B.K. Mehta, J.
1. Since a common question of law arises in both these petitions, I intend to dispose them of by this common judgment. The facts of both these petitions, though lying in short compass, are different in both these applications and, therefore, they should be briefly but separately stated.
2. In Special Civil Application No. 2572 of 1980, the Petitioner was recruited as a constable in June, 1964 and was promoted as Head Constable in 1968. He was selected for Police Training as Police-Sub-inspector by Selection Committee on November 20, 1978 and was sent for training. On completion of his training period, which comprised of 12 months, he passed the examination on November 25, 1970 at the first trial and secured 4th rank in the merit list of 237 successful candidates. He was posted as Probationary Police Sub-Inspector in Mehsana district on December, 2, 1980 as trainee Inspector and was required to undergo training for a period of 18 months out of which last six months he was required to hold independent charge. On or about March 17, 1980, he was transferred and posted at Patan. According to the Petitioner, though his training was progressing satisfactorily, by communication dated September 17, 1980 issued by the District Superintendent of Police, Mehsana, respondent No. 2, herein his probationary services were terminated with the result that he was reverted to the original post of Head Constable. The Petitioner has challenged this order of termination of his probationary services inter alia, on the ground that the impugned order was bad in law and void as it was violative of Artsicle 14 and 16 of the Constitution and was mala fide and in any view of the matter no proper assessment of his performance during his probationary period was made by the competent authority.
3. No affidavit in reply either at the admission stage or after the Rule nisi was issued by this Court has been filed in this Special Civil Application No. 2572 of 1980.
4. In Special Civil Application No. 2245 of 1980, the Petitioner was selected and appointed as Police Constable on probation on July 10, 1978. Before his appointment on probation, he was sent for training to the Police Training School at Baroda which he completed successfully after undergoing training for a period of 18 months. On completion of the training, he was posted at Viramgam. His probationary period was for two years from the date of his appointment and was therefore, to expire on 10th July, 1980. Though his performance during the probationary period was satisfactory, by a notice of July 17, 1980 issued by the Superintendent of Police, Western Railway, Baroda respondent No. 2 herein, which was observed on the Petitioner on July 19, 1980, he was intimated that he was to be discharged after one month from the date of the receipt of the said notice from the local unit as his services were not required by the Government. The Petitioner challenges this notice of respondent No. 2, inter alia, on the ground that it was violative of Articles 14 and 16 of the Constitution of India, and that the competent authority has not assessed his performance for determining his suitability or otherwise for the post on which he was appointed on probation.
5. Pursuant to the notice issued by this Court in this petition as to why the petition should not be admitted, affidavit-in-reply of the Superintendent of Police, Western Railway, Baroda, has been filed, resisting the admission of the petition on the ground that the petitioner being a probationer, his services could be terminated at the end of his period of probation, if he is not found fit, and inasmuch as the Petitioner was arrested on 3-5-1980 at Viramgam station and a case under Section 65(a) read with Section 66(b) of the Bombay Prohibition Act has been registered against him, the deponent of the affidavit was of the opinion that the Petitioner was not suitable and fit to be continued in service any longer period and, therefore, by the impugned notice of 17th July 1980 his services were terminated as stated therein.
6. At the time of hearing of these two applications, Mr. S.A. Shah, learned Advocate, appearing for the petitioners in both these petitions, urged the following three contentions:
(1) The impugned order of termination of the probationary services of the respective petitioner was violative of Articles 14 and 16 of the Constitution, inasmuch as it is arbitrary since no valid reasons have been assigned specifically in the said order.
(2) The impugned order of termination of the probationary services of the respective Petitioner is bad in law and void, inasmuch as no assessment has been made by the competent authority about the suitability or otherwise of the Petitioner for the post on which he was appointed on probation since what has weighed with the respondents is the extraneous considerations which are not germane to the real issue in question.
(3) In any case, the respondents in Special Civil Application No. 2245 of 1980 have passed the impugned order without waiting for the result of the prosecution launched against the Petitioner in the said petition.
7. These contentions have been sought to be repelled on behalf of the respondents by urging that the appointments to a post on probation gives no right to the person so appointed to continue or to be confirmed On the post and his services may be terminated without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant or removing him from the services, because the termination of the employment of a probationer without any inquiry cannot be said to deprive him of any right to the post and, therefore, no punishment. According to the learned Assistant Government Pleader appearing for the respondents in Spl. Civil Appln No. 2245/80, the reply affidavit filed at the stage of admission clearly establishes that the conduct of the Petitioner was considered by respondent No. 2 in the said petition-the Superintendent of Police to be unsuitable for being confirmed on the post of Constable since be was involved in a criminal case for having committed offences under Section 65(a) read with Section 66(b) of the Bombay Prohibition Act and, therefore, there cannot be any complaint of the impugned order being violative of Articles 14 and 16 of the Constitution. He also urged a similar ground in Special Civil Application No. 2572/80, though no reply affidavit has been filed in the said petition. He pointed out from the affidavit-in-reply filed in Civil Application No. 2525 of 1981 filed in the present petition (Spl. C.A. No. 2572/ 80) opposing the interim relief prayed for by the Petitioner. He urged that the Petitioner of Sp. C.A. 2572/80, was involved as an accused in a criminal case for having committed an offence under Section 66(1)(b) read with Section 85(1) and (3) of the Bombay Prohibition Act, and also for having committed an offence under Section 323 of the Indian Penal Code, when he tried to assault a person in Patan on September 4, 1980. In paragraph 5 of the said affidavit-in-reply, in Civil Application, it has been stated as under:
5. With reference to the contents of paragraph 2 of the Civil Application, I say that the petitioner after passing PSI's course at P.T.C. Junagadh was allotted to Gandhinagar Range and he was appointed as Prob. P.S.I, and posted in Mehsana district for practical training for 18 months. He reported for training in Mehsana district on 3-12-79. During the practical training at Patan it was reported that he had beaten a citizen under drunken condition on 4-9-80 An offence was registered against him at Patan city Police Station C.R. No 226/80 u/a 868,85(1) & (3) Prohibition Act 110 BP. Act and 323 I.P.C. In view of his unsatisfactory conduct and moral turpitude while under training it was felt that he will not turn out to be a good Police Officer. It was decided to terminate the probation of the petitioner, and revert him to the substantive rank of Head Constable. His probation period was therefore terminated and he was reverted from the post of Prob. P.S I. to that of his substantive rank of Head Constable and posted to Baroda Rural District vide this office order No. A/251/80/7624 dated 20-9-80.
It is in the context of the above fact sit nation that I have to determine whether the Petitioners are entitled to any or all of the reliefs. It is a trite position of law that a probationer has no right to the post on which he is appointed as a probationer and his probationary services can be terminated without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant or removing him from the services since the termination of an employee on a probation cannot be said to deprive him of any right to the post and is, therefore, not a punishment (vide: Parshottamlal Dhinora v. Union of India : (1958)ILLJ544SC and State of Bihar v. Gopal Kishore : (1960)ILLJ577SC . It is also well settled that a probationer or a temporary servant can be discharged if it is found that he is not suitable for the post which he is holding and there are diverse factors which entered into consideration for confirming a person who is on probation. Even a particular attitude or a tendency displayed by an employee can have a bearing and influence the decision of the confirming authority while judging the suitability or fitness of a probationer for confirmation (vide: Dr. T.C.M. Pillai v. The Indian Institute of Technology : (1971)ILLJ530SC . The reversion of an officiating incumbent of a substantive post retaining his juniors on their officiating posts on the ground of his involvement in a criminal case may be violative of Articles 14 and 16 of the Constitution and in a given circumstance may amount to punishment of reduction in rank (vide: State of Uttar Pradesh v. Sughar Singh : (1974)ILLJ260SC . It cannot be gainsaid that some assessment of the suitability or otherwise of a person appointed on probation is necessary before it can be determined whether he should be confirmed or not. What should be the method and manner of assessment of his performance depends on the nature of the services, the functions assigned, the duties to be discharged and the powers which an incumbent of a post enjoys. Whether it should be periodical or only on the ever of completion of probationary period again depends upon complexity of duties; functions and powers of a probationer; but there should be some record from which such assessment can objectively be made by the confirming authority. In absence of such record, a decision of confirming authority 'may become subjective and too arbitrary. In a case of confirmation of a judicial Officer on probation, the Supreme court held that a less formal inquiry may be sufficient to determine whether a probationer, who has no fixed or fully, formed right to continue in service (treated in the eye of law as a case of 'no right' to continue in service) should be continued, and a confirmed Government servant's dismissal or removal is a more serious matter, and this difference must necessarily be reflected in the nature of the inquiries for the two different purposes (vide: Bishan Lal v. State of Haryana : (1978)ILLJ316SC . In the Manager Govt. Branch Press and Another v. D.B. Belliappa : (1979)ILLJ156SC the temporary employment of an incumbent on a non-gazetted Class IV post under Rule 5 of the Mysore Civil Services (Classification, Control and Appeal) Rules. 1957, as junior compositor in the Government Branch Press was terminated by a memorandum of January 3, 1967 informing the respondent-employee that his appointment was purely temporary and terminable at any time without any previous notice, and without reasons since his services were not required. The respondent-employee was successful before the Mysore High Court which set aside the impugned order of termination and the declaration granting all the back benefits was made. In appeal before the Supreme Court one of the contentions was that though the position taken by the Government Press authorities in the impugned order was that the services were being terminated without assigning reasons since they were not required, it could be spelled out from the show-cause-notice that the real cause of terminating the respondent's services was his unsuitability of the job or unsatisfactory conduct. The Supreme Court gave an opportunity to the appellant's counsel to satisfy the Court from the relevant files as to whether the real reason for terminating the services was the unsuitability of the respondent for the post which he was holding on temporary basis. The appellant could not produce any material from the relevant files to substantiate that contention. In that context, the Supreme Court speaking through Sarkaria J. held as under:
23... if the services of a temporary Government servant are terminated in
accordance with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability, for the job and/or for his work being insatisfactory or for a like reason which marks him off a class apart from other temporary servants who have been retained in service, there is no question of the applicability of Art.16.
24. Conversely, if the services of a temporary Government servant are terminated, arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment. Where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed to the authority making the impugned order of termination of the service, it is the duty of the authority to dispel that charge by disclosing to the court the reason or motive which impelled it to take the impugned action....
On the facts of that case, the Court held that since the services of the respondent-employee were terminated without giving any reason while some other employees junior to him were retained in the services, it was held that the termination of the services was made arbitrary and not on the ground of unsuitability or otherwise.
8. It is in the light of this settled legal position that I have to decide whether the grounds of attack as formulated on behalf of the Petitioners are well founded. It should be recalled that in Special Civil Application No. 2245/80 the reason which has been given in the impugned order of termination of probationary services was that the petitioner was to be discharged from the local unit since his services were not required by the Government. In the reply affidavit, an attempt has been made to justify the impugned decision of termination by referring to the involvement of the Petitioner in a criminal case where he was arrayed as an accused for having committed an offence punishable under Section 65 and Section 66 of the Bombay Prohibition Act. A bald statement has been made in the reply affidavit that since he was involved in the criminal case, respondent No. 2 was of the opinion that his conduct was pot satisfactory for being continued on the post on which he was appointed as a probationer. It is an admitted position that the order of conviction passed by the learned Judicial Magistrate, First Class (Railway) at Viramgam convicting the accused for the offence with which he was charged and sentencing him to undergo R.I. for one month and to pay a fine of Rs. 150/- was set aside and the Petitioner was acquitted of all the offences with which he was charged by the learned Additional Sessions Judge, Ahmedabad in Criminal Appeal No. 3 of 1981. This order of the learned Additional Sessions Judge acquitting the petitioner has become final since no appeal appears to have been preferred by the State Government and the Criminal Appeal No. 428 of 1981 preferred by the State Government against the original order of conviction of the learned Judicial Magistrate, First Class, Viramgam for enhancement of the sentence was dismissed as infructuous by this Court (Coram: N.H. Bhatt J) by its order of October 7, 1981 in light of the conviction being set aside by the learned Additional Sessions Judge, Ahmedabad (Rural) at Narol.
Similarly in Special Civil Application No. 2572 of 1980, the Petitioner was acquitted by the Court of learned Judicial Magistrate, First Class, Patan of all the offences with which he was charged by his order of May 30, 1981 and no appeal appears to have been preferred by the State Government against the said order.
9. In this backdrop of facts and the development which has taken place subsequent to the impugned order of termination of the probationary services of the respective Petitioner, I am of the opinion that both these petitions must be allowed for the reasons which are obvious. In the first place, to determine the suitability or otherwise of a probationer for confirmation on his post, reliance on his mere involvement in a criminal case would be too hazardous and slender consideration which can justify such a decision of great consequence to a Government employee. To grant powers of such a wide amplitude to the confirming authority may result into such an absurd situation that a person involved in a criminal case may be honourably acquitted by the highest court as having not committed any offence beyond any reasonable shadow of doubt would expose himself to such a serious consequence of loss of his right of being confirmed on the post on which he is selected and appointed on probation. It is not suggested that the authorities have to wait in all cases for the final decision in criminal prosecution that might have been launched against a particular employee acting on a post on probation. Some assessment has got to be made by the confirming authority before terminating the services of a probationer merely involved in a criminal case. Such a prima facie assessment can be made inter alia on the basis of the agent and reliable material on which the prosecution has been launched against a given probationer. Till such an assessment is made, it cannot be said on his mere involvement in a criminal case that he is not suitable for confirmation on the post on which he has been appointed on probation. As held by the Supreme Court in Bishan Lal's case (supra) some formal assessment has got to be made by the confirming authority though no formal and fullfledged inquiry as prescribed for holding disciplinary proceedings is required to be held. In the present case, the respondents have not been able to produce any material from the relevant files to satisfy the Court that the confirming authority had made some formal assessment about the suitability or otherwise of the Petitioners in light of the material such as one on of which the prosecution might have been launched by the State against (he Petitioners in the criminal Courts concerned. As a matter of fact, in Spl. Civil Application No. 2245/80 the ground on which the termination of the probationary service has been effected are skin to those on which the termination was effected in Bisan Lal's case (supra). The ground stated in the impugned order of termination of July 7, 1980 in Spl. Civil Application No. 2245/80 was that the Petitioner was relieved from the local unit since his services were not required by the Government. In Special Civil Application No. 2572/80 no reasons have been assigned as to why the confirming authority thought fit to terminate the probationary period. Only a held statement has been made in the impugned decision. In that state of affairs, therefore, I am of the opinion that the decision becomes too arbitrary and therefore, violative of Articles 14 and 16 of the Constitution of India and, therefore, they are required to be quashed and set aside.
10. The result is that both these Special Civil Applications should be allowed and the impugned orders of termination dated 17-7-80 in Spl. Civil Appln No. 2245/80 and dated September 17, 1980 in Spl. Civil Appln No. 2572/80 must be quashed and set aside by a writ of Certiorari and it is declared that the Petitioners continue to be on probation on the respective posts to which they were appointed. The competent authority of the State Government shall be at liberty to decide whether the Petitioners should or should not be confirm on the respective posts on which they were appointed as probationers according to the correct ingal principles and in light of what is stated above in this judgment. The Petitioner in Special Civil Application No. 2245/80 will be at liberty to move respondent No. 2 for the salary and allowances for the period commencing from the date of his discharge from the services till his reinstatement, and respondent No. shall determine as to whether he is entitled to such salary and allowances, if he has not been gainfully employed elsewhere and if so as to what amount he is entitled to. Similarly Petitioner of Special Civil Application No. 2572 of 1980 shall be at liberty to move the Deputy Inspector General of Police of the State Government of the salary, and allowances for the period commencing from 17th September 1980 till the date of his reinstatement on the post on which he was appointed as a probationer and the Deputy Inspector General of Police shall determine as to whether the Petitioner was so entitled, if he was paid the salary for the post on which he was appointed as a probationer or his original post to which he was reverted, and if so, what amount should be paid to him on that account.
Rule in each of these two petitions is made absolute accordingly with no order as to costs.