IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 276 of 2002 Shahban Ali …….Petitioner. Versus State of Uttaranchal and others …Respondents. Sri Vivek Shukla, Advocate present for the petitioner. Sri N.P. Sah, Standing Counsel present for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. (Oral) This writ petition was dismissed for non prosecution vide order dated 21.4.2008. Now a restoration application (MCC No. 320 of 2011) has been filed along with an application for condonation of delay. Reasons shown in the delay condonation application appear to be bona fide. Delay condonation application (CLMA No. 4872 of 2011) is allowed. Delay in filing the restoration application is condoned. Reasons shown in the restoration application for recalling the order dated 21.4.2008 appear to be bona fide. Restoration application (MCC No. 320 of 2011) is allowed. Order dated 21.4.2008 is recalled. Writ petition is restored to its original number. Heard Sri Vivek Shukla, Advocate present for the petitioner as well as Sri N.P. Sah, Standing Counsel present for the State of Uttarakhand. The petitioner was selected as a constable in Uttarakhand Civil Police. Thereafter he was sent for training. After completing the training, the petitioner was absorbed as a constable in Uttarakhand Civil Police. Subsequently, vide impugned order dated 8.4.2002 passed by the Senior Superintendent of Police, Haridwar without affording any opportunity of hearing to the petitioner, the services of the petitioner were 2 dispensed with by invoking the provisions of Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975 (from hereinafter referred to as 1975 Rules) as his services are no more required. It is this order which has been challenged by the petitioner by means of the present writ petition. This Court has held in a similar matter (W.P.S.S. No. 1102 of 2003 decided on 24.3.2011) that invocation of provisions of 1975 Rules is wholly illegal inasmuch as a constable who is regularly recruited is not a “temporary servant”. 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 cannot be said that the petitioner was in “temporary service” as defined by 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, the impugned order dated 8.4.2002 (annexure no. 1 to the writ petition) cannot stand and the same is accordingly quashed. Apart from going into this aspect no other aspect has either been canvassed before this Court. The Court, however, is convinced that the writ petition is liable to succeed on this ground alone. 3 It is clarified that the respondents are at liberty to take action and initiate a disciplinary proceeding against the petitioner in accordance with law. The respondents shall take a decision in the matter as expeditiously as possible but definitely within a period of six months from today. It is also directed that the petitioner will cooperate in the disciplinary proceedings. It is made clear that if the respondents choose to initiate disciplinary proceedings against the petitioner, his status will then be of an employee under suspension. Writ petition is accordingly allowed. No order as to costs. No order as to costs. (Sudhanshu Dhulia, J.) 20.5.2011 Avneet