MURARI LAL KEJRIWAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ petition, the petitioner, Murari Lal Kejriwal, has made a prayer for issuance of a writ in the nature of writ of certiorari for quashing letter No. 13, 980 dated 14.12.1998 a copy of which is Annexure-1/A to this writ petition issued by the Respondent No. 2 the High Court of Judicature at Patna to the Government of Bihar for issuing necessary notification terminating the services of the petitioner, who was Additional District and Sessions Judge on probation and after amendment) for quashing a Notification No. 5293 dated 5th July, 1995 issued by the Department of Personnel Administrative Reforms, Government of Bihar, terminating the services of the petitioner with effect from 24.2.1995. in the light of recommendation of the High Court as contained in Annexure-1/A. There is also further prayer for issuing a writ in the nature of mandamus commanding the respondents not to interfere in day to day working of the petitioner as Additional District and Sessions Judge, Siwan, so that he may get consequential benefits of continuity of service, pay, promotion etc. By amendment the writ-petitioner has further sought a relief that Rule 15(5)(a), proviso of the Bihar Superior Judicial Service Rules; 1951 to be hereinafter referred as Rules be declared as ultra vires and violative of Articles 15 and 16 of the Constitution of India.

(2.) The back ground facts in the context of which the reliefs have been sought are as follows: The petitioner was appointed on probation as Additional District and Sessions Judge by Respondent No. 1 (State of Bihar) by Notification No. 617 dated 30.4.1991 issued by the Department of Personel Administrative Reforms, Government of Bihar and 31 other persons had also been appointed on probation under various notifications of the same date a copy of which is Annexure-1. The petitioner joined the post of Additional District and Sessions Judge at Arrah on 6.5.1991 in pursuance of that notification. After working as Additional District and Sessions Judge at Arrah for a little over two years he was transferred to Siwan where he joined on 11.6.1993. The appointment of the petitioner along with others had been made under Article 233 of the Constitution of India read with Rule 5 of the Bihar Superior Judicial Service Rules, which inter alia provides for direct recruitment from the Bar on the recommendation of the High Court, Rule 15 provides for confirmation of those recruited from Bar and by promotion in the Bihar Superior Judicial Services. The matter of confirmation of the petitioner along with other officers of his batch was considered by the Standing Committee of the High Court (Respondent No. 2) in its meeting held on 22nd and 24th, of February, 1994 and the Standing Committee took a decision to extend the period of probation of the petitioner for one year while other officers except one of his batch were confirmed. The case of the petitioner for confirmation was again placed before the Standing Committee at its meeting held on 1st and 2nd December, 1994; and the Standing Committee took a decision that the period of the petitioner will not be extended beyond 23.2.1995 and his services will be terminated thereafter. The decision of the Standing Committee was later placed before the Full Court in its meeting held on 3.12.1993 and the Full Court approved the decision of the Standing Committee and thereafter the impugned latter (Annexure-1/A dated 14.12.1994) was sent to the State Government requesting for issuing notification to terminate his services. After filing of his writ petition. Respondent No. 1 issued the other impugned order (Annexure-7) by which the petitioner's service has been terminated in the light of recommendation ' made by Respondent No. 2 by the letter, Annexure-1/A.

(3.) The facts stated above are not in dispute. Mr. Narendra Prasad, learned Counsel for the petitioner has assailed the legality of Annexure-1/A by raising the following contentions: His first contention is that the period of probation prescribed by Rule 15 is only for one year for an officer, who is appointed on probation by direct recruitment from the members of the Bar and on expiry of the period of one year, the petitioner would have been automatically confirmed. According to him the Rule prescribed one year as the minimum period of probation, and it could be extended only by the State Government in consultation with the High Court as laid down in the proviso to Rule 15(1)(a); and as the State Government has not extended the period of probation of the petitioner in consultation with the High Court, he must be deemed to have been confirmed. His second contention in this regard is that the Standing Committee of the High Court is not competent to extend the period of probation, and only the Full Court could have extended the period of probation and so the extension itself was invalid. Thirdly, he has submitted that the petitioner was never informed about the extension of probation period nor was he ever informed as to how his conduct and performance were to considered to be such as would have made him suitable for confirmation. According to his further contention in this regard the petitioner should have been given an opportunity to explain material was there against him, which stood in the way of his confirmation; and an enquiry ought to have been held to consider his suitability or otherwise for the post. Not giving of opportunity and not holding of enquiry, according to his submission, amounted to violation of Article 311 of the Constitution of India and of Civil Services (Classification' Control and Appeal) Rules, 1930. Learned Counsel contended that even during the period of probation, a probationer has some rights and of his rights are intended to be taken away, an opportunity must be given to him because termination of his service would have a civil consequence of depriving him of his means of livelihood. He further elaborated his part of his argument by referring to paragraph-2 of Annexure-1/A, in which mention has been made about consideration of his 'Work and Conduct' and 'over all performance and according to him consideration of all this and then deciding to determine the period of probation to a particular date (24-2-95) amounts to casting stigma and for this reason also it was necessary that opportunity should have been given to the petitioner to show that his work and conduct or performance was satisfactory and made him suitable for confirmation on the post. Learned Counsel for the petitioner also submitted in this connection that the petitioner was working honestly and his out-turn was satisfactory according to the yeardstick fixed by the High Court relating to Out-turn and that the judgment and orders passed by the petitioner had not been set aside by the High Court to his knowledge. Learned Counsel for the petitioner has also cited some decisions in course of his argument and reference to those decisions shall be made below at the appropriate places.