NANAVATI, J. :, J. ( 1 ) THIS appeal is filed by the petitioner who had filed Special Civil Application no. 4723 of 1984. The learned Single judge who heard that petition partly allowed it by granting some reliefs but confirming the order of termination. As the order of termination has been confirmed by the learned Single Judge, the Appellant has filed this appeal. The appellant was one of the persons who had applied for the post of Police constable. He was found to possess the qualifications as regards age, education, etc. , prescribed by Rule 70 of the Gujarat police Manual. Therefore, he was permitted to appear at the written test in general knowledge and arithmetic, contemplated by sub-rule (5) of the Rule. As he passed the said test, he was sent for training at the Police Training School baroda. He failed in the final examination held by the school and therefore he was discharged with effect from 1-5-1984 by an order dated 14-5-1984. ( 2 ) IT is the case of the Appellant that on his passing the written test in general knowledge and arithmetic, he was appointed as a Police Constable on temporary basis. No appointment order was issued to him, but he was asked to fill in one prescribed form which contained a bond and certain undertakings. He then became entitled for training in Batch No. 166 and again in Batch No. 167. It is his case that according to the Government Circular dated 1-1-1973 and the Government resolution dated 19-12-1979, he was entitled to certain grace marks and if those grace marks had been given to him, then he would have been declared as a successful candidate and would not have been discharged from service. In the alternative, his case is that the order of termination dated 14-5-1984 is illegal and bad as one months notice as contemplated by Rule 33 of the Bombay civil Services Rules was not given to him and also because by that order his services came to be terminated with retrospective effect, i. e. , from 1-5-1984. In the alternative, his case is that the order of termination dated 14-5-1984 is illegal and bad as one months notice as contemplated by Rule 33 of the Bombay civil Services Rules was not given to him and also because by that order his services came to be terminated with retrospective effect, i. e. , from 1-5-1984. ( 3 ) THE learned Single Judge held that circular dated 1-1-1973 and the government Resolution dated 19-12-1979 do not apply to the examinations which are held by the Police Training School, baroda, and as there are no rules providing for giving of grace marks in respect of the examinations held by the school, the appellant was rightly not given such a benefit, even though such benefits are given to other Government employees appearing in departmental examinations. The learned Single Judge also held that merely because the benefits of the said circular and the resolution were extended to the recruit Police Constables of batches no. 165 and 166, such benefits did not become available to the examinees of batch No. 167 and onwards because those benefits were given to the examinees of batches No. 165 and 166 under a mistake and because of intervention of the Court. Even though the appellant was one of the examinees of batch No. 166, he was not entitled to the benefit of grace marks as he had failed in two subjects. The learned Single Judge also held that there was no substance in the contention that the Circular dated 21-4-1984 is bad in law. On the question as to whether the appellant could be regarded as a government employee even before his passing the examination held by the Police training School, the learned Single Judge held that on completion of physical examination and on passing the written and oral tests, an order of appointment was issued to the appellant which contained a condition that his services were liable to be terminated without any previous intimation. On this basis, the learned Single Judge held that the appellant was a Government servant from the date on which he was selected and recruited, i. e. from 1-3-1983. Thus, the appellants contention that he was first appointed and then sent for training has been upheld by the learned Single Judge. On this basis, the learned Single Judge held that the appellant was a Government servant from the date on which he was selected and recruited, i. e. from 1-3-1983. Thus, the appellants contention that he was first appointed and then sent for training has been upheld by the learned Single Judge. But he accepted the contention raised on behalf of the respondents that as the appellant did not pass the final examination even after two attempts, he was liable to be discharged from service. Even though the learned Single Judge held that the order of termination was bad, inasmuch as the said order was passed with retrospective effect and as it was passed without giving one months notice, he was of the view that no order for reinstatement in service could be passed. It was held that the appellant was, at the most, entitled to one months salary for the notice-period. Accordingly, the petition was confirmed. The respondent no. 1 was directed to pay one months salary to the applicant in lieu of notice period. ( 4 ) WHAT is contended by the learned advocate for the appellant before us is that the learned Single Judge committed an error in holding that the circular dated 1-1-1973 and Government Resolution dated 19-12-1979 are not applicable to the examinations held by the Police training School. A bare reading of the circular, and the resolution reveals that they are in respect of departmental examinations held by the Government departments. The examination held by the police Training School at Baroda is not a departmental examination and therefore, in our opinion, the learned single Judge was right in holding that they were not applicable to the examination held by that school. It is no doubt true that the benefits available under that circular and the resolution were made available to the recruit police constables who had appeared at the final examination of batch No. 165, But that was by mistake. That becomes clear from the reply affidavit filed on behalf of the respondents and also the letter dated 12-4-1984 written by the principal of that school to the Director General of Police. Even though the said benefits did not to be extended to these recruits, due to courts intervention, those benefits had to be made available to them. That becomes clear from the reply affidavit filed on behalf of the respondents and also the letter dated 12-4-1984 written by the principal of that school to the Director General of Police. Even though the said benefits did not to be extended to these recruits, due to courts intervention, those benefits had to be made available to them. In order to see that no confusion could take advantage of the mistake committed earlier, an office order was passed on 21-4-1984 clarifying the actual position in that behalf. It is not as if that the circular dated 1-1-1973 and the government Resolution dated 19-12-1979 were applicable and that by the office order dated 21-4-1984 the authorities wanted to bring about a change. All along, except for the examinees of batches No. 165 and 166 and independently of the said Circular and resolution, indulgence by way of grace marks was shown to those recruitee-examinees who were failing in one subject only and were on the aggregate getting 60 per cent or more marks. This is made dear by the Principal of Police Training School, in his affidavit dated 25th August 1991 Therefore the first contention raised on behalf of the appellant deserves to be rejected. ( 5 ) FOR the same reasons, challenge to the office order, dated 21-4-1984 on the various grounds contained in para 9a of the petition will have to be regarded as misconceived, ( 6 ) THE next contention raised on behalf of the appellant is that the learned Single judge having held that the appellant was a Government servant with effect from 1st March 1983, and that the order of termination of his service was bad, ought to have ordered reinstatement in service. It was an order to hold that at the most the appellant was entitled to one months salary, for the notice period. On the other hand, while supporting the judgment of the learned Single Judge, the learned assistant Government Pleader appearing for the respondents, has challenged the findings that the appellant was a government servant and that the order whereby he was discharged from service was bad for non-payment of one months salary and because the discharge was with retrospective effect. It will, therefore, be necessary to consider firstly whether the said findings deserve to be accepted on the basis of the material on record. It will, therefore, be necessary to consider firstly whether the said findings deserve to be accepted on the basis of the material on record. ( 7 ) AS stated earlier, pursuant to the advertisement issued by respondent No. 2, the appellant had applied for recruitment as a Police Constable. As he was possessing the required qualifications as regards age, physique and education, he was permitted to appear in the written test. As he passed the written test, he was sent to the Training School. The dispute between the parties is whether he was appointed and then sent to the training School, or whether it was a provisional selection and a regular appointment was to follow on successful passing of the final examination held by the Training School. No order appointing the appellant has been produced on the ground that such formal order was not issued by the second respondent. The appellant relies only upon the recruitment rules for that purpose. Rule 70 of the gujarat Police Manual is the relevant recruitment Rule for the post of Head constable and Constable. Sub-rule (2) thereof describes the required qualifications as regards age, physique and education. Sub-rule (5) provides for a test in writing in general knowledge and simple arithmetic. Sub-rule (6) provides that initially a constable should be appointed on probation for 2 years. This Rule 70 appears in Section 2 of chapter II which deals with recruitment, appointment, probation, confirmation and seniority. Section 1 of the Chapter also contains certain rules regarding recruitment, but they are general in nature and not relevant for the purpose of deciding this appeal. Section 3 of this chapter n also contains general rules govering recruitment of the constabulary. Rule 83 contained therein is heavily relied upon for contending that he was already appointed as a Constable before he was sent for training. Rule 83 provides that if a candidate is provisionally selected for enlistment as a Constable, subject to medical examination, the Superintendent of Police or Deputy Commissioner of police, Headquarters will arrange to have the Recruit Roll filled up from the attention form and send it under his signature, with the candidates to the office in charge of Headquarters who will forward it with the candidate to the Civil surgeon on the day of the week fixed by the latter officer for examination of police recruits. It further provides that if the Civil Surgeon certifies the candidate sent to be fit on the Recruit Roll, the officer in charge of Headquarters will keep the candidate at Headquarters and will at once forward the Recruit Roll to the Superintendent of Police/deputy commissioner of Police, Headquarters, who will issue necessary appointment orders with respect to such candidate. Rule 89 is also relied upon. It provides for temporary appointments. It provides that orders sanctioning every temporary appointment which is not for a definite period, should make it clear that the appointment is made until further orders. It also provides for giving notice before termination of service of such temporary government servant. ( 8 ) CHAPTER III of the Manual provides for training. Rules 129 to 145 are in respect of training of constabulary Rule 129 provides for training of recruits at the Police Training School, Baroda where he receives training in musketry, drill, law and Police duties. The training extends over 8 months and is divided into four terms of two months each. An examination is to be held at the end of each term. Sub-rule (5) is important for our purposes and, therefore, it is quoted below:" (5) An examination will be held at the end of each term. Two successive failures in any of the terminal examination will result in the discharge of the recruit. At the end of 8 months training a final examination will be held. Two failures in the final examination will result in the discharge of the recruit. "relying upon Rule 129, it was submitted by the learned Counsel for the respondents that till the recruit successfully passes the examination, he does not become eligible for appointment as a constable and that though Rule 129 does not appear in Chapter II, which contains recruitment rules, looking to the scheme of the recruitment of Police constables, it has to be read along with rules 70 and 83. On the other hand, it was submitted that though successful completion of the training prescribed by rule 129 is necessary for being continued in service, that is not a condition precedent to appointment as a constable. ( 9 ) WHAT is required to be noted is that rule 129, provides for training to those recruits who are about to join the police force. ( 9 ) WHAT is required to be noted is that rule 129, provides for training to those recruits who are about to join the police force. It is an admitted position that till they become properly qualified after successfully undergoing the training, they are not invested with powers that can be conferred on a Police Constable. The learned Single Judge, relying upon the circumstances that Rule 129 contemplates discharge from service and payment of salary while the recruit is under training, came to the conclusion that a recruit does become a Government employee and therefore, he should be considered as a temporary Government servant. The second circumstances would not justify that conclusion in view of the Division bench decision of this Court in Special civil Application No. 139 of 1974 decided on 18-3-1975. The question which was referred to the Division Bench was "who is the appointing authority in case of direct recruits, who are taken up for training as P. S. I. " In that case also, a contention was raised in respect of appointment on the post of PSI that as the trainee is given "salary" and not "stipend" and as the period spent by him during the course of his training is to be treated as duty, that clearly indicates that the selection is not merely for the purpose of training but is also for appointment. While dealing with that contention, the Division Bench observed that during the course of training of a candidate at the training school, he is not authorised to exercise any of the powers as PSI. He is either referred to as a candidate under training or as a cadet. This would clearly show that the probationary appointment order can be passed only at the end of the training. Giving of salary instead of stipend is with a view to give liberal treatment to the persons who are willing to be recruited as Sub-Inspectors of Police, so that they can be attracted to that post. This change was found necessary to meet with the contingency which arises on account of shortage of qualified persons who are required to be trained as probationary sub-Inspectors. This change was found necessary to meet with the contingency which arises on account of shortage of qualified persons who are required to be trained as probationary sub-Inspectors. These observations though made in the context of recruitment to the post of PSI, are equally applicable to the recruitment for the post of a constable and therefore from the circumstance that the appellant was paid salary and not stipend, it cannot be inferred as contended on behalf of the appellant that he was already appointed as a temporary Government servant before successful completion of the training. So also on the basis of the word discharge in Rule 127 (5), it cannot be inferred that such recruit is appointed as a temporary Government servant. Sub-rule (5) does not use the words "discharged from service". It merely provides that two failures in the final examination results in the discharge of the recruit. In our opinion, it will not be proper to infer from the use of the word discharge in that rule that the recruit was appointed in the service of the Government. ( 10 ) A candidate desirous of enlistment as a Constable has to make an application in form No. 4 contained in Appendix-I. Surprisingly, Rule 129 and not Rule 70 or any other rule in Chapter II makes provision for such a form. As indicated by Rule 70 (5), the concerned Board of recruitment has to scrutinise the applications laid down in sub-rules (2) to (4) are put through a written test in general knowledge and arithmetic. Though it is not specifically stated in sub-rule (5), it is implied that only successful candidates are to be selected. Next relevant rule is Rule 83. It provides that if a candidate is provisionally selected for enlistment as a Constable then his recruit Roll has to be prepared. Such provisionally selected candidate is then sent for medical examination. If he is not found medically fit, then he is released. If certified to be fit then the superintendent of Police, or the Dy. Commissioner of Police, as the case may be, will issue necessary appointment orders with respect to such candidate, as provided by Rule 83 (2) (a ). Relying upon this sub-rule, and particularly the words necessary appointment orders, it was contended on behalf of the appellant that at this stage the recruit gets appointed as a constable. Commissioner of Police, as the case may be, will issue necessary appointment orders with respect to such candidate, as provided by Rule 83 (2) (a ). Relying upon this sub-rule, and particularly the words necessary appointment orders, it was contended on behalf of the appellant that at this stage the recruit gets appointed as a constable. We also agree that on true interpretation of Rule 83, this is the correct position. But can it be said that the candidate is provisionally selected for enlistment as soon as he successfully passes the written test provided by Rule 70 (5) and before he successfully passes the examinations referred to in Rule 129? or can it be said, as contended on behalf of the appellant, that because Rules 70 and 83 appear in Chapter II dealing with recruitment, appointment, etc. , whereas rule 129 appears in Chapter III dealing with training and because Rule 129 appears after Rule 83, the training and examinations prescribed by Rule 129 are post appointment and inservice training and examinations ? In our opinion, it would not be correct to say so. Rule 106, which deals with Police Training School at Baroda, itself states that the school is for training recruits-cons tables. Rule 129 is described as a rule for "recruits training at the Police Training School, baroda". The person who is sent for training is described in the Rule as a recruit and not as a Constable. If successfully undergoing the training was a condition for being retained in service, then we would have found in Rule 83 or somewhere else in the Rules a provision to the effect that the appointment shall be subject to that condition. Absence of such a provision and wordings of Rule 129 suggest that Rule 129 really lays down an eligibility criterion for being selected for enlistment as a Constable. Though it is contained in the Chapter dealing with training and deals with training, we are of the view that the nature of the post and its requirements looking to the nature of the duties to be performed, makes it a rule of recruitment in the sense that the candidate must acquire that qualification also, like the qualifications mentioned in Rule 70, before he can be selected for appointment as a Constable. Till he so qualifies, and then passes the medical fitness test, he remains a recruit and does not become a regular Constable at any earlier stage. Passing the examinations prescribed by Rule 129 is a pre-requisite that leads to his selection. Training is the facility provided for acquiring the qualification. Rule 132, instead of supporting the appellant, confirms that till the training is completed, the person under training is described as a recruit and not as a constable. Reference to posting and probation in the rule, after completion of the training, indicates that he is to be appointed on probation and posted only after he successfully completes the training. ( 11 ) IT was submitted that before the appellant was sent for training, he was required to fill in a form containing various undertakings and that would go to show that he was first appointed as a Constable and then sent for training. If really such a form was filled in by him at that stage, he could have called upon the respondents to produce the same. In our opinion, in absence of any material on record, it is not possible to draw an inference suggested by the appellant. In the petition, an averment has been made that he was given an appointment as a Constable, but no formal order was given to him. The averment that appellant was given appointment as a Constable is denied by the respondent. If the appellant was appointed as a constable then respondent No. 2 would have certainly issued a formal order as required by the rules. There was no reason for respondent No. 2 not to do so. It was urged that as soon as a candidate passes the written examination prescribed by sub-rule (5) of Rule 70, he is sent for medical examination and if he is found fit then an appointment order is given to him. In support of this contention, an appointment order of one madhavrao was produced by the learned counsel for the appellant before the learned Single Judge. Though in the order it is stated that the person appointed will have to pass the Hindi or Gujarati examinations within 3 years, it does not mention that he will have to pass the examinations contemplated under Rule 129. If an appointment order was given at that stage, then surely we would have found such a condition therein. Though in the order it is stated that the person appointed will have to pass the Hindi or Gujarati examinations within 3 years, it does not mention that he will have to pass the examinations contemplated under Rule 129. If an appointment order was given at that stage, then surely we would have found such a condition therein. There is nothing in that order which would suggest that it was issued before Madhavrao had successfully completed the training referred to in Rule 129. The appellant could have called upon the respondents to produce his appointment order which according to the appellant was issued on 1-3-1983. The respondents have specifically denied that the appellant was appointed as a Constable on 1-3-1983. It appears that the learned Single Judge relied upon a note prepared by Deputy commissioner of Police, a copy of which was produced before him at the time of hearing the petition and arrived at the conclusion that on completion of physical examination and passing the oral and written tests, the candidate is given an appointment order and that such appointed persons are then sent for training. With due respect, the learned single Judge ought not to have relied upon the same as it was merely a copy of a note purported to have been prepared by commissioner Shri Tembe, it did not bear any date and it was not admitted by the respondents. The learned Advocate for the appellant conceded that it was produced at the stage of arguments. When and why it was prepared remained unexplained. Morover, the point at issue was required to be decided on the basis of the Recruitment Rules, and not on opinion of the Dy Commissioner of Police. In view of the recruitment rules, it will have to be held that the said note is not correct. ( 12 ) AS we are of the view that the recruit is not given an appointment as a Constable till he successfully completes the training by passing the examinations, he does not become a Government servant. The appellant was therefore not entitled to one months notice as contemplated by Rule 89 (3) of the Police manual. We, therefore, hold that the impugned order of discharge is not bad or illegal, for that reason. The appellant was therefore not entitled to one months notice as contemplated by Rule 89 (3) of the Police manual. We, therefore, hold that the impugned order of discharge is not bad or illegal, for that reason. ( 13 ) IT was lastly urgent that though the respondents had power to discharge the appellant, they could not have done so with retrospective effect. The result of the appellant was declared on 30-4-1984. On that very day the Principal of the police Training School at Baroda had passed an order for sending him back to the District from where he had come, in terms of Rule 129 (5) of the Police manual. As the proper authority in this case was Deputy Police Commissioner, he passed the order of discharge on 14-5-1985 making it effective from 1-5-1985. As provided by Rule 129, the appellant became liable to be discharged immediately. For that reason the order of discharge was made effective from 1-5-1984. As the appellant had worked for those 14 or 15 days, he was paid salary for that period. Therefore, the order of discharge even though made effective from 1-5-1984 did not become invalid or illegal. As we do not find any substance in any of the contentions raised before us, this appeal is dismissed. No order as to costs. .