative Committee and the Full Court that though
material was before the Administrative Committee and the Full Court, but
the Full Court decided to simply discharge him from service without any
disqualification from future appointment. Therefore, it cannot be held to be a
punitive order because neither the Administrative Committee nor the Full
Court had resolved to punish the petitioner in any manner. It is settled in law
that the competent authority of the employer would take into some material
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in consideration to reach to a satisfaction or conclusion whether the officer
concerned would shape into suitable officer or not, or that he has completed
his probation period successfully or not, and that is the only purpose of
placing the officer under probation. There has to be some material before the
competent authority on which it would reach to such a conclusion that
whether his performance and conduct during the probation period has been
such so as to confirm the employee’s service or to discharge him. If the
competent authority has some material before it on which it reaches to a
conclusion that the officer concerned would not shape into suitable officer,
then it cannot be said that a punitive action has been taken against the said
officer. The action to discharge the officers simply is not an action which is
founded on misconduct or motivated on misconduct. Taking a punitive
action for misconduct is one thing and arriving at a satisfaction that whether
the officer would shape into a suitable officer or not, on the basis of
performance during probation period is altogether different thing. There is a
whole lot of difference between the two and in the present case, it is duly
established from the aforesaid orders and resolutions that the petitioner has
not at all been punished nor the discharge order, from any angle, is punitive
in nature.
19. Even the proposal in minutes of the Administrative Committee and
of the Full Court, which are on record have been perused by us. The said
proposal or information in minutes nowhere mentioned that the conduct of
the petitioner is doubtful or unbecoming of a Judicial Officer in view of
complaints being received against him or that prima facie some doubts have
been cast on the conduct of the petitioner on the basis of the said complaints.
The information and proposals put up before the Administrative Committee
and the Full Court simply mention to have received complaints because once
the Administrative Committee and the Full Court were considering the
suitability of the petitioner for confirmation or otherwise then it was an
imperative for the Committee to have before it all the material available in
the service record of the petitioner. The petitioner cannot argue that the
pendency of complaints against him and investigation into the said
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complaints should have been suppressed from the Administrative Committee
or the Full Court before the said committee and Full Court reached to a
conclusion regarding fate of the petitioner who was a probationer. We have
already held above that the minutes of Administrative Committee or of the
Full Court do not indicate that the ultimate decision of the Administrative
Committee or of the Full Court was founded on the allegations contained in
the said complaints.
20. The Hon’ble Supreme Court in the case of SBI v. Palak Modi,
(2013) 3 SCC 607 has held has under:-
“25 [Ed.: Para 25 corrected vide Official Corrigendum No.
F.3/Ed.B.J./9/2013 dated 31-1-2013.]. The ratio of the abovenoted
judgments is that a probationer has no right to hold the post and his
service can be terminated at any time during or at the end of the
period of probation on account of general unsuitability for the post
held by him. If the competent authority holds an inquiry for
judging the suitability of the probationer or for his further
continuance in service or for confirmation and such inquiry is the
basis for taking decision to terminate his service, then the action of
the competent authority cannot be castigated as punitive. However,
if the allegation of misconduct constitutes the foundation of the
action taken, the ultimate decision taken by the competent
authority can be nullified on the ground of violation of the rules of
natural justice.
36. There is a marked distinction between the concepts of
satisfactory completion of probation and successful passing of the
training/test held during or at the end of the period of probation,
which are sine qua non for confirmation of a probationer and the
Bank’s right to punish a probationer for any defined misconduct,
misbehaviour or misdemeanour. In a given case, the competent
authority may, while deciding the issue of suitability of the
probationer to be confirmed, ignore the act(s) of misconduct and
terminate his service without casting any aspersion or stigma
which may adversely affect his future prospects but, if the
misconduct/misdemeanour constitutes the basis of the final
decision taken by the competent authority to dispense with the
service of the probationer albeit by a non-stigmatic order, the
Court can lift the veil and declare that in the garb of terminationSignature Not Verified
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simpliciter, the employer has punished the employee for an act of
misconduct.”
(Emphasis ours)
21. In the present case, the petitioner was unable to establish before
this Court that in any manner the Administrative Committee or Full Court
have taken into consideration the allegations as contained in the complaints
received against the petitioner which were put to discrete enquiry but no
further punitive action took place. In absence of any material to indicate that
the said complaints or the allegations contained in the said complaints have
solely been the reason, and thus, became the foundation `of the decision
taken by the authorities, it cannot be inferred that the order is punitive.
Neither the minutes of the committee nor the ultimate termination order
indicate that the decision has been founded on the allegations against the
petitioner as contained in the complaints received against the petitioner. The
impugned termination order simpliciter mentions that the petitioner was
unable to carry out the probation period satisfactorily and successfully. No
other reason is assigned. Therefore, the order cannot be termed to be punitive
by any stretch of imagination. It is simply a case of discharge/termination
simpliciter upon adjudging suitability of the officer concerned for
confirmation and being found unsuitable.
22. The aforesaid issue is no longer res integra. The Hon’ble Supreme
Court in the case of Pavanendra Narayan Verma v. Sanjay Gandhi PGI of
Medical Sciences reported in (2002) 1 SCC 520 held as under:-
“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 aSignature Not Verified
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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 job.”
(Emphasis ours)
23. In the case of State of Punjab v. Sukhwinder Singh reported
in (2005) 5 SCC 569 it was held as under:-
“20. In the present case neither any formal departmental inquiry
nor any preliminary fact-finding inquiry had been held and a
simple order of discharge had been passed. The High Court has
built an edifice on the basis of a statement made in the written
statement that the respondent was a habitual absentee during his
short period of service and has concluded therefrom that it was his
absence from duty that weighed in the mind of the Senior
Superintendent of Police as absence from duty is a misconduct.
The High Court has further gone on to hold that there is direct
nexus between the order of discharge of the respondent from
service and his absence from duty and, therefore, the order
discharging him from service will be viewed as punitive in nature
calling for a regular inquiry under Rule 16.24 of the Rules. We are
of the opinion that the High Court has gone completely wrong in
drawing the inference that the order of discharge dated 16-3-1990
was, in fact, based upon misconduct and was, therefore, punitive in
nature, which should have been preceded by a regular departmental
inquiry. There cannot be any doubt that the respondent was on
probation having been appointed about eight months back. As
observed in Ajit Singh v. State of Punjab [(1983) 2 SCC 217 :
1983 SCC (L&S) 303 : AIR 1983 SC 494] the period of probation
gives time and opportunity to the employer to watch the work,
ability, efficiency, sincerity and competence of the servant and if
he is found not suitable for the post, the master reserves a right to
dispense with his service without anything more during or at the
end of the prescribed period, which is styled as period of probation.
The mere holding of preliminary inquiry where explanation is
called from an employee would not make an otherwise innocuous
order of discharge or termination of service punitive in nature.
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respondent’s absence from duty was the foundation of the order,
which necessitated an inquiry as envisaged under Rule 16.24(ix) of
the Rules”.
2 4 . The Hon’ble Supreme Court in the case of State of Punjab v.
Jaswant Singh, (2023) 9 SCC 150, has held that once no foundation of
misconduct is alleged in the discharge order and the order is discharged
simpliciter, then it cannot be inferred that the discharge is punitive. In the
said case, the discharge is based on recommendation of the supervisory
authority of the training centre that the probationer has not been taken
interest in training, has no sense of responsibility and hence he cannot prove
to be a good and efficient officer. The Supreme Court in the aforesaid case
distinguished with those cases wherein the probationer is issued with a notice
of misconduct and thereafter discharged from service, where it can be
inferred that the discharge was punitive. However, in the present case, no
show cause notice was given to the petitioner nor any allegation has been
mentioned in the discharge order which is simpliciter discharge order not
casting any stigma. Therefore, ultimately in the aforesaid case, the Hon’ble
Supreme Court set aside the order of the High Court and held the discharge
to be legal and valid. The Hon’ble Supreme Court held as under:-
21. In view of the principles as reiterated in various judgments by
this Court, if we examine the facts of the case in hand leading to
the order of discharge, then it is crystal clear that the respondent-
plaintiff was appointed as a constable and joined the duties on 12-
11-1989 on probation. During probation, while he was on training,
he along with other trainee constables was deputed for law and
order duty in Amritsar District on 24-11-1990. The respondent-
plaintiff and other recruits were relieved from the said duty and
reported back at the Training Centre, except the respondent-
plaintiff, who remained on prolonged absence without any
intimation to the Training Centre. The SP, Training Centre, vide
Memorandum dated 21-2-1991, made a recommendation to SSP
that the respondent-plaintiff had not shown any interest in the
training and lacks sense of responsibility, further recommending
that he is unlikely to prove himself as a good and efficient police
officer, hence, he may be discharged under Rule 12.21 of PPR.
From perusal of the said Rule, it is apparent that in case a
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probationary constable is found unlikely to prove an efficient
police officer, he may be discharged by the Senior Superintendent
of Police at any time within three years from the date of enrolment.
The SSP relying upon the recommendation of the supervising
officer (SP, Training Centre) formed an opinion that the
probationary constable is found unlikely to prove an efficient
police officer owing to his demeanour as reported and discussed
hereinabove.
23. Similarly, in Amar Kumar [Amar Kumar v. State of Bihar,
(2023) 9 SCC 160] , wherein the Court found that the appellant
therein had instigated to do commotion/agitation/protest and also
raised slogans by spreading false rumours in connection with the
death of one of the trainees, which was the foundation to pass the
order for termination. Thus, in the said case, the Court was of the
opinion that the order of termination cannot be simpliciter. In both
the cases as referred to above, the allegation of serious misconduct
is common, unlike in the instant case, wherein, the foundation of
discharge is not on any serious allegation or act of misconduct. The
discharge order was passed on the recommendation of the
supervisory authority concerned of the Training Centre due to
prolonged absence from training without any intimation. The
authority found that the probationer constable has no interest in
training, and no sense of responsibility, hence, he cannot prove
himself a good, efficient police officer. In view of above discussion,
both the referred cases are distinguishable on facts.
24. For the reasons discussed above, we are of the considered
opinion that the view [State of Punjab v. Jaswant Singh, 2010 SCC
OnLine P&H 13405] taken by the High Court and also by the two
courts below is completely erroneous in law and must be set aside.
The appeals are accordingly allowed. The judgments and decree
passed by the High Court [State of Punjab v. Jaswant Singh, 2010
SCC OnLine P&H 13405] and also by the first appellate court and
Civil Judge (Jr. Division) are set aside, and the suit filed by the
respondent-plaintiff shall stand dismissed. No order as to costs.
25. In the case of Rajesh Kohli v. High Court of J&K, (2010) 12 SCC
which was the case of a probationary judicial officer, it was held as under:-
“28. In the present case, the order of termination is a fallout
of his unsatisfactory service adjudged on the basis of his overallSignature Not Verified
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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.
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’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”.
(Emphasis ours)
26. The petitioner has contended that the order is punitive and has tried
to justify his actions on the allegations available against him. However, the
said material has been obtained by the petitioner under RTI Act while the
order is of discharge simpliciter. It is not so that any allegations as contained
in the said material have found part of either the resolution of the Full Court
or of the Administrative Committee or of the State Government.
27. The allegations against the petitioner in the material obtained by
him under RTI Act were in the matter of instituting Contempt of Court
proceedings against Bar members, taking their apologies, having them touch
their ears and do sit-ups for apology, same treatment being given to Police
personnel appearing in his Court, etc. There were complaints in the matter of
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misbehavior with the Court staff including female staff of the Court, verbal
abuses, threatening with physical assault, running after them for assaulting,
leaving headquarter without permission. For these conducts, the Chief
Judicial Magistrate, the Principal District & Sessions Judge, Bar Association
and the Superintendent of Police, reported the matter against the petitioner
including one matter wherein he sentenced his own Court peon to two
months simple imprisonment for misconduct and fine to the tune of Rs.50/-.
It is also true that a discrete enquiry was conducted by a Senior Judicial
Officer of the District namely Shri Nadeem Khan, District Judge, who found
some substance in the complaints and recommended to take the matter
further. However, it is not in dispute that the matter was not taken further and
no charge sheet was issued to the petitioner nor any punitive action was taken
against the petitioner.
28. It is also not in dispute that the Portfolio Judge of the District has
also reported the matter that explosive situation has been created at Jobat,
District Alirajpur in view of complaints being received against the petitioner.
However, it is not in dispute that no disciplinary action was instituted against
the petitioner and therefore, the order and action taken against the petitioner
cannot be said to be punitive in nature and these allegations and complaints
cannot be said to have become the foundation, much less sole foundation, of
the impugned order.
29. We have also gone through the comments as available in the ACRs
of the petitioner. In the ACR of the year 2020, he was awarded grade “C” in
the annual ACR.
30. In the year 2021, the District Judge has made the following
remarks:
(b). Quality of Judgment –
AVERAGE, His knowledge of procedural and substantive law is not
up to the mark.
2. Quantity of work:
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He has earned 926.23 units in 177 actual working days. So his
average unit is 5.23 per day, which comes under Very Good
category. He has earned only 89.65 units in civil cases which is less
than 30 units per month as per actual working days and as per norms
fixed by the Hon’ble High Court vide D.O. No.
1154/confdl./2021/II-5-5/57 PL.- III Jabalpur Dated: 14-12-2021. It
shows that he is not interested in disposal of civil cases,
Improvement is required.
Units earned by the officer is 66.25 from ADR cases which is
5.35%, which is less than 10% and Units earned by the officer is
466.54 from cases pending more than three years, which is 37.65%
which is more than norms fixed by the Hon’ble High Court.
3. Capacity of Management, Leadership, Initiative, Planning and
Decision Making.
AVERAGE
4. Inter Personal Relationship and Team Work.
AVERAGE
5. State of Health.
GOOD
31. After giving the above remarks, final grade “C” was awarded to
the petitioner, which was accepted by the Portfolio Judge and by the Chief
Justice.
32. In the year 2022, the District Judge made the following remarks in
the column of General Assessment:
General assessment:
(Please give an overall assessment of the officer with reference
to his/her judicial, administrative work and ability reputation and
character, strength and shortcomings and also by drawing attention to
the qualities if any not covered by the above entries).
Shri Kaustubh Khera is person of Good character and reputation. He
hastaken good interest in disposal of pending Criminal cases but he
shows laziness in disposal of pending Civil cases. He is not trainedSignature Not Verified
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mediator, therefore he could only refer the cases. Thus, he could not
earned the 10% Units through ADR Mechanism. The attention of the
judicial officer has not been in judicial work, but more on extraneous
subjects. His performance required more hard work and
conscientiousness toward judicial work. Considering the above entries
and no explanation & reasons submitted by Mr. Kaustubh Khera, the
overall performance including conduct, behavior and potential of Mr.
Khera is of Average standard.
33. His overall performance was assessed as grade “D”(Average)
which was upgraded by Portfolio Judge to grade “C” (Good).
34. For the year 2023, in his ACR, the District Judge Inspection
awarded grade “C” which was upgraded by the Portfolio Judge to grade “B”.
However, the Principal District Judge made the following remarks in the
column of overall view is as under:
11. Overall View:
Though he has disposed of 96 out of 100 listed cases, under debt
scheme and has also earned average of 8.04 units per day, which
falls in very good category, the quality of judgment/orders passed
by him is below expectation. The judgments/orders are written in
very slip short manner lacking discussion of evidence and
marshalling. (copy of inspection note enclosed)
35. In view of above, it cannot be said that apart from the complaints
which the petitioner is stressed to have been used against him, his
performance was good and he deserves to be confirmed from probation. It
therefore, appears to us that the Administrative Committee and the Full
Court have properly and meaningfully considered the case of the petitioner
and have reached to a proper and just conclusion.
36. It is settled in law that a person is put on probation only so as to
enable the employer to assess his suitability for continuation and
confirmation in service. On the basis of his overall performance a decision is
taken so as either to continue his service or to be released from service. It is
settled in law that for that purpose even uncommunicated entry can be seen
because it is only for the purpose of assessing the general suitability of an
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Officer to hold the post. The Supreme Court in case of Rajesh Kumar
Srivastava v. State of Jharkhand, (2011) 4 SCC 447 has held as under:-
“9. The records placed before us disclose that at the time when
the impugned order was passed, the appellant was working as a
Probationer Munsif. A person is placed on probation so as to
enable the employer to adjudge his suitability for continuation in
the service and also for confirmation in service. There are various
criteria for adjudging suitability of a person to hold the post on
permanent basis and by way of confirmation. At that stage and
during the period of probation the action and activities of the
probationer (appellant) are generally under scrutiny and on the
basis of his overall performance a decision is generally taken as to
whether his services should be continued and that he should be
confirmed, or he should be released from service. In the present
case, in the course of adjudging such suitability it was found by the
respondents that the performance of the appellant was not
satisfactory and therefore he was not suitable for the job.
12. The order of termination passed in the present case is fallout
of his unsatisfactory service adjudged on the basis of his overall
performance and the manner in which he conducted himself. Such
decision cannot be said to be stigmatic or punitive. This is a case of
termination of service simpliciter and not a case of stigmatic
termination and, therefore, there is no infirmity in the impugned
judgment and order passed by the High Court.”
37. The said case arose from judgment of Jharkand High Court in the
case of Rajesh Kumar Shrivastava Vs. State of Jharkhand reported in 2008
SCC OnLineJhar 1279 and in that case also the judicial officer concerned
had taken a plea that adverse entries/comments of ACR were not
communicated and it was held by the High Court of Jharkhand that for the
purpose of assessing suitability of petitioner even uncommunicated entries
can be taken into consideration, and the said judgment has been affirmed by
the Hon’ble Supreme Court in the case of Rajesh Kumar Shrivastava(supra).
38. Thus, it is clear that once no foundation of misconduct is alleged in
the discharge order, it is a discharge simpliciter and cannot be lightly
interfered because it is settled that it is only the superior authorities of the
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department that have to take work from the officer concerned and they are
the best people to judge whether the officer concerned should be continued
in service or not having regard to his performance, conduct and overall
suitability for the job. Even uncommunicated entries can be considered for
the purpose of assessing the suitability of a probationer. In similar facts, in
the matter concerning judicial officer, in the case of High Court of Judicature
at Patna Vs. Pandey Madan Mohan Prasad, reported in 1997 (10) SCC 409,
it was held as under:-
“The remarks for the years 1976-77 and 1979-80 had been
communicated to Respondent 1 prior to the High Court took the
decision on 19-6-1985 that Respondent 1 is not fit for retention in
service. The other remarks mentioned about were, however,
communicated to Respondent 1 after the said decision had been
taken. The question is whether the non-communication of the said
adverse remarks vitiates the action that has been taken against
Respondent 1, viz., termination of his services on the ground that
he was not fit for confirmation on the post of Munsif. As regards
a probationer, the law is well settled that he does not have a right
to hold the post during the period of probation. The position of a
probationer cannot be equated with that of an employee who has
been substantively appointed on a post and has a right to hold that
post. An order terminating the services of a probationer can be
questioned only if it is shown that it has been passed arbitrarily or
has been passed by way of punishment without complying with
the requirements of Article 311(2) of the Constitution. Since a
probationer has no right to hold the post on which he has been
appointed on probation, he cannot claim a right to be heard before
an order terminating his services is passed. The obligation to
communicate the adverse material to a person before taking action
against him on the basis of the said material is a facet of the
principles of natural justice. But principles of natural justice have
no application in the case of termination of the services of a
probationer during the period of probation since he has no right to
hold the post. It is, therefore, not possible to hold that there is an
obligation to communicate the adverse material to a probationer
before a decision is taken on the basis of the said material that he
is not fit for being retained in service. Such material can be relied
upon to show that such a decision does not suffer from the vice of
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mentioned that even with respect to persons who have been
substantively appointed on a post and have a right to hold that
post, it has been held that the failure to communicate the adverse
remarks in the service record would not vitiate the order of
compulsory retirement. (See: Union of India v. M.E. Reddy
[(1980) 2 SCC 15 : 1980 SCC (L&S) 179] and Baikuntha Nath
Das v. Chief Distt. Medical Officer [(1992) 2 SCC 299 : 1993
SCC (L&S) 521 : (1992) 21 ATC 649] .)”
39. So far as the argument that one month’s notice as provided in the
recruitment notice/advertisement was not actually served on the petitioner,
we see that there was no such condition in the appointment letter, nor in the
recruitment rules. In the case of Ashish Kumar Vs. State of Uttar Pradesh
and Others reported in (2018) 3 SCC 55 (para-27), the Supreme Court has
held that any part of the advertisement which is contrary to the statutory rules
has to give way to the statutory prescription. In the case of Malik Mazhar
Sultan and Another Vs. U.P. Public Service Commission and Others reported
in (2006) 9 SCC 507, the same has been held by the Supreme Court wherein
it has been laid down that advertisement cannot over-ride statutory rule.
Same was the ratio of judgement in Employees State Insurance Corporation
Vs. Union of India and Others reported in (2022) 11 SCC 392 , wherein the
Hon’ble Supreme Court held the advertisements for recruitment mentioning a
particular Scheme would have no effect since the said clause was in
contravention of the applicable Recruitment Regulations. Therefore, in this
case, the petitioner cannot take benefit of the stray clause in Recruitment
notice mentioning one month’s notice period for discharge during probation.
40. The petitioner had argued that since no order for extension of
probation was communicated to the petitioner therefore, there should be
deemed confirmation of probation. However, we are not able to convince
ourselves with the said contention in view of the language of the Rule 11(d)
of Rules of 1994. The Rules clearly mention that on successful completion of
probation the probationer shall be confirmed in service on available
permanent post and if permanent post is not available then he will be
confirmed as soon as permanent post becomes available, if the High CourtSignature Not Verified
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decides that he has successfully completed the period of probation and he is
suitable to hold the post. The relevant Rule 11 concerning probation is as
under:-
“11. Probation-
(a) A person appointed to category (i) of rule 3(1) shall, from
the date on which he joins duty, be on probation for a period of
two years.
(b) The High court may, at any time, extend the period of
probation, but the total period of probation shall not exceed
three years.
(c) It shall be competent for High Court at any time during or
at the end of the period of probation in the case of Civil Judge
(Entry Level) to recommend termination of his service and in
the case of Senior Civil Judge, to revert him on account of
unsuitability for the post.
(d) On successful completion of probation, the probationer
shall, if there is permanent post available be confirmed on the
service or post to which he has been appointed and if no
permanent post is available, a certificate shall be issued by the
High court to the effect that he would have been confirmed, but
for the nonavailability of the permanent post and as soon as
permanent post become available, he will be confirmed, if the
High court decides that he has successfully completed the
period of probation and he is suitable to hold the post.”
41. In view of the specific language of Rule 11(d), it is clear that for a
probationer to seek confirmation, it is necessary that he should have
successfully completed the period of probation and found suitable to hold the
post. The petitioner, cannot claim automatic or deemed confirmation of
probation period. Rather, it would be a case of deemed extension of
probation. In the case of Jai Kishan Vs. Commissioner of Police, reported in
1995 Supp (3) SCC 364, it was held as under:-
“6. It is contended by the learned counsel for the appellant,
placing reliance on State of Punjab v. Dharam Singh [AIR 1968 SC
1210 : 1968 SLR 247] , that even if the appellant was not confirmedSignature Not Verified
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by passing any order, on expiry of three years he must be deemed to
have been confirmed as a member of the Service. Thereafter, the
respondents had no jurisdiction to terminate his service. It is difficult
to accept the contention. Dharam Singh case [AIR 1968 SC 1210:
1968 SLR 247] bears no relevance, as similar provision was not
there in the rule concerned. Successful completion of probation is a
condition precedent for confirmation as envisaged in clause (iii) of
Rule 5(e) of the Rules. The authorities have power to allow
maximum period of 3 years of probation. In this case instead of
giving him three years, they have given a long 5 years’ period so as
to see whether the appellant would improve his performance in the
service. Since they found that there was no satisfactory
improvement, his probation was terminated and he was removed
from service as a probationer. Under these circumstances, we do not
find any illegality in the action taken by the respondents warranting
interference.”
42. In the case of High Court of M.P. v. Satya Narayan Jhavar, (2001)
7 SCC 161, the Hon’ble Supreme Court considered a similar argument of a
judicial officer of Madhya Pradesh and it was held that the question of
deemed confirmation would arise only when the service rules expressly so
provide. It was held so in following manner:-
“37. Ordinarily a deemed confirmation of a probationer arises
when the letter of appointment so stipulates or the Rules
governing service conditions so indicate. In the absence of such
term in the letter of appointment or in the relevant Rules, it can be
inferred on the basis of the relevant Rules by implication, as was
the case in Dharam Singh [AIR 1968 SC 1210 : (1968) 3 SCR 1] .
But it cannot be said that merely because a maximum period of
probation has been provided in the Service Rules, continuance of
the probationer thereafter would ipso facto must be held to be a
deemed confirmation which would certainly run contrary to the
seven-Judge Bench judgment of this Court in the case of Samsher
Singh [(1974) 2 SCC 831 : 1974 SCC (L&S) 550] and the
Constitution Bench decisions in the cases of Sukhbans Singh
[AIR 1962 SC 1711 : (1963) 1 SCR 416] , G.S. Ramaswamy
[AIR 1966 SC 175 : (1964) 6 SCR 279] and Akbar Ali Khan
[AIR 1966 SC 1842 : (1966) 3 SCR 821] .” 40. So far as the issue
of non-extension of probation period is concerned, as per Rule 11
(b) of Rules of 1994, the High Court can extend the period of
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probation but total period of probation shall not be extend 3 years.
In the present case, the petitioner was appointed on 31.12.2015
and got posting on completion of training period in March 2017.
The performance of the petitioner up to the year ending 31st
December 2019 has been considered and even if a formal order of
extension of probation by one more year had been passed, even
then the performance of up to that period only would have been
considered by the Administrative Committee. Therefore, no
prejudice has been caused to the petitioner by not formally
extending the probation by a further period of one year.
43. In view of the above and in view of the Rule 11(c) of Rules of
1994 that specifically vest power in the High Court to recommend
termination of services of judicial officer on probation on account of
unsuitability for the post, we find no reason to interfere in the impugned
order.
44. Therefore, the petition being devoid of merits, deserves to be
and stands dismissed.
(THE CHIEF JUSTICE) (VIVEK JAIN)
JUDGE JUDGE
RS
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