Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (S/B) NO. 159 OF 2009 State of Uttarakhand and others. ………Petitioners. Vs. The Public Service Tribunal, Uttarakhand and another. ………..…Respondents. Present: Mr. K.P. Upadhyay, Addl. Chief Standing Counsel (Govt. of Uttarakhand) for the petitioners. None for the respondents. Coram : Hon’ble Barin Ghosh, C.J. Hon’ble Sudhanshu Dhulia, J. Sudhanshu Dhulia, J. 1. Heard Mr. K.P. Upadhyay, Addl. Chief Standing Counsel (Govt. of Uttarakhand) for the petitioners. None appears for the respondents. 2. The present writ petition has been filed by the State of Uttarakhand against an order of the Public Service Tribunal, Uttarakhand, Dehradun dated 26.11.2008, in which the claim petition of respondent no. 2 being Claim Petition No. 127 of 2007 Vinay Kumar Vs. State of Uttarakhand and others has been allowed and his dismissal from service by the Police Department of Uttarakhand has been held to be illegal, consequently respondent no. 2 has also been reinstated in service. 3. The main challenge of the petitioner against the order of the Tribunal dated 26.11.2008 is that respondent no. 2 was in a temporary service and therefore, he has rightly been dismissed by giving one month’s notice under Section 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. It is, therefore, contended that the Tribunal has committed a grave error in holding the termination of service of respondent no. 2 as bad in law. 4. The brief facts giving rise to the present case are as follows: 2 Respondent no. 2 was appointed as a constable in service of Uttarakhand Police under the provisions of the U.P. Police Regulations. This appointment was made under the Police Regulations and the law applicable for recruitment of such constables. He was appointed on a regular substantive vacancy after a due selection process. Consequent to his selection and appointment, he was sent for training, and after completion of the training, while he was undergoing the period of probation, an order dated 8.4.2002 passed by the Senior Superintendent of Police, Haridwar, by which his services were terminated treating him to be in “temporary service”, by giving him one month’s of notice. 5. This order was passed under Section 3 of the U.P. Temporary Government Servant (Termination of Service) Rules, 1975. 6. Section 3 of the Rules of 1975 reads as follows:- “3. Termination of service.—(1) Notwithstanding anything to the contrary in any existing rules or orders on the subject, the services of a Government servant in temporary service shall be liable to terminate at any time by notice in writing giving either by the Government servant to the appointing authority or by the appointing authority to the Government servant. (2) The period of notice shall be one month: Provided that the service of any such Government servant may be terminated forthwith, and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowance, if any, for the period of the notice or as the case may be, period fro which such notice falls short of one month at the same rates at which he was drawing them immediately before the termination of the service: Provided further that it shall be open to the appointing authority to relieve a Government servant without any notice or accept notice for a shorter period, without requiring Government servant to pay any penalty in lieu of notice: Provided also that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated shall be effective only if it is accepted by the appointing authority, provided in the case of a contemplated disciplinary proceeding, the Government servant is informed of the non-acceptance of his notice before the expiry of that notice.” 7. Although the order of dismissal does not assign any reason for dismissal but in the writ petition, it has been stated that the main 3 ground for dismissing the services of respondent no. 2 was that while he was being recruited in service, he had filed an affidavit, where he had wrongly stated that no police case was pending against him, although there was a police case pending against him at the relevant time, though he was subsequently acquitted in the said case. It is therefore contended that no further enquiry was necessary to be conducted and the services of respondent no. 2 were, therefore rightly dismissed, as he was only a temporary employee. 8. First and foremost, this Court will have to examine as to whether after being inducted in service albeit in the capacity of a probationer, respondent no. 2 had certain rights accrued in his favour and was therefore liable to be given an opportunity or show cause; or whether the termination made under Section 3 of the Rules of 1975 was the proper course and no opportunity of hearing was needed as respondent no. 2 was a temporary servant. 9. It is an admitted case that the petitioner was appointed after due selection process under the Police Regulations. 10. Regulation 541 of the U.P. Police Regulations reads as follows: “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. 4 (3) Every order passed by a Superintendent under sub- paragraph (2) above shall subject to the control of the Deputy Inspector General be final.’’ 11. Therefore, there is a clear provision in law that while dispensing the services of a probationer, a reason has to be given as to why his services are being terminated during the period of probation. Apart from this, it was also the contention of respondent no. 2 that he is also governed by the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991, where a detail procedure has been laid down under Rule 8, regarding dismissal and removal of Police personnel, including constables. 12. Moreover, the provisions of law under which the services of respondent no. 2 have been terminated are not applicable in the case of respondent no. 2 as respondent no. 2 as he is not a temporary servant. Respondent no. 2 though on probation is not a temporary government servant as what the contrary has been clearly defined in Rule 2 of the Rules, 1975. 13. Rule 2 of Rules, 1975 reads as follows: “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.” 14. Respondent no. 2 was not working in officiating capacity nor was he appointed on a temporary post as defined under Rule 2 of Rules, 1975. Therefore, these rules are not applicable in the case of respondent no. 2. Reliance upon these rules while terminating the services of respondent no. 2 is, therefore, clearly wrong. The Tribunal has, therefore, rightly held that the provisions of law under which the services of respondent no. 2 have been terminated are not applicable in the case of respondent no. 2. It has also held that due process has not been adopted in the case of respondent no. 2, therefore, the major punishment of termination from service could not have been inflicted on respondent no. 2, as it was mandatory upon the Police Department to have given a show cause notice or an opportunity before 5 terminating the services of respondent no. 2. This has not been done. The provisions of the Uttar Pradesh Temporary Government Servants (Termination of service) Rules, 1975 are not applicable in the case of respondent no. 2, as he was not a temporary servant and secondly under U.P. Police Regulations, an opportunity was liable to be given to the petitioner, which has not been given. This Court, therefore, is in total agreement with the position taken by the Tribunal as under the circumstances the claim petition was liable to be allowed, as the punishing order was totally de-horse the Rules applicable in the case. 15. The instant writ petition lacks merit and is liable to be dismissed and is hereby dismissed. 16. No order as to costs. (Sudhanshu Dhulia,J.) (Barin Ghosh, C.J.) 29.10.2010 Rathour