IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 649 OF 2009 (S/S) Sandeep Kumar ….………Petitioner. Versus State of Uttarakhand and others. ….…..Respondents. Present: Mr. Tapan Singh, Advocate holding brief of Mr. Manish Arora, Advocate for the petitioner. Mr. Anil K. Bisht, Brief Holder for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J.(Oral) Heard Mr. Tapan Singh, Advocate holding brief of Mr. Manish Arora, Advocate for the petitioner and Mr. Anil K. Bisht, Brief Holder for the State of Uttarakhand. The petitioner was inducted in the Uttarakhand Provincial Armed Constabulary (from hereinafter referred to as PAC). While he was undergoing training, he developed certain complication, which was later diagnosed as “nephrotic syndrome”, which is a disease pertaining to kidney. The doctors who examined the petitioner gave an opinion that the petitioner cannot be put on duties which are stressful and demand heavy physical work, but other duties can be assigned to him. All the same, when the petitioner was still undergoing his training, he was removed from the service vide order dated 28.11.2008 passed by respondent no. 4 by invoking the provisions of Rule 3 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” by giving him one month’s notice. It is this termination order which has been challenged before this Court. 2 Rule 3 of 1975 Rules 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.” Although the order of dismissal does not assign any reason for dismissal but in the writ petition, it has been stated that the services of the petitioner have been terminated on medical grounds. First and foremost, this Court will have to examine as to whether after being inducted in service albeit in the capacity of a probationer, the petitioner 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 Rule 3 of 1975 Rules was the 3 proper course and no opportunity of hearing was needed as the petitioner was a temporary servant. The provisions of law under which the services of the petitioner have been terminated are not applicable in the case of the petitioner, as he is not a “temporary servant” as has been clearly defined in Rule 2 of 1975 Rules. Rule 2 of 1975 Rules 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”. Petitioner was duly selected on a substantive vacancy though it is true that at the relevant time he was on probation. But in any case, he cannot be called to be in temporary service. As such, the order dated 28.11.2008 passed by respondent no. 4 is liable to be set aside and is presently set aside. The respondents are directed to take back the petitioner in service. Having said, what has been said above it must also be stated that the petitioner has a problem with his kidneys. In other words, he is a medical case and therefore it is directed that the State Government shall examine the medical condition of the petitioner by placing him before the Medical Board and thereafter if the Medical Board is of the opinion that the petitioner can be put in some other work, which does not require much physical stress he shall be assigned that work. It is further directed that the services of the petitioner will be terminated on medical grounds only as a last resort when a job commensurating with the medical case of petitioner 4 is not available in the department. And that will be done, it goes without saying in accordance with law. With the above directions, writ petition is disposed of. No order as to costs. (Sudhanshu Dhulia, J.) 20.6.2011 Rathour