MANJU SINGH Vs. STATE OF U P

JUDGEMENT

(1.) The present petition has been filed for a writ of certiorari quashing the impugned show cause notice dated 23.10.2004 (Annexure-1 to the writ petition) issued by Deputy Inspector General of Police, Varanasi and a writ of mandamus directing the respondents not to proceed further with the enquiry in pursuance of the aforesaid show cause notice dated 23.10.2004.

(2.) The case of the petitioner is that the petitioner was given an appointment under the Dying-in-Harness Rules on the post of Sub-Inspector, Civil Police, claiming that she is the daughter of one Rajendra Singha Verma, R/o 50/70-1, Shiv Dishani Nagar, Shahganj, District Agra. The father of the petitioner was a police personnel, therefore, she is entitled for an appointment and after consideration appointment letter was issued in favour of the petitioner and the petitioner was permitted to continue. Now the petitioner is aggrieved by the show cause notice (Annexure 1) to the writ petition by which the petitioner has been directed to submit a reply within eight days from the date of receipt of the notice that why action be not taken against the petitioner and why the services of the petitioner should not be terminated. The petitioner submits that the father was a police employee as such she was given appointment under the Dying-in-Harness Rules and as such she is serving as Sub-Inspector in Civil Police, therefore, the show-cause notice for terminating the services of the petitioner is without jurisdiction, illegal and cannot be issued and the fact of the issuance of the show cause notice that the respondents have themselves opened their mind to terminate the services of the petitioners without affording an opportunity as well as without following the procedure laid down in the service law. It has also been stated that the services of the petitioner cannot be terminated without following the procedure provided under Article 311, Sub-clause 2 of the Constitution of India or the procedure provided under the U.P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991. It has been stated that as the petitioner is holding a civil post, and appointment has already been given, therefore, by giving only show cause notice, the services of the petitioner cannot be terminated and the show cause notice. Annexure 1 to the writ petition dated 23.10.2004 is liable to be quashed. In defence to the show cause notice, the petitioner has relied upon various judgments namely the judgment reported in 1994 (3) Supreme Court Cases 357, Union of India and Ors. v. Upendra Singh; judgment reported in AIR 1955, Supreme Court 233, Hart Vishnu Qamat v. Ahmed Isihaq and Ors.; judgment reported in AIR 1961 Supreme Court 1623, State of Madhya Pradesh v. Chintaman Shadashiv Waishampayan and the last judgment relied upon by the petitioner reported in 1985 (2) Supreme Court Cases 412, Chief of the Army Staff and Ors. v. Major Dharm Pal Kukreti. The petitioner in the aforesaid case has placed reliance in paragraph 5 of the writ petition and has urged that where the said notice was issued without jurisdiction, the petitioner would have then suffered, prejudicial injury by an Act which was without jurisdiction. Whether the threat of prejudicial action, is wholly without jurisdiction, a personal cannot be asked to suffer injury to be caused to him before seeking the gross protection. If, on the other hand, the Chief of the Army Staff has the power in law to issue the said notice, it would not be open to the respondents to approach the Court Article 226 of the Constitution of India at the stage of notice only and as such this writ petition could be premature. This was, however, not a contention, which would have been decided at thrash-hold until the Court has come to the finding with respect to the jurisdiction of the Chief of the Army Staff to issue the impugned notice. Having held that the impugned notice was issued without any jurisdiction, the High Court was right in further holding that respondents writ petition was not premature and was maintainable. The learned Counsel for the petitioner taking the benefit of the judgments mentioned above, has submits that the show cause notice itself is without jurisdiction and is liable to be quashed.

(3.) I have heard learned Counsel for the petitioner and learned Standing Counsel and perused the record.