V. K. Shukla, J. - (1.) PETITIONER has approached this Court questioning the validity of the order dated 26-7-2007 passed by Director General (Prisons Jail Administration and Reform Service) U. P. Lucknow, respondent No. 2 dispensing with the service of petitioner by mentioning that services of petitioner is no longer required in exercise of power vested under U. P. Temporary Government Servants (Termination of Service) Rules, 1975.
(2.) BRIEF background of the case as mentioned in the writ petition is that in the year 1999 U. P. Public Service Commission U. P. invited application from eligible and desirous candidate for being considered for several category of posts. Petitioner also applied for consideration of his claim. Petitioner participated in each and every stages of the selection which comprised preliminary examination, mains written examination and interview. Petitioner was declared successful in each of the aforesaid stages and ultimately final result of the aforesaid selection was published wherein petitioner was shown to have been selected for the post of Deputy Jailor. On 25-3-2001 appointment order was issued to the petitioner mentioning therein that petitioner can be posted/transferred at any Jail/institution under the Jail Department. Further it was mentioned that nature of appointment of petitioner is temporary and said appointment can be dispensed with at any point of time without giving any notice. Further mention was made that from the date of appointment for period of two years it would be probationary period of petitioner. Petitioner was posted at District Jail Ghazipur and he joined on 22-4-2001 and has started performing and discharging duties. Probation period of petitioner has been completed on 21-4-2003 and at no point of time period of probation as mentioned in the letter of appointment of petitioner has ever been extended. On 2- 2-2004 censor entry was awarded to the petitioner by the Director General (Prisons Jail Administration and Reform Service) U. P. Lucknow, respondent No. 2 and thereafter on 27-5- 2005 again censor entry was awarded to petitioner by the Director General (Prisons Jail Administration and Reform Service) U. P. Lucknow, respondent No. 2. Petitioner has contended that he has been sanctioned all benefits available to a confirmed and permanent employee including sanction of annual increment, regular monthly deductions from his salary towards G. P. F. and also Group Insurance. On 19- 6-2007 an order was issued by the Director General notifying list of transferred Deputy Jailors and therein petitioner has been transferred and posted at Central Jail Bareilly. Petitioner was relieved on 7- 7-2007 from District Jail, Ghazipur for joining at Central Jail Bareilly. Petitioner claims that he joined at Central Jail Bareilly on 9-7-2007 and thereafter after his joining he applied for leave for the period starting with effect from 10-7-2007 to 15-7-2007 for availing admissible joining time. Petitioner has further contended that he could not resume duties on 16-7-2007 on account of his illness accordingly an application on 14-7-2007 seeking medical leave had been sent. Petitioner has contended that said application has been sent by Speed Post accompanied by Medical certificate and on 17-7-2007 he has further intimated in regard to his illness by telegram. On 26-7-2007 petitioner sent a communication to the Director General (Prisons Jail Administration and Reform Service) U. P. Lucknow, respondent No. 2 detailing the facts pertaining to his illness as also the fact that he has been given medical fitness certificate and he would be resuming his duties at Central Jail, Bareilly on 27-7-2007. Thereafter on 28-7- 2007, petitioner submitted his joining before Senior Superintendent of Jail, Central Jail, Bareilly alongwith the fitness certificate dated 26-7-2007 then at the said juncture petitioner has been served with an order dated 26-7-2007 issued by the Director General (Prisons Jail Administration and Reform Service) U. P. Lucknow, respondent No. 2 terminating the service of the petitioner in exercise of power vested under U. P. Temporary Government Servant (Termination of Services) Rules, 1975. Thereafter petitioner has submitted that he represented the matter on 1-8-2007 before the respondent No. 2 and thereafter nothing has been done then present writ petition has been filed questioning the validity of the decision taken against him. Counter-affidavit has been filed in the present case and it has been asserted that petitioner was appointed on purely temporary basis and during his continuance in service while he was under probation committed number of faults and as such rightly authority vested under U. P. Temporary Government Servant (Termination of Services) Rules, 1975 has been invoked. It has also been contended that petitioner was transferred from District Jail Ghazipur to Central Jail Bareilly and petitioner in spite of joining, never turned up again and has been absconding from service without any notice and it has been reiterated that petitioner's status is that of temporary employee and on earlier three occasion he committed misconduct which were prejudicial and against the interest of the State as well as against the norms of and provisions of service and in this background it has been conducted that petitioner was unsuitable and unfit for the Jail services which is highly disciplined services, as such action taken is not liable to be interfered with. Rejoinder affidavit has been filed and therein it has been reiterated that appointment is to be considered in the light of recruitment rules and as far as appointment of Deputy Jailor is concerned same is governed by the provisions as contained under U. P. Jail Executive Subordinate (Non-Gazetted) Service Rules, 1980 and Rule 20 stipulated an appointment to be on probation for the period of two years which can be extended for reasons to be recorded by the appointing authority and that the period of probation except for exceptional reason will not be extended for more than one year and in no circumstances beyond the limit of two years in this background there exists a maximum period of four years of probation period and there can be no extension of probation period beyond the period of four years and on completion of four years of services from the date of joining the petitioner stands confirmed on the post of Deputy Jailor, in this background by invoking the authority vested under U. P. Temporary Government Servant (Termination of Services) Rules, 1975, petitioner's services cannot be dispensed with. It has also been contended that 3rd censor entry which has been awarded to the petitioner on 19-7-2007 same had not been communicated to him and through counter-affidavit petitioner has acquired knowledge of the same.
(3.) AFTER pleadings mentioned above have been exchanged present writ petition is being taken up for final hearing and disposal with the consent of parties. Sri Ashok Khare, Senior Advocate, assisted by Sri A. K. Mishra, Advocate made following submissions : (i) that petitioner is confirmed employee under the provisions of U. P. Jail Executive Subordinate (Non- Gazetted) Service Rules, 1980 and service of the petitioner could not have been dispensed in exercise of authority vested under U. P. Temporary Government Servant (Termination of Services) Rules, 1975, as such exercise of authority in the fact of present case is nothing but misuser of the authority; (ii) petitioner's appointment has been made on substantive basis on substantive post then by no stretch of imagination petitioner's services could have been treated as temporary services in terms of Rule 2 of U. P. Temporary Government Servant (Termination of Services) Rules, 1975 and as petitioner does not all fall within the scope and ambit of "temporary employee" defined under aforesaid Rules as such provision of U. P. Temporary Government Servant (Termination of Services) Rules, 1975, could not have been invoked; (iii) averments mentioned in the counter-affidavit reflects that non-joining of duties at Central Jail Bareilly has been made foundation and basis for dispensing with the services of the petitioner in this background without undertaking regular departmental proceedings services of the petitioner could not have been dispensed with.;