Virendra Singh Pawar vs State Of U.P.Thru D.G.P. And Ors.
2017 Latest Caselaw 4062 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(AFR)
 

 
RESERVED  ON 19.07.2017
 
DELIVERED ON 07.09.2017
 

 
Case :- WRIT - A No. - 11726 of 2013
 

 
Petitioner :- Virendra Singh Pawar
 
Respondent :- State Of U.P.Thru D.G.P. And Ors.
 
Counsel for Petitioner :- Rajendra Kumar Yadav,Dr.S.K.Yadav,M.K. Sharma,Sushmita Raghav
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This writ petition has been filed challenging the order dated 28.11.2011 passed by the Senior Superintendent of Police, Bulandshahar and praying for a mandamus to the Authorities to allow the petitioner to continue in service.

2. The case of the petitioner as argued by his counsel before this Court is that the petitioner was given an appointment as Recruit Constable in U.P. Police in pursuance of the directions issued by the Deputy Inspector General (Establishment), Police Headquarters, U.P., Allahahabad under the quota of Skilled Sportsmen. The appointment letter was issued by the Senior Superintendent of Police, Bulandshahar on 08.03.2006. The said appointment as Skilled Sportsmen was given in terms of government order dated 02.01.1999, which provided that certain category of Sportsmen should be given relaxation in conditions of appointment/selection to promote excellence in sports in the department. Under the said government order the petitioner being an outstanding judo player was given appointment and he completed his basic training as Constable. He worked for five years without any complaint. No show cause notice was given to him in these five years. Suddenly, a Physical Test was conducted without any notice and at that particular time there was injury in the hand of the petitioner as a result of which he could not do well in the Physical Test. No report from any technical expert was obtained. Nor he was given any opportunity to play the game.

3. On 17.12.2012 the petitioner received an order dated 18.11.2011 passed by the Senior Superintendent of Police, Bulandshahar dispensing with his services.

4. A counter affidavit was filed by the State-Respondents in the aforesaid writ petition in which the State-Respondents have mentioned that in view of paragraph - 9 of the government order dated 2nd of January, 1999 the petitioner who was selected due to being outstanding Sportsman for his skill in the sport of judo could have been discharged from service if he failed to maintain his sport-skill. It has been mentioned that the petitioner was initially given appointment on 08.03.2006 but he could not improve or even maintain his sport-skill during the probation period of two years. His probation was extended by one year. The Assessment Committee constituted thereafter could not find the petitioner to have improved and ultimately a notice was issued to the petitioner on 08.09.2009 and again on 11.06.2010. The petitioner submitted his reply to the show cause notice issued on 11.06.2010 which was considered by the Appointing Authority and then the order of discharge was issued on 28.11.2011. Photocopies of the report of Assessment Committee dated 03.08.2009 and 13.05.2010 and photocopies of the show cause notice issued to the petitioner in terms of the paragraph - 9 of the government order dated 02.01.1999 have been filed as annexures to the counter affidavit. It has further been stated that the reply to the show cause notice was also considered by the Appointing Authority before passing the impugned order of discharge.

5. The case of the petitioner in rejoinder affidavit is that although a show cause notice was given to him and he did file a reply to the same mentioning therein that he had not been given opportunity to play the game and no facilities were given to improve the standard of his game, the said reply was not considered. In case of any misconduct on his part as is evident from the order impugned which has been passed by the Authorities concerned on account of the said misconduct of not being able to improve his game, then, disciplinary proceedings should have been initiated against him and proper opportunity of hearing should have been given to him. It has been alleged that since he was a confirmed employee as he had completed two years of probation period without any adverse orders being passed, he could not have been terminated by order of discharge simpliciter.

6. The counsel for petitioner has placed reliance upon three judgments of this Court rendered in similar cases, namely, (1) Writ - A No. 7971 of 2011: Suresh Kumar Vs. State of U.P. and others, allowed on 04.12.2012; (2) Writ-A No. 6883 of 2011: Rakesh Singh Vs. State of U.P. and others, allowed on 17.01.2013 and; (3) Writ - A No. 8949 of 2011: Saurabh Tyagi Vs. State of U.P. and others, allowed on 05.09.2014 by Coordinate Benches of this Court.

7. The leading case is that of Suresh Kumar wherein this Court has observed that the petitioner therein had improved his performance. It has also been observed by the Court that under the government order dated 02.01.1999 a person appointed as Constable under the Sports Quota would be kept under probation for a period of two years which can be extended twice in the event the incumbent does not improve his case in the Sports Category. The writ petitioner therein had continued for five years and there was nothing on record that the petitioner's probation period was extended after expiry of two years. In absence of any extending of probation period unsatisfactory performance cannot be taken into consideration nor Clause-9 of the government order dated 02.01.1999 could be invoked. It has also been observed that a person when he is appointed under the Special Quota, is so appointed because of his past performance in a particular field of Sports. The appointment is given not for the reason that he would perform better in future pursuant to his appointment. Nor the appointment is on the condition that he would perform better in future.

8. I have gone through the judgment and order dated 04.12.2012 which is distinguishable for two reasons. Firstly, the said judgment refers to the fact that the writ petitioner therein had improved his performance and he was assessed wrongly and secondly, the writ petitioner therein had not been given any extension of probation period after expiry of two years. In the case of the petitioner as it has come on record that the petitioner was assessed by the Assessment Committee twice and was also given extensions in the probation period during which period he could not improve his performance of sports, the petitioner cannot derive any benefit from the judgment and order dated 04.12.2012.

9. However, there is one issue that can be and has been looked into by this Court. The government order dated 02.01.1999 was only an executive instruction issued at a time when there were no Rules with regard to the recruitment and promotion of Police Constables and Sub Inspectors on the basis of excellence in Sports. Paragraph - 9 of the said government order clearly gave power to the Appointing Authority to make an assessment of sport performance during the probation period of two years and grant two extensions to the incumbent concerned to improve his performance and only thereafter, to give a show cause notice to the incumbent on his failure to improve his performance, then consider his reply and take appropriate decision with regard to his services being discontinued, thereafter.

10. The government order dated 02.01.1999 has been superseded by the U.P. Appointment and Promotion of Skilled Sportsmen in Civil Police/Provincial Armed Constabulary Procedure Rules, 2011 notified on 26.05.2011. A copy of the Rules has been filed by the petitioner alongwith his writ petition.

11. The said Rules have been framed by His Excellency the Governor of U.P. in exercise of powers given under Sections 2 read with section 46 of the Police Act, read with relevant provisions of Provincial Armed Constabulary Act, 1948 in supersession of all executive order/instruction/regulations operating in the field. These Rules came into operation w.e.f. 25.06.2011. After the Rules came into operation the government order dated 02.01.1999 could not have been relied upon for passing the order impugned. No doubt a show cause notice was issued to the petitioner, firstly, on 8th of September, 2009 and thereafter, on 11.06.2010 i.e. before the Rules came into operation, but the order impugned has been passed on 28.11.2011 after the said Rules came into operation. Therefore, whatsoever show cause notices were given to the petitioner before the Rules came into operation became redundant after notification of Rules.

12. In the Rules notified in 2011 there is no provision as given in paragraph - 9 of the Government Order dated 02.01.1999. There is a provision under Rules 25 and 26 for keeping newly appointed sports persons on probation in accordance with relevant Service Rules of 2008 for the Civil Police and the Provincial Armed Constabulary. Under the Rule 26 it has been provided that confirmation shall result after successful completion of the probation period provided that the incumbent has successfully completed the requisite training and his work and conduct has been found satisfactory and his integrity has been certified.  There is no reference in Rules as to the performance of incumbent in the relevant Sports Category, excellence in which has resulted into his appointment. 

13. For the reason aforesaid, the writ petition deserves to be allowed and is allowed. The impugned order of discharge dated 28.11.2011 is set aside. 

14. The petitioner shall be reinstated in service but he will not be entitled for any salary for the period he has remained out of service. Such period when the petitioner has remained out of service shall, however, be included for the purpose of grant of consequential service benefits like continuity for the purpose of fixation of Pay Scale, seniority, promotion and retiral dues.

Order Date :- 07.09.2017

LBY