K.M. Mehta, J.
1. D. Barot-petitioner herein has filed this petition for a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction or Order, quashing and setting aside the impugned Order of discharge dated 13-1-1999 passed by the Special Additional Police Officer, Rajkot discharging the petitioner from service. The petitioner further prayed that this Court may direct the respondent-State of Gujarat through the Secretary, Home Department and direct the Director General of Police, Gujarat State to reinstate the petitioner with consequential benefits and back wages. He further prayed that this Court may also quash and set aside the Order dated 1-10-1999 passed by the Special Police Officer, Rajkot rejecting the representation of the petitioner. The petitioner further prayed that this Court may also direct the respondents to treat the petitioner as having been confirmed in service on 14-6-1998 when his probation period was wrongly extended for six months or in any view of the matter, after the expiry of the said period on 6-1-1999 and the respondents may be directed to give all benefits and deemed date on the said basis.
2. This petition was filed somewhere on 19-10-1999 and when the matter was placed for hearing before this Court issued Rule on 18-2-2000 making it returnable on 1-2-2001 and also directed to be heard peremptorily in this behalf.
3. The facts giving rise to this petition are as under:
3.1 The Gujarat Public Service Commission selected the petitioner for the post of P.S.I, on 4-12-1995 and permitted to undergo the training of Police Sub-Inspector at Junagadh starting from 9-12-1995. From 11-12-1995 to 14-12-1996 the petitioner underwent the training for the post of Police Sub-Inspector, and passed the final examination.
3.2 It has been stated in the petition that an incident alleged to have taken place on 9-11-1996 at village Bhandu in Mehsana District in which the petitioner is named as one of the eight accused. As the petitioner was apprehending his termination from service he filed Spl. C.A. No. 10062 of 1996 before this Court praying to restrain the respondent No. 2 herein from terminating his service without hearing him.
3.3 When that matter was placed for hearing before this Court on 3-9-1997 this Court (Miss R.M. Doshit, J.), dismissed the petition on the ground that the same has been filed on apprehenson.
3.4 The petitioner was appointed as P.S.I, on completion of his theoretical training and sent for practical training for 18 months under the District Superintendent of Police, Surendranagar. The petitioner reported for training at Surendranagar on 16-12-1996. The Special Inspector General of Police, Rajkot Range, Rajkot by his Order dated 16-7-1998 extended the probation period upto 6-1-1999.
3.5 The Special I.G.P., Rajkot-respondent No. 3 passed an Order dated 13-1-1999 by which the petitioner has been discharged from service on the ground that he did not appear to be a fit person to be continued as P.S.I.
3.6 Being aggrieved by the aforesaid Order the petitioner filed Spl. C.A. No. 897 of 1999 before this Court challenging the aforesaid Order discharging him from service as illegal, arbitrary and violative of his fundamental rights.
3.7 It may be noted that the Addl. Sessions Judge, Mehsana by his judgment and Order dated 25-8-1999 in Sessions Case No. 194 of 1997 along with Sessions Case No. 303 of 1998 acquitted the petitioner. It was submitted by the learned Advocate for the petitioner that said acquittal was absolutely clean acquittal and it was not a technical acquittal.
4. In the meanwhile, said Spl. C.A. No. 897 of 1999 reached hearing and in view of the fact that the petitioner was already acquitted in the criminal case which was pending at the time of passing the Order of discharge, this Court (Coram : Rajesh Balia, J. as then he was) passed an Order on 7-9-1999 observing that me learned Advocate for the petitioner states mat with a view to make representation before respondent No. 3 in connection with the Order of discharge, and the Spl. C.A. No. 897 of 1999 was permitted to be withdrawn by the petitioner. Accordingly, the Rule was discharged.
5. In view of the aforesaid Order of this Court, the petitioner made representation on 15-9-1999 to the respondents. The Additional Chief Police Officer, Rajkot by his Order dated 1-10-1999 dismissed the said representation on the ground that as the petitioner was discharged from service there are no Rules by which he can be taken back in service, and therefore, said representation of the petitioner was rejected.
6. Being aggrieved by the aforesaid Order of the authority the petitioner filed the present petition before this Court, challenging the said action of the authority.
7. When the aforesaid matter was placed for hearing before this Court on 27-10-1999, this Court passed the following Order:
The petitioner has filed this petition for the very same cause of action for which Special Civil Application No. 897 of 1999 was filed, but for his own reason to make a representation to respondent No. 3 withdrew the same unconditionally. As a result, the petitioner is not entitled to ventilate the same grievance again through this forum.
8. Being aggrieved by the aforesaid Order of the learned single Judge the petitioner filed L.P.A. No. 1609 of 1999 before the Division Bench of this Court. The Division Bench of this Court passed an Order dated 1-3-2000. In Para 8 and 9 of this judgment, the Division Bench has observed as under:
8. ...It is required to be stated that merely because the party is permitted to make a representation and the representation is not accepted by the authority, it would not give a ground to challenge the decision on the said representation. In a sense the challenge is it (sic.) the Order of discharge.
9. It is required to be noted that when a citizen had challenged the action of an authority which he had subsequently withdrawn on the ground of making a representation, then he has abandoned the right of prosecuting the petition. Once, there is an abandonment, the Court is not expected to investigate further into the matter and so far as the Court of law is concerned, the Order, in the instant case, passed by the respondent discharging the appellant has become final. In the instant case, as the petitioner abandoned the right to challenge the Order before the Court and sought permission to withdraw the petition without reserving right of filing a fresh petition, he cannot insist that he should be heard again. In view of this, we find no merit in this appeal. The appeal is dismissed.
9. Being aggrieved by the aforesaid judgment of the Division Bench of this Court the petitioner filed S.L.P. being Civil Appeal No. 4612 of 2000 before the Hon'ble Supreme Court. The Hon'ble the Supreme Court has the following Order dated 16-8-2000 in Civil Appeal No. 4612 of 2000 after referring to the Order of the Division Bench of this Court:
We cannot subscribe to the view expressed by the High Court in the Order under appeal. In the first place, the High Court ought to have examined whether the rejection of the representation was justified in the circumstance set forth in the Order impugned in the High Court ought to have examined whether the rejection of the representation was justified in the circumstance set forth in the Order impugned in the High Court. Secondly, the matter had not been abandoned as such but enable the applicant to make representation in the matter, the petition had been withdrawn. The course of action does not amount to abandonment of the matter. Moreover, such a matter should not be dealt with in hyper-technical manner but on the totality of the circumstances arising in the case of the appellant. Hence, we set aside the Order of the High Court and remit the writ petition to the High Court for fresh disposal on merits in accordance with law.
10. In view of the aforesaid facts and circumstances the matter has been placed before the for hearing. Mr. S.H. Sanjanwala learned senior Counsel for the petitioner has made the following submissions before the:
10.1 He has relied upon Rule 89(1) and (B) which reads as under:
89. Temporary Appointments : (1)(a) Orders sanctioning every temporary appointment which is not for a definite period, should make it clear that the appointment is made until further Orders. Appointments of temporary Government servants for definite period should be restricted to exceptional cases.
(b) The services of a temporary Government servant shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by that authority to the Government servant.
10.2 Rule 90 provides for appointment on probation. Rule 90(1)(a), (b)(2) which reads as under:
90. Appointment of Probation :- (1)(a) A candidate for a higher service or post who is not in permanent Government service may be appointed to the higher service or post on probation subject to rules regarding loss of appointment on failure to pass the departmental examination within a prescribed period or for other causes.
(b) Appointment of persons in permanent Government service to post for which they may have been selected as direct recruits, should be made on probation only if a probationary period if prescribed in respect of these posts.
(2) Whenever any person is appointed on probation, the question of extending the period of probation or of confirming, reverting or discharging him should be decided as far as possible before the expiry of the period of probation.
10.3 He has relied upon Regulation 116(1) of Police Manual which reads as under:
116. Practical Training after posting to a District :- (1) On appointment to a District as Sub-Inspector on probation, the officer will go through a course of practical training for 18 months.Clauses 8 and 9 of Regulation 116(1) of the Police Manual read as under:
8. If a Superintendent is convinced at any time during the period of practical training that a probationary Sub-Inspector is unfit for confirmation, he should submit a report, through the Range Deputy Inspector General, to the Inspector General at once, instead of waiting till the probationary period expires. The report should not be a there expression of opinion by the Superintendent but should set forth clearly and specifically the evidence or grounds on which the opinion is based. The Superintendent of Police should certify to this effect at the conclusion of each period of training as shown in Appendix VI in a progress report in Form No. 8 Appendix-I.
9. The question of extending the period of probation or of confirming, discharging or reverting the officers concerned should be decided invariably before the expiry of the specified period of probation.
11. He further submitted that the main ground on which the petitioner was discharged from service was that since the petitioner was involved in a criminal case he should be discharged from service. He submitted that it is true that the petitioner was allegedly involved along with others in criminal case for offence Under Sections 302, 307, 325, 324, 323, 452, 143, 148 and 149 of the Indian Penal Code and Section 135 of the Bombay Police Act, 1951. The charge-sheet was filed on 3-2-1997. Looking to the fact that there was no prima facie case against the petitioner he has been released on bail. However, there was no provision of law under which the petitioner can be discharged from service when the criminal case is going on against him. Thus, if the petitioner is discharged from service on the ground of his alleged involvement in the aforesaid case, the Order of discharge was liable to be quashed and set aside.
12. He has submitted that the Order of discharge was mainly based on the fact that the criminal case was pending against the petitioner. He further submitted that in any view of the matter when the petitioner has been acquitted by the competent Criminal Court. He submitted that it is significant to note that while acquitting the petitioner of the charges, the learned Addl. Sessions Judge, Mehsana has in his Order dated 25th August, 1999, clearly observed that almost a false complaint was lodged against specified persons including the petitioner and that the clear case of accident has been made as a case of murder Under Section 302 of the I.P.C. It was further observed that it is because of the particular vengeance between two communities and the petitioner being 'Barot' he (petitioner) is involved by the 'Patels' with ulterior motives. This judgment leave no manner of doubt whatsoever that a false case has been filed against the petitioner, which has ultimately resulted into discharge of the petitioner from service, and therefore, also he ought to have been discharged from service.
13. He further submitted that the petitioner could have been removed on the ground of unsuitability. In all, the petitioner has served though under training for more than 3 (three) years. There was no timely communication of the assessment of work of the petitioner as envisaged by the judgment of the Hon'ble Apex Court in the case of Sumati P. Shere v. Union of India reported in : (1989)IILLJ228SC . In Paras 5 and 6 of this case, Hon'ble Supreme Court has held as under:
5. We must emphasize that in the relationship of master and servant there is a moral obligation to act fairly. An informal, if not formal give and take on the assessment of work of the employee should be there. The employee should be made aware of the defect in his work and deficiency in his performance. Defence or deficiencies, indifference or indiscretion may be with the employee by inadvertence and not by incapacity to work. Timely communication of the assessment of work in such cases may put the employee in the right track. Without any such communication, in our opinion, it would be arbitrary to give a movement Order to the employee on the ground of unsuitability.
6. There cannot be any dispute about this proposition. We are not laying down the rule that there should be a regular enquiry in this case. All that we wish to state is that if she is to be discontinued, it is proper and necessary that she should be told in advance that her work and performance are not upto the mark.
13.1 In view of the aforesaid judgment learned Advocate for the petitioner submitted that if the petitioner has been communicated his shortcoming or lapses at the appropriate time, he would have improved himself and made himself suitable. It is pertinent to note that by the Order dated 16-7-1998 while extending the period of probation of the petitioner for six months, it was only stated that his performance did not appear to be satisfactory. It was not stated as to how and in what manner his performance was not found to be satisfactory. This was the only commutation which was not sufficient in the eye of law. No adverse remarks were communicated to the petitioner at any point of time regarding his work or conduct.
14. The petitioner further submitted that the overall performance of the petitioner during the whole period was satisfactory and this opinion of the competent authority to the contrary is not correct. From 1-8-1996 to 6-1-1999 the petitioner has earned ten meritorious awards, some of them in cash. These awards have been noted in the service book of the petitioner. On the basis of this material, it can be reasonably said that the performance of the petitioner was satisfactory and the statement made in the discharge Order that he was unfit for the post of P.S.I., is contrary to the record.
15. Learned Advocate for the petitioner has further submitted that the impugned Order of discharge is absolutely without jurisdiction and void. It is violative of Articles 311(1) and (2) of the Constitution of India. Both the provisions are attracted in the present case. It is submitted that the petitioner has been discharged from service but it is not a simple Order of discharge from service but it amounts to penalty and it casts a stigma on the petitioner because the Order of discharge clearly states that he is not fit to be in service. Of course, no reasons are given why he deems unfit. Therefore, it amounts to dismissal and or removal from service which is by way of penalty. Under the circumstances an inquiry ought to have been held and protections under Article 311 ought to have been given to the petitioner which is admittedly not done in the present case. It is settled law that as in the present case of the petitioner, provision of Article 311 are applicable to a probationer as being unsuitable to the post for unsatisfactory work or being involved in a criminal case. He further submitted that as per the Police Manual the petitioner is required to be given advance report regarding the opinion and he must be allowed to have his say regarding the report which is admittedly not done. It is also provided that the reasons are also to be recorded for giving the report which is also not done. Therefore, the Order of discharge is without following such a procedure, bad and illegal.
16. The learned Counsel for the petitioner further submitted that the petitioner completed his training successfully of twelve (12) months at Junagadh Police Training College and he was appointed by the aforesaid Order dated 14-12-1996 on temporary basis for indefinite period. The said Order also stated that the trained persons were being appointed. In the service book of the petitioner also, it was stated that he was appointed by the Order dated 14-12-1996. The petitioner was not appointed on probation but he was to be designated as Probationary Police Sub-Inspector as per Rule 116(2) of the Gujarat Police Manual. The petitioner was appointed in the pay-scale of Rs. 1640-2900. Therefore, as per Rule 89 of the Gujarat Police Manual read with Rule 9(16)(c) of the B.C.S.R. the petitioner's services could have been terminated by giving one month's notice or in lieu thereof one month's pay plus allowance. No such notice or notice pay and allowances were given to the petitioner, and hence, the impugned Order is illegal and invalid and is required to be quashed and set aside.
17. Learned Advocate for the petitioner further submitted that the Order of discharge cannot be sustained because even assuming without admitting that there was any temporary appointment, even then as per the Police Manual as well as the instruction contained under GAP.PSC/1064-G dated 10-2-1964 the petitioner's services could not have been terminated without giving notice in writing of one month or giving opportunity. Even as per Police Manual Rule 89 though the petitioner's services is not temporary but assuming that it is considered to be temporary as contained in the previous affidavit, even then it can be terminated only by giving notice in writing by the appointing authority. In the present case, no such notice is given and the Order of discharge is not passed by the appointing authority but the subordinate officer. Therefore, the said Order of discharge is against the provisions of the Police Manual as well as GAD circular in this behalf.
18. He further submitted that the Order regarding representation of the petitioner for the reasons stated therein is not legal and proper. The authority which has the power to discharge has always power to review the said Order. The same is even contrary to General Clauses Act. The same is also in disregard of the High Court Order which permitted withdrawal to make representation.
19. The petitioner has filed affidavit-in-rejoinder against the affidavit-in-reply. The said rejoinder has been filed somewhere on 17-7-2001. It was further submitted that the grounds taken up in the affidavit-in-reply for the discharge of the petitioner cannot be sustained at all. The main reason for discharge is the criminal case as admitted in the earlier affidavit. The Government Officer cannot file contrary affidavit in this petition and maintain that the performance of the petitioner was not upto to the standard or satisfactory, and therefore, the petitioner was discharged. It is further submitted that the deponent is bound by his own admission in the earlier affidavit filed in Special Civil Application No. 897 of 1999 in which it is clearly stated that pendency of the criminal case was the only or if at all a dominant reason, a copy of which has been produced in this behalf. It was, therefore, submitted that this is therefore, clearly an afterthought which may not be permitted. He further submitted that as it is clear even from the reports which are produced that there is clear manipulation in the report dated 27th June, 1998 which is annexed to the letter filed by the District Superintendent of Police, Surendranagar. He further submitted that thus there is clear interpolation and in Column No. 9, it was clearly mentioned that the performance of the petitioner was satisfactory, thereafter it seems that somebody has interpolated with the report and struck off the word 'sari' and put the word 'Nabli' without any initials being put which shows that this is really an afterthought to create a defence which is not sustainable. The reason is clearly mentioned in the said report that only because the petitioner was involved in the criminal case, the case in favour of the petitioner cannot be given. Therefore, the interpolation in Column No. 9 and the word 'Nabli' cannot now be utilised against the petitioner.
19.1 He further stated that the second report of the D.S.P., Surendranaga dated 13-1-1999 was filed after completion of his probation period on 6-1-1999 and therefore, it cannot be considered. He further submitted that in that report without recording any facts, it is mentioned that the work was not satisfactory and the main reason mentioned here is pendency of the criminal case. On 13-1-1999, thus even before the report could have reached by post, the Rang I.G.P., Rajkot who has discharged the petitioner, the Order of discharge was already passed. Therefore, it is not correct by very nature of things that the report made on 13-1-1999 sent by post from Surendranagar could never have reached the office of Range D.I.G., Rajkot on that day itself before passing the Order. However, 14-1-1999 was a holiday being Uttarayan and the report could not have been received earlier than at least 15th January, 1999, an therefore, the Order is passed without assessment of his performance. Thus even this is also manipulated by the Range D.I.G., Rajkot had no report against him when he passed the Order of discharge. Even, it is surprising how such a report could have been made after his probation period was over on 6-1 1999. Even, the fact why it was considered unsatisfactory has been never communicated to him though it is required Under Rule 116 of the Police Manual (Part I) in this behalf.
20. In support of his aforesaid submission, the learned Advocate for the petitioner has relied upon the following cases.
21. He has relied upon the case reported in : (1986)IILLJ145SC in the case of Om Prakash Maury a v. U.P. Co-op. Sugar Factories Federation Lucknow and Ors. In Para 3 of this judgment, the Hon'ble Supreme Court has observed as under:.Since Regulation 17 does not permit continuation of an employee on probation for a period more than two years, the necessary result would follow that after the expiry of two years' probationary period, the employee stands confirmed by implication....
22. He has also relied upon the case of State of Punjab v. Dharam Singh reported in AIR 1968 SC 12. In Para 5 of the said judgment, Hon'ble Supreme Court has held as under:
5. In the present case, Rule 6(3) forbids extension of the period of probation beyond three years. Whereas in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express Order of confirmation he cannot be deemed to continue in that post as a probationer by implication the reason is that such implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post of completion of the maximum period of probation has been confirmed in the post by implication.
23. Learned Advocate for the petitioner has relied upon the decision of the Hon'ble the Supreme Court in the case of M.K. Agarwal v. Gurgaon Gramin Bank and Ors. reported in : [1987]3SCR640 . In this judgment, the Hon'ble Supreme Court in Para 4 held as under:
The first point need not detain us. The period of the probation was one year in the first instance. The employer bound to extend it only for a farther period of six more months. The limitation on the power of the employer to extend the probation beyond 18 months coupled with the further requirement that at the end of it, the services of the probationer could either be confirmed or discharged render the inference inescapable that if the probationer was not discharged at or before the expiry of the maximum period of probation, then there would be an implied confirmation. There was no statutory indication as to what should follow in the absence of express confirmation at the end even the maximum permissible period of probation.
24. He has also relied upon the judgment in the case of Mazharul Islam Hashmi v. State of U.P. and Anr. reported in : AIR1979SC1237 . In Para 25 Hon'ble Supreme Court has held as under:
25. It was observed in that case that it is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. The main requirements of a fair hearing as pointed out by the Court earlier are : (i) A person must know the case that he is to meet; and (ii) He have an adequate opportunity of meeting the case. These rules of natural justice however operate in void of a statute. Their application can be expressly or implicitly excluded by the Legislature but such is not the case here on the contrary the two circulars issued by the State Government to which a reference has been made earlier expressly imported these principles of natural justice and required that in all cases in which the services of an officer or servant were to be determined on the ground of his unsuitability they must be given an opportunity of personal hearing by the Committee. The whole purpose of the personal interview was that when it was proposed to declare an official unsuitable for absorption the committee had to afford him an opportunity to appear before it and clear up his position. Since, it is nobody's case that such an opportunity was afforded to the appellant, we would hold mat the Order dated August 28, 1967 of termination of his services passed by the State suffers from the serious legal infirmity and must be quashed. He will therefore, have to be treated as having continued in service till the age of superannuation and entitled to all benefits incidental to such declaration.
25. Learned Advocate for the petitioner has relied on the case of Anoop Jaiswal v. Government of India and Anr. reported in : (1984)ILLJ337SC . In Paras 12 and 13, the Hon'ble Supreme Court has held as under:
12. It is, therefore, now well settled that where the form of the Order is merely a camouflage for an Order of dismissal for misconduct it is always open to the Court before which the Order is challenged to go behind the form and ascertain the true character of the Order. If the Court holds mat the Order though in the form is merely a determination of employment is in reality a cloak for an Order of punishment, the Court would not be debarred merely because of the form of the Order in giving effect to the rights conferred by law upon the employee.
13. In the instant case, the period of probation had not yet been over. The impugned Order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline namely arriving late at the Gymnasium and acting as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries were made behind the back of the appellant. Only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of. Even though the Order of discharge may be non-committal, it cannot stand alone, though the noting in the file of the Government may be irrelevant the cause of the Order cannot be ignored which is the basis or foundation for the petitioner should be read along with the Order for the purpose of determining its true character. If one reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the Order and that but for that incident, it would not have been passed then it is inevitable that the Order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution.
26. Learned Advocate for the petitioner has also relied upon a decision of the Hon'ble Supreme Court in the case of Govindraju v. K.S.R.T.C. reported in : (1986)IILLJ351SC . In Para 7 of this judgment, the Hon'ble Supreme Court has held as under:.Once a candidate is selected and his name is included in the select list for appointment in accordance with the Regulations he gets a right to be considered or appointment as and when vacancy arises. On the removal of his name from the select list serious consequence entail as he forfeits his right to employment in future in such a situation even though the Regulations do not stipulate for affording any opportunity to the employee the principles of natural justice would be attracted and the employee would be entitled to an opportunity of explanation though no elaborate enquiry would be necessary. Giving an opportunity or explanation would meet the bare minimum requirement of natural justice. Before the services of an employee are terminated resulting into forfeiture of his right to be considered for employment, opportunity of explanation must be afforded to the employee concerned.
27. Learned Advocate for the petitioner has relied upon decision in the case of Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences Calcutta reported in : [1999]1SCR532 . In Paras 22, 32 and 38, the Hon'ble Supreme Court has held as under:
22. If findings were arrived at in inquiry as to misconduct behind the back of the officer or without a regular departmental enquiry the simple Order of termination is to be treated as founded on the allegations and will be bad. But, if the inquiry was not held no finding were arrived at and the employer was not inclined to conduct an inquiry but at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the Order would not be bad. Similar is the position if the employer did not want to inquire into the trustworthiness of the allegations because of delay in irregular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstances, the allegation would be a motive and not the foundation and the simple Order of termination would be valid.
32. Thus, it depends on the facts and circumstances of each case and the language or words employed in the Order of termination of the probationer to judge whether the words employed amount to stigma or not.
38. On this point therefore, we hold that the words amounting it stigma need not be considered in the Order of termination, but may also be contained in an Order or proceedings referred in the Order of termination or in an annexure thereto and would vitiate the Order of termination. Point No. 3 is decided accordingly.
28. Learned Advocate for the petitioner has also relied upon a decision in the case of V.P. Ahuja v. State of Punjab reported in : (2000)ILLJ1099SC . In Paras 5 and 7, the Hon'ble Supreme Court has held as under:.The Order by which the services of the appellant were terminated has already been quoted by us above. The Order ex-facie, is stigmatic as also punitive. The Order is founded on the ground that the appellant had failed in the performance of his duties administratively and technically. It is for this reason that the services of the appellant were terminated. As pointed out above, the Order, ex-facie is stigmatic.
7. A probationer, like a temporary servant is also entitled to certain protection and his services cannot be terminated arbitrarily nor can those services be terminated in a punitive manner without complying with the principles of natural justice.
29. Over and above, the above Supreme Court judgments the learned Advocate for the petitioner has also relied upon the judgment of the Division Bench of this Court in the case of Anopsinh Jatubha v. V.K. Gupta D.S.P. reported in 1986 (2) GLR 753. He has also relied upon the judgment of this Court in the case of Miss Chaula Kuruwa v. Tourism Corporation of Gujarat Ltd. and Ors. reported in 1991 (2) GLR 775 : 1991 (1) GLH 383. He has also relied upon a judgment of this Court in the case of Ramniklal G. Gohil v. D.S.P. Amreli and Anr. reported in : (1994)ILLJ721Guj and also another judgment of this Court in the case of Brahmbhatt Bharatkumar v. State of Gujarat and Anr. reported in 1992 (2) GCD 914 (Guj.).
29.1 He has also relied upon a judgment of the Division Bench of this Court in the case of Dahyabhai Mangalpur Gosai v. Cantonment Board, Ahmedabad and Anr. reported in 1993 (2) GLH 478. After referring to the judgment of the 'Supreme Court in the case of Om Prakash (supra) in Para 4 the Division Bench has observed as under:.Thus, we find that on the lapse of the extended period of probation on 15-6-1980 there was no possibility of holding that the petitioner was on probation despite no confirmation Order having been issued. Here, also Rule 6 does not expressly lay down as to what would be the status of the servant on the expiry of the period of probation initial or extended where no confirmation takes place. As held by the Supreme Court in Om Prakash Maurya v. U.P. Co-operative Sugar Factories Federation Lucknow and Ors. : (1986)IILLJ145SC , the necessary result would be after the expiry of the period of probation which in the present case lapsed as per Resolution No. 10 dated 17-4-1980 at the end of 15-6-1980 the petitioner must be deemed to have been confirmed by implication. We find on facts there is no escape from this principle countenanced by the Apex Court in the land.
Contention of learned A.G.P. Ms. Nandini Joshi.
30. Ms. Nandini Joshi learned A.G.P., for the respondents has relied upon the affidavit-in-reply dated 19-6-2001 filed by Mr. P.L. Jani Special I.G.P., Rajkot Range, Rajkot. In the affidavit, it is stated that there is an assessment report sent by the D.S.P., to the Spl. I.G.P., wherein it has been stated that the performance of the petitioner is poor. He has further stated that as per the Government Resolution dated 30-3-1989 if the performance of the probationer is not found satisfactory in that case, he can be discharged from service. It has been stated that the petitioner was discharged on two counts. Firstly, after his theoretical training and after 12 (twelve) months of practical training he was given independent charge for 6 (six) months, and thereafter, assessment report was sent by the District Superintendent of Police. The performance of the petitioner was found unsatisfactory, and therefore, he was again continued for 6 months' practical training and even after that extended training period the District Superintendent of Police and Police Inspector has opined that the performance of the petitioner was poor, and secondly, as criminal case was lodged against the petitioner he was in the theoretical training, he was discharged.
31. Ms. Joshi learned Assistant Government Pleader has further relied upon the affidavit of P.L. Jani dated 17-10-2001. On the basis of the said affidavit, learned A.G.P. for the respondents stated that the 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 principles of natural justice have no application in the case of termination of the services of a probationer during the period of probationer since he has no right to hold the post.
32. The learned A.G.P., further submitted that as per the Police Manual when a candidate is selected he has to undergo two types of training theoretical and practical. The candidate is sent for practical training on his successful completion of theoretical training. The petitioner was selected through G.P.S.C. The petitioner-probationer was sent to the Police Training College, (Junagadh) for theoretical training by the Order dated 4-12-1995 passed by the Director General of Police under regulation of the Police Manual.
33. The learned A.G.P., has further submitted that on completion of the theoretical training the petitioner was sent for practical training for a period of 18 months by an Order dated 14-12-1996 as per Regulation 116 of the Police Manual. As stated in the said Order, the petitioner was sent for the practical training for the period between 16-12-1996 to 15-6-1998. She has further stated that the performance of the petitioner at the practical training was not found sufficient enough so as to confirm the petitioners service, an Order extending the probation period for six months was passed. The petitioner was given a chance to improve his overall performance level by extending his probation period for a period of further six months from 7-7-1998 to 6-1-1999. Thus, in total the petitioner was given practical training for 24 months.
34. The learned A.G.P., has further submitted that on completion of the extended period of probation i.e. 6-1-1999 the report of assessing the performance of the petitioner was sent by the District Police Officer by letter dated 13-1-1999 to the Special Inspector General of Police. The Special I.G.P. on receipt of the report by an Order dated 13-1-1999 discharged the petitioner from the services on the ground that the petitioner was not found suitable for the said post.
35. Learned A.G.P., for the respondent-Government has relied upon Para 11 of the affidavit-in-reply and stated that in the present case as per Regulation 116(10) on completion of first extended six months of probation and as per Item 10 of Government Resolution dated 30-3-1989, Annexure-IV page 138 to the affidavit-in-reply, on completion of the probation period within three months an Order either confirming or discharging the probationer should be passed. In the present case, the probation period of the petitioner ended on 6-1-1999. On completion of the probation period, the assessment report was sent to the Special Inspector General of Police and on the basis of the report the Special Inspector General of Police on 13-1-1999 i.e., within one week from the completion of the probation period passed an Order of discharge. The learned A.G.P., further submitted that the Hon'ble Supreme Court has ruled that 'permanent' status can be acquired only by a specific Order confirming the employee on the post held by him on probation. The learned A.G.P., further submitted that in the present case, there is specific regulation as well as Government Resolution under which after completion of the probation period a specific Order, confirming/discharging the probationer is required to be passed by the competent authority.
35.1 In support of the aforesaid contention learned A.G.P., has relied upon the judgment of the Hon'ble Supreme Court in the case of Chandra Prakash Shahi v. State of U.P. and Ors. reported in : AIR2000SC1816 . In this judgment, the Hon'ble Supreme Court has observed in Paras 10 and 28 as under:
35.1 A 10. A perusal of the above provision would indicate that the period of probation is two years. The Regulation is silent as to the maximum period beyond which the period of probation cannot the extended. In the absence of this prohibition, even if the appellant completed two years of probationary period successfully and without any blemish, his period of probation shall be treated to have been extended as a 'permanent' status can be acquired only by means of a specific Order of confirmation.
35.1B 28. The important principles which are deducible on the concept of 'motive' and 'foundation' concerning a probationer, are that the a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question....
35.2 She also relied upon the judgment of the Division Bench of this Court (Coram : M.R. Calla (as he was then) and R.R. Tripathi, JJ.) in the case of C.G. Sharma v. State of Gujarat reported in 2001 (3) GLR 2319. In Paras 9, 10 and 11 of this judgment this Court has observed as under:
35.2A 9. We have considered the averments made on behalf of both me sides. So far as the first point is concerned, we find that the point has been fully dealt with by the learned single Judge in the context of Sub-rule (4) of Rule 5 of the Gujarat Judicial Service Recruitment Rules, 1961 which is reproduced as under:
(4) Unless otherwise expressly provided every person appointed under the proceedings Sub-rules shall be on probation for a period of two years and on the expiry of such period, he may be confirmed; if,
(a) there is a vacancy; and
(b) his work is found to be satisfactory
large number of authorities including the following cases, were cited:
(1) Dayaram v. State of M.P. reported in : AIR1997SC3269 .
(2) Anoop v. Government of India reported in : (1984)ILLJ337SC .
35.2B 10. As against it, the learned Advocate General Mr. S.N. Shelat placed strong reliance on the decision of the Apex Court in the case of State of Maharashtra v. Saboji reported in : (1979)IILLJ393SC . The rule under consideration in this case before the Supreme Court was to the following effect:
Unless otherwise expressly directed every person appointed in the last foregoing Sub-rule shall be on probation for a period of two years and on the expiry of such period he may be confirmed if:
(a) there is a vacancy
(b) his work is found to be satisfactory.
Besides above cases, large number of authorities have been cited before us on behalf of both the sides. However, we find mat it is not necessary for us to go into the details of all those cases for the simple reason mat Sub-rule (4) of Rule 5 of the Gujarat Judicial Service Recruitment Rules, 1961 is in para materia with the rule, which was under consideration in the case of State of Maharashtra v. Saboji (supra) and we find that even if the two years' period expires and the probationer is allowed to continue after a period of 2 (two) years automatic confirmation cannot be claimed as a matter of right because in terms of the Rule, the work has to be satisfactory which is a pre-requisile or pre-condition for confirmation, and therefore, even if the probationer is allowed to continue beyond the period of two years, as mentioned in the Rule, there is no question of deemed confirmation. Language of the Rule itself excludes any chance of giving deemed or automatic confirmation because the confirmation is to be Ordered if there is a vacancy and if the work is found to be satisfactory. Therefore, even if there is a vacancy unless and until the work is found to be satisfactory, there is no question of confirmation in the light of the language of this rule, is rule out and it has also been held to be so in the case of State of Maharashtra v. Saboji (supra), and the language of these two rules is in para materia. The learned single Judge has rightly come to the conclusion that two rules are identically worded and in the case of State of Maharashtra v. Saboji (supra) the Apex Court had held that plain meaning of the rule is that there is no automatic confirmation on the expiry of probation period of two years and that on the expiry of the said period of two years, the confirmation Order can be passed only if there is vacancy and the work is found to be satisfactory. The rule also does not say that the two years period of probation, as mentioned in the rule, is the maximum period of probation and the probation cannot be extended beyond the period of two years. In our opinion, therefore, the learned single Judge has rightly held that there is no question of automatic or deemed confirmation.
36. She has further submitted that as the Order of discharge is not punitive in nature no procedure under Article 311 of the Constitution of India is required to be followed. She has further submitted that no procedure is laid down that the petitioner is required to be given advance report regarding the opinion and he must be allowed to have his say regarding the report. She has further submitted that under the regulations no such procedure is laid down.
36.1 As regards the affidavit-in-rejoinder is concerned, learned A.G.P., for the respondent-Government has relied upon the further affidavit filed on behalf of the Government particularly Para 13.28 on page 117 and denied the contentions raised by the petitioner in the affidavit-in-rejoinder in this behalf. After denying the said rejoinder, it was stated that in the earlier affidavit it is clearly stated that the reason for discharge of the petitioner from service is that the petitioner was not found suitable for the said post. It was further submitted that the District Superintendent of Police, Surendranagar by letter dated 27-6-1998 had sent the assessment report of the petitioner to the Competent Authority stating that the performance of the petitioner was poor and there is no interpolation in the report. It was further submitted that as Special Inspector General of Police, Rajkot had found corrections in the said repot, a certified copy of the report was asked by the Special Inspector General of Police, Rajkot from the District Superintendent of Police for verifying the same. The District Superintendent of Police sent the certified copy of the said report after verifying that the officer who had made the report while assessing the performance of the petitioner did the correction in the said report. It was further submitted that on the basis of the said report, the probation period of the petitioner was extended for giving chance to the petitioner for improving. Had the assessment of the petitioner been good then there was no reason for extending the probation period. Therefore, the allegation of the petitioner regarding interpolation cannot be sustained. It was further submitted that after completion of the extended probation period on 6-1-1999 the assessment report of the petitioner was sent by the District Superintendent of Police, Surendranagar on 13-1-1999. The report was delivered in the office at Rajkot on the same day as the distance between Surendranagar and Rajkot is hardly 100 Kms. It was further submitted that on receipt of the report, the Order of discharge was passed by the authority after considering the same. It was submitted that the criminal complaint cannot be said to be the foundation of discharge Order, because even while extending probation period, the reason shown by the authority is unsatisfactory performance and no other reason.
Conclusion
36.2 I have also considered the rival contentions in his behalf. In my view, the foundation of Order of discharge was the assessment report assessing the performance of the petitioner during the probation period. In my view, while assessing the suitability of the petitioner for the post of Police Sub-Inspector, emphasis was on the assessment arrived at by the authority at the end of the training period. The overall assessment of the performance of the petitioner was found to be poor and unsatisfactory for discharging his duties of the post of Police Sub-Inspector held by the petitioner independently of the pendency of the criminal case. The authority has never placed sole reliance on criminal case for not retaining the services of the petitioner. The petitioner being a member of disciplined force like police services judging suitability of a person like the petitioner, the aspect of pendency of criminal case is one of the requirements by which performance as well as character of law enforcing officer can be judged by the authority. The authority is well within the limit to vouchsafe the conduct of the petitioner whether to retain him in service or not. In the facts and circumstances of the case, pendency of criminal case cannot be said to be the foundation of the Order of discharge.
37. I have also considered the facts giving rise to the petition and also the Regulation 116(1) of the Police Manual and also Rules 89 and 90 in this behalf. I have considered the judgments in the cases of Om Prakash Maurya (supra), Dharam Singh (supra), Mazharul Islam (supra), Anoop Jaiswal (supra), Govindraju v. K.S.R.T.C. (supra), M.K. Agarwal; (supra), Dipti Prakash Banerjee (supra), V.P. Ahuja (supra), and also the judgment of this Court in the case of Anopsinh Jatubha (supra). I have also considered the affidavits filed on behalf of the Government from time to time and also the submissions made by the learned A.G.P., in this behalf. I have also considered the judgment of the Hon'ble Supreme Court in the case of Chandra Prakash Shahi (supra) and the judgment of this Court in the case of C.G. Shartna (supra) in this behalf. In my view, in this case, the petitioner was holding a sensitive post in the Police Department and the performance of the petitioner was found to be unsatisfactory. In my view, the petitioner was continued for six months' practical training and even after that extended training period, the District Superintendent of Police and Police Inspector have opined that the performance of the petitioner was poor. In my view, a probationer has no right to hold the post on which he been appointed on probation. In the present case, the probation period, of the petitioner ended on 6-1-1999. On completion of the probation period assessment report was sent to the Special I.G.P., and on the basis of the report the Special I.G.P., on 13-1-1999 within one week from the completion of the probation period passed an Order of discharge.
37.1 The learned A.G.P., has rightly relied upon the judgment of the Hon'ble Apex Court in the case of Chandraprakash Shahi (supra) and also the judgment of the Division Bench of this Court in the case of C.G. Sharma (supra). In my view, the Hon'ble Supreme Court has ruled out the proposition of automatic confirmation on completion of the period of probation. The Hon'ble Supreme Court has ruled that permanent status can be acquired only by means of a specific Order confirming the employee on the post held by him on probation. In the present case, there is specific regulation as well as Government Resolution under which after completion of the probation period, specific Order confirming/discharging the probationer-petitioner is required to be passed by the competent authority as there was no specific Order. Under Regulation 116(10) of Gujarat Police Manual, if the performance of a probationer at the end of the practical training is not found suitable so as to confirm the services of the probationer, then in such an event the competent authority may further extend the period of probation for a period of six months. Such an extension is given to the probationer so that he is given chance to improve his performance to the level expected from a person holding the rank of P.S.I. so that the petitioner becomes suitable for confirmation. In his case as per the regulation, the petitioner was given a chance to improve his performance, but unfortunately the petitioner could not reach to that expected level, and therefore, the petitioner was required to be discharged from service. The performance of the petitioner is evaluated by taking into consideration the work performed by the petitioner for the whole of the period of practical training and not only for any particular period of the practical training. The evaluation of the work of a probationer is to be done by the concerned authority and the Court may not sit in appeal over the said evaluation. In my view, the authority has rightly considered the work of the Police Sub-Inspector, his ability, behaviour, discipline, the method of working, co-ordination with the staff, his impression in the society, his behaviour with the criminals etc., and therefore, the authority has rightly discharged the petitioner from service.
37.2 In this case, the petitioner is a probationer and he has no right to hold the post in question and his services can be terminated at any time during or at the end of the probation on account of his general unsuitability for the post in question. The Order is simply termination and there is no question of any motive or foundation in the case of the petitioner. No stigma has been attached to the case of the petitioner, and therefore, there is no violation of Article 311 of the Constitution of India, and therefore, the Order is legal and valid.
38. In my view, none of the contentions raised by the petitioner is required to be accepted and the contentions raised by the respondent-Government are required to be accepted.
39. In my, view therefore, the petition is required to be rejected. Hence, the petition is dismissed with no Order as to costs. Rule discharged.