IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 1102 of 2003 Rajdeep Malik …….Petitioner. Versus State of Uttarakhand and others …Respondents. Sri M.C. Pant, Advocate present for the petitioner. Sri N. P. Sah, Standing Counsel present for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. (Oral) Heard Sri M.C. Pant, Advocate for the petitioner as well as Sri N.P. Sah, Standing Counsel for the State of Uttarakhand. The petitioner was appointed as constable in the Uttarakhand Civil Police. He was sent for training and thereafter joined as constable in "Kotwali” Pithoragarh, District Pithoragarh on 31.12.2002. On 2.3.2003 the petitioner was sent for participating in a Handball Competition to Haridwar. He returned Pithoragarh from Haridwar on 11.3.2003. On 22.3.2003 an FIR was lodged against the petitioner under Sections 363/366 IPC registered as Case Crime No. 79 of 2003 at Police Station Bhopa, District Muzaffar Nagar (which later went to trial in which the petitioner was acquitted). Subsequently on the basis of the FIR, the petitioner was suspended from service vide order dated 25.6.2003. When the petitioner preferred an appeal against the said suspension order before the Inspector General of Police, Kumaon Mandal, the suspension order was revoked vide order dated 26.8.2003 and he was reinstated in the service. All the same, on the same day i.e. on 26.8.2003 the services of the petitioner were terminated invoking the provisions of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 (from hereinafter referred to as “1975 Rules”) holding the petitioner to be in temporary service without giving him any 2 opportunity of hearing or show-cause notice. It is this termination order which has been challenged by the petitioner before this Court. The main contention of the petitioner before this Court is that since the petitioner was appointed on a regular substantive vacancy, although he was on probation at the relevant time, he was never in temporary service and therefore invoking provision of 1975 Rules is absolutely illegal and the petitioner could not have been terminated in a summary manner as it has been done. While arguing before this Court, Sri M.C. Pant, counsel for the petitioner has relied upon provisions of Regulations 487, 492 and 541 of the U.P. Police Regulations. These Police Regulations are also applicable to the police personnels in the State of Uttarakhand as well. Regulation 487 of U.P. Police Regulations reads as under :- “487. If any police officer negligently or willfully lets a prisoner escape departmental proceedings under Section 7 of the Police Act will invariably be taken. The punishment awarded, unless there are unusual extenuating circumstances, will ordinarily be dismissal. Before the final punishment order in the departmental proceedings is passed, Superintendents of Police must refer to their range Deputy Inspector General in each case for a decision whether prosecution should be instituted. Cases should not be prosecuted unless definite evidence is available to show connivance or criminal negligence.” Regulation 492 of U.P. Police Regulations reads as under :- “492. Whenever a police officer has been judicially tried, the Superintendent must await the decision of the judicial appeal, if any, before deciding whether further departmental action is necessary.” Regulation 541 of U.P. Police Regulations reads as under :- 3 “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 case 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 under sub-paragraph (2) above shall, subject to the control of the Deputy Inspector General be final.” In the counter affidavit, the respondents have stated that since there was a police case against the petitioner and he was maligning the image of the police his services were terminated. No efforts have been made in the counter affidavit to show that when the petitioner was on probation why recourse was not taken to Regulation 541 of the U.P. Police Regulations while terminating the services of the petitioner. The petitioner was selected on the post of constable in accordance with law and was sent for training and thereafter joined as constable in the Uttarakhand Civil Police. These facts are admitted by the respondents. Therefore, by any stretch of imagination it 4 cannot be said that the petitioner was in “temporary service” as defined by the 1975 Rules. The expression “temporary service” is defined in 1975 Rules 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.” It is an admitted position that the petitioner was neither officiating on a substantive vacancy nor was substantively appointed on a temporary post. Therefore, he cannot be called to be in “temporary service”. As such, this impugned order dated 26.8.2003 (annexure no. 6 to the writ petition) cannot stand and the same is accordingly quashed. However, it is clarified that the respondents may still take action and initiate a disciplinary proceeding against the petitioner in accordance with law. Till a decision is reached by the respondents, the petitioner shall be treated to be under suspension. It is also directed that since it is an old matter pertaining to the year 2003, the respondents shall expedite the hearing in the matter but in any case complete the proceedings within a period of three months from the date a certified copy of this order is produced before the concerned authority. It is also directed that the petitioner will cooperate in the disciplinary proceedings. Writ petition is allowed. No order as to costs. (Sudhanshu Dhulia, J) 24.3.2011 Avneet