# Deena Nath Shukla v. I.G. PAC, Western Zone, Moradabad and others

- **Citation:** (2011) 3 ILRA 1456
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-12-12
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deena-nath-shukla-v-i-g-pac-western-zone-moradabad-and-others-42078
- **Pages:** 5

## Headnote

C.S.C.

U.P.
Temporary
Govt.
Servant
(Termination of Service) Rules 1975 read
with U.P. Provincial Armed Constabulary
Act 1948-Section 5-U.P. Police Act meant
applicable-Termination
of
Service
of
Police
Constable
during
probation
period-exercising
power
under
Rule
1975-held
without
jurisdiction-apart
from
that
procedure
given
under
regulation 541-not followed-termination
order-not sustainable quashed.

Held: Para 10 and 12

In view of the law settled by the decision
of the Apex Court and the Full Bench of
this
Court,
the
impugned
order
terminating the services of the petitioner
in
purported
exercise
of
powers
conferred by 1975 Rules is illegal and
without jurisdiction as the provisions of
the said Act are not applicable in the
case of the petitioner.

There is no averment in the counter
affidavit filed by the respondents to
3 All] Deena Nath Shukla V. I.G. PAC, Western Zone, Moradabad and others
1457
demonstrate
that
the
procedure
prescribed by Regulation 541 (2) was
followed and any notice was issued
setting out the grounds on which it was
proposed
to
discharge
him
or
any
opportunity
was
afforded
to
the
petitioner to show cause before passing
the
impugned
order
of
termination
though the counter affidavit refers to
some enquiry in which the statement
made by the petitioner that he was
mentally disturbed on account of death
of his mother was found to be false as
his mother was alive but there is nothing
on record to show that he was ever given
notice or show cause in the manner
contemplated in para 541 (2) of the
Regulations. Thus, it is clear that the
procedure prescribed by Regulation 541
(2) of the Regulations was not followed
and the impugned order has been passed
in utter violation of the said provision.
Case law discussed:
2000 AWC (3) 2367; AIR 1961 SC 751; 2004
(4) ESC (All); AIR 2002 SC 2322

## Text

1456 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
will be reserved/allotted to GRP Staff on
escort
duty.
The
benefit
in
the
circumstances, ought to have been given
to the members of the GRP Escort who
were neither named nor there was any
evidence that they were paid money or
they had permitted any unauthorized
person to travel in the coach. In fact it is
the duty of the Checking staff to check the
tickets and not the GRP Escort, therefore,
variance in the statement was to the
benefit of the petitioner and other
members of the Escort.

17. In view of the fact that two
persons namely, Sri Shyamdev and Sri
Chandrika Prasad, Sub-Inspector and Head
Constable have been exonerated from the
charge and their integrity has been directed
to be certified by the Deputy Inspector
General of Police, Railways, Allahabad
and that no differentiating circumstances
had brought on record by the respondents
for giving a different treatment in
punishment on basis of an illegal and
arbitrary preliminary enquiry conducted in
unfair manner against the principles of
natural justice to the petitioner, we quash
the impugned order dated 7.3.2002 passed
by respondent no.2 and the orders dated
27.4.1995 and 18.5.1994 passed by the
respondents.

18. For the reasons stated above, the
writ petition is allowed. We accordingly,
direct the authorities concerned to make
payment of bonus with interest as well as
to certify the integrity of the petitioner
which has been withheld. No order as to
costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.12.2011

BEFORE
THE HON'BLE KRISHNA MURARI, J. )

Civil Misc. Writ Petition No. 22407 1995

Deena Nath Shukla

 ...Petitioner
Versus
Inspector General PAC, Western Zone,
Moradabad and others ...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Srivastava
Sri Swarn Kumar Srivastava
Sri Adaarsh Bhushan
Sri P.C. Srivastava
Sri Ashok Khare
Sri Siddharth Khare

Counsel for the Respondents:
C.S.C.

U.P.
Temporary
Govt.
Servant
(Termination of Service) Rules 1975 read
with U.P. Provincial Armed Constabulary
Act 1948-Section 5-U.P. Police Act meant
applicable-Termination
of
Service
of
Police
Constable
during
probation
period-exercising
power
under
Rule
1975-held
without
jurisdiction-apart
from
that
procedure
given
under
regulation 541-not followed-termination
order-not sustainable quashed.

Held: Para 10 and 12

In view of the law settled by the decision
of the Apex Court and the Full Bench of
this
Court,
the
impugned
order
terminating the services of the petitioner
in
purported
exercise
of
powers
conferred by 1975 Rules is illegal and
without jurisdiction as the provisions of
the said Act are not applicable in the
case of the petitioner.

There is no averment in the counter
affidavit filed by the respondents to
3 All] Deena Nath Shukla V. I.G. PAC, Western Zone, Moradabad and others
1457
demonstrate
that
the
procedure
prescribed by Regulation 541 (2) was
followed and any notice was issued
setting out the grounds on which it was
proposed
to
discharge
him
or
any
opportunity
was
afforded
to
the
petitioner to show cause before passing
the
impugned
order
of
termination
though the counter affidavit refers to
some enquiry in which the statement
made by the petitioner that he was
mentally disturbed on account of death
of his mother was found to be false as
his mother was alive but there is nothing
on record to show that he was ever given
notice or show cause in the manner
contemplated in para 541 (2) of the
Regulations. Thus, it is clear that the
procedure prescribed by Regulation 541
(2) of the Regulations was not followed
and the impugned order has been passed
in utter violation of the said provision.
Case law discussed:
2000 AWC (3) 2367; AIR 1961 SC 751; 2004
(4) ESC (All); AIR 2002 SC 2322

(Delivered by Hon'ble Krishna Murari, J. )

1. Heard Sri Adarsh Bhushan,
learned counsel for the petitioner and the
learned
Standing
Counsel
for
the
respondents.

2. The facts in brief are that the
petitioner was selected for the post of
Constable in the year 1993 and was sent
for training at Training Centre, Sitapur.
While undergoing training, an order dated
26.12.1993
was
passed
by
the
Commandant
8th
Battalion,
PAC,
Bareilly, the respondent no. 3 herein,
terminating his services in exercise of
powers conferred by U. P. Temporary
Government Servants (Termination of
Services) Rules, 1975 (herein after
referred to as the ''1975 Rules').

3. Learned counsel for the petitioner
has assailed the impugned order on
following two grounds:

1. The impugned order having been
passed in purported exercise of power
under 1975 Rules is illegal and without
jurisidction since the said Rules are not
applicable to a police constable as the
services are governed by the provisions of
U. P. P. A. C. Act, 1948 read with the
Police Act, 1861 and the Rules and
Regulations framed thereunder.

2. The impugned order has been
passed in utter violation of para 541 of U.
P. Police Regulations which provides the
procedure for discharge of a probationer
constable and the said procedure has not
been followed.

4. In reply, it has been submitted by
the learned Standing Counsel that the
petitioner is habitual of misconduct and
he was only a probationer hence his
services have been terminated as no
longer required by giving pay in lieu of
one month's notice. Referring to the
averments made in the counter affidavit, it
has been submitted that while undergoing
training, the petitioner absconded from
the training centre on 22.10.1993 without
any permission or leave and he was called
back from his residence on 26.10.1993
through special messenger and in this
manner he unauthorizedly abstained from
the training for three days and for this
lapse he was awarded punishment of of
14 days P. D. Parade Drill and the period
of absence was sanctioned as leave
without pay. However, he submitted his
resignation on 06.11.1993 which was
forwarded to
the
Commandant
8th
Battalion P. A. C. Bareilly for acceptance
but the same was withdrawn by the
1458 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
petitioner on 14.11.1993 on the ground
that he was medically disturbed due to
death of his mother. He further submitted
that the petitioner again absented himself
unauthorizedly since 26.11.1993 and on
enquiry his mother was found to be alive.
In view of the aforesaid repeated acts of
indiscipline,
the
Commandant
2nd
Battalion
recommended
for
suitable
action against the petitioner whereupon
his services were terminated vide order
dated 21.12.1992 exercising powers under
1975 Rules.

5. Appeal and revision filed by the
petitioner against the order of termination
have also been rejected.

6. The first ground urged by the
learned counsel for the petitioner that his
services could not have been terminated
in exercise of power under 1975 Rules is
no longer res integra. A Division Bench
of this Court in the case of Subhash
Chandra Sharma Vs. State of U. P., 2000
AWC (3) 2367 has held as under :

"Thus, there can be no doubt that if
the appropriate Legislature has enacted a
law
regulating
the
recruitment
and
conditions of service, the power of the
Governor is totally displaced and he
cannot make any Rule under proviso to
Article 309 of the Constitution. In State of
U. P. Vs. Babu Ram Upadhyaya, AIR
1961 SC 751, a decision rendered by a
Constitution Bench, the Police Act and
the U. P. Police Regulations came up for
consideration and it was held as follows
in paragraph 12 of the Reports :

"the result is that the Police Act and
the Police Regulations made in exercise
of power conferred on the Government
under that Act, which were preserved
under Section 243 of the Government of
India Act, 1935, continue to be in force
after the Constitution so fas as they are
consistent with the provisions of the
Constitution."

7. A Full Bench of this Court in the
case of Vijay Singh and others Vs. State
of U. P. and others, 2004 (4) ESC (All)
has held that Rules framed under proviso
to Article 309 of the Constitution do not
apply to Police personnel as their services
are governed by the Police Act, 1861 and
the U. P. Police Regulations. In view
thereof, the U. P. Temporary Government
Servants (Termination of Service) Rules
1975, may not be applicable. In paragraph
64 of the judgment, the Full Bench has
observed as under :

"As herein the field is already
occupied by the provisions of Act, 1861
which is in operation by virtue of the
provisions
of
Article
313
of
the
Constitution, thus, Rules 1972 could not
be attracted at all. The Government
Orders issued for fixing the maximum age
for recruitment on subordinate police
posts operate in an entirely different field
and are not in conflict with the Rules
1972. The case stands squarely covered
by the Apex Court judgment in Chandra
Prakash Tewari (supra) and, thus, it is not
possible for us to take any other view.
The submissions made by Mr. Chaudhary
that
pre-constitutional
law
stands
abrogated altogether by commencement
of the Rules 1972, is devoid of any merit.
Therefore, our answer to question no. 1 is
that the field stood occupied on account
of the provisions of Section 2 of the Act
1861."

8. This view also stands fortified by
large number of judgments of the Hon'ble
3 All] Deena Nath Shukla V. I.G. PAC, Western Zone, Moradabad and others
1459
Apex Court referred to and relied upon in
the case of Vijay Singh (supra) and also in
Chandra Prakash Shahi Vs. State of U. P.
and others, AIR 2000 SC 1706.

9. Reference may also be made to
the decision of the Hon'ble Apex Court in
the case of Chandra Prakash Tiwari Vs.
Shakuntala Shukla, AIR 2002 SC 2322
wherein the Hon'ble Apex Court while
considering the provisions of U. P.
Government
Servants
(Criterion
for
Recruitment by Promotion) Rules, 1994
framed under proviso to Article 309 of the
Constitution and the Government Order
dated 5.11.1965 issued under Section 2 of
the Police Act, 1861 held that Rules
framed under proviso to Article 309
would not apply since the field is covered
by statutory order under Section 2 of the
Police Act, 1861.

10. In view of the law settled by the
decision of the Apex Court and the Full
Bench of this Court, the impugned order
terminating the services of the petitioner
in purported exercise of powers conferred
by 1975 Rules is illegal and without
jurisdiction as the provisions of the said
Act are not applicable in the case of the
petitioner.

11. In so far as the second argument
advanced by the learned counsel for the
petitioner is concerned the Constables
recruited in P. A. C. are governed by the
U. P. Provincial Armed Constabulary Act,
1948. Section 5 of the said Act makes the
U. P. Police Act 1861 and the Rules and
Regulations framed thereunder in the
matters not provided in the Act and thus,
the Police Regulations are fully applicable
in the case of the petitioner. In such view
of the matter Regulation 541 providing
procedure for termination of probationer
constable becomes applicable in the case
of the petitioner. Para 541 (2) of the
Regulations read as under :

"In any case in which either during
or at the end of the period of probation,
the Superintendent of Police is of opinion
that a recruit is unlikely to make a good
police officer he may dispense with his
service. Before, however this is done the
recruit must be supplied with specific
complaints and grounds on which it is
proposed to discharge him and then he
should be called upon to show cause as to
why he should not be discharged. The
recruit must furnish his representation in
writing and it will be duly considered by
the Superintendent of Police before
passing the orders of discharge."

12. There is no averment in the
counter affidavit filed by the respondents
to
demonstrate
that
the
procedure
prescribed by Regulation 541 (2) was
followed and any notice was issued
setting out the grounds on which it was
proposed to discharge him or any
opportunity was afforded to the petitioner
to show cause before passing the
impugned order of termination though the
counter affidavit refers to some enquiry in
which the statement made by the
petitioner that he was mentally disturbed
on account of death of his mother was
found to be false as his mother was alive
but there is nothing on record to show that
he was ever given notice or show cause in
the manner contemplated in para 541 (2)
of the Regulations. Thus, it is clear that
the procedure prescribed by Regulation
541 (2) of the Regulations was not
followed and the impugned order has
been passed in utter violation of the said
provision.
1460 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

13. In view of the above facts and
discussions, the writ petition succeeds and
is allowed. The termination order dated
26.12.1993 passed by the respondent no.
3, Commandant 8th Battalion, P. A. C.,
Bareilly as well as the appellate and
revision orders dated 23.9.1994 and
30.1.1995 passed by the respondents no. 2
and 1 respectively are hereby quashed.
The petitioner shall be entitled for
reinstatement
with
all
consequential
benefits as admissible to him under law.

14. However, in the facts and
circumstances, there shall be no order as
to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2011

BEFORE
THE HON'BLE SUNIL HALI,J.

Civil Misc. Writ Petition No. 25314 of 2007

Vinod Kumar Singh

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri G.K. Singh
Sri V.K. Singh
Sri K.R. Singh
Sri U.C. Tripathi

Counsel for the Respondents:
C.S.C.

U.P. Recruitment of Dependants of Govt.
Servants(Dying in Harness) Rules, 1974Rule-2 (2)-Compassionate appointmentfather of petitioner working as part time
Tube-well
operator-died
in
harnessappointment
refused
on
ground
of
regularization of his father was rejected
being appointed after cut off date-not
entitled-for
appointment-definitions
given under rule 2(2)-no where provides
the
appointment
should
be
permanent/regular
basis-held-entitled
for appointment.

Held: Para 6

Rules no where provides that the benefit
is to be accorded to the persons who are
permanently
appointed.
The
rules
provide that even persons who are
appointed on temporary basis and are
continuously working are also entitled to
the benefit. The intended purpose of the
Rules is to provide succor to the family
of the deceased who died in harness. It
is the continuous relationship of master
and servant which gives benefit to the
employee seeking such benefit. There
must be an element of continuity then
the benefit is to be conferred to the
person who has been appointed even
temporarily. The continuity of a person
for a longer period of time clearly gives a
message that his services is required by
the State. The status of the employee in
that behalf could not be relevant.
Case law discussed:
Civil Misc. Writ Petition No. 51469 of 2005
(Vijay Kumar Yadav versus State of U.P. and
others).

(Delivered by Hon'ble Sunil Hali,J. )

1. Petitioner's father was appointed
as Part-time Tube Well Operator on
26.3.1987 and was paid salary @ Rs.
299/- per month. The salary of the
petitioner' father was fixed in the pay
scale of rs. 950-1500/- with effect from
18.5.1994 and thereafter w.e.f. 1.1.1996
his salary was fixed in the pay scale of Rs.
3050-4590. He continuously worked on
the said post without any break.

2. It is contended by the learned
counsel for the petitioner that the
petitioner's father was working in clear
vacancy even though on temporary basis