RAKESH KUMAR Vs. SENIOR SUPERINTENDENT OF POLICE SAHARANPUR

JUDGEMENT

(1.) The petitioner was appointed as a police Constable on 1.1.1987. According to him, after completion of the probation period, the petitioner continued to serve in the Department until his services were terminated by an order dated 12.7.1993, namely, almost after six and a half years. The said order of termination dated 12.7.1993 indicates that service of the petitioner was terminated under the U. P. Temporary Government Employees (Termination of Service) Rules, 1975 on the ground that the petitioner's service was no more required. This order has since been challenged in this writ petition.

(2.) Mr. Rakesh Pandey, learned counsel for the petitioner contends that under Regulation 541, the period of probation is fixed at two years for constables other than posted directly in the Criminal Investigation Department or transferred to the Mounted Police as contained in clauses (a) and (b) of clause (1) thereof. The petitioner does not fall in any of these two categories as such according to him, the petitioner should be deemed to be confirmed on the expiry of the probationary period by reason of the decisions cited by him which will be dealt with at appropriate stage. In support of his contention, he submits that by reason of clause (2) of the said Regulation, the petitioner could be discharged at the end of probation provided an opinion was formed by the superintendent of police that the petitioner was unsuitable either during or at the end of the period of probation. In the present case there was no such formation of opinion and that the petitioners service was not dispensed with on the ground that he was unsuitable at the end of the probation period. Whereas he was allowed to continue for almost four and a half years after the end of the probationary period. He contends further that since the petitioner, by reason of his deeming confirmation, was nor more a temporary employee, therefore, the provisions of the U. P. Temporary Government Employees (Termination of Service) Rules, 1975 (hereinafter referred to as Temporary Government Employees Rules), cannot be applied. Alternatively he contends, assuming but not admitting, that the petitioner was not confirmed but still then if his service is terminated on the ground of unsuitabllily, then it is incumbent upon the respondent to inform him about his deficiency and his service could not have been terminated under the provisions of the Temporary Government Employees Rules. According to him, the provisions can be applied, only when the termination is a termination simpliciter without any stigma. The termination on the ground of unsuitability is definitely a stigma which has since been made out in the counter-affidavit. He argues the above point alternatively but ultimately stuck to his submission with regard to deemed confirmation by reason of the decisions cited by him. The petitioner having been confirmed by reason of deeming clause, there was no scope of treating him as a temporary employee and as such before termination of his service it is required that he should be given an opportunity. For all these reasons according to him, the order of termination should be quashed and the writ petitioner should be declared to be in service with all consequential benefits during this period.

(3.) Mr. V. K. Rai, learned brief holder of the State, on the other hand, contends that by reason of the conditions contained in clause (1), Regulation 541, the petitioner could have been confirmed only when there was a specific order of confirmation and not otherwise. In view of the existence of such clause, the question that the period of probation was fixed is immaterial. Clause (2) of Regulation 541 was related to the question of discharge at the end of probation. The existence of said clause does not take away the effect of clause (1) which requires a specific order of confirmation by the Superintendent of Police. Though a recruitee may not be discharged but still then by virtue of his continuation he does not become a confirmed employee. On the other hand according to him he continues to be a temporary employee until specific order of confirmation is issued in terms of clause (1) of the Regulation 541. Therefore, according to him, the provisions of Temporary Government Employees Rules, 1975 is very much applicable in the case of the petitioner. He next contends that under the said Rules, a person can be terminated even on the ground of unsuitability. But the ground of unsuttabillly does not find mention in the order of termination. Disclosing of the ground in the counter-affidavit would not change the character of the order which do not impose any stigma and therefore the ground of stigma cannot be available in the present case to the petitioner. Since the petitioner had suffered a number of minor punishment therefore on the ground of unsuitability his service can still be terminated under the said Rules. He relies on a decision in the case of State of Punjab v. Baldeo Singh Khosla, AIR 1996 SC 2093, and contends that even if the probation period is over, the same would not confer any right on the petitioner to be treated as confirmed automatically. His continuation is subject to confirmation provided he performs satisfactory work during this period. Therefore, according to him, there is no infirmity in the order impugned. The writ petition is therefore, liable to be dismissed.