- (1.) P. C. Verma, J. The petitioner has assailed the order dated 13-5-1996 ter minating his service from the post of Con stable of Pradeshik Armed Constabulary (PAC) in exercise of powers under the U. P. Temporary Government Servant (Ter mination of Services) Rules, 1975.
(2.) THE petitioner was initially recruited and enlisted as a Constable in Pradeshiya Armed Constabulary (PAC) at 26th Battalian Gorakhpur on 1-4-1992. After his enlistment he was sent for train ing at Recruits Training Centre, Chunar. After passing out successfully from the training center the petitioner was posted as Constable in 30th Battalion PAC, Gonda. THE petitioner has served about 3-1/2 years of his enlistment Le. initial date of recruitment when the impugned ter mination order was passed. The ground of challenge of the termination order is that the termination order is based on some inquiry held behind the back of the petitioner without afford ing him any opportunity, therefore, the order is punitive in nature and cannot be sustained in the eye of law as the same has been passed without affording him any opportunity. Second ground of challenge is that the petitioner was appointed on an existing vacancy and was placed on proba tion and had completed his two years' period of probation successfully, there fore, his services could not be terminated without following the procedure prescribed under Para- 541 of the U. P. Police Regulations which is applicable in case of the Pradeshiya Armed Con stabulary Constables also by virtue of Sec-tion-5 of the PAC Act. In the counter-affidavit filed by the respondents it has been stated that the petitioner was selected by a selected com mittee headed by the Commander of 26th Battalion PAC Gorakhpur on 6-2- 1992 against a temporary vacancy and a vigilance inquiry was held in respect of the selection held on 6-2-1992 for recruitment of the PAC Constables at Gorakhpur as the complaint of favouritism and illegality in the selection was received. After the vigilance inquiry a report was received in which it was found that selection of the petitioner was illegally made. Since the appointment of the petitioner was made illegally and the petitioner's service was temporary, there fore, the service of the petitioner was ter minated in exercise of powers under U. P. Temporary Government Servant (Ter mination of Services) Rules, 1975. Para-541 of the Police Regulations reads as under: "regulation-541 (l ).-A recruit will be on probation from the date he begins to officiate in a clear vacancy. The period of probation will be two years except in the following cases: xxxx xxxx (2) 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 repre sentation in writing and it will be duly considered by the Superintendent of Police before passing the orders of discharge. (3) Every order passed by a Superinten dent under sub-paragraph (2) above shall, sub ject to the control of the Deputy Inspector General be final. "
(3.) FROM perusal of the provisions of Para-541 of the Police Regulation it is clear that the said provision is not at tracted in the present case as it has been denied by the respondents that the petitioner was appointed on clear vacancy but it has been categorically oiated in the counter-affidavit that the petitioner was appointed against temporary vacancy. Further more clause (2) of Para 541 is attracted when the termination takes place during the probation period or at the end of the probation. In the present case the termination order has been passed after 3-1/2 years. So far as the second contention of the petitioner that the petitioner's services have been terminated on the basis of an inquiry held behind him without affording him any opportunity has been admitted by the respondents that a vigilance inquiry was held and it was found that the petitioner's appointment was illegal, therefore, the order of termination was passed. The question arise as to whether the petitioner was entitled to any oppor tunity when an inquiry was held in respect of selection. This question arose directly in the case of Basudeo Tiwary \. Sido Kanhu University and others, (1998) 9 SCC 194, where the services of the appellant was terminated as the appointment was made illegally and unauthorisingly as the appointment was liable to be terminated under Section 35 (3) of the Bihar Act 17 of 1993 Le. Bihar University Act the Hon'ble Suprenu Court held as under: "para-12: The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, statutes, Rules or regulations or in any irregular or un authorized manner. The condition precedent for exercise of this power is that an appointment had been made contrary to the Act, Rules, statute and regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, statutes, Rules or regulations, etc. , a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appoint ment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessarily enquiry will have to held and in holding such an inquiry, the person whose appointment is under enquiry will have to be issued a notice. If notice is not given to him then it is like playing Hamlet without the Prince of Denmark, that is, the employee concerned whose rights are affected is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable as noticed by this Court in D. T. C. Mazdoor Sabha case. In such an event we have to hold that in the provision there is an implied required of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, statute, Rule or regulation etc. and it is only on such a conclusion being drawn, the services of the person could be terminated without further notice. That is how Section 35 (3) in this case will have to be read. (13) Admittedly in this case notice has not been given to the appellant before holding that his appointment is irregular or unauthorized and ordering termination of his service. Hence the impugned order terminating the services of the appellant cannot be sustained. ";