Sudhir Agarwal, J. - (1.) THE short controversy involved in this case is whether U.P. Temporary Government Servants (Termination of Services) Rules, 1975 (hereinafter referred to as "1975 Rules") are applicable to a member of U.P. Police Force covered by the provisions of Police Act, 1861 (hereinafter referred to as the "Act, 1861") and rules and regulations framed thereunder. The order impugned in this writ petition dated 10.8.2007 has been passed by Senior Superintendent of Police, Mathura in purported exercise of power under 1975 Rules.
(2.) THE issue is no more res integra having been decided by this Court in the case of Praveen Tyagi v. State (Civil Misc. Writ Petition No. 54350 of 2007) decided on 21.8.2009 wherein (Para 11 to 16) this Court has held as under: 11. The question as to whether the Rules framed under proviso to Article of the Constitution will prevail or the Police Regulations, came up for consideration before the Apex Court in Chandra Prakash Tiwari v. Shakuntala Shukla : AIR 2002 SC 2322 and the Apex Court while considering the above question in reference to U.P. Government Servants (Criterion for Recruitment by Promotion) Rules, 1994 framed under proviso to Article qua Government Order dated 05.11.1965 issued under Section 2 of the Act, 1861 held that the Rules framed under proviso to Article would not apply since the field is covered by the statutory order issued under Section 2 of the Act, 1861. It may be noticed that before the Apex Court not even a Rule framed under Act, 1861 was under consideration but only a Government Order 05.11.1965 was up for consideration and the question was whether such Government Order would prevail over the Rules framed under proviso to Article and in that context, the Apex Court answered the question upholding the superiority of the statutory order issued under the provisions of Act, 1861 and decline to give superiority to Rules framed under proviso to Article of the Constitution. 12. Again this matter was considered by a Full Bench in Vijay Singh and Ors. v. State of U.P. and Ors., 2004(4) ESC 2209 with reference to the applicability of U.P. Recruitment of Service (Age Limit) Rules, 1972 and after having a retrospect on the entire case law on the subject, the Full Bench held, that 1972 Rules would not apply where the matter is governed by the provisions made under Act, 1861 and in para 64 of the judgment the Full Bench said 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 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 Tiwari (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. 13. The same view was expressed earlier to Full Bench by the Division Bench in Subhash Chandra Sharma v. State of U.P., 2000 AWC(3) 2367 as is evident from para 16 of the judgment, which is reproduced 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 of the Constitution. In State of U.P. v. 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 far as they are consistent with the provisions of the Constitution. In paragraph 23, it was observed that the Police Act and the Rules made thereunder constitute a self -contained Code providing for appointment of the police officers and prescribing the procedure for their removal. In Nanank Chand v. State of U.P., 1971 ALJ 724, a Full Bench of our Court held as follows: "it is not correct to say that no temporary posts can be created in the Police Force, Section 2 of the Police Act is certainly wide enough to permit such posts to be created, and it appears that it is now the general Rule in U.P. for all new recruits to be employed at first in a temporary capacity. 14. Again in Vijay Shanker Tripathi v. State Public Services Tribunal and Ors. Writ Petition No. 28767 of 1998 decided on 23.11.2005 another Division Bench referring to the Full Bench decision in Vijay Singh (supra) in para 8, observed as under: Large number of issues have been agitated before us, but it is not necessary to entertain all the said pleas for the reason that there can be no doubt to the settled legal proposition that even a temporary employee is entitled to the protection of Article of the Constitution. A Full Bench of this Court in Vijay Singh and Ors. v. State of U.P. and Ors., 2004 (4) ESC 2209, has held that Rules framed under proviso to Article 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. This view also stands fortified by large number of judgments of the Hon'ble Apex Court referred to and relied upon in Vijay Singh (supra) and also in Chandra Prakash Shahi v. State of U.P. and Ors., AIR 2000 SC 1706. 15. In Vijay Shanker Tripathi (supra) this Court specifically considered the question of applicability of 1975 Rules to the constables in police force and it was held that 1975 Rules may not be applicable and for the said purpose the Division Bench relied on Full Bench of this Court in Vijay Singh (supra) and the Apex Court's decision in Chandra Prakash Shahi v. State of U.P. and Ors. : 2000(5) SCC 152. 16. This Court, therefore, is bound by the dictum laid down by the Full Bench of this Court as well as the Apex Court and answer this question in favour of petitioner. The impugned order, therefore, is illegal and without jurisdiction since 1975 Rules are not applicable to the petitioner and his services could have been terminated only in accordance with the procedure prescribed under para 541 of the Regulations and not otherwise. Learned Standing Counsel could not place any other authority wherein an otherwise view has been taken and also could not place anything to pursue this Court to take a different view in the matter.
(3.) IN the circumstances, the writ petition is allowed. The impugned order dated 10.8.2007 passed by respondent No. 3 (Annexure 1 to the writ petition) is hereby quashed. The petitioner shall be entitled to all consequential benefits.;