IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 22 of 2011 Smt. Alka Pathak ...Appellant Versus State of Uttarakhand and others …..Respondents Present:- Mr. Sanjay Bhatt, Advocate for the appellant. Mr. K.P. Upadhyay, Additional Chief Standing Counsel for the State of Uttarakhand. Date of Judgment : 7.3.2011 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Sudhanshu Dhulia, J. Hon’ble Barin Ghosh, C.J. (Oral) The appellant, an Assistant Teacher in an Intermediate College, was put under suspension in contemplation of a disciplinary proceeding. While no steps were taken to complete the disciplinary proceeding, the appellant was dismissed from service by an order, which was impugned in the writ petition. By the judgment and order under appeal, the writ petition has been dismissed. While dismissing the writ petition, the writ court noticed that the appellant was a probationer and the order of dismissal was passed after her probation was over. The writ court further noticed and held that the Uttarakhand Temporary Government Servants (Termination of Service) Rule, 2003 was applicable to the appellant and in exercise of powers conferred by the said Rules, the temporary service of the appellant was put to an end. Before us, the Standing Counsel appearing on behalf of the respondents accepted the contention of the learned counsel for the appellant that the said Rules had no application in relation to the appellant. That being so and admittedly the 2 appellant having completed the mandatory probation period and nothing having brought on record that the probation period of the appellant was extended and since, despite there being no confirmation of the appellant, there may be a presumed confirmation, unless rules contrary thereto are in existence, and those having not been produced, we feel that the order of dismissal of the appellant is contrary to the provisions contained in Article 311 of the Constitution of India. Accordingly, while we set aside the judgment and order under appeal, we also set aside the order impugned in the writ petition, so far as it relates to the appellant, and direct the respondents to complete the enquiry, as was proposed to be initiated and for which the appellant was suspended. In view of the order as above, the appellant shall be deemed to be under suspension but such suspension will stand automatically revoked in the event the contemplated disciplinary proceeding is not initiated within a period of three months and completed within six months from the date of service of a copy of this order upon the Additional Director of Education, Garhwal Mandal, Pauri. In the event, in the disciplinary proceeding the petitioner does not cooperate, it shall be open for the disciplinary authority including the inquiry authority to conclude the proceedings ex parte. The writ petition is accordingly disposed of. (Sudhanshu Dhulia, J.) ( Barin Ghosh, C.J.) 7.3.2011 Avneet