C G SHARMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these petitions under Article 226 of the Consittution of India raise common questions of law about interpretation of the provisions of Rule 5 (4) of the Gujarat Judicial Service Recruitment Rules, 1961 regarding the power of the Government to extend the period of probation. Hence, with the consent of the learned counsel for the respective parties, both these petitions have been heard together and are being disposed of by this common judgement.

(2.) Petitioner of Special Civil Application No.11218 of 1994 (Mr C.G.Sharma) was appointed as Civil Judge (Junior Division) and J.M.F.C. on probation for a period of two years vide Government Notification dated 7.6.1991. The petitioner joined his duties on 29.6.1991. By the order dated 22.9.1994 passed by the State Government in the Legal Department, under the recommendation of the High Court, the petitioner's services were terminated with immediate effect on account of unsuitability for the post held by him. The said order is challenged in Special Civil Application No.11218 of 1994 on various grounds more particularly on the ground that two year period of probation having expired, the petitioner must be deemed to have been confirmed on the post of Civil Judge (Junior Division) and J.M.F.C. and, therefore, the petitioenr's services could not have been terminated without holding a departmental inquiry. The petitioner also invoked the principle of natural justice by contending that opportunity of hearing should have been afforded to the petitioner before terminating his services. It was also contended that the petitioner had tried to the best of his capacity to dispose of the cases and that many others who had no disposal as per the norms were confirmed in the post but because of the pick and choose approach the petitioner's services came to be terminated. The petition is resisted by the affidavit-in-reply filed by the Registrar of the High Court pointing out that the petitioner's case was examined by the High Court and having regard to the fact that the overall performance of the petitioner was not satisfactory, the High Court recommended to the State Government on 12.9.1994 to terminate the petitioner's services with immediate effect on account of unsuitability for the post held by him and accordingly the State Government in Legal Department issued the Notification dated 22.9.1994 terminating the petitioner's services. It is contended that the petitioner remained as a probationer as no order of confirmation was passed. Various factual details are also given in the affidavit-in-reply to show that the petitioner's performance was not satisfactory. Adverse remarks were also communicated to the petitioner and representations made by the petitioner were duly considered and decided. Copies of the decisions dated 26.11.1993, 21.1.1994 and 12.9.1994 communicating the adverse remarks to the petitioner for the relevant period are already annexed to the petition at Annexure-C to Annexure-E. It is further pointed out that the petitioner was originally serving as an Assistant in the establishment of the High Court and upon termination of his services as a Civil Judge (Junior Division) and JMFC he has been taken back on the establishment of the High Court with effect from 27.9.1994.

(3.) The petitioner in Special Civil Application No.12454 of 1994 (Mr K.H. Bhatt) was appointed as a Civil Judge (J.D.) and JMFC on probation for a period of two years by the Government Notification dated 1.5.1991. The petitioner took over the charge on 17.6.1991. There were adverse remarks in the petitioner's confidential reports for the period from 17.6.1991 to 16.9.1992 which adverse remarks were communicated to the petitioner. The period of probation was extended by one year with effect from 17.6.1993. During the subsequent period also the petitioner was communicated the adverse remarks for the quarters between 15.6.1993 and 15.5.1994. The High Court considered the petitioner's overall performance and on 12.9.1994 recommended to the State Government to terminate the petitioner's services on the ground of unsuitability for the post. The State Government vide notification dated 22.9.1994 terminated the petitioner's services. Special Civil Application No.12454 of 1994 is filed for challenging the said order on the grounds which are similarl to the grounds urged in the first petition more particularly the ground that the State Government had no power to extend the period of probation beyond two years stipulated in the relevant rule. In this petition also the petition is resisted by the affidavit-in-reply filed by the Asst. Registrar of the High Court denying the contentions raised and allegations made in the petition and pointing out that there were adverse remarks against the petitioner and that on an assessment the High Court had in its meeting held on 5.4.1994 found that the overall performance of the petitioner was not satisfactory and that his services should be termianted. The High Court had accordingly recommended to the State Government on 12.9.11994 and the State Government had accordingly issued the impugned notification dated 22.9.1994 termianting the petitioner's services.