REGISTRAR, HIGH COURT OF GUJARAT AND ANR. versus C.G. SHARMA

Citation: [2004] SUPP. 6 S.C.R. 77 · Decided: 17-11-2004 · Supreme Court of India · Bench: K.G. BALAKRISHNAN · Disposal: Appeal(s) allowed

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Judgment (excerpt)

REGISTRAR, HIGH COURT OF GUJARAT AND ANR. 
A 
v. 
C.G. SHARMA 
NOVEMBER 17, 2004 
[K.G. BALAKRISHNAN AND DR. AR. LAKSHMANAN, JJ.] 
B 
Service Law : 
Gujarat Judicial Service Recruitment Rules, 1961-Rule 5(4)-Judicial 
Officer-Appointment-Probation-Extension of-Termination of service C 
thereafter on the ground of unsuitability for the Post-Adverse remarks in 
the Confidential Report-Integrity doubtful-Termination challenged on the 
ground that termination could not be without holding enquiry as on 
completion on probation period the service would be deemed to have been 
confirmed-Claim of equality with other judicial officers-Termination 
upheld by Single Judge as well as Division Bench of High Court holding D 
that service cannot be deemed to be confirmed on completion of probation-
However Division Bench held that the Judge was wrongly picked for 
termination applying different yardstick-On appeal, held : On completion 
of probation, automatic confirmation cannot be claimed as a matter of 
right-Satisfactory work is precondition for confirmation-Termination E 
rightly ordered on the basis of the record placed before High Court 
(Admfnistrative side)-In assessment of his work the Judge cannot claim 
parity with other officers as each officer was evaluated on his own merit-
Concept of equality cannot be extended to legalize illegal orders-A wrong 
order cannot be the foundation for claim of equality-Constitution of India, 
1950-Articles 14, 16 and 311. 
F 
Respondent was appointed as Judicial Officer in Subordinate 
Judicial Service on probation for two years. His probation was further 
extended for one year and then for 6 months. Thereafter his services 
were terminated on account of unsuitability for the post under the 
recommendations of High Court (Administrative side). Respondent G 
challenged the termination of service on the grounds that the probation 
period having been expire~, he must be deemed to have been confirmed 
and hence his service could not have been terminated without holding 
an enquiry; that opportunity of hearing should have been afforded to 
him before terminating his services; that his services came to be H 
77 
78 
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R. 
A terminated because of pick and choose approach as services of other 
officers, similarly situated, were not terminated. Appellant took the plea 
that respondent's termination was recommended because his overall 
performance was not satisfactory; that there were adverse remarks 
during his probation period and subsequent thereto which were 
B communicated to him; that the respondent was originally an employee 
of the High Court and upon termination of his service as judicial officer 
had been taken back by the establishment. Single Judge of High Court 
held that there is no automatic confirmation on the expiry of the probation 
period and dismissed the petition. In Letters Patent Appeal, Division 
c 
Bench held that even if two years period expires and probationer is 
allowed to continue thereafter, automatic confirmation cannot be claimed 
as a matter of right because as per Gujarat Judicial Service Recruitment 
Rules, 1961, pre-condition for confirmation is that work has to be 
satisfactory; that the impugned judgment suffered from the vice of non-
adjudication; that it was a case of arbitrary exercise; that the work of 
D respondent was never assessed to be inadequate or poor and hence 
respondent was held entitled to all consequential benefits as if termination 
order had never been passed subject to the adjustment of the emoluments 
drawn by him as an employee of the High Court. 
Appellant-High Court filed appeal before this Court. Respondent-
£ 
Judge also filed appeal before this Court on the question of automatic 
confirmation on expiry of probation period. 
Appellant contended that Division Bench of High Court was not 
justified in permitting the respondent to agitate the question of assessment 
F of satisfactory performance of his work in comparison to his colleagues, 
when this point was not raised before Single Judge or raised in the 
memorandum of L.P.A.; that High Court in exercise of power of judicial 
review is devoid of power to re-appreciate the evidence; Division Bench 
erred in picking up one of the aspects of the assessment in allowing the 
G L.P.A., while termination was passed by the High Court on administrative 
side often examining all the aspects and his overall performance; Division 
Bench erred in law in app

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