Raj Narain vs State of U.P. and Others

Sudhanshu Dhulia, J.

Mr. Dinesh Gahtori, Advocate, present for the petitioner. Mr. N.P. Shah, learned Standing Counsel, present for the State/Respondent No. 2.

Ms. Beena Pandey, learned Standing Counsel for the State of U.P./respondents Nos. 1 & 3.

The petitioner before this Court is a constable in civil police, presently posted at Agra, Uttar Pradesh. He was initially appointed as a constable in civil police in the erstwhile State of U.P. on 01.05.1991 after undergoing a selection process conducted by a duly appointed Selection Committee, he underwent a training for a period of 09 months and was subsequently posted at "Lohaghat" police station, which was at the relevant time in District Pithoragarh, U.P. (now in District Champawat, Uttarakhand). On the intervening night of 30/31st October, 1992 a fire broke out at the Police Station "Lohaghat". Subsequently, the petitioner was suspended on 02.11.1992, though the suspension order was revoked on 09.11.1992 but thereafter his services were terminated vide order dated 11.11.1992 by the Superintendent of Police, Pithoragarh invoking the powers under Rule 3 of Uttar Pradesh Temporary Government Servants (Termination of service), Rules, 1975.

Against the said order of termination, petitioner filed writ petition before the High Court of Judicature at Allahabad being Writ Petition No. 5622 of 1993. Vide order dated 30.04.1993, the learned Single Judge of Hon''ble Allahabad High Court stayed the operation and effect of the impugned order dated 11.11.1992, until further orders of the Court and on the strength of this order, petitioner is presently serving in State of U.P. at Agra, as has already been referred.

Meanwhile, the new State of Uttarakhand was carved out from the State of U.P. by an Act of Parliament, which is known as "the U.P. Reorganization Act, 2000", which came into being on 9th November, 2000 (from herein after referred to as "the U.P. Reorganization Act"). Under Section 35 of the U.P. Reorganization Act, by the orders of Hon''ble the Chief Justice of Allahabad High Court this writ petition was transferred to this Court. This writ petition was earlier dismissed for non prosecution vide order dated 21.06.2006, however this order has been recalled vide order dated 22.12.2014 and the writ petition has been restored to its original number.

Heard the learned counsel for the petitioner Mr. Dinesh Ghtori, Mr. N.P. Sah, learned Standing Counsel for the State of Uttarakhand and Ms. Beena Pandey, learned Standing Counsel for the State of U.P.

The petitioner was appointed as a constable by order dated 01.05.1991. Under Regulation 541 of the U.P. Police Regulations (which are also applicable in the State of Uttarakhand), the period of probation of the petitioner is for two years. Petitioner was admittedly on probation when his services were terminated. The Rules which would be applicable in the case of the petitioner are "Uttar Pradesh Police Regulations i.e. Regulation 541, which is under Chapter XXXVII of U.P. Police Regulations, which reads as under:--

"541. (1) A recruit will be on probation from the date he begins to officiate in a clear vacancy. The period of probation will be two years except in the following cases:

(a) those recruited directly in the Criminal Investigation Department or District Intelligence Staff will be on probation for three years, and

(b) those transferred to the Mounted Police will be governed by the directions in paragraph 84 of the Police Regulations.

If at the end of the period of probation conduct and work have been satisfactory and the recruit has been approved by the Deputy Inspector General of Police for service in the force, the Superintendent of Police will confirm him in his appointment.

(2) In any case in which either during or at the end of the period of probation, the Superintendent of Police is of opinion that a recruit is unlikely to make a good police officer he may dispense with his service. Before, however this is done the recruit must be supplied with specific complaints and grounds on which it is proposed to discharge him and then he should be called upon to show cause as to why he should not be discharged. The recruit must furnish his representation in writing and it will be duly considered by the Superintendent of Police before passing the orders of discharge.

(3) Every order passed by a Superintendent of Police under sub-paragraph (2) above shall, subject to the control of the Deputy Inspector General be final."

According to sub Clause 2 & 3 to Regulation 541, a probationer if he is unlikely to be made a good police officer his services are then liable to be dismissed but before doing so he must be supplied with a specific complaints and grounds on which his discharge is being proposed and that he should be called upon to show cause as to why he should not be discharged. Sub Clause 2 of the said Regulation, provides that a recruit must furnish his representation in wringing and it will be duly considered by the Superintendent of Police before passing the order of discharge. Admittedly, this was never done in the present matter. Moreover, under sub Clause 3 of the above Regulation 541, the final authority to take decision is the Deputy Inspector General of Police and not the Superintendent of Police, as has been done in the present case.

In view thereof, there is a clear violation of Regulation 541 of the U.P. Police Regulations. Not only this, the reliance placed by the police authorities on the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 is clearly misplaced as the petitioner cannot be termed to be a temporary government servant. Definition of "temporary service" is defined in Rule 2 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975, which reads as under:--

"2. Definition - In these rules "temporary service" means officiating or substantive service on a temporary post, or officiating service on a permanent post under the Uttar Pradesh Government."

Admittedly, the petitioner was neither working as officiating or serving substantively on a temporary post, inasmuch as, the post was permanent, nor was he officiating on a permanent post. Therefore, application of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 in the case of the petitioner is totally wrong.

In view of the above observation, the writ petition is allowed. The impugned order dated 11.11.1992, passed by respondent No. 2, Superintendent of Police, District - Pithoragarh is hereby quashed.

This Court has been informed that the petitioner on the strength of the interim order of this Court is already serving in State of U.P. since 1997. Nothing further needs to be said on this aspect. No order as to costs.