- (1.) U. K. Dhaon, J. The State of U. P. has preferred the instant writ petition against the judgment and order dated 20-1-2005 passed by the State Public Services Tribunal, U. P. Lucknow in Claim Petition No. 403 of 2002 by which the State Public Services Tribunal, U. P. Lucknow has allowed the claim petition preferred by the opposite party No. 1 and set-aside the order dated 12-6- 1997 by which the services of the opposite party No. 1 on the post of Deputy Collector in U. P. Civil Services (Executive Branch) were terminated.
(2.) THE brief facts of the case are that the opposite party No. 1 was appointed in the cadre of U. P. Civil Services (Executive Branch) on the basis of the examination conducted by the State Public Service Commission, U. P. Allahabad vide appointment order dated 17-10-1987 on probation for a period of two years. She was required to undergo the training in the Administrative Training Institute (A. T. I.) at Nainital where she could not join. By the modified appointment letter dated 7-5-1988 she was placed on two years probation and was posted as Deputy Collector, Moradabad where she joined on 13-5-1988. THE State Government by the order dated 31-1-1991 extended the probation period of the opposite party No. 1 for a further period of one year under the provisions of Rule 21 (2) of the U. P. Civil Service (Executive Branch) Rules, 1982 (hereinafter referred to as Rules ). THE State Government by the order dated 2-2-1993 directed the opposite party No. 1 to join at Administrative Training Institute, Nainital for the required training which was to commence with effect from 10-5-1993 and in compliance of the said order the opposite party No. 1 joined the training at A. T. I. , Nainital. While the opposite party No. 1 was undergoing the training she received a message about the illness of her son and accordingly on her request she was relieved on 7-7-1993 by the Director A. T. I. , Nainital and proceeded for Bareilly. THE petitioner, thereafter issued a warning to the opposite party No. 1 through letter dated 27-9-1993 and she was directed to join the next course of training which was to commence from 4-7-1994 through a Radiogram Message dated 18-5-1994 sent to the District Magistrate, Bareilly for service upon the opposite party No. 1. By another order dated 1-7-1994 the name of the opposite party No. 1 was withdrawn from the training on the ground that show- cause notice was already issued to the opposite party No. 1 on 25-6-1994. In the said show-cause notice dated 25-6-1994 it was stated that why her services may not be terminated on account of non-fulfilment of conditions mentioned in Rules 21 (2) and 22 of the U. P. Civil Service (Executive Branch) Rules, 1982. THE opposite party No. 1 on 11-7-1994 submitted reply to the said show-cause notice and thereafter on 25-7-1994 submitted additional reply to the said show-cause notice dated 25-6-1994. THE petitioner, thereafter on 12-6-1997 passed the dismissal order by which the services of the petitioner were dismissed. THE opposite party No. 1 has alleged that thereafter she made a representation to the State Government regarding the cancellation of the dismissal order. THE said representation of the opposite party No. 1 was rejected by the petitioner by the order dated 24- 8-1999. THE opposite party No. 1 has further alleged that during the period from November 1999 to December 2001 she made representations to the State Government, which were replied by the Secretary (Appointment) vide letter dated 11-2-2002. Being aggrieved by the action of the petitioner, the opposite party No. 1 filed a writ petition in this Court which was registered as Writ Petition No. 3735 (SB) of 2002 and the same was dismissed on the ground of alternative remedy available to the opposite party No. 1 before the State Public Services Tribunal, U. P. Lucknow. THE opposite party No. 1 thereafter filed a Claim Petition before the State Public Services Tribunal, which was registered as Claim Petition No. 403 of 2002. THE said claim petition was contested by the petitioner and during the pendency of the claim petition the State Government amended the impugned order dated 12-6-1997 and the word "dismissal from service" was substituted by the word "termination of service" by the order dated 23-7-2003. The State Public Services Tribunal, U. P. Lucknow after considering the material on record and after hearing the learned Counsel for the parties allowed the claim petition of the opposite party No. 1 by the impugned judgment and order dated 21- 1-2005 and set-aside the order dated 12-6-1997 by which the services of the opposite party No. 1 were terminated. Sri Sanjai Bhasin, learned Additional Chief Standing Counsel appearing on behalf of the petitioner submitted that the order of termination dated 12-6-1997 is just and legal order as the opposite party No. 1 was not a confirmed employee of the State Government. He further submitted that the learned Tribunal has illegally applied the principle of deemed confirmation by implication in the instant case whereas the principle of implication was not applicable in view of the specific provisions contained in Rule 22. He further submitted that the opposite party No. 1 never completed the required training during the probation period and there is no provision under the rules for automatic confirmation. Learned Counsel for the petitioner has relied upon the provision of Rules 21 and 22 of the U. P. Civil Services (Executive Branch) Rules, 1982. He further submitted that even after the expiry of the extended period of probation, which ended on 30-5-1991 the opposite party No. 1 continued as a probationer in the absence of specific order of confirmation. He further submitted that the learned Tribunal has committed a manifest error of law in holding that the show-cause notice is stigmatic. He further submitted that initially an order of dismissal was passed by the State Government but during the pendency of the claim petition the word dismissal from service was substituted by the word termination of service by the Government Order dated 23-7-2003.
(3.) LEARNED Counsel for the petitioner has relied upon the decisions in the cases of Samsher Singh v. State of Punjab and Anr. , (1974) 2 SCC 831; Shri Kedar Nath Bahl v. State of Punjab and Ors. , (1974) 3 SCC 21; State of Maharashtra v. V. R. Saboji and Anr. , AIR 1980 SC 42; Satya Narayan Athya v. High Court of M. P. and Anr. , (1996) 1 SCC 560; State of U. P. and Ors. v. Rajendra Kumar Singh and Anr. , (1997) 10 SCC 682; Shailaja Shivajirao Patil v. President Hon. Khasdar UGS Sanstha and Ors. , 2002 (1) LBESR 703 (SC) : 2002 (1) ESC 131 (SC); G. N. Nayak v. Goa University and Ors. , (2002) 2 SCC 712; Pavanendra Narayan Verma v. Sanjau Gandhi PGI of Medical Sciences and Anr. , 2002 (1) LBESR 384 (SC) : (2002) 1 SCC 520 and Registrar, High Court of Gujarat and Anr. v. C. G. Sharma, (2005) 1 SCC 132. On the strength of the aforesaid judgments passed by the Hon'ble Supreme Court, the learned Counsel for the petitioner submitted that there is no illegality in the impugned termination order and the impugned judgment and order passed by the State Public Services Tribunal, U. P. Lucknow deserves to be set-aside.;