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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2017
BEFORE
THE HON’BLE MR.JUSTICE ARAVIND KUMAR
W.P.NO. 32452/2015 (S-DIS)
BETWEEN:
HANUMANTHA RAJ H S/O SRI G. HANUMANTHAPPA AGED ABOUT 47 YEARS C/O SRI. D.T. SRINIVAS K.H.B. COLONY NEAR COURT COMPLEX OPPOSITE WATER TANK HARIHAR. ... PETITIONER
(BY SRI.NITEESH FOR SRI K.V. NARASIMHAN, ADV)
AND:
THE STATE OF KARNATAKA
BY UNDER SECRETARY TO
GOVERNMENT, ADMN-1
LAW DEPARTMENT
VIDHANA SOUDHA,
BENGALURU-560 001.
THE HIGH COURT OF KARNATAKA
DR. AMBEDKAR VEEDHI
BENGALURU-560 001
BY ITS REGISTRAR GENERAL ... RESPONDENTS
(BY SRI.M.A. SUBRAMANI, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATIONS IN GOB(1)305/2009 DATED 26.04.2014 ISSUED BY THE R-2 AS PER ANNEXURE-B AND THE NOTIFICATION DATED 15.07.2015 AS PER ANNEXURE-C AS BEING IN EXCESS OF OR WITHOUT JURISDICTION.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
Petitioner was appointed as Civil Judge (Jr.Dn) on 30.09.2008 in the Karnataka Judicial Services. Petitioner reported to duty on 03.07.2009 and was placed on probation for a period of two years up to 03.07.2011. Petitioner’s probation was continued till 24.04.2014. On 15.07.2015 petitioner came to be discharged from service under Rule 6(1) of the Karnataka Civil Services (Probation) Rules, 1977 with immediate effect. Same is questioned in the present writ petition. Petitioner is also seeking for declaring Rule 5 (2) of Karnataka Civil Services (Probation) Rules, 1977 (for short ‘Rules’) as arbitrary and in derogation of
the Article 14 of the Constitution of India and as such, same be struck down.
Heard Sri Niteesh, learned Advocate appearing for petitioner and Sri M.A.Subramani, learned HCGP appearing for respondents.
It is contended by the learned Advocate appearing for petitioner that Rule 5 of the Rules empowers the appointing authority to consider suitability of a probationer to hold the post to which he was appointed and at the end of the prescribed period of probation, Rule 5(1)(a) mandates that such a decision should be taken “as soon as possible” and both these aspects had been given a go by without any rhyme or reason. It is also contended that Rules 5 & 6 of the Rules do not lay down any principle or policy for guiding the exercise of discretion by the authorities concerned so as to enable them to discriminate between persons similarly placed and therefore discrimination is inherent
in the said rules regarding consideration of determining satisfactory completion of probation and/or discharge during the period of probation. As such, it is contended that Rule 5 and 6 are not only violative of Articles 14 and 16 but also Article 21 of the Constitution of India. It is further contended that on account of unguided and unbridled and inherent power being available under the said Rules to the competent authority, it violates basic feature of the Constitution of India, dealing with the Fundamental Rights particularly Part III namely, the rights of the Officers similarly placed as that of petitioner and fair play in action cannot be saved under this Rule. It is also contended that impugned Rule would lead to indefinite and varying decisions affecting right of the petitioner since the appointing authority has unguided and unbridled power on account of said Rule not laying down any principle or policy for exercise of discretion. On these grounds, petitioner is seeking for a declaration that sub-rule (2) of Rule 5 of the Rules be
declared as arbitrary and in derogation of Article 14 of the Constitution of India and consequently he prays for quashing of the notification dated 26.04.2014 – Annexure-B issued by second respondent whereunder period of probation of petitioner and three other Officers came to be extended under Part-III and notification dated 15.07.2015 – Annexure-C discharging petitioner from service as being in excess of jurisdiction and also without jurisdiction.
Sri Niteesh, learned Advocate appearing on behalf of Sri K.V.Narasimhan for petitioner, by reiterating grounds urged in the writ petition, has vehemently contended that on account of reasons not forthcoming from the order of discharge as required under Rule 6(1) of the Rules, order of discharge is bad and as such, it is liable to be quashed. He would also draw the attention of the Court to the certificate dated 05.03.2012 issued by the Registrar General of this Court expressing thereunder appreciation made by
Hon’ble Chief Justice, to contend that on no ground whatsoever, petitioner could have been discharged from judicial service since his service was without any blemish. By way of application to amend this writ petition, I.A.2/2016 has been filed by the petitioner seeking leave to raise additional grounds.
Learned Government Advocate appearing for respondents would contend that grounds which are proposed to be incorporated would have no bearing on the claim made in the writ petition inasmuch as, order of discharge is a discharge simpliciter and not punitive in nature and as such he prays for dismissal of writ petition and also I.A.No.2/2016.
Having heard the learned Advocates appearing for parties and on perusal of the records, this Court is of the considered view that on account of vires of Rule 5(2) of the Rules having been challenged, it
would be necessary and appropriate to extract said Rule and it reads as under: “5. Declaration of satisfactory completion of probation etc.-
(1) xxx (a) xxx (b) xxx
(2) A probationer shall not be considered to have satisfactorily completed the probation unless a specific order to that effect is passed. Any delay in the issue of an order under sub-rule(1) shall not entitle the probationer to be deemed to have satisfactorily completed his probation.
Note.- In this rule and Rule 6 ‘discharge’ in the case of a probationer appointed from another service or post, means reversion to that service or post.”
A statute or any enacting provision would be constituted to make it effective and operative on the principle expressed in the maxim ut res magis valeat quam pereat – ‘to give effect to the matter rather than having it fail’. On application of this principle, Courts
while pronouncing upon its decision regarding constitutionality of a statute starts with a presumption in favour of constitutionality and prefer construction which keeps the statute within the competence of legislature. Normally, Courts lien against construction which reduces the statute to a futility or nullity. A statute is presumed to be designed to make it workable and interpretation thereof by a Court should be to secure the object unless crucial omission or clear direction makes that end unattainable. The Courts will therefore reject that construction which will defeat plain intention of the legislature even though there may be some inexactitude in the language used. This view is also fortified by the authoritative pronouncement of Hon’ble Apex Court in the case of COMMISSIONER OF INCOME TAX vs HINDUSTAN BULK CARRIERS reported in (2003)3 SCC 57 whereunder it has been held by the Hon’ble Apex Court as under:
“15. A statute is designed to be workable and the interpretation thereof by a Court should be secure that object unless crucial omission or clear direction makes that end unattainable. (See Whitney v. IRC, 1926 APPELLATE COURT 37 at p.52 referred to in CIT v. S. Teja Singh, AIR 1959 SC 352 and Gursahai Saigal v. CIT, AIR 1963 SC 1062.
The Courts will have to reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. (See Salmon v. Duncombe, (1886)11 AC 627 at p.634, Curtis v. Stovin , (1889) 22 QBD 513 referred to in S.Teja Singh case.)
If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility, and should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result (See Nokes v. Doncaster Amalagamated Collieries, (1940)3 All ER 549 referred to in Pye v. Minister for Lands for NSW, (1954)3 All ER 514.). The principles indicated in the said cases were reiterated by this Court in Mohan Kumar Singhania v. Union of India (1992) Supp (1) SCC 594.
The statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a
consistent enactment of the whole statute.”
A bare reading of Rule 5(2) would disclose that a person appointed on probation would hold the post to which he was appointed during the period of probation. Rule 5 would also make it clear that confirmation is not automatic and discharge during the period of probation would be permissible. In case of a probationer being discharged, there is no need or necessity to hold an enquiry as contemplated under Article 311(2) of the Constitution of India. A reading of sub-rule (2) of Rule 5 would indicate that a probationer shall not be considered as satisfactorily completed the probation unless a specific order to the said effect is passed and such probationer would not be entitled to contend that on completion of probationary period of two years, he is deemed to have satisfactorily completed the period of probation by reason of being continued in service beyond the period of probation or
extended period. Though under Rule 5(1), maximum period of probation is not prescribed, neither Rule 4 nor Rule 5 would indicate that on completion of period of probation, he/she is deemed to have been confirmed. It requires a specific Act on the part of the employer by issuing an order of confirmation and if no such order of confirmation is passed, probationer cannot be heard to contend that he is deemed to have been confirmed merely because period of probation has expired and immediately thereafter order of discharge has not been passed. This view is also fortified by the judgment of the Hon’ble Apex Court in the case of HIGH COURT OF MADHYA PRADESH THROUGH REGISTRAR AND OTHERS vs. SATYA NARAYAN JHAVAR reported in (2001)7 SCC 161 whereunder it has been held:
“11. The question of deemed confirmation in service jurisprudence, which is dependent upon language of the relevant service rules, has been subject matter of consideration before this Court, times without number in various decisions
and there are three lines of cases on this point. One line of cases is where in the service rules or the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry order of termination has not been passed. The last line of cases is where though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.”
Thus, a person challenging order of discharge will have to make out a case that it is not an order of discharge simpliciter, but it is in the nature of punishment or it is a discharge with stigma. Only when such exercise is undertaken and proved, this Court exercising power under Article 226 of the Constitution of India would go beyond the order of discharge to find out reasons for such discharge and if found that it is not a discharge simplicitor and such order of discharge cannot be separated from stigma attached to it, appropriate writ will be issued.
In the background of aforestated discussion, when facts on hand are examined with reference to original records which has been made available by learned HCGP, it would disclose that on the recommendation made by the Administrative Committee No.1 by resolution dated 08.06.2015 for discharging petitioner from service, Full Court in its meeting held on 17.06.2015 recommended to the Government for
discharging the Officer from service on the ground that petitioner was unsuitable to hold the post of Civil Judge after considering all the relevant materials on record and pursuant to same, impugned order of discharge dated 15.07.2015 – Annexure-C came to be passed. Merely because sub-rule (2) of Rule 5 of the Rules provides for continuation of a probationer or in other words, competent authority is not required to assign reasons for continuation of probationer, it cannot be said that appointing authority has been vested with unbridled power and as such, said Rule is to be struck down on said ground. Hence, this Court is of the considered view that Rule 5(2) of the Rules cannot be struck down on the ground of competent authority having excessive power or hit by Article 14 of the Constitution of India. On the other hand, vires of Rule 5(2) is upheld.
For the reasons aforestated, I proceed to pass the following: ORDER
(1) Writ petition is hereby dismissed. (2) Order of discharge dated 15.07.2015 – Annexure-C passed by first respondent is upheld. (3) No order as to costs.
In view of writ petition having been dismissed on merits, I.A.2/2016 is hereby rejected.
Sd/- JUDGE
*sp