IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 73 of 2010 Ajay Kumar, Constable C.P. 669 ……Appellant Versus State of Uttarakhand and others. …Respondents. Present:- Mr. Deepak Sharma, Advocate for the appellant. Mr. Vinay Kumar, Standing Counsel for the State of Uttarakhand/respondents. Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Sudhanshu Dhulia, J. Barin Ghosh, C.J, (Oral) Within the period of probation, services of the appellant were terminated by invoking the provisions of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. In the writ petition, it was contended by the appellant that he was not holding any temporary service, and accordingly, the said Rules were not applicable. In the counter affidavit, it was stated that appellant in an affidavit filed, before he was accorded appointment, made untrue statement as regards his involvement in a criminal case. In the rejoinder, appellant brought on record his second affidavit, in which he had indicated that he is involved in a criminal case, which case is still pending and that being an uneducated person, in the first affidavit, the appellant did not bring the same on record. While dealing with the writ petition, a learned Single Judge felt that appellant has not been able to establish that he was not holding a temporary service. The learned Single Judge, accordingly, held that the provisions of the said Rules applied. In addition to that, the learned Single Judge held that having had misrepresented in the first affidavit, on the ground of misrepresentation, the services 2 of the appellant could be terminated. Accordingly, the learned Judge dismissed the writ petition. Being aggrieved by the said order passed by the learned Judge dismissing the writ petition, present appeal has been preferred. While the appellant had contended that the said Rules did not apply to the services of the appellant, and accordingly, termination of services of the appellant by invoking the provisions contained in the said Rules, was inappropriate, we think it was obligatory, for the respondents to establish that appellant was holding temporary service as defined in the said Rules, and accordingly, the services of the appellant could be terminated by invoking the provisions contained in the said Rules. The respondents did not make any endeavour to establish that the services of the appellant were temporary within the meaning of temporary service as defined in the said Rules. We, accordingly, admit the appeal. By consent of the parties, the appeal is taken up for hearing on its merit. There is no dispute that an advertisement followed by selection resulted in appointment of the appellant. It is true that the appellant has not brought on record the advertisement, but the fact remains that nothing prevented the respondents to bring the same on record. The letter of appointment issued in favour of the appellant has similarly been not brought on record by the appellant and the respondents too have not brought the same on record. Therefore, there is nothing on record fromwhere one can ascertain whether the services to be rendered by the appellant pursuant to his appointment can be said to be temporary service within the meaning of the said Rules. The logical conclusion, therefore, would 3 be that the respondents failed to establish that the said Rules applied to the services of the appellant. There is no dispute that the appellant, before he was appointed, gave an affidavit and thereby declared that he is not involved in any criminal proceeding. No doubt, such information was untrue. However, before the order of termination was passed, admittedly the appellant filed yet another affidavit and thereby stated that he is involved in a criminal case, which is still under consideration. This second affidavit was filed on 15.10.2001. The misrepresentation or untrue representation, which the appellant had made, before he was appointed, stood removed on 15.10.2001. It is not the contention of the respondents, at least no such contention was highlighted in the counter affidavit filed to the writ petition, that when a criminal case is pending against a person, the same disqualifies the person to be appointed. That being the situation, as on 15.10.2001 there was no misrepresentation and the misrepresentation having been removed on 15.10.2001, it was inappropriate on the part of the respondents to terminate the probation of the appellant subsequent to 15.10.2001 on the ground of misrepresentation. Further more, the fact remains that if the said rules are not applicable, then in terms of Regulation 451 of the U.P. Police Regulations, before dispensing with the services of a person in course of his probation, it was a requirement to give the person a show cause. As aforesaid, before the order of termination was passed, the original misrepresentation, if any, stood removed. At the same time as above, involvement in a criminal case is not a disqualification for being appointed. It has come on record that in the said criminal case on 20.11.2001 i.e. before the order of termination was passed, the appellant 4 was exonerated of the charges levelled against him. Therefore in the event, a show cause was issued in terms of the said regulation, the petitioner could bring to the notice of the respondents that not only he has removed the misrepresentation that was made by him originally but the factum of the said misrepresentation now stands removed in view of the order of acquittal passed by the appropriate court in respect of the criminal case in question. It is true that though involvement in a criminal case is not a disqualification, knowledge thereof may had persuaded the appointing authority not to appoint and as such misrepresentation in that regard would remain intact despite true facts having been brought on record subsequently and accordingly on the basis of such misrepresentation the probation could be dispensed with, but only after taking recourse to the Regulation and upon issuing a notice. The order of termination, as it appears, therefore, is not sustainable for the said Rules are not applicable, inasmuch as, the respondents have failed to bring on record necessary facts to apply the said Rules to the services of the appellant. The other ground of termination of the probation, namely, misrepresentation does not hold good since the misrepresentation, if any, was removed much before the order of termination was passed. Lastly, the dispensation of the services of the appellant, while he was on probation, having been made without following the mandate of the applicable Regulation, such dispensation has no sanctity of law. In any event, in the order impugned in the writ petition, it was not stated that the services of the appellant is being dispensed with in course of probation or his temporary service is being dispensed with for he had made a misrepresentation. 5 We, accordingly, set aside the order under appeal and at the same time allow the writ petition by setting aside the order impugned in the writ petition. (Sudhanshu Dhulia, J.) (Barin Ghosh, C.J.) 09.3.2011 Rathour